Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VOLT INFORMATION SCIENCES, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-5658129
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1221 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020-1579
(Address of Principal Executive Offices) (Zip Code)
1995 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
HOWARD B. WEINREICH, ESQ.
VOLT INFORMATION SCIENCES, INC.
1221 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020-1579
(Name and address of agent for service)
(212) 704-2400
(Telephone number, including area code, of agent for service)
With a copy to:
RICHARD A. RUBIN, ESQ.
PARKER CHAPIN FLATTAU & KLIMPL, LLP
1211 AVENUE OF THE AMERICAS
NEW YORK, NY 10036
(212) 704-6187
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time
after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Amount to be Proposed maximum Proposed maximum Amount of
Title of securities registered(1) offering aggregate registration fee
to be registered price per share offering price
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<S> <C> <C> <C> <C>
Common Stock, par 446,250 $ 27.125(2) $12,104,531(2) $4,173.98
value $.10 per share 31,600 $ 38.125(2) $ 1,204,750(2 $ 415.43
322,150 $ 42.50 (3) $ 13,691,375(3) $4,721.16
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$27,000,656 $9,310.57
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</TABLE>
(1) In addition, in accordance with Rule 416 under the Securities Act of 1933,
this registration statement also covers such indeterminate number of
shares as may become subject to options under the Volt Information
Sciences, Inc. 1995 Non-Qualified Stock Option Plan as a result of the
anti-dilution adjustment provisions therein.
(2) Based, pursuant to Rule 457(h), on the exercise price of outstanding
options.
(3) Calculated pursuant to Rule 457(h) using the high and low sales prices of
the Company's Common Stock as reported on the Nasdaq Stock Market's
National Market System on September 30, 1996 with respect to shares
subject to the Plan but not subject to presently outstanding options.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Securities and Exchange Commission (File No. 1-0932) pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein
by reference: the Company's (a) Annual Report on Form 10-K for the fiscal year
ended November 3, 1995, as amended on Form 10-K/A filed February 29, 1996, (b)
the Quarterly Reports on Form 10-Q for the fiscal quarters ended February 2,
1996, May 3, 1996 and August 2, 1996, (c) Current Report on Form 8-K (date of
earliest event reported) dated January 29, 1996 as amended on Form 8-K/A dated
January 29, 1996 and (d) description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on August 7, 1986 under
the 1934 Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 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.
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 New York Business Corporation Law ("NYBCL") generally permits a
corporation to grant other rights to indemnification through its certificate of
incorporation or by-laws, or by resolution of shareholders or directors or by
agreement to corporate officers and directors except in instances where a
judgment or other final adjudication adverse to the officer or director
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or (ii) the officer or director personally gained in fact
a financial profit or other advantage to which he or she was not legally
entitled.
The Company's Certificate of Incorporation, as amended, permits the
Company to indemnify any officer, director or other person to the fullest extent
from time to time permitted by law, and provides that, to the extent consistent
therewith, the Company shall indemnify any officer, director or other person to
the fullest extent required by or pursuant to any present or future by-law of
the Company, agreement approved by the Board of Directors, or resolution of
shareholders or directors.
In general, the Company's By-Laws provide that the Company shall
indemnify each corporate officer and director (as well as any person serving
another entity, trust or employee benefit plan in any capacity at the Company's
request) against judgments, fines, amounts paid in settlement and reasonable
expenses incurred in connection with any action (including civil, criminal,
investigative and actions by or in the right of the Company or other entity,
trust or employee benefit plan) to which the person seeking indemnification is
made or threatened to be made a party by virtue of serving in any of those
capacities, except in instances where the NYBCL prohibits indemnification. In
addition to third party claims, the By-Law provision covers actions by or in the
right of the Company (commonly called derivative actions), amounts paid in
settlement and unsuccessful defenses of derivative actions, which are not
specifically permitted by the NYBCL.
In addition, the Company's Certificate of Incorporation provides that
directors shall not be liable to the Company or its shareholders for damages for
any breach of duty as a director, except for liability a director may have if a
judgment or other final adjudication adverse to the director establishes that:
(i) the director's acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law; (ii) the director personally gained in
fact a financial profit or other advantage to which the director was not legally
entitled; or (iii) the director's acts violated NYBCL Section 719 (which imposes
liability on transactions when contrary to NYBCL provisions). This provision
also provides that if the Company may by law be permitted to further eliminate
or limit the personal liability of directors, then the liability of a director
shall, at such time, automatically be further eliminated or limited to the
fullest extent permitted by law.
As permitted by New York law, the Company maintains certain insurance
covering the Company's obligation to indemnify directors and officers and also
covering director and officers individually, subject to certain limitations, in
instances in which they may not otherwise be indemnified by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS
Exhibit
Number Description
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**4.1 Certificate of Incorporation of the Company, as amended.
**4.2 Bylaws of the Company, as amended.
*5.1 Opinion of Parker Chapin Flattau & Klimpl, LLP
*15.1 Letter re unaudited interim financial information.
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
their opinion filed as Exhibit 5.1)
*24.1 Power of Attorney (see Page II-5 of this Registration
Statement).
*99.1 1995 Volt Information Sciences, Inc. Non-Qualified Stock
Option Plan.
- -----------------------
* Filed herewith.
** Incorporated by reference to the similarly numbered exhibit to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
July 29, 1988 (File No. 1-0932).
ITEM 9. UNDERTAKINGS
(A) 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;
(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 (a)(1)(i) and (a)(1)(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 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.
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(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.
(B) The undersigned registrant hereby undertakes that, for the
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 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.
(C) 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 Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in New York, New York on the 30th day of September, 1996.
VOLT INFORMATION SCIENCES, INC.
By: /s/William Shaw
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William Shaw, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Irwin B. Robins, James J. Groberg
and Jack Egan and each of them with power of substitution, as his or her
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
Signature Title Date
<S> <C>
/s/William Shaw Chairman of the Board, President September 30, 1996
- ------------------------- and Chief Executive and Directors
William Shaw
/s/James J. Groberg Senior Vice President September 30, 1996
- ------------------------- (Principal Financial Officer)
James J. Groberg and Director
/s/Jack Egan Vice President, Corporate September 30, 1996
- ------------------------- Accounting (Principal Accounting
Jack Egan Officer)
/s/Jerome Shaw Director September 30, 1996
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Jerome Shaw
/s/Irwin B. Robins Director September 30, 1996
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Irwin B. Robins
- ------------------------- Director September , 1996
Mark N. Kaplan
Director September , 1996
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John R. Torrell, III
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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**4.1 Certificate of Incorporation of the Company, as amended.
**4.2 Bylaws of the Company, as amended.
*5.1 Opinion of Parker Chapin Flattau & Klimpl, LLP
*15.1 Letter re unaudited interim financial information.
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
their opinion filed as Exhibit 5.1)
*24.1 Power of Attorney (see Page II-5 of this Registration
Statement).
*99.1 1995 Volt Information Sciences, Inc. Non-Qualified Stock
Option Plan.
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* Filed herewith.
** Incorporated by reference to the similarly numbered exhibit to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
July 29, 1988 (File No. 1-0932).
[PARKER CHAPIN FLATTAU & KLIMPL, LLP LETTERHEAD]
September 30, 1996
Volt Information Sciences, Inc.
1221 Avenue of the Americas
New York, New York 10020
Re: Volt Information Sciences, Inc.
Dear Sir or Madam:
We have acted as counsel to Volt Information Sciences, Inc. (the
"Company") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to the offering of up to 800,000 shares of common stock, par
value $.10 per share, (the "Common Stock"), to certain employees of the Company
upon the exercise of options which have been, or may from time to time be,
granted by the Company under the Company's 1995 Stock Option Plan (the "Plan"),
and such additional indeterminate number of shares of Common Stock as may be
issued under the anti-dilution provisions of the Plan.
In rendering the opinions expressed below, we have examined the
Certificate of Incorporation of the Company, as amended, the By-laws of the
Company, as amended, and minutes of the corporate proceedings of the Company
relating to the Plan. In addition, we have examined and relied upon such other
matters of law, certificates and examinations of public officials as we have
deemed relevant to the rendering of this opinion. We have not examined each
option contract in respect of options granted under the Plan. We have, however,
examined the form of option contract which the Company has advised us is the
form of option contract used by it under the Plan. We have also been informed by
the Company that each option contract between the Company and option holders
under the Plan is substantially in the form of the option contract we have
examined. In all of our examinations, we have assumed the accuracy of all
information furnished to us, the genuineness of all documents, the conformity to
originals of all documents submitted to us as certified, conformed, facsimile or
photostatic copies thereof, as well as the genuineness of all signatures on all
such documents.
<PAGE>
Securities and Exchange Commission
September 6, 1996
Page 2
Where reference is made in this opinion to matters within our
knowledge, or to facts and circumstances known to us, such reference means the
actual knowledge of those attorneys within the firm who have given substantive
attention to the foregoing agreements and instruments, without, however,
independent investigation of any matter except as otherwise expressly noted
therein.
Our opinion is limited to the date hereof and we do not in any event
undertake to advise you of any facts or circumstances occurring or coming to our
attention subsequent to the date hereof.
Finally, we are counsel admitted to practice only in the State of New
York, and we express no opinions as to the applicable laws of any jurisdiction
other than those of the State of New York and the United States of America.
Based upon and subject to the foregoing, we are of the opinion that
the shares of the Company's Common Stock to be issued pursuant to the exercise
of options granted or to be granted under the Plan will be, when issued pursuant
to the provisions of the Plan, legally issued, fully paid and non-assessable.
We consent to the filing of a copy of this opinion as an exhibit to
the Company's Registration Statement with respect to the Plan.
Very truly yours,
/s/ PARKER CHAPIN FLATTAU & KLIMPL, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
October 3, 1996
Shareholders and Board of Directors
Volt Information Sciences, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-8 No. 333 ________) of Volt Information Sciences, Inc. for the
registration of 800,000 shares of Common Stock for its 1995 Non-Qualified Stock
Option Plan of our reports dated March 13, 1996, June 2, 1996 and September 3,
1996 related to the unaudited condensed interim financial statements of Volt
Information Sciences, Inc. and subsidiaries that are included in its Forms 10-Q
for the quarters ended February 2, 1996, May 3, 1996 and August 2, 1996,
respectively.
Pursuant to Rule 436 (c) of the Securities Act of 1933 our reports are not a
part of registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Ernst & Young LLP
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333 _______) pertaining to the registration of 800,000 shares of Common
Stock of Volt Information Sciences, Inc. for its 1995 Non-Qualified Stock Option
Plan of our report dated January 2, 1996, with respect to the financial
statements of Volt Information Science, Inc. and subsidiaries included in its
Annual Report (Form 10-K) for the year ended November 3, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
October 3, 1996
New York, New York
1995 NON-QUALIFIED STOCK OPTION PLAN
of
VOLT INFORMATION SCIENCES, INC.
(as amended effective August 26, 1996)
1. PURPOSES OF THE PLAN. This stock option plan (the "Plan") is
designed to provide an incentive to key employees (including directors and
officers who are key employees) of Volt Information Sciences, Inc., a New York
corporation (the "Company"), and its present and future subsidiary corporations,
as defined in Paragraph 19 ("Subsidiaries"), and to offer an additional
inducement in obtaining the services of such individuals. The Plan provides for
the grant of nonqualified stock options.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Paragraph
12, the aggregate number of shares of Common Stock, $.10 par value per share, of
the Company ("Common Stock") for which options may be granted under the Plan
shall not exceed 400,000. Such shares of Common Stock may, in the discretion of
the Board of Directors of the Company (the "Board of Directors"), consist either
in whole or in part of authorized but unissued shares of Common Stock or shares
of Common Stock held in the treasury of the Company. The Company shall at all
times during the term of the Plan reserve and keep available such number of
shares of Common Stock as will be sufficient to satisfy the requirements of the
Plan. Subject to the provisions of Paragraph 13, any shares of Common Stock
subject to an option which for any reason expires, is cancelled or is terminated
unexercised or which ceases for any reason to be exercisable shall again become
available for the granting of options under the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Board of Directors which, to the extent it shall determine, may delegate its
powers with respect to the administration of the Plan to a committee of the
Board of Directors (the "Com mittee") consisting of not less than two directors
(or such greater number as required by law), each of whom shall be a
"non-employee director" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). References in the Plan to determinations or actions by the
Committee shall be deemed to include determinations and actions by the Board of
Directors. A majority of the members of the Committee shall constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present, and any acts approved in writing by all members without a
meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion, to determine the key employees who
shall receive options; the times when they shall receive options; the number of
shares of Common Stock to be subject to each option; the term of each option;
the date each option shall become exercisable; whether an
<PAGE>
option shall be exercisable in whole, in part or in installments, and, if in
installments, the number of shares of Common Stock to be subject to each
installment; whether the installments shall be cumulative; the date each
installment shall become exercisable and the term of each installment; whether
to accelerate the date of exercise of any installment; whether shares of Common
Stock may be issued on exercise of an option as partly paid, and, if so, the
dates when future installments of the exercise price shall become due and the
amounts of such installments; the exercise price of each option; the form of
payment of the exercise price; whether to restrict the sale or other disposition
of the shares of Common Stock acquired upon the exercise of an option and to
waive any such restriction; whether to subject the exercise of all or any
portion of an option to the fulfillment of contingencies as specified in the
contract referred to in Paragraph 11 (the "Contract"), including without
limitation, contingencies relating to entering into a covenant not to compete
with the Company and its Parent (as defined in Paragraph 19) and Subsidiaries,
to financial objectives for the Company, a Subsidiary, a division, a product
line or other category, and/or the period of continued employment of the
optionee with the Company or its Subsidiaries, and to determine whether such
contingencies have been met; the amount, if any, necessary to satisfy the
Company's obligation to withhold taxes or other amounts; the fair market value
of a share of Common Stock; to construe the respective Contracts and the Plan;
with the consent of the optionee, to cancel or modify an option, provided such
option as modified would be permitted to be granted on such date under the terms
of the Plan; to prescribe, amend and rescind rules and regulations relating to
the Plan; and to make all other determinations necessary or advisable for
administering the Plan. The determinations of the Committee on the matters
referred to in this Paragraph 3 shall be conclusive.
No member or former member of the Committee shall be liable for any
action, failure to act or determination made in good faith with respect to the
Plan or any option hereunder. In addition, the Company shall indemnify and hold
each member and former member of the Committee harmless from and against any
liability, claim for damages and expenses in connection therewith by reason of
any action, failure to act or determination made in good faith under or in
connection with the Plan or any option hereunder to the fullest extent permitted
with respect to directors under the Company's certificate of incorporation,
by-laws or applicable law.
4. ELIGIBILITY. The Committee may from time to time, consistent with
the purposes of the Plan, grant options to key employees (including officers and
directors who are key employees) of the Company or any of its Subsidiaries. Such
options granted shall cover such number of shares of Common Stock as the
Committee may determine; provided, however, that the maximum number of shares
subject to options that may be granted to any individual during any calendar
year under the Plan shall not exceed 100,000 shares (the "162(m) Maximum").
5. EXERCISE PRICE. The exercise price of the shares of Common Stock
under each option shall be determined by the Committee; provided, however, that
the exercise price of an option shall not be less than 100% of the fair market
value of the shares of Common Stock subject thereto.
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The fair market value of a share of Common Stock on any day shall be
(a) if the principal market for the Common Stock is a national securities
exchange, the average of the highest and lowest sales prices per share of Common
Stock on such day as reported by such exchange or on a composite tape reflecting
transactions on such exchange, (b) if the principal market for the Common Stock
is not a national securities exchange and the Common Stock is quoted on the
National Association of Securities Dealers Automated Quotations System
("NASDAQ"), and (i) if actual sales price information is available with respect
to the Common Stock, the average of the highest and lowest sales prices per
share of Common Stock on such day on NASDAQ, or (ii) if such information is not
available, the average of the highest bid and lowest asked prices per share of
Common Stock on such day on NASDAQ, or (c) if the principal market for the
Common Stock is not a national securities exchange and the Common Stock is not
quoted on NASDAQ, the average of the highest bid and lowest asked prices per
share of Common Stock on such day as reported on the NASDAQ OTC Bulletin Board
Service or by National Quotation Bureau, Incorporated or a comparable service;
provided, however, that if clauses (a), (b) and (c) of this Paragraph are all
inapplicable, or if no trades have been made or no quotes are available for such
day, the fair market value of the Common Stock shall be determined by the Board
by any method consistent with applicable regulations adopted by the Treasury
Department relating to stock options.
6. TERM. The term of each option granted pursuant to the Plan shall
be such term as is established by the Committee, in its sole discretion, at or
before the time such option is granted; provided, however, that the term of each
option granted pursuant to the Plan shall be for a period not exceeding 10 years
from the date of grant thereof.
7. EXERCISE. An option (or any part or installment thereof), to the
extent then exercisable, shall be exercised by giving written notice to the
Company at its principal office stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the Contract with respect to an
option permits installment payments) (a) in cash or by certified check or (b) if
the applicable Contract permits, with the authorization of the Committee, with
previously acquired shares of Common Stock having an aggregate fair market
value, on the date of exercise, equal to the aggregate exercise price of all
options being exercised, or with any combination of cash, certified check or
shares of Common Stock. In such case, the fair market value of the Common Stock
shall be determined in accordance with Paragraph 5.
A person entitled to receive Common Stock upon the exercise of an
option shall not have the rights of a shareholder with respect to such shares of
Common Stock until the date of issuance of a stock certificate to him for such
shares; provided, however, that until such stock certificate is issued, any
option holder using previously acquired shares of Common Stock in payment of an
option exercise price shall continue to have the rights of a shareholder with
respect to such previously acquired shares.
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<PAGE>
In no case may a fraction of a share of Common Stock be purchased or
issued under the Plan.
8. TERMINATION OF EMPLOYMENT. Except as may otherwise be expressly
provided in the applicable Contract, any holder of an option whose employment
with the Company (and its Parent and Subsidiaries) has terminated for any reason
other than his death or Disability (as defined in Paragraph 19) may exercise
such option, to the extent exercisable on the date of such termination, at any
time within three months after the date of termination, but not thereafter and
in no event after the date the option would otherwise have expired; provided,
however, that if his employment is terminated either (a) for cause, or (b)
without the consent of the Company, such option shall terminate immediately.
Except as may otherwise be expressly provided in the applicable Contract,
options granted under the Plan shall not be affected by any change in the status
of the holder so long as he continues to be an employee of the Company, its
Parent or any of the Subsidiaries (regardless of having been transferred from
one corporation to another).
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corporation if, at the time of the
determination, the individual was an employee of such corporation for purposes
of Section 422(a) of the Internal Revenue Code of 1986, as amended (the "Code").
As a result, an individual on military, sick leave or other bona fide leave of
absence shall continue to be considered an employee for purposes of the Plan
during such leave if the period of the leave does not exceed 90 days, or, if
longer, so long as the individual's right to reemployment with the Company (or a
related corporation) is guaranteed either by statute or by contract. If the
period of leave exceeds 90 days and the individual's right to reemployment is
not guaranteed by statute or by contract, the employment relationship shall be
deemed to have terminated on the 91st day of such leave.
Nothing in the Plan or in any option granted under the Plan shall
confer on any individual any right to continue in the employ of the Company, its
Parent or any of its Subsidiaries, or interfere in any way with any right of the
Company, its Parent or any of its Subsidiaries to terminate the holder's
relationship at any time for any reason whatsoever without liability to the
Company, its Parent or any of its Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE. Except as may otherwise be
expressly provided in the applicable Contract, if an optionee dies (a) while he
is employed by the Company, its Parent or any of its Subsidiaries, (b) within
three months after the termination of his employment (unless such termination
was for cause or without the consent of the Company) or (c) within one year
following the termination of his employment by reason of Disability, his option
may be exercised, to the extent exercisable on the date of his death, by his
executor, administrator or other person at the time entitled by law to his
rights under such option, at any time within one year after death, but not
thereafter and in no event after the date the option would otherwise have
expired.
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Except as may otherwise be expressly provided in the applicable
Contract, any optionee whose employment has terminated by reason of Disability
may exercise his option, to the extent exercisable upon the effective date of
such termination, at any time within one year after such date, but not
thereafter and in no event after the date the option would otherwise have
expired.
10. COMPLIANCE WITH SECURITIES LAWS. It is a condition to the
exercise of any option that either (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
shares of Common Stock to be issued upon such exercise shall be effective and
current at the time of exercise, or (b) there is an exemption from registration
under the Securities Act for the issuance of shares of Common Stock upon such
exercise. Nothing herein shall be construed as requiring the Company to register
under the Securities Act the shares subject to any option.
The Committee may require the optionee to execute and deliver to the
Company his representations and warranties, in form and substance satisfactory
to the Committee, that (a) the shares of Common Stock to be issued upon the
exercise of the option are being acquired by the optionee for his own account,
for investment only and not with a view to the resale or distribution thereof,
and (b) any subsequent resale or distribution of shares of Common Stock by such
optionee will be made only pursuant to (i) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (ii) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the optionee
shall, prior to any offer of sale or sale of such shares of Common Stock,
provide the Company with a favorable written opinion of counsel, in form and
substance satisfactory to the Company, as to the applicability of such exemption
to the proposed sale or distribution.
In addition, if at any time the Committee shall determine in its
discretion that the listing or qualification of the shares of Common Stock
subject to such option on any securities exchange or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an option or
the issue of shares of Common Stock thereunder, such option may not be exercised
in whole or in part unless such listing, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
11. STOCK OPTION CONTRACTS. Each option shall be evidenced by an
appropriate Contract which shall be duly executed by the Company and the
optionee, and shall contain such terms and conditions not inconsistent herewith
as may be determined by the Committee.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK. Not withstanding any
other provision of the Plan, in the event of any change in the outstanding
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Common Stock by reason of a stock dividend, recapitalization, merger in which
the Company is the surviving corporation, split-up, combination or exchange of
shares or the like, the aggregate number and kind of shares subject to the Plan,
the aggregate number and kind of shares subject to each outstanding option and
the exercise price thereof, and the number and kind of shares subject to the
162(m) Maximum, shall be appropriately adjusted by the Board of Directors, whose
determination shall be conclusive.
In the event of (a) the liquidation or dissolution of the Company, or
(b) a merger in which the Company is not the surviving corporation or a
consolidation, any outstanding options shall terminate, unless other provision
is made therefor in the transaction.
13. AMENDMENTS AND TERMINATION OF THE PLAN. The Plan was adopted by
the Board of Directors on May 17, 1995. No option may be granted under the Plan
after May 16, 2005. The Board of Directors, without further approval of the
Company's shareholders, may at any time suspend or terminate the Plan, in whole
or in part, or amend it from time to time in such respects as it may deem
advisable, including, without limitation, to comply with the provisions of Rule
16b-3 promulgated under the Exchange Act or Section 162(m) of the Code, and to
conform to any change in applicable law or to regulations or rulings of
administrative agencies; provided, however, that no amendment shall be effective
without the requisite prior or subsequent shareholder approval which would (a)
except as contemplated in Paragraph 12, increase the maximum number of shares of
Common Stock for which options may be granted under the Plan or change the
162(m) Maximum, (b) materially increase the benefits to participants under the
Plan or (c) change the eligibility requirements to receive options hereunder. No
termination, suspension or amendment of the Plan shall, without the consent of
the holder of an existing option affected thereby, adversely affect his rights
under such option. The power of the Committee to construe and administer any
options granted under the Plan prior to the termination or suspension of the
Plan nevertheless shall continue after such termination or during such
suspension.
14. NON-TRANSFERABILITY OF OPTIONS. No option granted under the Plan
shall be transferable otherwise than by will or the laws of descent and
distribution, and options may be exercised, during the lifetime of the holder
thereof, only by him or his legal representatives. Except to the extent provided
above, options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process.
15. WITHHOLDING TAXES. The Company may withhold cash and/or, with the
authorization of the Committee, shares of Common Stock to be issued with respect
thereto having an aggregate fair market value equal to the amount which it
determines is necessary to satisfy its obligation to withhold Federal, state and
local income taxes or other amounts incurred by reason of the grant or exercise
of an option, its disposition, or the disposition of the underlying shares of
Common Stock. Alternatively, the Company may require the holder
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to pay to the Company such amount, in cash, promptly upon demand. The Company
shall not be required to issue any shares of Common Stock pursuant to any such
option until all required payments have been made. Fair market value of the
shares of Common Stock shall be determined in accordance with Paragraph 5.
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse such legend
or legends upon the certificates for shares of Common Stock issued upon exercise
of an option under the Plan and may issue such "stop transfer" instructions to
its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to (a) prevent a violation of, or to
perfect an exemption from, the registration requirements of the Securities Act
or (b) implement the provisions of the Plan or any agreement between the Company
and the optionee with respect to such shares of Common Stock.
The Company shall pay all issuance taxes with respect to the issuance
of shares of Common Stock upon the exercise of an option granted under the Plan,
as well as all fees and expenses incurred by the Company in connection with such
issuance.
17. USE OF PROCEEDS. The cash proceeds from the sale of shares of
Common Stock pursuant to the exercise of options under the Plan shall be added
to the general funds of the Company and used for corporate purposes.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CER TAIN CONSTITUENT
CORPORATIONS. Anything in this Plan to the contrary notwithstanding, the Board
of Directors may, without further approval by the shareholders, substitute new
options for prior options of a Constituent Corporation (as defined in Paragraph
19) or assume the prior options of such Constituent Corporation.
19. DEFINITIONS.
(a) Subsidiary. The term "Subsidiary" shall have the same
definition as "subsidiary corporation" in Section 424(f) of the Code.
(b) Parent. The term "Parent" shall have the same
definition as "parent corporation" in Section 424(e) of the Code.
(c) Constituent Corporation. The term "Constituent
Corporation" shall mean any corporation which engages with the Company, its
Parent or any Subsidiary in a transaction to which Section 424(a) of the Code
applies (or would apply if the option assumed or substituted were an ISO), or
any Parent or any Subsidiary of such corporation.
(d) Disability. The term "Disability" shall mean a
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
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20. GOVERNING LAW. The Plan, such options as may be granted hereunder
and all related matters shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflict of law provisions.
21. PARTIAL INVALIDITY. The invalidity or illegality of any provision
herein shall not affect the validity of any other provision.
22. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by
the affirmative vote, in person or by proxy, of a majority of all outstanding
shares of the Company at the next duly held meeting of the Company's
shareholders at which a quorum is present. No options granted hereunder may be
exercised prior to such approval, provided that the date of grant of any options
granted hereunder shall be determined as if the Plan had not been subject to
such approval. Notwithstanding the foregoing, if the Plan is not approved by a
vote of the shareholders of the Company on or before May 16, 1996, the Plan and
any options granted hereunder shall terminate.
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