AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL __, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------
HERTZ TECHNOLOGY GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-896069
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
75 Varick Street, 11th Floor
New York, NY 10013
(212) 634-4000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
-----------------------------
Hertz Technology Group, Inc. 1996 Stock Option Plan
(Full Title of the Plan)
Eli E. Hertz
Hertz Technology Group, Inc.
75 Varick Street, 11th Floor
New York, NY 10013
(212) 634-4000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Please send copies of all correspondence to:
Howard L. Weinreich, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022-2605
Telephone No. (212) 838-4312
Fax No. (212) 838-9190
--------------------
<PAGE>
Calculation of Registration Fees
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) per Share Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value $.001
per share issuable pursuant to
options granted or to be granted
under the 1996 Stock Option Plan,
as amended (the "1996 Plan")
- -----------------------------------------------------------------------------------------------------------------
Common Stock issuable upon
exercise of options granted
under the 1996 Plan (2) 335,452 $1.64 $550,141 $145.24
- -----------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant
to options that may be granted
under the 1996 Plan (3) 414,548 $3.031 $1,256,495 $331.71
- -----------------------------------------------------------------------------------------------------------------
Common Stock (par value $.001)
issuable upon exercise of options
granted outside the 1996 Plan
("Additional Options") (4) 1,278,000 $1.49 (4) $1,904,220 $502.71
- -----------------------------------------------------------------------------------------------------------------
Total 2,028,000 $3,710,856 $980.66
=================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional
shares or rights which by reason of certain events specified in the 1996 Plan
become subject to the Plan.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $1.64 per share for outstanding options to purchase a total of 335,452
shares of Common Stock.
(3) Calculated in accordance with Rule 457(c) and Rule 457(h), the
proposed maximum offering price per share, proposed maximum aggregate offering
price and the amount of the registration fee are based upon the average of the
high and low sales prices reported on the Nasdaq SmallCap Market on April 13,
2000, with respect to shares available for grant under the 1996 Plan.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $1.49 per share for outstanding options to purchase a total of
1,278,000 shares of Common Stock.
================================================================================
2
<PAGE>
HERTZ TECHNOLOGY GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Securities and
Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") are incorporated in this
Prospectus by reference:
(1) Annual Report on Form 10-KSB for the fiscal year ended August 31,
1999;
(2) Quarterly Report on Form 10-QSB for the quarter ended November 30,
1999;
(3) Quarterly Report on Form 10-QSB on the quarter ended February 29,
2000; and
(4) The description of the Company's Common Stock, contained in the
Company's Registration Statement on Form 8-A registering such shares
pursuant to Section 12 of the Exchange Act, including any amendment
or report updating such information.
Each document filed subsequent to the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this registration statement is delivered,
upon the written or oral request of any such person, a copy of any document
incorporated by reference in this registration statement (other than exhibits
unless such exhibits are specifically incorporated by reference in such
documents). Requests should be directed to Hertz Technology Group, Inc., 75
Varick Street, 11th Floor, New York, NY 10013, (212) 634-4000, Attention: Eli E.
Hertz, President.
Item 4. Description of Securities
Not applicable.
4
<PAGE>
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 145 of the Delaware General Corporation Law grants to the Company
the power to indemnify the officers and directors of the Company, under certain
circumstances and subject to certain conditions and limitations as stated
therein, against all expenses and liabilities incurred by or imposed upon them
as a result of suits brought against them as such officers and directors if they
act in good faith and in a manner they reasonably believe to be in or not
opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, have no reasonable cause to believe their conduct was
unlawful.
The Company's certificate of incorporation provides as follows:
"TENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit."
Item 7. Exemption From Registration Claimed
Not Applicable
5
<PAGE>
Item 8. Exhibits
Unless otherwise indicated, the following exhibits are incorporated by reference
from the Company's Registration Statement on Form SB-2 as well as any amendments
thereto (SEC File Number 333-9783 referencing the exhibit number used in such
Registration Statement).
Exhibit No. Description
- ----------- -----------
3.1A Certificate of Incorporation of the Company
3.1B Certificate of Amendment of Certificate of Incorporation
of the Company (Filed on September 9, 1996)
3.1C Certificate of Amendment of Certificate of Incorporation
(Filed November 2, 1998)*
3.1D Certificate of Amendment of Certificate of Incorporation
(Filed February 10, 1999)*
3.1E Certificate of Amendment of Certificate of Incorporation
(Filed March 20, 2000)*
3.2 By-Laws of the Company
4.5 1996 Stock Option Plan, as amended
4.6 Form of Stock Option Agreement pursuant to 1996 Stock
Option Plan*
4.7 Form of Additional Stock Option Agreement*
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to
legality of the securities being registered*
23.1A Consent of Goldstein Golub Kessler LLP (independent
public accountants)*
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included
in Exhibit 5.1)
24 Power of Attorney (included in signature page)
- -------------------------
* Filed herewith.
6
<PAGE>
Item 9. Undertakings
The undersigned hereby undertakes:
(a) To file, during any period in which it offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraph (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described in Item 6 of this Registration Statement,
or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York on this 14 day of April,
2000.
HERTZ TECHNOLOGY GROUP, INC.
By: /s/ Eli E. Hertz
-------------------------------------
Eli E. Hertz,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Barry J. Goldsammler and Howard L. Weinreich, or either
one of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all pre-or post-effective amendments to
this Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might not could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated on April 14, 2000.
Signatures Title
- ---------- -----
/s/ Eli E. Hertz Chairman, President, and Chief
- ----------------------------- Executive Officer
Eli E. Hertz
/s/ I. Marilyn Hertz Vice Chairperson and Director
- -----------------------------
I. Marilyn Hertz
/s/ Barry J. Goldsammler Senior Vice President, Chief Financial
- ----------------------------- and Accounting Officer and Director
Barry J. Goldsammler
/s/ Beryl Ackerman Director
- -----------------------------
Beryl Ackerman
/s/ Bruce Borner Director
- -----------------------------
Bruce Borner
<PAGE>
HERTZ TECHNOLOGY GROUP INC.
INDEX OF EXHIBITS
Unless otherwise indicated, the following exhibits are incorporated by reference
from the Company's Registration Statement on Form SB-2 as well as any amendments
thereto (SEC File Number 333-9783 referencing the exhibit number used in such
Registration Statement).
Exhibit No. Description
- ----------- -----------
3.1A Certificate of Incorporation of the Company
3.1B Certificate of Amendment of Certificate of Incorporation
of the Company (Filed on September 9, 1996)
3.1C Certificate of Amendment of Certificate of Incorporation
(Filed November 2, 1998)*
3.1D Certificate of Amendment of Certificate of Incorporation
(Filed February 10, 1999)*
3.1E Certificate of Amendment of Certificate of Incorporation
(Filed March 20, 2000)*
3.2 By-Laws of the Company
4.5 1996 Stock Option Plan, as amended
4.6 Form of Stock Option Agreement pursuant to 1996 Stock
Option Plan*
4.7 Form of Additional Stock Option Agreement*
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to
legality of the securities being registered*
23.1A Consent of Goldstein Golub Kessler LLP (independent
public accountants)*
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included
in Exhibit 5.1)
24 Power of Attorney (included in signature page)
- -------------------------
* Filed herewith.
EXHIBIT 3.1C
Certificate of Amendment
to the
Certificate of Incorporation
of
Hertz Technology Group, Inc.
The undersigned, being the Chairman, President and Chief Executive Officer
of Hertz Technology Group, Inc. (the "Corporation") hereby certifies that:
FIRST: The name of the Corporation is Hertz Technology Group, Inc.
SECOND: The Certificate of Incorporation was filed with the Secretary of
State on June 18, 1996.
THIRD: The Certificate of Incorporation is hereby amended to effect a
one-for-three reverse stock-split of the issued and outstanding shares of the
Corporation's Common Stock, par value $.001 per share.
FOURTH: To accomplish the foregoing amendment, Article FOURTH is hereby
amended to add the following language at the end thereof:
"At 9:00 a.m. Eastern Standard Time on the date this Amendment to
the Certificate of Incorporation of the corporation is filed with the Secretary
of the State of Delaware and becomes effective, each three (3) shares of common
stock $0.001 par value per share of the corporation (the "Old Common Stock"),
issued and outstanding or held in the treasury of the corporation immediately
prior to the effectiveness of such filing, shall be combined, reclassified and
changed into one (1) fully paid and nonassessable share of common stock $0.001
par value per share ("Common Stock").
Each holder of record of a certificate or certificates for one or
more shares of the Old Common Stock shall be entitled to receive as soon as
practicable, upon surrender of such certificate or certificates, a certificate
or certificates representing shares of Common Stock to which such holder shall
be entitled pursuant to the provisions of the immediately preceding paragraph.
Any certificate for one or more shares of the Old Common Stock not so
surrendered shall be deemed to represent one share of the Common Stock for each
three (3) shares of the Old Common Stock previously represented by such
certificate.
No fractional share of Common Stock or scrip representing fractional
shares shall be issued upon such combination and reclassification of the Old
Common Stock into shares of Common Stock. Instead of there being issued any
fractional shares of Common Stock which would otherwise be issuable upon such
combination and reclassification, the corporation shall round the number of
shares to be received up to the nearest whole number of shares."
<PAGE>
FIFTH: The foregoing amendment was adopted by the Board of Directors of
the Corporation at a special meeting held on September 4, 1998; and pursuant to
ss.228 of the General Corporation Law by the written consent of a majority of
the shares of Old Common Stock entitled to vote thereon, held in accordance with
the provisions of ss.242 of the General Corporation Law.
IN WITNESS WHEREOF, this Certificate is subscribed as of this 2nd day of
November, 1998 by the undersigned who affirms under penalties of perjury that
the statements contained herein are true and correct.
/s/ Eli E. Hertz
------------------------------------------
Eli E. Hertz, Chairman, President & C.E.O.
2
EXHIBIT 3.1D
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
HERTZ TECHNOLOGY GROUP, INC.
Hertz Technology Group, Inc. (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
1. The name of the corporation is Hertz Technology Group, Inc.
2. The certificate of incorporation of the corporation is hereby amended
by striking out Article FOURTH thereof and by substituting in lieu of said
Article the following new Article:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 3,000,000. The par value of each of
such shares is $.001. All such shares are of one class and are
shares of Common Stock."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Executed on this 10th day of February, 1999.
/s/ Eli E. Hertz
------------------------------------------
Eli E. Hertz, Chairman, President & C.E.O.
EXHIBIT 3.1E
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
HERTZ TECHNOLOGY GROUP, INC.
Hertz Technology Group, Inc. (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
1. The name of the corporation is Hertz Technology Group, Inc.
2. The certificate of incorporation of the corporation is hereby amended
by striking out Article FOURTH thereof and by substituting in lieu of said
Article the following new Article:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 6,000,000. The par value of each of
such shares is $.001. All such shares are of one class and are
shares of Common Stock."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Executed on this 20th day of March, 2000.
/s/ Eli E. Hertz
------------------------------------------
Eli E. Hertz, Chairman, President & C.E.O.
EXHIBIT 4.5
HERTZ TECHNOLOGY GROUP INC.
1996 STOCK OPTION PLAN, AS AMENDED
1. PURPOSES. The purposes of this Stock Option Plan are to attract and
retain the best qualified personnel for positions of substantial responsibility,
to provide additional incentive to the Employees of the Company or its
Subsidiaries, if any (as defined in Section 2 below), as well as other
individuals who perform services for the Company or its Subsidiaries, and to
promote the success of the Company's business.
Options granted hereunder may be either "incentive stock options", as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, or
"non-qualified stock options", at the discretion of the Board and as reflected
in the terms of the written instrument evidencing an Option.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Committee, if one has been appointed, or
the Board of Directors of the Company, if no Committee is appointed.
(b) "Common Stock" shall mean the Common Stock of the Company (par
value $.001 per share).
(c) "Company" shall mean Hertz Technology Group, Inc., a Delaware
corporation.
(d) "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(e) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of sick leave, military
leave, or any other leave of absence approved by the Board.
(f) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(h) "Incentive Stock Option" shall mean a stock option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
(i) "Non-qualified Stock Option" shall mean a stock option not
intended to qualify as an Incentive Stock Option.
<PAGE>
(j) "Option" shall mean a stock option granted pursuant to the Plan.
(k) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(l) "Optionee" shall mean an Employee or other person who receives
an Option.
(m) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Internal Revenue Code of
1986, as amended.
(n) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(o) "SEC" shall mean the Securities and Exchange Commission.
(p) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(q) "Subsidiary" shall mean a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 424(f) of the Internal Revenue Code
of 1986, as amended.
3. STOCK.
Subject to the provisions of Section 11 of the Plan, the maximum aggregate
number of shares which may be optioned and sold under the Plan is 750,000 shares
of Common Stock. If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for further grant under the Plan.
4. ADMINISTRATION.
(a) Procedure. The Company's Board of Directors may appoint a Committee to
administer the Plan. The Committee shall consist of not less than two members of
the Board of Directors who shall administer the Plan on behalf of the Board of
Directors, subject to such terms and conditions as the Board of Directors may
prescribe. Once appointed, the Committee shall continue to serve until otherwise
directed by the Board of Directors. From time to time the Board of Directors may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause), and appoint new members in substitution
therefor, fill vacancies, however caused, or remove all members of the Committee
and thereafter directly administer the Plan.
The Committee must consist of not less than two members of the Board of
Directors, all of whom are "Non-Employee Directors" as defined in Rule 16b-3 of
the General Rules and Regulations promulgated under the Exchange Act.
(b) Powers of the Board. Subject to the provisions of the Plan, the Board
shall have the authority, in its discretion: (i) to grant Incentive Stock
Options, in accordance with Section 422 of the Internal Revenue Code of 1986, as
amended, or to grant Non-qualified Stock Options; (ii) to determine, upon review
of relevant information and in accordance with Section 8(b) of the Plan, the
fair market value of the Common Stock; (iii) to determine the exercise price per
share of Options to be granted which exercise price shall be determined in
accordance with Section 8(a) of the Plan; (iv) to determine the persons to whom,
and the time or times at which, Options shall be granted and the
2
<PAGE>
number of shares to be represented by each Option; (v) to interpret the Plan;
(vi) to prescribe, amend and rescind rules and regulations relating to the Plan;
(vii) to determine the terms and provisions of each Option granted (which need
not be identical) and, with the consent of the holder thereof, modify or amend
each Option; (viii) to accelerate or defer (with the consent of the Optionee)
the exercise date of any Option; (ix) to authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option previously granted by the Board; and (x) to make all other determinations
deemed necessary or advisable for the administration of the Plan.
(c) Effect of the Board's Decision. All decisions, determinations, and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. ELIGIBILITY; NON-DISCRETIONARY GRANTS.
(a) General. Incentive Stock Options may be granted only to Employees.
Non-qualified Stock Options may be granted to employees as well as directors,
independent contractors and agents, as determined by the Board. Any person who
has been granted an Option may, if he is otherwise eligible, be granted an
additional Option or Options. The Plan shall not offer upon any Optionee any
right with respect to continuation of employment by the Company, nor shall it
interfere in any way with his right or the Company's right to terminate his
employment at any time.
(b) Limitation on Incentive Stock Options. No Incentive Stock Option may
be granted to an Employee if, as the result of such grant, the aggregate fair
market value (determined at the time each option was granted) of the Shares with
respect to which such Incentive Stock Options are exercisable for the first time
by such Employee during any calendar year (under all such plans of the Company
and any Parent and Subsidiary) shall exceed One Hundred Thousand Dollars
($100,000).
(c) Annual Limitation on all Stock Options. No Stock Options may be
granted to any Employee in any fiscal year if as a result of such grant the
aggregate number of shares subject to options granted to such Employee that year
(under all such plans of the Company and any Parent or Subsidiary) exceed
100,000 shares subject to the anti-dilution provisions of this Plan (Section11)
and/or other Plans as applicable.
6. TERM OF THE PLAN. The Plan shall become effective upon the earlier to
occur of (i) its adoption by the Board of Directors, or (ii) its approval by
vote of the holders of a majority of the outstanding shares of the Company
entitled to vote on the adoption of the Plan. The Plan shall continue in effect
until August 6, 2006 unless sooner terminated under Section 13 of the Plan.
7. TERM OF THE OPTION. The term of each Option shall be ten (10) years
from the date of grant hereof or such shorter term as may be provided in the
instrument evidencing the Option. However, in the case of an Incentive Stock
Option granted to an Employee who, immediately before the Incentive Stock Option
is granted, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
term of the Incentive Stock Option shall be five (5) years from the day of grant
thereof or such shorter time as may be provided in the instrument evidencing the
Option.
3
<PAGE>
8. EXERCISE PRICE AND CONSIDERATION.
(a) The per Share exercise price for the Shares to be issued pursuant to
the exercise of an Option shall be such price as is determined by the Board, but
shall be subject to the following:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, immediately before the grant
of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price
shall be no less than 110% of the fair market value per Share on the
date of grant, as the case may be;
(B) granted to an Employee not subject to the provisions of
Section 8(a)(i)(A), the per Share exercise price shall be no less
than one hundred percent (100%) of the fair market value per Share
on the date of grant.
(ii) In the case of a Non-qualified Stock Option, the per Share
exercise price shall be no less than one hundred percent (100%) of
the fair market value per Share on the date of grant.
(b) The fair market value shall be determined by the Board in its
discretion; provided, however, that where there is a public market for the
Common Stock, the fair market value per Share shall be the mean of the bid and
asked prices or, if applicable, the closing price of the Common Stock on the
date of grant, as reported by the National Association of Securities Dealers
Automated Quotation (NASDAQ) System or, in the event the Common Stock is listed
on a stock exchangeable, the fair market value per Share shall be the closing
price on such exchange on the date of grant of the Option, as reported in the
Wall Street Journal.
(c) The consideration to be paid for the Shares to be issued upon exercise
of an Option or in payment of any withholding taxes thereon, including the
method of payment, shall be determined by the Board and may consist entirely of
(i) cash, check or promissory note; (ii) other Shares of Common Stock owned by
the Employee having a fair market value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised; (iii) an assignment by the Employee of the net proceeds to be
received from a registered broker upon the sale of the Shares or the proceeds of
a loan from such broker in such amount; or (iv) any combination of such methods
of payment, or such other consideration and method of payment for the issuance
of Shares to the extent permitted under Delaware Law and meeting rules and
regulations of the SEC to plans meeting the requirements of Section 16(b)(3) of
the Exchange Act.
9. EXERCISE OF OPTION.
(a) Procedure or Exercise; Rights as a Stockholder. Any option granted
hereunder shall be exercisable at such times and subject to such conditions as
may be determined by the Board, including performance criteria with respect to
the Company and/or the Optionee, and as shall be permissible under the terms of
the Plan.
An Option may not be exercised for a fraction of a Share.
4
<PAGE>
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of the
instrument evidencing the Option by the person entitled to exercise the Option
and full payment for the Shares with respect to which the Option is exercised
has been received by the Company. Full payment may, as authorized by the Board,
consist of any consideration and method of payment allowable under Section 8(c)
of the Plan; it being understood that the Company shall take such action as may
be reasonably required to permit use of an approved payment method. Until the
issuance, which in no event will be delayed more than thirty (30) days from the
date of the exercise of the Option, (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the Company)
of the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. No adjustment will
be made for a dividend or other rights for which the record date is prior to the
date the stock certificate is issued, except as provided in the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Status as an Employee. If any Employee ceases to serve
as an Employee, he may, but only within thirty (30) days (or such other period
of time not exceeding three (3) months as is determined by the Board) after the
date he ceases to be an Employee of the Company, exercise his Option to the
extent that he was entitled to exercise it as of the date of such termination.
To the extent that he was not entitled to exercise the Option at the date of
such termination, or if he does not exercise such Option (which he was entitled
to exercise) within the time specified herein, the Option shall terminate.
(c) Notwithstanding the provisions of Section 9(b) above, in the event an
Employee is unable to continue his employment with the Company as a result of
his total and permanent disability (as defined in Section 105(d)(4) of the
Internal Revenue Code of 1986, as amended), he may, buy only within three (3)
months (or such other period of time not exceeding twelve (12) months as is
determined by the Board) from the date of disability, exercise his Option to the
extent he was entitled to exercise it at the date of such disability. To the
extent that he was not entitled to exercise it at the date of such disability,
or if he does not exercise such Option (which he was entitled to exercise)
within the time specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option who is at the time of his death an
Employee of the Company and who shall have been in Continuous Status
as an Employee since the date of grant of the Option, the Option may
be exercised, at any time within twelve (12) months following the
date of death, by the Optionee's estate or by a person who acquired
the right to exercise that would have accrued had the Optionee
continued living one (1) month after the date of death; or
(ii) within thirty (30) days (or such other period of time not exceeding
three (3) months as is determined by the Board) after the
termination of Continuous Status as an Employee, the Option may be
exercised, at any time within three (3) months following the date of
death, by the Optionee's estate or by a person who acquired the
right to exercise the
5
<PAGE>
Option by bequest or inheritance, but only to the extent of the
right to exercise that had accrued at the date of termination.
10. NON-TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the Stockholders of the Company, the number of Shares covered
by each outstanding Option, and the number of Shares which have been authorized
for issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split or the payment of a stock dividend
with respect to the Common Stock or any other increase or decrease in the number
of issued shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, or
in the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Board of Directors of the Company shall, as to outstanding Options, either (i)
make appropriate provision for the protection of any such outstanding Options by
the substitution on an equitable basis of appropriate stock of the Company or of
the merged, consolidated or otherwise reorganized corporation which will be
issuable in respect to one share of Common Stock of the Company; provided, only
that the excess of the aggregate fair market value of the Shares subject to the
Options immediately after such substitution over the purchase price thereof is
not more than the excess of the aggregate fair market value of the shares
subject to such Options immediately before such substitution over the purchase
price thereof, or (ii) upon written notice to an Optionee, provide that all
unexercised Options must be exercised within a specified number of days of the
date of such notice or they will be terminated. In any such case, the Board of
Directors may, in its discretion, advance the lapse of any waiting or
installment periods and exercise dates.
12. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date on which the Board makes the determination granting
such Option. Notice of the determination shall be given to each person to whom
an Option is so granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) The Board may amend or terminate the Plan from time to time in such
respects as the Board may deem advisable; provided, however, that the following
revisions or amendments shall require approval of the holders of a majority of
the outstanding shares of the Company entitled to vote:
6
<PAGE>
(i) any increase in the number of Shares subject to the Plan, other than
in connection with an adjustment under Section 11 of the Plan;
(ii) any change in the designation of the class of persons eligible to be
granted options; or
(iii) any material increase in the benefits accruing to participants under
the Plan.
(b) Stockholder Approval. If any amendment requiring stockholder approval
under Section 13(a) of the Plan is made, such stockholder approval shall be
solicited as described in Section 17 of the Plan.
(c) Effect of Amendment or Termination. Any such amendment or termination
of the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the Optionee and the Board,
which agreement must be in writing and signed by the Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares, if in the opinion of
counsel for the Company, such a representation is required by, or appropriate
under, any of the aforementioned relevant provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
17. STOCKHOLDER APPROVAL. Adoption of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted by the Board of Directors. If such
stockholder approval is obtained at a duly held stockholders' meeting, it may be
obtained by the affirmative vote of the holders of a majority of the outstanding
shares of the Company entitled to vote thereon.
18. OTHER PROVISIONS. The Stock Option Agreement authorized under the Plan
shall contain such other provisions, including, without limitations,
restrictions upon the exercise of the
7
<PAGE>
Option, as the Board of Directors of the Company shall deem advisable. Any
Incentive Stock Option Agreement shall contain such limitations and restrictions
upon the exercise of the Incentive Stock Option as shall be necessary in order
that such option will be an Incentive Stock Option as defined in Section 422 of
the Internal Revenue Code of 1986, as amended.
19. INDEMNIFICATION OF BOARD. In addition to such other rights of
indemnification as they may have as directors or as members of the Board, the
members of the Board shall be indemnified by the Company against the reasonable
expenses, including attorneys' fees actually and necessarily incurred in
connection with the defense of any action suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection without the Plan or
any Option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding that such Board member is liable for
negligence or misconduct in the performance of his duties, provided that within
sixty (60) days after institution of any such action, suit or proceeding a Board
member shall, in writing, offer the Company the opportunity, at its own expense,
to handle and defend the same.
20. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect
any other stock option or incentive or other compensation plans in effect for
the Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
21. COMPLIANCE WITH EXCHANGE ACT RULE 16b-3. With respect to persons
subject to Section 16 of the Exchange Act, transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Board fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Board.
22. SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the singular
shall include the plural, and the masculine pronoun shall include the feminine
gender.
23. HEADINGS, ETC., NO PART OF PLAN. Headings of Articles and Sections
hereof are inserted for convenience and reference; they constitute no part of
the Plan.
8
EXHIBIT 4.6
Incentive Stock Option
HERTZ TECHNOLOGY GROUP, INC.
STOCK OPTION AGREEMENT
As of____________, 2000
HERTZ TECHNOLOGY GROUP, INC., a Delaware corporation (the "Company"),
pursuant to the Company's 1996 Stock Option Plan, as amended (the "Plan"),
hereby grants to (the "Optionee") a stock option to purchase a total ________
shares of the Company's Common Stock, par value $.001 per share ("Common
Stock"), at the price per share of $________ on the terms and conditions set
forth herein and in the Plan. This option is intended to constitute and qualify
as an Incentive Stock Option, as defined by Section 422 of The Internal Revenue
Code of 1986, as amended (the "Code"). To the extent this option does not meet
the criteria of an Incentive Stock Option as defined in Section 422 of the Code
it shall constitute a non-qualified stock option subject to Section 83 of the
Code.
1. Duration.
(a) This option was granted on the date first above written.
(b) This option shall expire at the close of business on ________, ____
(the "Termination Date").
2. Written Notice of Exercise.
This option may be exercised only by delivering to the Secretary of the
Company, at its principal office within the time specified in Paragraph 1 or
such shorter time as is otherwise provided for herein, a written notice of
exercise substantially in the form described in Section 10.
<PAGE>
3. Anti-Dilution Provisions.
(a) If there is any stock dividend or recapitalization resulting in a
stock split, or combination or exchange of shares of Common Stock of the
Company, the number of shares of Common Stock then subject to this option shall
be proportionately and appropriately adjusted; no change shall be made in the
aggregate purchase price to be paid for all shares subject to this option, but
the aggregate purchase price shall be allocated among all shares subject to this
option after giving effect to the adjustment; provided, however, that any
fractional shares resulting from any such adjustment shall be eliminated.
(b) If there is any other change in the Common Stock of the Company,
including recapitalization, reorganization, sale or exchange of assets, exchange
of shares, offering of subscription rights, or a merger or consolidation in
which the Company is the surviving corporation, an adjustment, if any, shall be
made in the shares then subject to this option as the Company's Board of
Directors the ("Board") or the Compensation Committee of the Board (the
"Committee") may deem equitable. Failure of the Board or the Committee to
provide for an adjustment pursuant to this subparagraph prior to the effective
date of any Company action referred to herein shall be conclusive evidence that
no adjustment is required in consequence of such action.
(c) If the Company is merged into or consolidated with any other
corporation, or if it sells all or substantially all of its assets to any other
corporation, then either (i) the Company shall cause provisions to be made for
the continuance of this option after such event, or for the substitution for
this option of an option covering the number and class of securities and/or cash
or other property which the Optionee would have been entitled to receive in such
merger or consolidation by virtue of such sale if the Optionee had been the
holder of record of a number of shares of Common Stock of the Company equal to
the number of shares covered by the unexercised portion of this option;
provided, only that the excess of the aggregate fair market value of the shares
2
<PAGE>
subject to the options immediately after such substitution over the purchase
price thereof is not more than the excess of the aggregate fair market value of
the shares subject to such options immediately before such substitution over the
purchase price thereof, or (ii) the Company shall give to the Optionee written
notice of its election not to cause such provision to be made and this option
shall become exercisable in full (or, at the election of the Optionee, in part)
at any time during a period of ten (10) days, to be designated by the Company,
ending not more than ten (10) days prior to the effective date of the merger,
consolidation or sale, in which case this option shall not be exercisable to any
extent after the expiration of such ten (10) day period. In no event, however,
shall this option be exercisable after the Termination Date.
4. Investment Representation and Legend of Certificates.
The Optionee agrees that until such time as a registration statement under
the Securities Act of 1933, as amended, becomes effective with respect to the
option and/or the stock, the Optionee is taking this option and will take the
stock underlying this option, for investment and not for resale or distribution.
The Company shall have the right to place upon the face of any stock certificate
or certificates evidencing shares issuable upon the exercise of this option such
legend as the Board on the Committee may prescribe for the purpose of preventing
disposition of such shares in violation of the Securities Act of 1933, as
amended.
5. Non-Transferability.
This option shall not be transferable by the Optionee other than by will
or by the laws of descent and distribution, and is exercisable during the
lifetime of the Optionee only by the Optionee.
6. Certain Rights Not Conferred by Option.
The Optionee shall not, by virtue of holding this option, be entitled to
any rights of a stockholder in the Company.
7. Expenses.
The Company shall pay all original issue and transfer taxes with respect
to the issuance and transfer of shares of Common Stock of the Company pursuant
hereto and all other fees and expenses necessarily incurred by the Company in
connection therewith.
3
<PAGE>
8. Exercise of Options.
(a) The amount of shares pursuant to this option that shall become
exercisable are as follows:
_______shares commencing ____, 1998
_______shares commencing ____, 1999
_______shares commencing ____, 2000
(b) An option shall be exercisable by written notice of such exercise, in
the form prescribed by the Board or the Committee, to the Secretary of the
Company, at its principal office. The notice shall specify the number of shares
for which the option is being exercised (which number, if less than all of the
shares then subject to exercise, shall be 100 or a multiple thereof) and shall
be accompanied by payment (i) in cash or by check of the amount of the full
purchase price of such shares or (ii) in such other manner as the Board or the
Committee shall deem acceptable.
(c) No shares shall be delivered upon exercise of any option until all
laws, rules and regulations which the Board or the Committee may deem applicable
have been complied with. If a registration statement under the Securities Act of
1933, as amended, is not then in effect with respect to the shares issuable upon
such exercise, the Company may require as a condition precedent that the person
exercising the option give to the Company a written representation and
undertaking, satisfactory in form and substance to the Board or the Committee,
that such person is acquiring the shares for their own account for investment
and not with a view to the distribution thereof.
(d) The person exercising an option shall not be considered a record
holder of the stock so purchased for any purpose until the date on which such
person is actually recorded as the holder of such stock in the records of the
Company.
(e) This option shall be exercisable only so long as the Optionee shall
continue to be an employee of the Company and within the three month period
after the date of termination of his employment to the extent it was exercisable
on the day prior to the date of termination.
4
<PAGE>
Notwithstanding the foregoing, in no event shall this Option be exercisable
after the Termination Date.
(f) Notwithstanding the provisions of Section 8(e) above, in the event the
Optionee is unable to continue his employment with the Company as a result of
his total and permanent disability (as defined in Section 105(d)(4) of the
Internal Revenue Code of 1986, as amended), he may, but only within twelve (12)
months from the date of disability, exercise this option to the extent he was
entitled to exercise it at the date of such disability. Notwithstanding the
foregoing, in no event shall this option be exercisable after the Termination
Date.
(g) Notwithstanding the provisions of Section 8(e) above, in the event of
death of the Optionee:
(i) during the term of this option who is at the time of his death
an employee of the Company and who shall have been in Continuous Status (as
defined in the Plan) as an employee since the date of grant of this option, this
option may be exercised, at any time within twelve (12) months following the
date of death, by the Optionee's estate or by a person who acquired the right to
exercise this option by bequest or inheritance, but only to the extent of the
right that would have accrued had the Optionee continued living one (1) month
after the date of death; or
(ii) within three (3) months after the termination of Continuous
Status as an employee, this option may be exercised, at any time within three
(3) months following the date of death, by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent of the right to exercise that had accrued at the date of
termination.
Notwithstanding the provisions of this Section (g), in no event shall this
option be exercisable after the Termination Date.
5
<PAGE>
9. Continued Employment.
Nothing herein shall be deemed to create any employment agreement or
guaranty of continued employment or limit in any way the Company's right to
terminate Optionee's employment at any time.
Hertz Technology Group, INC.
By: ______________________________
Eli E. Hertz, President
Accepted as of the date
first set forth above.
______________________________
6
EXHIBIT 4.7
NON QUALIFIED OPTION
HERTZ TECHNOLOGY GROUP, INC.
STOCK OPTION AGREEMENT
As of September 23, 1997
HERTZ TECHNOLOGY GROUP, INC., a Delaware corporation (the "Company"),
hereby grants to _____________ (the "Optionee") a stock option to purchase a
total 250,000 shares of the Company's Common Stock, par value $.001 per share
("Common Stock"), at the price per share of $1.50 on the terms and conditions
set forth herein. This option is a non-qualified stock option, subject to
Section 83 of The Internal Revenue Code of 1986, as amended (the "Code") and is
being granted separate and apart from the Company's 1996 Stock Option Plan.
1. Duration.
(a) This option was granted on the date first above written.
(b) This option shall expire at the close of business on September 22,
2002 (the "Termination Date").
2. Written Notice of Exercise.
This option may be exercised only by delivering to the Secretary of the
Company, at its principal office within the time specified in Paragraph 1 or
such shorter time as is otherwise provided for herein, a written notice of
exercise substantially in the form described in Section 8.
3. Anti-Dilution Provisions.
(a) If there is any stock dividend or recapitalization resulting in a
stock split, or combination or exchange of shares of Common Stock of the
Company, the number of shares of
<PAGE>
Common Stock then subject to this option shall be proportionately and
appropriately adjusted; no change shall be made in the aggregate purchase price
to be paid for all shares subject to this option, but the aggregate purchase
price shall be allocated among all shares subject to this option after giving
effect to the adjustment; provided, however, that any fractional shares
resulting from any such adjustment shall be eliminated.
(b) If there is any other change in the Common Stock of the Company,
including recapitalization, reorganization, sale or exchange of assets, exchange
of shares, offering of subscription rights, or a merger or consolidation in
which the Company is the surviving corporation, an adjustment, if any, shall be
made in the shares then subject to this option as the Company's Board of
Directors the ("Board") or the Compensation Committee of the Board (the
"Committee") may deem equitable. Failure of the Board or the Committee to
provide for an adjustment pursuant to this subparagraph prior to the effective
date of any Company action referred to herein shall be conclusive evidence that
no adjustment is required in consequence of such action.
(c) If the Company is merged into or consolidated with any other
corporation, or if it sells all or substantially all of its assets to any other
corporation, then either (i) the Company shall cause provisions to be made for
the continuance of this option after such event, or for the substitution for
this option of an option covering the number and class of securities and/or cash
or other property which the Optionee would have been entitled to receive in such
merger or consolidation by virtue of such sale if the Optionee had been the
holder of record of a number of shares of Common Stock of the Company equal to
the number of shares covered by the unexercised portion of this option;
provided, only that the excess of the aggregate fair market value of the shares
subject to the options immediately after such substitution over the purchase
price thereof is not more than the excess of the aggregate fair market value of
the shares subject to such options immediately before such substitution over the
purchase price thereof, or (ii) the Company shall give to the Optionee written
notice of its election not to cause such provision to be made and this option
shall become exercisable in full (or, at the election of the
2
<PAGE>
Optionee, in part) at any time during a period of ten (10) days, to be
designated by the Company, ending not more than ten (10) days prior to the
effective date of the merger, consolidation or sale, in which case this option
shall not be exercisable to any extent after the expiration of such ten (10) day
period. In no event, however, shall this option be exercisable after the
Termination Date.
4. Investment Representation and Legend of Certificates.
The Optionee agrees that until such time as a registration statement under
the Securities Act of 1933, as amended, becomes effective with respect to the
option and/or the stock, the Optionee is taking this option and will take the
stock underlying this option, for investment and not for resale or distribution.
The Company shall have the right to place upon the face of any stock certificate
or certificates evidencing shares issuable upon the exercise of this option such
legend as the Board on the Committee may prescribe for the purpose of preventing
disposition of such shares in violation of the Securities Act of 1933, as
amended.
5. Non-Transferability.
This option shall not be transferable by the Optionee other than by
will or by the laws of descent and distribution, and is exercisable during the
lifetime of the Optionee only by the Optionee.
6. Certain Rights Not Conferred by Option.
The Optionee shall not, by virtue of holding this option, be
entitled to any rights of a stockholder in the Company.
7. Expenses.
The Company shall pay all original issue and transfer taxes with
respect to the issuance and transfer of shares of Common Stock of the Company
pursuant hereto and all other fees and expenses necessarily incurred by the
Company in connection therewith.
8. Exercise of Options.
(a) The amount of shares pursuant to this option that shall become
exercisable are as follows:
3
<PAGE>
83,333 shares commencing September 23, 1998
83,333 shares commencing September 23, 1999
83,334 shares commencing September 23, 2000
(b) An option shall be exercisable by written notice of such exercise, in
the form prescribed by the Board or the Committee, to the Secretary of the
Company, at its principal office. The notice shall specify the number of shares
for which the option is being exercised (which number, if less than all of the
shares then subject to exercise, shall be 100 or a multiple thereof) and shall
be accompanied by payment (i) in cash or by check of the amount of the full
purchase price of such shares or (ii) in such other manner as the Board or the
Committee shall deem acceptable.
(c) No shares shall be delivered upon exercise of any option until all
laws, rules and regulations which the Board or the Committee may deem applicable
have been complied with. If a registration statement under the Securities Act of
1933, as amended, is not then in effect with respect to the shares issuable upon
such exercise, the Company may require as a condition precedent that the person
exercising the option give to the Company a written representation and
undertaking, satisfactory in form and substance to the Board or the Committee,
that such person is acquiring the shares for his own account for investment and
not with a view to the distribution thereof.
(d) The person exercising an option shall not be considered a record
holder of the stock so purchased for any purpose until the date on which such
person is actually recorded as the holder of such stock in the records of the
Company.
(e) This option shall be exercisable only so long as the Optionee shall
continue to be an employee of the Company and within the three month period
after the date of termination of his employment to the extent it was exercisable
on the day prior to the date of termination. Notwithstanding the foregoing, in
no event shall this Option be exercisable after the Termination Date.
(f) Notwithstanding the provisions of Section 8(e) above, in the event the
Optionee is unable to continue his employment with the Company as a result of
his total and permanent
4
<PAGE>
disability (as defined in Section 105(d)(4) of the Internal Revenue Code of
1986, as amended), he may, but only within twelve (12) months from the date of
disability, exercise this option to the extent he was entitled to exercise it at
the date of such disability. Notwithstanding the foregoing, in no event shall
this option be exercisable after the Termination Date.
(g) Notwithstanding the provisions of Section 8(e) above, in the event of
death of the Optionee:
(i) during the term of this option who is at the time of his death
an employee of the Company and who shall have been in continuous status as an
employee since the date of grant of this option, this option may be exercised,
at any time within twelve (12) months following the date of death, by the
Optionee's estate or by a person who acquired the right to exercise this option
by bequest or inheritance, but only to the extent of the right that would have
accrued had the Optionee continued living one (1) month after the date of death;
or
(ii) within three (3) months after the termination of Optionee's
continuous status as an employee, this option may be exercised, at any time
within three (3) months following the date of death, by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the right to exercise that had accrued at
the date of termination.
Notwithstanding the provisions of this Section (g), in no event shall this
option be exercisable after the Termination Date.
5
<PAGE>
9. Continued Employment.
Nothing herein shall be deemed to create any employment agreement or
guaranty of continued employment or limit in any way the Company's right to
terminate Optionee's employment at any time.
Hertz Technology Group, Inc.
By: ________________________________
Name:
Title:
Accepted as of the date
first set forth above.
_____________________________
Name:
Title:
6
EXHIBIT 5.1
MORSE, ZELNICK, ROSE & LANDER
A LIMITED LIABILITY PARTNERSHIP
450 PARK AVENUE
NEW YORK, NEW YORK 10022-2605
212 838 1177
FAX 212 838 9190
April 14, 2000
Hertz Technology Group, Inc.
75 Varick Street, 11th Floor
New York, New York 10013
Re: Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel to Hertz Technology Group, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Act"), to register the offering by the Company of
shares of Common Stock, par value $0.001 per share (the "Shares"), issuable upon
exercise of options granted or to be granted under the Company's 1996 Stock
Option Plan, as amended (the "Plan") and issuable upon exercise of options
granted outside of the Plan (the "Additional Options").
In this regard, we have reviewed the Certificate of Incorporation of the
Company, as amended, resolutions adopted by the Company's Board of Directors,
the Plan, the forms of Option Agreement, and such other records, documents,
statutes and decisions as we have deemed relevant in rendering this opinion.
Based upon the foregoing, we are of the opinion that the Shares issuable
upon exercise of the options granted and to be granted under the Plan and the
Shares issuable upon exercise of the Additional Options have been duly and
validly authorized for issuance and when issued and delivered as contemplated by
the Plan and the Option Agreement will be legally issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this opinion, we do not hereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the SEC thereunder.
Very truly yours,
/s/ Morse, Zelnick, Rose & Lander, LLP
--------------------------------------------
Morse, Zelnick, Rose & Lander, LLP
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Hertz Technology Group, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 21, 1999 on the consolidated
financial statements of Hertz Technology Group, Inc. included in the Annual
Report on Form 10-KSB for the year ended August 31, 1999.
GOLDSTEIN GOLUB KESSLER LLP
New York, New York
April 14, 2000
