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As filed with the Securities and Exchange Commission on October 1, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Triumph Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 51-0347963
(State or other jurisdiction of incorporation (I.R.S. Employer or
organization) Identification No.)
Four Glenhardie Corporate Center
1255 Drummers Lane, Suite 200
Wayne, Pennsylvania 19087
(Address of Principal Executive Offices) (Zip Code)
Triumph Group, Inc.
1996 Stock Option Plan
(Full title of the plan)
Richard C. Ill
President and Chief Executive Officer
Four Glenhardie Corporate Center
1255 Drummers Lane, Suite 200
Wayne, Pennsylvania 19087
(Name and address of agent for service)
(610) 975-0420
(Telephone number, including area code, of agent for service)
with a copy to:
Gerald J. Guarcini, Esquire
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price(1) Fee
- ------------------------------------------------------------------------------
Common Stock,
par value $.001
per share 518,750(2) (1) $13,616,790 $4,127
- ------------------------------------------------------------------------------
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(1) Calculated in accordance with Rule 457(c) and (h), (a) on the basis of the
average of the high and low prices of Triumph Group, Inc. Common Stock on
September 24, 1997, as reported on the New York Stock Exchange for the
268,610 options to purchase shares of Common Stock, not currently
issued under the Plan and (b) on the basis of $19.00, the exercise
price for the 250,140 options to purchase shares of Common Stock
currently outstanding under the Plan.
(2) Such number represents the number of shares of Common Stock initially
issuable upon exercise of all options available for grant under the Plan.
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be given or sent to all officers and other key
employees of Triumph Group, Inc. (the "Company") who participate in the Triumph
Group, Inc. 1996 Stock Option Plan as specified by Rule 428 under the Securities
Act of 1933, as amended.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by Triumph Group, Inc. (the "Company") (File No.
1-12235) are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997.
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
(iii) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission on September 27, 1996.
All documents subsequently filed by the Company after the date hereof
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
hereby have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and shall be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Bylaws of the Company provide for indemnification of directors and
officers in accordance with indemnification provisions of the Delaware General
Corporation Law. The Delaware statute permits indemnification of directors and
officers of a corporation under certain conditions and subject to certain
limitations.
The Company's Amended and Restated Certificate of Incorporation
provides that, subject to certain limitations, no director shall be personally
liable to the Registrant or its stockholders for monetary damages for any breach
of fiduciary duty by such director as a director.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4 to Registration Statement on Form S-1,
Reg. No. 333-10777).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Ernst & Young LLP
23.3 Consent of Ballard Spahr Andrews & Ingersoll (contained in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page of Registration
Statement)
99.1 Triumph Group, Inc. 1996 Stock Option Plan
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Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(3) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of 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 Wayne, Commonwealth of Pennsylvania on September 26,
1997.
TRIUMPH GROUP, INC.
By : /s/ Richard C. Ill
----------------------------
Richard C. Ill, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below in so signing also makes,
constitutes and appoints Richard C. Ill, and each of them, his true and lawful
attorney-in-fact, with full power of substitution, for him in any and all
capacities, to execute and cause to be filed with the Securities and Exchange
Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto and other documents in connection
therewith, and hereby ratifies and confirms all that said attorney-in-fact or
his substitute or substitutes may do or cause to be done by virtue hereof.
Signature Title Date
/s/ Richard C. Ill
- ------------------------
Richard C. Ill President, Chief September 26, 1997
Executive Officer
and Director (Principal
Executive Officer)
/s/ John R. Bartholdson
- ------------------------
John R. Bartholdson Senior Vice President, September 26, 1997
Chief Financial Officer,
Treasurer and Director
(Principal Financial
Officer)
/s/ Kevin E. Kindig
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Kevin E. Kindig Controller (Principal September 26, 1997
Accounting Officer)
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/s/ Richard C. Gozon
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Richard C. Gozon Director September 26, 1997
/s/ Claude F. Kronk
- ------------------------
Claude F. Kronk Director September 26, 1997
/s/ Joseph M. Silvestri
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Joseph M. Silvestri Director September 26, 1997
/s/ Michael A. Delaney
- ------------------------
Michael A. Delaney Director September 26, 1997
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4 to Registration Statement on Form S-1,
Reg. No. 333-10777).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Ernst & Young LLP
23.3 Consent of Ballard Spahr Andrews & Ingersoll (contained in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page of Registration
Statement)
99.1 Triumph Group, Inc. 1996 Stock Option Plan
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EXHIBIT 5.1
[Ballard Spahr Andrews & Ingersoll Letterhead]
October 1, 1997
Triumph Group, Inc.
Four Glenhardie Corporate Center
1255 Drummers Lane - Suite 200
Wayne, PA 19087
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel to Triumph Group, Inc. (the
"Company") in connection with the registration under the Securities Act of
1933, as amended, of 518,750 shares of common stock of the Company, par value
$.001 per share (the "Shares"), issuable upon the exercise of options granted
under the Triumph Group, Inc. 1996 Stock Option Plan (the "Plan").
In rendering our opinion, we have reviewed such certificates,
documents, corporate records and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
In giving this opinion, we are assuming the authenticity of all instruments
presented to us as originals, the conformity with the originals of all
instruments presented to us as copies and the genuineness of all signatures.
Based on the foregoing, we are of the opinion that the Shares, when
issued upon exercise of options granted under the Plan, in accordance with
the terms thereof, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 being filed with respect to the offering
of the Shares.
Yours truly,
/s/ Ballard Spahr Andrews & Ingersoll
Ballard Spahr Andrews & Ingersoll
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1996 Stock Option Plan of Triumph Group, Inc. of
our report dated April 23, 1997, with respect to the consolidated financial
statements and schedule of Triumph Group, Inc. included in its Annual Report
(Form 10-K) for the fiscal year ended March 31, 1997, filed with the
Securities and Exchange Commission.
Philadelphia, Pennsylvania
October 1, 1997
<PAGE>
EXHIBIT 99.1
TRIUMPH GROUP, INC.
1996 STOCK OPTION PLAN
1. Purpose of Plan
The purpose of the Plan is to assist the Company and its
Subsidiaries in attracting and retaining valued employees by offering them a
greater stake in the Company's success and a closer identity with it, and to
encourage ownership of the Company's stock by such employees.
2. Definitions
2.01 "1934 Act" means the Securities Exchange Act of 1934, as
amended.
2.02 "Board" means the Board of Directors of the Company.
2.03 "Code" means the Internal Revenue Code of 1986, as amended.
2.04 "Committee" means the committee designated by the Board to
administer the Plan under Section 4, consisting of at least
two members of the Board.
2.05 "Common Stock" means the Company's Common Stock, $.001 par
value per share, or such other class or kind of shares or
other securities resulting from the application of Section
7.
2.06 "Company" means Triumph Group, Inc., a Delaware corporation,
or any successor corporation.
2.07 "Employee" means an officer or other key employee of the
Company or a Subsidiary including a director who is such an
employee.
2.08 "Fair Market Value" means, on any given date, the previous
day's closing price of actual sales of shares of Common
Stock on the principal national securities exchange on which
the Common Stock is listed, or if not listed, as reported on
the NASDAQ Stock Market, on such date or, if the Common
Stock was not traded or reported on such date, on the last
preceding day on which the Common Stock was traded or
reported; provided, however, that the Option price for any
Options
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granted on the date that the Registration Statement
is declared or deemed effective by the Securities and
Exchange Commission shall be equal to the price to the
public set forth on the cover page of the definitive
prospectus included in the Registration Statement.
2.09 "Holder" means an Employee to whom an Option is granted.
2.10 "Mature Common Stock" means Common Stock owned for six
months or more, or such other period as the Committee may
determine subject to applicable accounting regulations, by
the respective Holder.
2.11 "Option" means a stock option granted from time to time
under Section 6 of the Plan. Options may be either
incentive stock options (within the meaning of Section 422
of the Code) or non-qualified stock options.
2.12 "Plan" means Triumph Group, Inc. 1996 Stock Option Plan
herein set forth, as amended from time to time.
2.13 "Registration Statement" means the Company's Form S-1
Registration Statement, as amended, filed in connection with
its initial public offering.
2.14 "Retirement" means retirement from active employment with
the Company or a Subsidiary pursuant to the relevant
provisions of the applicable pension plan of such entity or
as otherwise determined by the Committee.
2.15 "Subsidiary" means any corporation (other than the Company)
in an unbroken chain of corporations beginning with the
Company (or any subsequent parent of the Company) if each of
the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one
of the other corporations in such chain.
3. Eligibility
Any Employee is eligible to receive an Option grant.
4. Administration and Implementation of Plan
4.01 The Plan shall be administered by the Committee, which shall
have full power to interpret and administer the Plan and
full authority to act in selecting the Employees to whom
Options
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will be granted, in determining the number of Options to be
granted to each such Employee and the terms and conditions
of Options granted under the Plan.
4.02 The Committee's powers shall include, but not be limited to,
the power: (a) to determine whether, to what extent and
under what circumstances an Option may be granted and
whether the Option is intended to be an incentive stock
option (as defined in Section 422 of the Code) or a
non-qualified stock option; (b) to determine whether, to
what extent and under what circumstances an Option may be
exercised; (c) to determine whether, to what extent and
under what circumstances exceptions to the exercisability of
an Option (including accelerating the exercisability) may be
granted; (d) to condition an Option grant upon the
attainment of specified performance goals; (e) to determine
the effect, if any, of a change in control of the Company
(including a merger of the Company into, a consolidation of
the Company with, or an acquisition of the Company by, a
person or entity or a liquidation of the Company) upon
outstanding Options; (f) to establish an arrangement through
registered broker-dealers whereby temporary financing may be
made available to a Holder by the broker-dealer, under the
rules and regulations of the Federal Reserve Board, for the
purpose of assisting the Holder in the exercise of an
Option; (g) to establish procedures, at the Committee's
discretion, for a Holder (i) to have withheld from the total
number of shares to be acquired upon the exercise of an
Option that number of shares having a Fair Market Value,
which, together with such cash as shall be paid in respect
of fractional shares, shall equal the minimum statutory tax
withholding obligation incurred by the Holder upon such
exercise, or (ii) to exercise an Option by delivering a
number of shares of Mature Common Stock already owned by
such Holder having a Fair Market Value that shall equal the
option exercise price and/or the tax withholding obligation
incurred by the Holder upon such exercise; (h) to condition
an Option grant upon such Employee's execution of
non-compete, non-disclosure or similar arrangements in favor
of the Company and/or its Subsidiaries and satisfactory in
form and substance to the Committee; and (i) to establish a
loan program to loan to a Holder who is still employed by
the Company at the time of exercise an amount sufficient to
satisfy the exercise price and/or tax obligation incurred by
the Holder upon such exercise and thereafter loan promptly
to such Holder such additional amounts sufficient to pay
further withholding obligations as may be determined from
time to time to be payable as a result of such exercise.
Any amounts loaned to such Holder shall be
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evidenced by a promissory note from such Holder on such terms
as are mutually agreed to by the Committee and the Holder,
provided, however, that such loan shall bear a market rate
of interest and shall be full recourse.
4.03 The Committee shall have the power to adopt regulations for
carrying out the Plan and to make changes in such
regulations as it shall, from time to time, deem advisable.
The Committee shall have the power unilaterally and without
approval of a Holder to amend an existing Option in order to
carry out the purposes of the Plan so long as such amendment
does not take away any benefit granted to a Holder by the
Option and as long as the amended Option comports with the
terms of the Plan. Any interpretation by the Committee of
the terms and provisions of the Plan and the administration
thereof, and all action taken by the Committee, shall be
final and binding on Holders.
5. Shares of Stock Subject to the Plan
5.01 Subject to adjustment as provided in Section 7, the total
number of shares of Common Stock available for Options under
the Plan shall be 500,000 shares, subject to increase by
such number of shares as equals 5% of any and all Common
Stock sold pursuant to the over-allotment option contained
in the Underwriting Agreement between the Company and the
several underwriters named therein relating to the offering
of Common Stock registered pursuant to the Registration
Statement.
5.02 Any shares issued by the Company through the assumption or
substitution of outstanding grants from an acquired company
shall not reduce the shares available for Options under the
Plan. Any shares issued hereunder may consist, in whole or
in part, of authorized and unissued shares or treasury
shares. If any shares subject to any Option granted
hereunder are forfeited or such Option otherwise terminates
without the issuance of such shares or the payment of other
consideration in lieu of such shares, the shares subject to
such Option, to the extent of any such forfeiture or
termination, shall again be available for grants of Options
under the Plan.
5.03 No Employee may be granted Options for more than 100,000
shares of Common Stock during any calendar year (subject to
adjustment as provided in Section 7).
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6. Options
Options give an Employee the right to purchase a specified number
of shares of Common Stock from the Company for a specified time period at a
fixed price. The grant of Options shall be subject to the following terms and
conditions:
6.01 Option Grants: Options shall be evidenced by Option award
certificates. Such certificates shall conform to the
requirements of the Plan, and may contain such other
provisions as the Committee shall deem advisable.
6.02 Option Price: The price per share at which Common Stock may
be purchased upon exercise of an Option shall be determined
by the Committee and shall be not less than the Fair Market
Value of a share of Common Stock on the date of grant.
6.03 Term of Options: The Option award certificates shall
specify when an Option may be exercisable and the terms and
conditions applicable thereto. The Committee may waive any
installment exercise or waiting period provisions, in whole
or in part, at any time after the date of grant, based on
such factors as the Committee, in its discretion, shall deem
appropriate. The term of an Option shall in no event be
greater than ten years from the date of grant.
6.04 Restriction on Transferability: No Option shall be
transferable otherwise than by will or the laws of descent
and distribution and, during the lifetime of the Holder,
shall be exercisable only by the Holder. Upon the death of
a Holder, the person to whom the rights have passed by will
or by the laws of descent and distribution may exercise an
Option only in accordance with this Section 6.
6.05 Payment of Option Price: The Option price of the shares of
Common Stock acquired upon the exercise of an Option shall
be paid in full in cash at the time of the exercise or, with
the consent of the Committee, in whole or in part in Mature
Common Stock or by a reduction in the number of shares of
Common Stock otherwise required to be issued, with the
shares of Common Stock in either case valued at Fair Market
Value on the date of exercise.
6.06 Termination by Death: If a Holder's employment by the
Company or a Subsidiary terminates by reason of death, any
Option held by such Holder may thereafter be exercised, to
the extent such Option was exercisable at the time of death
or on such accelerated basis as the Committee may determine
at or
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after grant, by the legal representative of the Holder,
until the expiration of the stated term of the Option or
until such earlier time as the Committee may determine at
the time the Option is granted.
6.07 Termination by Reason of Retirement or Disability: If a
Holder's employment by the Company or a Subsidiary
terminates by reason of disability (as determined by the
Committee) or Retirement, any Option held by such Holder may
thereafter be exercised by the Holder (or, where
appropriate, the Holder's legal representative), to the
extent it was exercisable at the time of such termination or
on such accelerated basis as the Committee may determine at
or after grant, until the expiration of the stated term of
the Option or until such earlier time as the Committee may
determine at the time the Option is granted.
6.08 Other Termination: If a Holder's employment by the Company
or Subsidiary terminates for any reason other than death,
disability or Retirement, the Option shall terminate 30 days
after the date of such termination of employment.
6.09 Incentive Stock Options: To the extent that any Option does
not qualify as an incentive stock option (whether because of
its provisions or the time or manner of its exercise or
otherwise), the portion of the Option which does not qualify
as an incentive stock option will constitute a non-qualified
stock option.
6.10 Post-Termination Exercise Periods: The Committee may, at
any time, extend the post-termination exercise period
applicable to a Holder, based on such factors as the
Committee, in its discretion, shall deem appropriate,
provided that the post-termination exercise period may not
extend beyond the expiration of the stated term of the
Option.
7. Adjustments Upon Changes in Capitalization
In the event of a reorganization, recapitalization, stock split,
reverse stock split, spin-off, split-off, split up, stock dividend, issuance of
stock rights, combination of shares, merger, consolidation or any other change
in the corporate structure of the Company affecting Common Stock, or any
distribution to stockholders in respect of stock other than a cash dividend, the
Committee shall make the adjustments in the number and kind of shares authorized
by the Plan, the individual limit set forth in Section 5.03 and any adjustments
to outstanding Options as it determines appropriate. No fractional shares of
Common Stock shall be issued pursuant to such an adjustment. The Fair Market
Value of any fractional shares resulting from adjustments pursuant to this
section shall, where appropriate, be paid in cash to the Holder. If during the
term of any Option granted hereunder the Company shall be, with the prior
approval of a majority of the members of the
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Board, merged into or consolidated with or otherwise combined with or
acquired by a person or entity, or there is a liquidation of the Company,
then at the election of the Committee, the Company may take such other action
as the Committee shall determine to be reasonable under the circumstances to
permit the Holder to realize the value of such Option, including without
limitation paying cash to such Holder equal to the value of the Option or
requiring the acquiring corporation to grant options or stock to such Holder
having a value equal to the value of the Option.
8. Effective Date, Termination and Amendment
The Plan shall become effective when it has been adopted by the
Board and approved by the stockholders of the Company. The Plan shall remain in
full force and effect until the earlier of 10 years from the date of its
adoption by the Board, or the date it is terminated by the Board. The Board
shall have the power to amend, suspend or terminate the Plan at any time,
provided that no such amendment shall be made without stockholder approval which
shall:
8.01 Increase (except as provided in Section 7) the total number
of shares available for issuance pursuant to the Plan;
8.02 Change the provisions of this Section 8; or
8.03 Make any other change for which stockholder approval is
required under rules or regulations promulgated under
Section 16 of the 1934 Act or the Code.
Termination of the Plan pursuant to this Section 8 shall not
affect Options outstanding under the Plan at the time of termination.
9. General Provisions
9.01 Nothing contained in the Plan, or any Option granted
pursuant to the Plan, shall confer upon any Employee any
right with respect to continuance of employment by the
Company or a Subsidiary, nor interfere in any way with the
right of the Company or a Subsidiary to terminate the
employment of any Employee at any time.
9.02 For purposes of this Plan, transfer of employment between
the Company and its Subsidiaries shall not be deemed
termination of employment.
9.03 Holders shall be responsible to make appropriate provision
for all taxes required to be withheld in connection with any
Option, the exercise thereof and the transfer of shares of
Common Stock pursuant to this Plan. Such responsibility
shall extend to all applicable Federal, state, local or
foreign withholding taxes. In
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the case of the exercise of Options, the Company shall, at
the election of the Holder, but only with the consent of
the Committee, have the right to repurchase from shares
already held by the Holder, the number of shares of Mature
Common Stock whose Fair Market Value equals the withholding
tax obligation of such Holder or to make loans on the terms
set forth in Section 4.02(i) to pay the applicable tax
obligation incurred by the Holder upon such exercise.
9.04 The Company shall not be obligated to deliver certificates
for Common Stock upon the exercise of an Option unless the
Holder has made payment in full for such Common Stock as
required by Sections 6.02 and 6.05 and has arranged for
withholding of all taxes required by Section 9.03.
9.05 Without amending the Plan, Options may be granted to
Employees who are foreign nationals or employed outside the
United States or both, on such terms and conditions
different from those specified in the Plan as may, in the
judgment of the Committee, be necessary or desirable to
further the purpose of the Plan.
9.06 Upon exercise of an Option, the Holder shall be required to
make such representations and furnish such information as
may, in the opinion of counsel for the Company, be
appropriate to permit the Company to issue or transfer the
shares of Common Stock in compliance with the provisions of
applicable federal or state securities laws. The Company,
in its discretion, may postpone the issuance and delivery of
shares of Common Stock upon any exercise of an Option until
completion of such registration or other qualification of
such shares under any federal or state laws, or stock
exchange listing, as the Company may consider appropriate.
The Company is not obligated to register or qualify the
shares of Common Stock issued pursuant to Options under
federal or state securities laws and may refuse to issue
such shares if neither registration nor exemption therefrom
is practical. The Board may require that prior to the
issuance or transfer of any shares of Common Stock upon
exercise of an Option, the recipient enter into a written
agreement to comply with any restrictions on subsequent
disposition that the Board or the Company deems necessary or
advisable under any applicable federal or state securities
laws. Certificates representing the shares of Common Stock
issued hereunder may be legended to reflect such
restrictions.
9.07 To the extent that Federal laws (such as the 1934 Act, the
Code or the Employee Retirement Income Security Act of 1974,
as
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amended) do not otherwise control, the Plan and all
determinations made and actions taken pursuant hereto shall
be governed by the law of Delaware and construed
accordingly.
9.08 Upon the occurrence of a Change in Control, each Option then
outstanding shall become immediately exercisable to the full
extent of the shares of Common Stock subject thereto;
provided, that (i) such Holder was employed by the Company
at the time of such Change in Control and (ii) either (x)
such Holder is employed by the Company on the first
anniversary date of the Change in Control, (y) such Holder's
employment is subsequently terminated by the Company other
than for Cause during the one-year period following such
Change in Control, or (z) such Holder voluntarily terminates
such Holder's employment during the one-year period
following such Change in Control as a result of a
Constructive Termination. For purposes of this Plan,
"Cause" means willful misconduct or dishonesty, or
conviction of or failure to contest prosection for a felony,
or excessive absenteeism unrelated to illness. For purposes
of this Plan, a "Change in Control" shall be deemed to have
occurred if any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the 1934 Act) becomes the
"beneficial owner" (as defined in Section 13(d)(3) under the
1934 Act) of securities of the Company representing more
than 35 percent (35%) of the total aggregate voting power of
the Company's then outstanding securities entitled to vote
generally in the election of directors, and such person or
group owns more aggregate voting power of the Company's then
outstanding securities entitled to vote generally in the
election of directors than any other person or group. For
purposes of this Plan, "Constructive Termination" means when
the Company (a) requires Holder to assume duties
inconsistent with, or the Company makes a significant
diminution or reduction in the nature or scope of Holder's
authority or duties from, the authority or duties assigned
to or held by Holder during the 30 days immediately prior to
the Change in Control, or (b) materially reduces Holder's
base salary, incentive compensation opportunities or fringe
benefits or (c) relocates Holder's site of employment to a
location more than 50 miles away from Holder's site of
employment 30 days immediately prior to the Change in
Control. Notwithstanding anything else contained in this
Section 9.08, a Holder shall be eligible to exercise Options
both before and after a Change in Control to the full extent
otherwise permitted under the Plan.
9
