<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 1999
REGISTRATION NO.333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
U.S. VISION, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5995 22-3032948
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer
incorporation or organization) classification code number) Identification No.)
</TABLE>
1 HARMON DRIVE
GLEN OAKS INDUSTRIAL PARK
GLENDORA, NEW JERSEY 08029
(609) 228-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
U.S. VISION, INC. STOCK OPTION PLAN
(Full title of the plan)
WILLIAM A. SCHWARTZ, JR. COPIES OF COMMUNICATIONS TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER
U.S. VISION, INC. BRIAN M. LIDJI, ESQ.
1 HARMON DRIVE SAYLES & LIDJI, P.C.
GLEN OAKS INDUSTRIAL PARK 4400 RENAISSANCE TOWER
GLENDORA, NEW JERSEY 08029 1201 ELM STREET
(609) 228-1000 DALLAS, TEXAS 75270
(NAME, ADDRESS, INCLUDING ZIP CODE, TELEPHONE (214) 939-8700
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to offering price aggregate Amount of
securities to be registered be registered per unit(1) offering price(1) registration fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value per share 1,300,000 $7.10 $9,230,000 $2,800
=====================================================================================================
</TABLE>
- ----------
(1) Estimated pursuant to Rule 457 under the Securities Act of
1933 solely for the purpose of calculating the registration fee based
on 639,665 shares reserved for issuance and subject to options
already granted at $7.69 per share and 660,335 shares reserved for
issuance under future options.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(i) of the Securities Act. Such documents
need not be filed with the Securities and Exchange Commission (the "Commission")
either as a part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These documents, which
include the statement of availability required by Item 2 of Form S-8, and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
U.S. Vision, Inc. (the "Company") hereby incorporates by reference into
this registration statement the following documents previously filed with the
Commission:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1998;
(2) the Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1998;
(3) the Company's Quarterly Report on Form 10-Q for the quarter
ended July 31, 1998;
(4) the Company's Quarterly Report on Form 10-Q for the quarter
ended October 31, 1998; and
(5) the description of the Company's common stock contained in the
Company's registration statement on Form S-1, No. 333-35819,
filed on September 17, 1997, and declared effective December
1, 1997, including any amendment or report filed for the
purpose of updating such description;
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part thereof from the date of filing of such
documents. Any statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein, 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. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Common Stock, par value $0.01 per share, is registered
pursuant to Section 12 of the Exchange Act, and, therefore, the description of
securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company provides for
the indemnification of directors and officers to the fullest extent permitted by
the Delaware General Corporation Law.
Generally, the Delaware General Corporation Law permits a corporation
to indemnify a person who was or is an officer, director, agent, or employee, or
who serves at the corporation's request as an officer, director, agent, or
employee, of another corporation, partnership, trust joint venture, or other
enterprise ("nominee"), who was, is, or is threatened to be named a defendant in
a legal proceeding by virtue of such person's position in the corporation or
nominee, but only if the person acted in good faith and reasonably believed that
the conduct was in or at least not opposed to the corporation's best interest,
and, in the case of a criminal proceeding, the person had no reasonable cause to
believe the conduct was unlawful. A person may be indemnified within the above
limitations against judgments, fines, settlements, and reasonable expenses
actually incurred. Generally, an officer director, agent, or employee of the
corporation or nominee may not be indemnified, however, against judgments,
fines, and settlements incurred in a proceeding in which the person is found
liable to the corporation and may not be indemnified for expenses unless, and
only to the extent that, in view of all the circumstances, the person is fairly
and reasonably entitled to indemnification for such expenses. A corporation must
indemnify a director, officer, employee, or agent against reasonable expenses
incurred in connection with a proceeding in which the person is a party because
of the person's corporate position, if the person was successful, on the merits
or otherwise, in the defense of the proceeding. Under certain circumstances, a
corporation may also advance expenses to such person. Under the Delaware General
Corporation Law, a corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or agent of the
corporation against any liability asserted against and incurred by the person in
such capacity, or arising out of the person's status as such a person,
regardless of whether the applicable law otherwise empowers the corporation to
indemnify that person against such liability.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
2
<PAGE> 4
ITEM 8. EXHIBITS
The following documents are filed as a part of this Registration
Statement. Where such filing is made by incorporation by reference to a
previously filed report, such report is identified. The Index to Exhibits
included with the exhibits is filed as a part of this report.
Exhibit Description
------- -----------
4.1 U.S. Vision, Inc. Stock Option Plan, including a form of
option agreement
5.1 Opinion of Sales & Lidji, P.C.
23.1 Consent of Sales & Lidji, P.C. (included in their opinion
filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this Registration
Statement)
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 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;
(2) that for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) 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 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
Commission such indemnification is against public policy as expressed
in the Securities Act
3
<PAGE> 5
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 of the question whether such indemnification
by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
4
<PAGE> 6
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, thereto duly authorized
in the City of Glendora, State of New Jersey, on the 28th day of January, 1999.
U.S. VISION, INC.
By: /s/ William A. Schwartz, Jr.
-------------------------------------
William A. Schwartz, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below hereby designates and
appoints William A. Schwartz, Jr., and Kathy G. Cullen, as such person's true
and lawful attorney-in-fact and agent (the "Attorney-in-Fact") with full power
of substitution and resubstitution, for such person and in such person's name,
place, and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, which
amendments may make such changes in this registration statement as either
Attorney-in-Fact deems appropriate and requests to accelerate the effectiveness
of this registration statement, and to file each such amendment with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto such Attorney-in-Fact and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that such Attorney-in-Fact or either of them, or
their substitute or substitutes, may lawfully 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 indicated on the 28th day of January, 1999.
SIGNATURE TITLE
--------- -----
/s/ William A. Schwartz, Jr. President, Chief Executive Officer, and
- --------------------------------- Director (Principal Executive Officer)
William A. Schwartz, Jr.
/s/ Kathy G. Cullen Senior Vice President and Chief Financial
- --------------------------------- Officer (Principal Financial and Accounting
Kathy G. Cullen Officer)
/s/ G. Kenneth Macrae Director
- ---------------------------------
G. Kenneth Macrae
/s/ Richard K. McDonald Director
- ---------------------------------
Richard K. McDonald
/s/ Dennis J. Shaughnessy Director
- ---------------------------------
Dennis J. Shaughnessy
/s/ E. Theodore Stolberg Director
- ---------------------------------
E. Theodore Stolberg
/s/ J. Roger Sullivan, Jr. Director
- ---------------------------------
J. Roger Sullivan, Jr.
/s/ David M. Tracy Director
- ---------------------------------
David M. Tracy
/s/ Peter M. Troup Director
- ---------------------------------
Peter M. Troup
<PAGE> 7
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
--- ----------------------
4.1 U.S. Vision , Inc. 1996 Stock Option Plan, including a form of
option agreement
5.1 Opinion of Sales & Lidji, P.C.
23.1 Consent of Sales & Lidji, P.C. (included in their opinion
filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this Registration
Statement)
<PAGE> 1
EXHIBIT 4.1
U.S. VISION, INC. STOCK OPTION PLAN
<PAGE> 2
U.S. VISION, INC.
STOCK OPTION PLAN
1. PURPOSE. This Stock Option Plan (the "Plan") of U.S. Vision,
Inc.(the "Company"), is intended to advance the best interests of the Company by
providing employees with additional incentive to remain employed and aligning
their interests with the interests of the Company's stockholders by increasing
their proprietary interest in the Company.
2. ADMINISTRATION. The Plan will be administered by the Company's board
of directors (the "Board"). All questions of interpretation and application of
the Plan, or of options granted under the Plan (the "Options"), will be subject
to the determination, which will be final and binding, of the Board. A member of
the Board who is also a participant in the Plan will not vote or act upon any
matter relating solely to himself or herself. Only incentive stock options
("Incentive Options"), as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code") may be granted under the Plan. The Plan will be
interpreted and administered so that Incentive Options qualify as incentive
stock options pursuant to Section 422 of the Code.
3. OPTION SHARES. The stock for which Options may be granted will be
shares of the Company's common stock, par value $0.01 per share ("Common
Stock"). The total amount of Common Stock for which Options may be granted under
this Plan may not exceed in the aggregate 1,300,000 shares. However, the
aggregate number of shares will be subject to adjustment in accordance with the
provisions of Paragraph 14 of this Plan. Such shares may be treasury shares or
authorized but unissued shares.
The number of Incentive Options that each individual may be granted
under the Plan is limited as follows. For each optionee, a record shall be kept
of the number of Incentive Options that first become exercisable in a given
calendar year (taking into account vesting provisions, if any, and aggregating
Incentive Options under all stock option plans of the Company and any parent or
subsidiary of the Company). For each calendar year, this number of Options which
become exercisable shall be multiplied by the fair market value per share of the
Common Stock purchasable under the Options, determined as of the date on which
the Option was granted. If the resulting number is $100,000 or less, all Options
granted as Incentive Options for that individual becoming exercisable in that
year will be taxed as Incentive Options. Any Options granted as Incentive
Options that exceed this $100,000 limit will be treated as options that do not
qualify under the Code as Incentive Options.
If any outstanding Option expires or terminates by reason of the
optionee's death or severance of employment, the surrender of any such Option,
or for any other reason, then the shares of Common Stock allocable to the
unexercised portion of such Option may again be subject to an Option under the
Plan.
4. ELIGIBILITY. The individuals who are eligible to participate in the
Plan are such employees of the Company, or of any corporation in which the
Company owns, directly or indirectly, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock ("Affiliates"),
as the Board may determine from time to time. Options may be granted to
employees who have previously received Options.
5. OPTION PRICE. The price at which shares may be purchased pursuant to
Options may not be less than the fair market value of the shares of Common Stock
on the date the Option is granted, and the Board in its discretion may provide
that the price at which shares may be so purchased will be more than such fair
market value. If an Incentive Option is granted to an employee who, at the time
the Incentive
<PAGE> 3
Option is granted, owns stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or of its
parent or subsidiary corporation, then the price at which shares may be
purchased under such Incentive Option may not be less than 110% of the fair
market value of the shares of Common Stock on the date on which the Incentive
Option is granted.
6. DURATION OF OPTIONS. No Option will be exercisable after the
expiration of ten years after the date on which the Option is granted. If an
Incentive Option is granted to an employee who, at the time that the Incentive
Option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporation, then the Incentive Option will not be exercisable after
the expiration of five (5) years after the date on which the Incentive Option is
granted.
7. AMOUNT EXERCISABLE. Each Option may be exercised, so long as it is
valid and outstanding, from time to time in part or as a whole, as set forth in
the Option, and subject to such other conditions set forth in the Option as the
Board, in its discretion, may establish.
8. EXERCISE OF OPTIONS. An optionee may exercise an Option by
delivering written notice to the Company setting forth the number of shares with
respect to which the Option is being exercised, together with cash, certified
check, bank draft, or postal or express money order payable to the order of the
Company for an amount equal to the option price of such shares, and specifying
the address to which the certificates for such shares are to be mailed. In lieu
of payment in cash or cash equivalents to purchase shares under an Option, the
optionee may make payment by tendering to the Company shares of Common Stock, or
by tendering shares of Common Stock plus cash or cash equivalents, in amounts
such that the fair market value of the Common Stock tendered, plus the amount of
cash or cash equivalents paid, if any, equals the option price for the shares
that the optionee is purchasing under the Option. As promptly as practicable
after receipt of such written notification and payment, the Company will deliver
to the optionee certificates for the number of shares with respect to which the
Option has been exercised, issued in the optionee's name. However, delivery will
be deemed effected for all purposes when the Company or its stock transfer agent
deposits the certificates in the United States mail, postage prepaid, addressed
to the optionee at the address specified pursuant to this Paragraph 8.
9. TRANSFERABILITY OF OPTIONS. Options may not be transferred by the
optionee otherwise than by will or under the laws of descent and distribution,
and are exercisable during the optionee's lifetime only by the optionee.
10. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE. Options will
terminate three months after severance of the employment relationship between
the Company and the optionee for any reason (including death, permanent
disability, or retirement by reason of age). Whether authorized leave of absence
or absence on military or government service will constitute severance of the
employment relationship between the Company and the optionee will be determined
by the Board at the time. If an optionee dies before the date on which an Option
expires, the optionee's executors, administrators, or any person or persons to
whom the optionee's Option may be transferred by will or by the laws of descent
and distribution, will have the right, at any time prior to such termination, to
exercise the Option, in whole or in part. For the purpose of determining the
employment relationship between the Company and the optionee, employment by any
Affiliate of the Company will be considered employment by the Company. The Board
reserves the right to extend the three-month period described in the Paragraph
10 with respect to any particular Options from time to time, even if extending
such period causes such Options to no longer qualify as Incentive Options.
<PAGE> 4
11. REQUIREMENTS OF LAW. The Company is not required to sell or issue
any shares under any Option if issuing such shares will constitute a violation
by the optionee or the Company of any law or regulation of any governmental
authority. In addition, upon the exercise of an Option by its holder, the
Company is not required to issue shares unless the Board has received evidence
satisfactory to it to the effect that the holder of such Option will not
transfer such shares except pursuant to a registration statement in effect under
the Securities Act of 1933 (as now in effect or hereafter amended) or unless the
Company has received an opinion of its counsel to the effect that registration
is not required. Any determination of the Board in this connection will be
final, binding, and conclusive. If the shares issuable on exercise of an Option
are not registered under the Securities Act of 1933, then the Company may
imprint on the share certificate any legend that its counsel considers necessary
or advisable to comply with the Securities Act of 1933.
The Company may, but will in no event be obligated to, register any
securities covered by this Plan pursuant to the Securities Act of 1933 (as now
in effect or as hereafter amended). If any shares are so registered, then the
Company may remove any legend from certificates representing such shares. The
Company will not be obligated to take any other affirmative action to cause the
exercise of an Option or the issuance of shares pursuant to an Option to comply
with any law or regulation of any governmental authority.
12. NO RIGHTS AS STOCKHOLDER. No optionee will have rights as a
stockholder with respect to shares covered by an Option until the date on which
a stock certificate is issued for such shares. No adjustment for dividends or
otherwise (except as set forth in Paragraph 14) will be made if the record date
therefor is prior to the date on which such certificate is issued.
13. EMPLOYMENT OBLIGATION. The granting of any Option will not impose
upon the Company any obligation to employ or continue to employ any optionee.
The Company's right to terminate the employment of any employee will not be
diminished or affected by reason of the fact that an Option has been granted to
the optionee.
14. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding Options will not affect in any way the right or power of the Company
or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights of the Common Stock, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
If the Company effects a subdivision or consolidation of shares or
other capital readjustment, pays a stock dividend, or otherwise increases or
reduces the number of shares of Common Stock outstanding, without receiving
compensation therefor in money, services, or property, then (a) if the number of
such shares outstanding is increased, then the number of shares of Common Stock
then subject to Options under this Plan will be proportionately increased, and
the Option price per share will be proportionately reduced; (b) if the number of
such shares outstanding is reduced, then the number of shares of Common Stock
then subject to Options under this Plan will be proportionately reduced, and the
option price per share will be proportionately increased; and (c) the number of
shares then available for Options under this Plan will be proportionately
increased or decreased.
If the Company merges or consolidates with, or is merged into, another
entity regardless of whether the Company is the surviving entity in such merger,
or if the Company liquidates or dissolves, then each holder of outstanding
Options shall be entitled to receive upon a subsequent exercise of such Option
at no additional costs (subject to any required action by stockholders) in lieu
of the number of shares as to which
<PAGE> 5
such option shall then be so exercisable, the number and class of shares of
stock or other securities or cash or other property to which the optionee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation, or pursuant to such liquidation or dissolution, if the optionee
had been the holder of record of a number of shares of Common Stock of the
Company equal to the number of shares as to which such option shall be so
exercised. If the Company (i) decides to merge or consolidate with another
entity and (ii) determines that it will materially facilitate such merger or
consolidation for the Options granted hereunder to no longer be outstanding,
then the Company, at its option, may send to each holder of an issued,
unexercised Option a notice stating that the Company intends to merge or
consolidate and requiring such optionee to exercise their options within 60 days
of the date of the Company's notice. The Company shall furnish each such
optionee during such 60-day period with such information concerning the proposed
merger or consolidation as the optionee shall reasonably request. If the
optionee fails to exercise the optionee's options within such 60 day period,
then such option shall be void and of no further effect.
Except as hereinbefore expressly provided, the Company's issuance of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash, property, labor, or services, either upon direct sale, upon
a merger not resulting in any consideration being received by Company
shareholders, upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, will not affect, and no adjustment by reason thereof
will be made with respect to, the number or price of shares of Common Stock then
subject to outstanding Options.
15. SUBSTITUTE OPTIONS. Options may be granted under this Plan from
time to time in substitution for incentive stock options or nonstatutory options
held by employees of other corporations who are about to become employees of the
Company as the result of a merger or consolidation of the employing corporation
with the Company, or the Company's acquisition of substantially all of the
assets of the employing corporation, or the Company's acquisition of at least
50% of the issued and outstanding stock of the employing corporation as the
result of which it becomes a subsidiary of the Company. The terms and conditions
of the substitute options granted may vary from the terms and conditions set
forth in this Plan to such extent as the Company's board of directors at the
time of grant may deem appropriate to conform, in whole or in part, to the
provisions of the incentive stock options or nonstatutory options in
substitution for which they are granted, but no such variation may adversely
affect the status of any substitute Incentive Option as an "incentive stock
option" under the Code.
16. AMENDMENT OR TERMINATION OF PLAN; AMENDMENT OF OPTIONS. The board
of directors may modify, revise, or terminate this Plan at any time and from
time to time. However, without the further approval of the Company's
stockholders, the board may not (a) change the aggregate number of shares that
may be issued under Options pursuant to the provisions of the Plan; (b) reduce
the price at which Options may be exercised to an amount less than the fair
market value per share at the time the Options are granted; or (c) change the
class or classes of employees eligible to receive Options. However, the board of
directors may make such changes in the Plan and in the rules of the Board under
the Plan or in any outstanding Incentive Option as in the opinion of the
Company's counsel may be necessary or appropriate from time to time to enable
the Incentive Options granted pursuant to the Plan to continue to qualify as
incentive stock options under Section 422 of the Code, and the regulations that
may be issued thereunder as in existence from time to time. In addition, the
Board has the power to accelerate the vesting, if any, of any exercise rights
under an Option issued under the Plan and outstanding at any time or to extend
the time for exercise of any Option issued under the Plan subject to the
limitations set forth in Paragraph 6 hereof and any requirements imposed with
respect to incentive stock options.
<PAGE> 6
17. WRITTEN AGREEMENT. Each Option granted under this Plan shall be
issued pursuant to the form of Option Agreement attached hereto as Exhibit A,
subject to such changes and additions as the Board may determine. Such agreement
will be signed by the optionee and by the President or any Vice President of the
Company for, in the name of, and on behalf of the Company.
18. EFFECTIVE DATE OF PLAN. The Plan will be effective upon receipt of
stockholder approval. No Option will be granted pursuant to the Plan after the
tenth anniversary of the date of such stockholder approval.
<PAGE> 7
EXHIBIT "A"
STOCK OPTION AGREEMENT
THIS AGREEMENT, made this _____ day of _____________, 199__, by and
between U.S. VISION, INC., a Delaware corporation (hereinafter called the
"Company"), and ____________________ (hereinafter called the "Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee is now employed by the Company in a key
management capacity and the Company desires to have Optionee remain in its
employment, and desires to encourage stock ownership by Optionee and to increase
the Optionee's proprietary interest in the Company's success; and as an
inducement thereto has determined to grant to the Optionee the option herein
provided, to the end that the Optionee may thereby be assisted in obtaining an
interest, or an increased interest, as the case may be, in the stock ownership
of the Company; and
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, the Company and the Optionee hereby agree with each
other as follows:
1. NO EMPLOYMENT OBLIGATION. The granting of this Option shall not
impose upon the Company any obligation to employ or continue to employ the
Optionee; and the right of the Company to terminate the employment of the
Optionee shall not be diminished or affected by reason of the fact that an
option has been granted to him.
2. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, the Company hereby grants to the Optionee the right to purchase at a
price of _______________________________ ($___________) per share, up to, but
not exceeding in the aggregate, ____________________ (______) shares of the
common stock, $0.01 par value, of the Company (the "Common Stock"). Such right
may be exercised from time to time prior to ____________________, at which time
such right shall terminate.
3. EXERCISE OF OPTION. The right and option granted hereunder shall be
exercised by delivering to the Company a written notification specifying the
number of shares which the Optionee desires to purchase, together with cash,
certified check, bank draft or postal or express money order to the order of the
Company for an amount equal to the option price of such shares, and specifying
the address to which the certificates for such shares are to be mailed. In lieu
of payment in cash or cash equivalents, Optionee may make payment by tendering
to the Company shares of Common Stock, or by tendering shares of Common Stock
plus cash or cash equivalents, in amounts such that the fair market value of the
Common Stock tendered, plus the amount of cash or cash equivalents paid, if any,
equals the option price for the shares to be purchased. The Company may then
require that there be presented to and filed with it such evidence as it may
deem necessary to establish that the shares to be purchased are being acquired
for investment and not with a view to their sale or other disposition. For the
purposes of this paragraph, "fair market value" means closing price if the stock
is traded on a national securities exchange and the bid price if traded on
NASDAQ.
4. ISSUANCE OF SHARES. As promptly as practical after receipt of such
written notification and payment and receipt of such evidence of intent to
acquire for investment as may be required by the Company, the Company will
deliver to the Optionee certificates for the number of shares with respect to
<PAGE> 8
which such option has been so exercised, issued in the Optionee's name; provided
that such delivery shall be deemed effected for all purposes when a stock
transfer agent of the Company shall have deposited such certificates in the
United States mail, postage prepaid, addressed to the Optionee, at the address
specified pursuant to Paragraph 3 hereof.
5. EARLY TERMINATION. If the employment relationship between the
Optionee and the Company is severed for any reason (including death, permanent
disability, or retirement by reason of age), the option herein granted shall
terminate 90 days after such severance of employment (but in no event later than
the tenth anniversary of the effective date hereof ). For purposes of this
paragraph 5, "Company" shall mean U.S. Vision, Inc. or any corporation in which
U.S. Vision, Inc. owns, directly or indirectly, stock possessing fifty percent
or more of the total combined voting power of all classes of stock. Whether
authorized leave of absence or absence on military or government service shall
constitute severance of the employment relationship between the Company and the
Optionee shall be determined by the Board of Directors of the Company. After the
death of the Optionee, his executors, administrators, or any person or persons
to whom this option may be transferred by will or by the laws of descent and
distribution, shall have the right to exercise, to the extent provided below,
the option granted hereunder, in whole or in part.
6. EXECUTORS, ETC.. Whenever the word "Optionee" is used in any
provision of this Agreement under circumstances where the provisions should
logically be construed to apply to the executors, administrators or the person
or persons to whom the option may be transferred by will or by the laws of
descent and distribution, the word "Optionee" shall be deemed to include such
person or persons.
7. NON-ASSIGNABILITY. This option is not transferable by the Optionee
otherwise than by will or under the laws of descent and distribution, and is
exercisable, during his lifetime, only by him. No assignment or transfer of this
option, or of the rights represented thereby, whether voluntary or involuntary,
by operation of law or otherwise (except by will or by the laws of descent and
distribution) shall vest in the assignee or transferee any interest or right
herein whatsoever, but immediately upon any such assignment or transfer this
option shall terminate and become of no further effect.
8. NO RIGHTS AS STOCKHOLDER. The Optionee shall not be deemed for any
purpose to be a stockholder of the Company in respect of any shares as to which
this option shall not have been exercised, as herein provided, and until such
shares shall have been issued to the Optionee by the Company hereunder.
9. CHANGES IN COMPANY'S CAPITAL STRUCTURE. The existence of this option
shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common
Stock or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
The shares with respect to which this option is granted are shares of
the Common Stock of the Company as presently constituted, but if, and whenever,
prior to the delivery by the Company of all the shares of the Common Stock with
respect to which this option is granted, the Company shall effect a subdivision
or consolidation of shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares of the Common
Stock outstanding, without receiving compensation therefor in money, services or
property, then (a) in the event of an increase in the number of such shares
outstanding, the number of shares of Common Stock then remaining subject to
option hereunder shall be proportionately increased, and the option price per
share shall be proportionately reduced; and (b)
<PAGE> 9
in the event of a reduction in the number of such shares outstanding, the number
of shares of Common Stock then remaining subject to option hereunder shall be
proportionately reduced, and the option price per share shall be proportionately
increased.
While the Optionee holds unexercised options, if the Company is merged
or consolidated with another corporation under circumstances in which the
shareholders of the Company receive consideration for their shares in Company,
if the Company sells or otherwise disposes of substantially all of its assets to
another corporation, or if the Company liquidates or dissolves, then (i) subject
to the provisions of clause (ii) below, after the effective date of such merger,
liquidation, dissolution, consolidation, or sale, as the case may be, the
Optionee will be entitled, upon exercise of his Option, to receive, in lieu of
shares of Common Stock, shares of such stock or other securities (or cash or
other property) as the holders of shares of Common Stock received pursuant to
the terms of the merger, liquidation, dissolution, consolidation, or sale; and
(ii) the board of directors may cancel all outstanding options hereunder as of
the effective date of any such merger (other than a merger that constitutes a
reorganization under section 368(a)(1)(F) of the Internal Revenue Code of 1986,
as amended, or any successor provision thereto), liquidation, dissolution,
consolidation, or sale provided that (x) notice of such cancellation is given to
the Optionee and (y) has the right to exercise options granted hereby in full
during a 30-day period preceding the effective date of such merger, liquidation,
dissolution, consolidation, or sale.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property or for labor or services, either upon direct
sale, upon a merger not resulting in any consideration being received by Company
shareholders, upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock subject to this option.
10. REQUIREMENTS OF LAW. Notwithstanding any of the provisions hereof,
the Optionee hereby agrees that he will not exercise the option granted hereby,
and that the Company will not be obligated to issue any shares to the Optionee
hereunder, if the exercise hereof or the issuance of such shares shall
constitute a violation by the Optionee or the Company of any provisions of any
law or regulations of any governmental authority. If, at any time specified
herein for the issuance of shares to the Optionee, any law or regulation shall
require either the Company or the Optionee to take any action in connection with
the shares then to be issued, the issuance of such shares shall be deferred
until such action shall have been taken. Any determination in this connection by
the board of directors shall be final, binding and conclusive. The Company shall
in no event be obligated to register any securities pursuant to the Securities
Act of 1933 (as now in effect or as hereafter amended) or to take any other
affirmative action in order to cause the exercise of the option or the issuance
of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
11. NOTICES. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided;
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be addressed to the
President of the Company and mailed or delivered to the Company at its office at
Lower Landing and Landing Road, Chews Landing, New Jersey 08029, and all notices
or communications by the Company to the Optionee may be given to the Optionee
personally or may be mailed to him at Optionee's address listed under Optionee's
signature below.
<PAGE> 10
12. SECURITIES RESTRICTION. THESE OPTIONS AND THE COMMON STOCK ISSUABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAW. THEY MAY NOT BE SOLD, OR OFFERED FOR SALE, OR
PLEDGED, OR OTHERWISE TRANSFERRED, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SUCH ACT AND ANY APPLICABLE STATE LAW, OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
U.S. VISION, INC.
By:_________________________________________
Name of officer:____________________________
Title of officer:___________________________
____________________________________________
[optionee]
____________________________________________
Street address
____________________________________________
City State Zip Code
<PAGE> 1
EXHIBIT 5.1
OPINION OF SAYLES & LIDJI, P.C.
<PAGE> 2
February 2, 1999
U.S. Vision, Inc.
1 Harmon Drive
Glen Oaks Industrial Park
Glendora, New Jersey 08029
Re: U.S. Vision, Inc. - Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to U.S. Vision, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), relating to 1,300,000 shares of the $0.01 par value common
stock (the "Common Stock") of the Company that are offered on the exercise of
Incentive Stock Options ("Options") granted or that may be granted under the
U.S. Vision, Inc. Stock Option Plan (the "Plan"), as more fully described in the
Registration Statement.
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies certified to our satisfaction,
of (1) the Restated Certificate of Incorporation and the Bylaws of the Company;
(2) minutes and records of the corporate proceedings of the Company with respect
to the establishment of the Plan, the issuance of shares of Common Stock
pursuant to the Plan and related matters; and (3) the Registration Statement and
exhibits deemed necessary for the expression of opinions herein contained. In
making the foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to various questions of fact material to
this opinion and as to the content and form of the Restated Certificate of
Incorporation, the Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied to the extent we deem reasonably
appropriate on representations or certificates of officers or directors of the
Company and upon documents, records and instruments furnished to us by the
Company without independently checking or verifying their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and subject to the comments and
exceptions noted below, we are of the opinion that the Company presently has
available at least 1,300,000 shares of authorized but unissued stock and/or
treasury shares from which the 1,300,000 shares of Common Stock proposed to be
sold pursuant to exercise of the Options granted under the Plan may be issued.
Assuming that the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares available for issuance to those persons
who exercise Options granted under the Plan and assuming that the consideration
for shares of Common Stock issued pursuant to such Options is actually received
by the Company as provided in the Plan and exceeds the par value of such shares,
then the shares of Common Stock issued pursuant to the exercise of the Options
granted under and in accordance with the terms of the Plan will be duly and
validly issued, fully paid and nonassessable.
<PAGE> 3
U.S. Vision, Inc.
February 2, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Sincerely,
SAYLES & LIDJI,
A Professional Corporation
By:/s/ Brian M. Lidji
------------------------------------------
Brian M. Lidji
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-00000) pertaining to the U.S. Vision, Inc. Stock Option Plan of our
report dated March 17, 1998 with respect to the consolidated financial
statements of U.S. Vision, Inc. included in its Annual Report (Form 10-K) for
the year ended January 31, 1998, filed with the Securities and Exchange
Commission.
/S/ ERNST & YOUNG LLP
Philadelphia, Pennsylvania
January 29, 1999
