<PAGE>
As filed with the Securities and Exchange Commission on June 28, 1999
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.
DIRECTORS' 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:
Richard M. Eisenstaedt, Esquire
Vice President, General Counsel and Secretary
Four Glenhardie Corporate Center
1255 Drummers Lane, Suite 200
Wayne, Pennsylvania 19087
(610) 975-0420
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
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
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.001
per share 40,000 (1) $987,500 $275
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated in accordance with Rule 457(c) and (h), on the basis of the
average of the high and low prices of Triumph Group, Inc. Common Stock
on June 25, 1999, as reported on the New York Stock Exchange.
<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 non-employee
directors of Triumph Group, Inc. who participate in the Directors' 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.
Triumph incorporates by reference the documents filed with the
SEC (File No. 1-12235) listed below and any future filings made with SEC under
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, until all the shares
offered under this registration statement have been sold or deregistered:
- Triumph's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999; and
- Description of the common stock contained in Triumph's
Registration Statement on Form 8-A for the common stock filed
on September 27, 1996, including any amendments or reports
filed for the purpose of updating this description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The bylaws of Triumph provide for the indemnification of
directors and officers in accordance with the indemnification provisions of
Delaware corporation
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law. Delaware corporation law permits the indemnification of directors and
officers of a corporation under certain conditions and subject to certain
limitations.
Triumph's certificate of incorporation provides that, subject
to certain limitations, no director will be personally liable to Triumph or to
its stockholders for monetary damages for any breach of fiduciary duty by the
director as a director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
--------
<TABLE>
<S> <C>
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, LLP
23.1 Consent of Ernst & Young LLP
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of Registration
Statement)
99.1 Triumph Group, Inc. Directors' Stock Option Plan
</TABLE>
2
<PAGE>
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
3
<PAGE>
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 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.
4
<PAGE>
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 June 28,
1999.
TRIUMPH GROUP, INC.
By : /s/ Richard C. Ill
-------------------------------------------
Richard C. Ill, President and Chief
Executive Officer
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, 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard C. Ill President, Chief Executive June 28, 1999
- ------------------------------------
Richard C. Ill Officer and Director
(Principal Executive Officer)
/s/ John R. Bartholdson Senior Vice President, June 28, 1999
- ------------------------------------
John R. Bartholdson Chief Financial Officer, Treasurer
and Director(Principal
Financial Officer)
</TABLE>
5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Kevin E. Kindig Controller and Vice June 28, 1999
- ------------------------------------
Kevin E. Kindig President (Principal
Accounting Officer)
/s/ Richard C. Gozon Director June 28, 1999
- ------------------------------------
Richard C. Gozon
/s/ Claude F. Kronk Director June 28, 1999
- ------------------------------------
Claude F. Kronk
/s/ Joseph M. Silvestri Director June 28, 1999
- ------------------------------------
Joseph M. Silvestri
/s/ Michael A. Delaney Director June 28, 1999
- ------------------------------------
Michael A. Delaney
/s/ William O. Albertini Director June 28, 1999
- ------------------------------------
William O. Albertini
</TABLE>
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
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, LLP
23.1 Consent of Ernst & Young LLP
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of Registration
Statement)
99.1 Triumph Group, Inc. Directors' Stock Option Plan
</TABLE>
7
<PAGE>
EXHIBIT 5.1
[Ballard Spahr Andrews & Ingersoll, LLP Letterhead]
June 28, 1999
Triumph Group, Inc.
Four Glenhardie Corporate Center
1255 Drummers Lane, Suite 200
Wayne, PA 19087
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and 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 40,000 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. Directors' 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, LLP
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333) of Triumph Group, Inc. pertaining to the Triumph Group, Inc.
Directors' Stock Option Plan of our report dated April 16, 1999, except for
Note 18 as to which the date is May 12, 1999, with respect to the
consolidated financial statements and schedule of Triumph Group, Inc.
included in its Annual Report (Form 10-K) for the year ended March 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, PA
June 22, 1999
<PAGE>
EXHIBIT 99.1
TRIUMPH GROUP, INC.
DIRECTORS' STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of this Directors' Stock Option Plan (the "Plan")
is to enable Triumph Group, Inc. (the "Company") to attract and retain qualified
independent directors and to further promote the mutuality of interests between
such directors and the Company's stockholders.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following terms shall have the
following meanings:
2.1 "BOARD" shall mean the Board of Directors of the Company.
2.2 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
2.3 "COMMON STOCK" means the Common Stock, $.001 par value per
share, of the Company.
2.4 "EFFECTIVE DATE" shall mean the date on which the Plan is
approved by the Company's stockholders.
2.5 "ELIGIBLE DIRECTOR" shall mean any member of the Board
who, on the date of the granting of an Option, is not an officer or an employee
of the Company or any of the Company's subsidiaries.
2.6 "FAIR MARKET VALUE" for purposes of the Plan, unless
otherwise required by any applicable provision of the Code or any regulations
issued thereunder, shall mean, as of any 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 such 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.
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<PAGE>
2.7 "MATURE COMMON STOCK" shall mean Common Stock owned for
six months or more, or such other period as the Board may determine subject to
applicable accounting regulations, by the respective Participant.
2.8 "PARTICIPANT" shall mean an Eligible Director to whom an
Option has been granted under the Plan.
2.9 "STOCK OPTION" or "OPTION" shall mean any option to
purchase shares of Common Stock granted pursuant to Article VI of the Plan.
ARTICLE III
ADMINISTRATION
3.1 ADMINISTRATION. The Plan shall be administered and
interpreted by the Board.
3.2 GUIDELINES. Subject to Article VII hereof, the Board shall
have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time to time, deem
advisable; to interpret the terms and provisions of the Plan and any Option
granted under the Plan (and any agreements relating thereto); and to otherwise
supervise the administration of the Plan. The Board may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or in any Option
in the manner and to the extent it shall deem necessary to carry the Plan into
effect. Notwithstanding the foregoing, no action of the Board under this Section
3.2 shall impair the rights of any Participant without the Participant's
consent, unless otherwise required by law.
3.3 DECISIONS FINAL. Any decision, interpretation or other
action made or taken in good faith by the Board arising out of or in connection
with the Plan shall be final, binding and conclusive on the Company, all members
of the Board and their respective heirs, executors, administrators, successors
and assigns.
ARTICLE IV
SHARE LIMITATION
4.1 SHARES. The maximum aggregate number of shares of Common
Stock that may be issued upon exercise of Options is 40,000 (subject to any
increase or decrease pursuant to Section 4.2), which may be either authorized
and unissued shares of Common Stock or issued Common Stock reacquired by the
Company. If any Option granted under the Plan shall expire, terminate or be
canceled for any reason without having been exercised in full, the number of
unpurchased shares shall again be available for the purposes of the Plan.
2
<PAGE>
4.2 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 Board shall
make such adjustments in the number and kind of shares authorized by the Plan,
in the minimum and maximum limits set forth in Section 6.2 and in any
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 Participant. 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 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 Board, the Company may
take such other action as the Board shall determine to be reasonable under the
circumstances to permit the Participant to realize the value of such Option,
including without limitation paying cash to such Participant equal to the value
of the Option or requiring the acquiring corporation to grant options or stock
to such Participant having a value equal to the value of the Option.
ARTICLE V
ELIGIBILITY
5.1 ELIGIBLE DIRECTORS. Only Eligible Directors are eligible
to be granted Options under the Plan.
ARTICLE VI
STOCK OPTIONS
6.1 OPTIONS. All Stock Options granted under the Plan shall
be non-qualified stock options (I.E., options that do not qualify as incentive
stock options under section 422 of the Code).
6.2 GRANTS. The Board shall have full authority to make the
following types of grants under the Plan.
(a) ANNUAL GRANTS. For as long as the Plan remains in
effect, the Board shall make an annual grant to each Eligible Director of Stock
Options to purchase at least 500 shares of Common Stock, but no more than 1,000
shares of Common Stock. Subject to the minimum and maximum limits set forth in
the preceding sentence, the number of shares of Common Stock subject to
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<PAGE>
such grants to Eligible Directors in any year shall be determined by the Board,
and may vary from year to year.
(b) NEW DIRECTOR GRANTS. For as long as the Plan
remains in effect, the Board may grant to any Eligible Director, upon his or her
initial election to the Board, Stock Options to purchase up to 5,000 shares of
Common Stock. Subject to the maximum limit set forth in the preceding sentence,
the number of shares of Common Stock subject to such Stock Options shall be
determined by the Board, and may be greater than or less than the number of
shares of Common Stock subject to any prior grants.
(c) DISCRETIONARY GRANTS. In addition to the grants
described in (a) and (b) above, the Board may from time to time grant to any
Eligible Director Stock Options to purchase shares of Common Stock. The Board
shall have full authority to select the Eligible Directors to whom such Options
are to be granted and to determine the number of shares of Common Stock to be
covered by each such Option.
6.3 TERMS OF OPTIONS. Options granted under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the Board
shall deem desirable:
(a) STOCK OPTION CERTIFICATE. Each Stock Option shall
be evidenced by, and subject to the terms of, a Stock Option Certificate
executed by the Company. The Stock Option Certificate shall specify the number
of shares of Common Stock subject to the Stock Option, the option price, the
option term, and such other terms and conditions, consistent with the provisions
of the Plan, as the Board shall deem advisable.
(b) OPTION PRICE. The option price per share of
Common Stock purchasable upon exercise of a Stock Option shall be equal to the
Fair Market Value of a share of Common Stock on the date of grant.
(c) OPTION TERM. The term of each Stock Option shall
be ten years from the date of grant.
(d) EXERCISABILITY. Stock Options shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Board at the time of grant; provided that the Board
may waive any installment exercise or waiting period provisions, in whole or in
part, at any time, based on such factors as the Board shall, in its sole
discretion, deem appropriate.
(e) METHOD OF EXERCISE. Stock Options may be
exercised in whole or in part at any time during the option term by delivering
to the Company written notice of exercise specifying the number of shares of
Common Stock to be purchased and the option price therefor. The notice of
exercise shall be accompanied by payment in full of the option price and, if
requested, by the representation described in Section 9.2. The option price may
paid in cash or by check payable to the
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<PAGE>
Company or, with the consent of the Board on or after the date of grant, in
whole or in part in shares of Mature Common Stock or by a reduction in the
number of shares of Common Stock otherwise issuable upon such exercise, with the
shares of Common Stock in either case valued at the Fair Market Value on the
date of exercise. Upon payment in full of the option price and satisfaction of
the other conditions provided herein, a stock certificate representing the
number of shares of Common Stock to which the Participant is entitled shall be
issued and delivered to the Participant.
(f) TERMINATION. Unless otherwise determined by the
Board, Stock Options held by a Participant who ceases to be a member of the
Board shall be exercisable as follows:
(i) If the Participant ceases to be a member
of the Board by reason of death, any Stock Option held by such Participant may
thereafter be exercised, to the extent such Option was exercisable at the time
of death or on such accelerated basis as the Board may determine at or after
grant, by the legal representative of the Participant's estate, until the
expiration of the stated term of the Option or until such earlier time as the
Board may determine at the time the Option is granted or such accelerated basis
is determined.
(ii) If the Participant ceases to be a
member of the Board by reason of disability (as determined by the Board), any
Stock Option held by such Participant may thereafter be exercised by the
Participant (or, where appropriate, the Participant's legal representative), to
the extent it was exercisable at the time the Participant ceased to be a member
of the Board or on such accelerated basis as the Board may determine at or after
grant, until the expiration of the stated term of the Option or until such
earlier time as the Board may determine at the time the Option is granted or
such accelerated basis is determined.
(iii) If the Participant ceases to be a
member of the Board for any reason other than death or disability, the Stock
Option shall terminate 30 days after the date on which the Participant ceased to
be a member of the Board; provided, however, that the Board may extend such
exercise period based on such factors as the Board shall, in its sole
discretion, deem appropriate, but not beyond the expiration of the stated term
of the Option.
6.4 RIGHTS AS SHAREHOLDER. A Participant shall not be deemed
to be the holder of Common Stock, or have any of the rights of a holder of
Common Stock, with respect to shares subject to an Option, until the Option is
exercised and a stock certificate representing such shares of Common Stock is
issued to the Participant.
ARTICLE VII
TERMINATION OR AMENDMENT
7.1 TERMINATION OR AMENDMENT OF PLAN. The Board may at any
time amend, discontinue or terminate the Plan or any part thereof (including any
amendment deemed necessary to
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<PAGE>
ensure that the Company may comply with any regulatory requirement referred to
in Article IX); provided, however, that, unless otherwise required by law, the
rights of a Participant with respect to Options granted prior to such amendment,
discontinuance or termination may not be impaired without the consent of such
Participant.
7.2 AMENDMENT OF OPTIONS. The Board may amend the terms of any
Stock Option previously granted, prospectively or retroactively, but, subject to
Article IV, no such amendment or other action by the Board shall impair the
rights of any holder without the holder's consent.
ARTICLE VIII
UNFUNDED PLAN
8.1 UNFUNDED STATUS OF PLAN. The Plan is intended to
constitute an "unfunded" plan for incentive compensation. With respect to any
payment not yet made to a Participant by the Company, nothing contained herein
shall give the Participant any rights that are greater than those of a general
creditor of the Company.
ARTICLE IX
GENERAL PROVISIONS
9.1 NONASSIGNMENT. Except as otherwise provided in the Plan,
any Option granted hereunder and the rights and privileges conferred thereby
shall not be sold, transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any such Option, right or privilege
contrary to the provisions hereof, or upon the levy of any attachment or similar
process thereon, such Option and the rights and privileges conferred hereby
shall immediately terminate and the Option shall immediately be forfeited to the
Company.
9.2 LEGEND. The Board may require each person purchasing
shares upon exercise of a Stock Option to represent to the Company in writing
that the Participant is acquiring the shares without a view to distribution
thereof. The stock certificates representing such shares may include any legend
which the Board deems appropriate to reflect any restrictions on transfer.
All certificates representing shares of Common Stock delivered
under the Plan shall be subject to such stock transfer orders and other
restrictions as the Board may deem advisable under the rules, regulations and
other requirements of the Securities and Exchange Commission, any stock exchange
upon which the Common Stock is then listed, any applicable Federal or state
securities law,
6
<PAGE>
and any applicable corporate law, and the Board may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions.
9.3 OTHER PLANS. Nothing contained in the Plan shall prevent
the Board from adopting other or additional compensation arrangements, subject
to stockholder approval if such approval is required; and such arrangements may
be either generally applicable or applicable only in specific cases.
9.4 NO RIGHT TO CONTINUE AS DIRECTOR. Neither the Plan nor the
grant of any Option hereunder shall confer upon any person the right to continue
as a director of the Company or obligate the Company to nominate any director
for reelection by the Company's stockholders.
9.5 LISTING AND OTHER CONDITIONS.
(a) If the Common Stock is listed on a national
securities exchange, the issuance of any shares of Common Stock upon exercise of
an Option shall be conditioned upon such shares being listed on such exchange.
The Company shall have no obligation to issue any shares of Common Stock upon
exercise of an Option unless and until such shares are so listed, and the right
to exercise any Option shall be suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of
the opinion that any sale or delivery of shares of Common Stock upon exercise of
an Option is or may in the circumstances be unlawful or result in the imposition
of excise taxes under the statutes, rules or regulations of any applicable
jurisdiction, the Company shall have no obligation to make such sale or
delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act of 1933, as amended, or
otherwise with respect to shares of Common Stock, and the right to exercise any
Option shall be suspended until, in the opinion of said counsel, such sale or
delivery shall be lawful or shall not result in the imposition of excise taxes.
(c) Upon termination of any period of suspension
under this Section 9.5, any Option affected by such suspension which shall not
then have expired or terminated shall be reinstated as to all shares available
before such suspension and as to shares which would otherwise have become
available during the period of such suspension, but no such suspension shall
extend the term of any Option.
9.6 GOVERNING LAW. The Plan and actions taken in connection
herewith shall be governed and construed in accordance with the laws of the
State of Delaware.
9.7 CONSTRUCTION. Wherever any words are used in the Plan in
the masculine gender they shall be construed as though they were also used in
the feminine gender in all cases where they would so apply, and wherever any
words are used herein in the singular form they shall be construed as though
they were also used in the plural form in all cases where they would so apply.
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<PAGE>
9.8 LIABILITY OF BOARD MEMBERS. No member of the Board nor any
employee of the Company or any of its subsidiaries shall be liable for any act
or action hereunder, whether of omission or commission, by any other member or
employee or by any agent to whom duties in connection with the administration of
the Plan have been delegated or, except in circumstances involving bad faith,
gross negligence or fraud, for anything done or omitted to be done by himself.
9.9 COSTS. The Company shall bear all expenses incurred in
administering the Plan, including expenses related to the issuance of Common
Stock upon exercise of Stock Options.
9.10 SEVERABILITY. If any part of the Plan shall be determined
to be invalid or void in any respect, such determination shall not affect,
impair, invalidate or nullify the remaining provisions of the Plan which shall
continue in full force and effect.
9.11 SUCCESSORS. The Plan shall be binding upon and inure to
the benefit of any successor or successors of the Company.
9.12 HEADINGS. Article and section headings contained in this
Plan are included for convenience only and are not to be used in construing or
interpreting the Plan.
9.13 CHANGE IN CONTROL. 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. For purposes of
this Plan, a "Change in Control" shall be deemed to have occurred if at any time
after the Effective Date any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (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. Notwithstanding anything else contained in this Section
9.13, a Participant shall be eligible to exercise Options both before and after
a Change in Control to the full extent otherwise permitted under the Plan.
ARTICLE X
TERM OF PLAN
10.1 EFFECTIVE DATE. The Plan shall be effective as of the
Effective Date.
10.2 TERMINATION. Unless sooner terminated, the Plan shall
terminate ten years after it is adopted by the Board and no Options may be
granted thereafter. Termination of the Plan shall not affect Options granted
before such date, which will continue to be exercisable after the Plan
terminates.
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