<PAGE> 1
As filed with the Securities and Exchange Commission on August 30, 1995.
Registration No. 33-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BOWMAR INSTRUMENT CORPORATION
(Exact name of registrant as specified in its charter)
Indiana 35-0905052
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5080 North 40th Street, Suite 475, Phoenix AZ 85018
(Address of Principal Executive Offices) (Zip Code)
Bowmar Instrument Corporation 1994 Flexible Stock Option Plan
Bowmar Instrument Corporation Stock Option Plan
for Non-Employee Directors
(Full Title of Plans)
Thomas K. Lanin, President
Bowmar Instrument Corporation
5080 North 40th Street, Suite 475
Phoenix, Arizona 85018
(Name and address of agent for service)
(602) 957-0271
(Telephone number, including area code, of agent for service)
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
============================================================================================================
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered <F1> offering price aggregate of registration fee <F2>
per share <F2> offering price <F2>
- -------------------------- --------------- ---------------- ------------------- ------------------------
<S> <C> <C> <C> <C>
Common Stock, without par
value (stated value $.10
per share) 500,000 $ 3.06 $1,530,000 $ 527.59
Shares <F3>
Common Stock, without par
value (stated value $.10
per share) 100,000 $ 3.06 $ 306,000 $ 105.52
Shares <F4>
--------------- ---------------- ------------------- ------------------------
Total $1,836,000 $ 633.11
============================================================================================================
<FN>
<F1> There is also being registered hereunder such additional undetermined number of shares of Common
Stock as may be issued as a result of the anti-dilution provisions of the Plans.
<F2> Calculated in accordance with Rule 457(h).
<F3> Represents shares of Common Stock issuable pursuant to the Bowmar Instrument Corporation 1994
Flexible Stock Plan and includes the initial 200,000 shares which are subject to that Plan and an additional
300,000 shares representing annual increases pursuant to Section 3.1 of that Plan.
<F4> Represents the annual increases in shares of Common Stock issuable pursuant to the Stock Option Plan
for Non-Employee Directors (in addition to the original 100,000 shares) pursuant to the provisions of
Section 4 of that Plan.
</TABLE>
===============================================================================
<PAGE> 3
INTRODUCTION
This Registration Statement on Form S-8 is filed by Bowmar Instrument
Corporation ("Corporation") relating to shares of its Common Stock, without par
value (stated value $.10 per share) ("Common Stock"), issuable pursuant to the
Bowmar Instrument Corporation 1994 Flexible Stock Plan and the amended Stock
Option Plan for Non-Employee Directors.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Corporation with the Securities and Exchange Commission ("Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Corporation's Annual Report on Form 10-K for the fiscal
year ended October 1, 1994;
(ii) The Corporation's Quarterly Reports on Form 10-Q for the
fiscal quarters ended December 31, 1994, April 1, 1995, and
July 1, 1995;
(iii) The Corporation's Current Report on Form 8-K dated June 26,
1995; and
(iv) The description of the Common Stock contained in the
Corporation's Registration Statement on Form S-8 (Registration
No. 33-9776), including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment hereto which indicates
that all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
For purposes of this Registration Statement, any statement contained
in a document incorporated or deemed to be incorporated herein by reference
<PAGE> 4
shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed comment which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
statement in such document. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Fred N. Gerard, a director of the Corporation, is of counsel to the
law firm of Bryan Cave LLP, which firm is acting as counsel for the
Corporation.
Item 6. Indemnification of Directors and Officers.
Section 23-1-37-8, 9 and 10 of the Indiana Business corporation law
provides as follows:
"23-1-37-8 ["Permissive Indemnification"].-(a) A corporation may
indemnify an individual made a party to a proceeding because the individual is
or was a director against liability incurred in the proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's official capacity with
the corporation, that the individual's conduct was in its best interests; and
(B) in all other cases, that the individual's conduct was at least not
opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conducts was
lawful; or
(B) had no reasonable cause to believe the individual's conduct was
unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determination that director did not meet the standard of conduct
described in this section.
"23-1-37-9 ["Mandatory Indemnification"].-Unless limited by its
articles of incorporation, a corporation shall indemnify a director who was
wholly successful, on the merits or otherwise, in the defense of any proceeding
to which the director was a party because the director is or was a director of
<PAGE> 5
the corporation against reasonable expenses incurred by the director in
connection with the proceeding.
"23-1-37-10 ["Advance Indemnification"].-(a) A corporation may pay
for or reimburse the reasonable expenses incurred by a director who is a party
to a proceeding in advance of final disposition of the proceeding if:
(1) the director furnishes the corporation a written affirmation of
the director's good faith belief that the director has met the standard of
conduct described in section 8 of this chapter;
(2) the director furnishes the corporation a written undertaking,
executed personally or on the director's behalf, to repay the advance if it is
ultimately determined that the director did not meet the standard of conduct;
and
(3) a determination is made that the facts then known to those making
the determination would not preclude indemnification under this chapter.
(b) The undertaking required by subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this section
shall be made in the manner specified in section 12 of this chapter.
The officers and directors are indemnified pursuant to specific
provisions of the Bylaws of the Corporation to the fullest extent permissible
under the law, subject to specific limitations imposed, and, further, with the
basic intent of not granting any indemnity in contravention of the laws of the
State of Indiana or of the United States of America, whether as a matter of
public policy or pursuant to statutory provisions.
Indemnification granted each officer and director covers expenses
incurred or paid by such officer or director in connection with any claim,
action, suit or proceeding, or judgment or order. Such indemnification
excludes, however, any amounts paid or payable by such officer or director to
the Corporation or to any other corporation in which the Corporation owns,
directly or indirectly, shares of capital stock or of which is a creditor, in
which he serves or has served as officer or director, or both.
Under an insurance policy procured by the Corporation, it is insured
for certain amounts which it may be obligated to pay directors and officers by
way of indemnity, and each director and officer of the Corporation and its
subsidiaries is insured against certain losses which he may incur, for which he
is not indemnified by the Corporation or its subsidiaries, and which arise by
reason of his being a director or officer of the Corporation of such
subsidiary.
Item 7. Exemption for Registration Claimed
Not applicable.
<PAGE> 6
Item 8. Exhibits.
Exhibit No. Description
4.1 Amended and Restated Articles of Incorporation of the
Corporation (incorporated by reference to Exhibit 3.1
to the Annual Report on Form 10-K for the fiscal year
ended October 1, 1994).
5 Opinion of Counsel (relating to legality of securities
being registered).
24.1 Consent of Independent Accountants.
24.2 Consent of Counsel (included in Exhibit 5 hereto).
99.1 Bowmar Instrument Corporation 1994 Flexible Stock Plan
("Plan") (incorporated by reference to Exhibit "A" to
the Corporation's definitive Proxy Statement furnished
in connection with the solicitation of proxies for the
Annual Meeting of Stockholders held on February 4,
1994).
99.2(a) and (b) Forms of Agreements relating to options granted, and
restricted stock awards made, pursuant to the Plan.
99.3 Bowmar Instrument Corporation Stock Option Plan for
Non-Employee Directors, as amended (incorporated by
reference to Exhibit "B" to the Corporation's
definitive proxy statement furnished in connection
with the solicitation of proxies for the Annual
Meeting of Stockholders held on February 4, 1994).
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;
(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 Exchange Act that are incorporated by
reference in this Registration Statement.
<PAGE> 7
(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.
(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 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
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
Securities Act and will be governed by the final adjudication of such issue.
<PAGE> 8
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 the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on the 24 day of
August, 1995.
BOWMAR INSTRUMENT CORPORATION
By: /s/ Thomas K. Lanin
---------------------------------------------
Thomas K. Lanin
President
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 dates indicated.
Signatures Title Date
- ------------------------------ ---------------------------- -----------------
/s/Thomas K. Lanin President, Director and August 24, 1995
- ------------------------------ Chief Executive Officer
Thomas K. Lanin
/s/Joseph G Warren, Jr. Vice President Finance, August 24, 1995
- ------------------------------ Secretary, Treasurer,
Joseph G. Warren, Jr. Chief Financial and
Accounting Officer
/s/Edward A. White Chairman of the Board and August 24, 1995
- ------------------------------ Director
Edward A. White
Director , 1995
- ------------------------------ ---------
Gardiner S. Dutton
/s/Fred N. Gerard Director August 24, 1995
- ------------------------------
Fred N. Gerard
/s/Steven Matteucci Director August 24, 1995
- ------------------------------
Steven P. Matteucci
Director , 1995
- ------------------------------ ---------
Dan L. McGurk
Director , 1995
- ------------------------------ ---------
James W. Myers
<PAGE> 9
EXHIBIT INDEX
Number Description
- ------- ----------------------------------------------------------------------
5 Opinion of Counsel (relating to legality of securities being
registered)
24.1 Consent of Independent Accountants
24.2 Consent of Counsel (included in Exhibit 5)
99.2(a) Form of Agreement relating to options granted, and restricted stock
awards made, pursuant to the Plan
99.2(b) Form of Agreement relating to options granted, and restricted stock
awards made, pursuant to the Plan
<PAGE> 1
EXHIBIT 5
BRYAN CAVE LLP
2800 North Central Avenue
21st Floor
Phoenix, Arizona 85004-1098
(602) 230-7000
FACSIMILE: (602) 266-5938
August 24, 1995
Bowmar Instrument Corporation
5080 North 40th Street, Suite 475
Phoenix, AZ 85018
Re: Bowmar Instrument Corporation
Registration Statement on Form S-8
Dear Sirs:
As counsel for Bowmar Instrument Corporation ("Company"), we are familiar
with its Amended and Restated Certificate of Incorporation and Bylaws, as
amended. We are also familiar with the corporate proceedings taken by the
Company in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
registration statement on Form S-8 ("Registration Statement"), covering 600,000
shares ("Shares") of the Company's Common Stock, without par value (stated
value $.10 per share) ("Common Stock").
We have examined and relied upon such corporate records of the Company and
such other documents, instruments, and certificates of public officials and
officers and representatives of the Company as we have considered relevant,
necessary or appropriate for purposes of this opinion letter.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized, and when issued and sold as described in the Registration
Statement, will be legally issued, fully paid and nonassessable shares of
Common Stock.
We hereby consent to the use of our name in the Registration Statement and
to the filing of this opinion as an exhibit thereto. In giving this consent,
we do not hereby admit that we are experts with respect to any part of the
Registration Statement within the meaning of the term "expert" as used in the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder. Fred N. Gerard, a director and
shareholder of the Company, is of counsel to this firm.
Very truly yours,
BRYAN CAVE LLP
/S/ FRED N. GERARD
---------------------------------------------
FRED N. GERARD
FNG:rs
<PAGE> 1
EXHIBIT 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 relating to the registration of 600,000 shares of common stock,
without par value (stated value of $.10 per share), of Bowmar Instrument
Corporation of our report dated November 28, 1994, on our audits of the
consolidated financial statements of Bowmar Instrument Corporation and
Subsidiaries as of October 1, 1994 and October 2, 1993 and for each of the
three years in the period ended October 1, 1994, which report is included in
the Annual Report on Form 10-K for the fiscal year ended October 1, 1994.
/S/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Phoenix, Arizona
August 24, 1995
<PAGE> 1
EXHIBIT 99.2(a)
BOWMAR INSTRUMENT CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
1994 FLEXIBLE STOCK PLAN
Stock Option Agreement made as of _________________, between Bowmar
Instrument Corporation, an Indiana corporation (hereinafter referred to as the
"Company"), and __________________ (hereinafter referred to as the "Optionee").
In accordance with the Bowmar Instrument Corporation 1994 Flexible Stock
Plan (hereinafter referred to as the "Plan"), the Company desires, in
connection with the employment of the Optionee, to provide the Optionee with an
opportunity to acquire shares of Common Stock, without par value (stated value
$.10 per share), of the Company ("Shares") on favorable terms and thereby
provide additional incentive for the Optionee to promote the progress and
success of the business of the Company and its affiliates.
NOW, THEREFORE, in consideration of the premises, the Company and the
Optionee agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the
Committee, the Company, subject to the terms, definitions and provisions of
the Plan and this Agreement, on _____________ ("Date of Grant"), granted to
the Optionee, an option for a total of _____________ Shares ("Optioned
Shares"). The Option is intended to be a Non-Qualified Stock Option. The
terms, definitions and provisions of the Plan are incorporated by reference
herein and in all cases shall control in any case of conflict between the
terms, definitions and provisions of the Plan and of this Agreement.
2. Option Price. The Option Price is $_________ for each Optioned Share.
3. Term of Option. The term of the Option is for a period of ten (10) years
from the Date of Grant, subject to earlier termination as provided in
paragraphs 4, 5 and 6 hereof, and the Option may be exercised during such
term only in accordance with the provisions of the Plan and the terms of
this Agreement.
4. Exercise of Option. Except as otherwise provided in this paragraph 4, the
Option shall be exercisable only by the Optionee during the Optionee's
lifetime as follows:
(i) Schedule of Right to Exercise.
(a)* 1) The Option will not be exercisable during the first year
following the Date of Grant. At any time after _______ year from the
Date of Grant, the Option may be exercised as to the number of
Optioned Shares which will not be more than fifty percent (50%) of the
Optioned Shares initially subject thereto, provided the Optionee is
employed by the Company or an Affiliate at the end of such _______
year period.
- ---------------
* If any Option is to vest after more than two periods, these provisions will
be appropriately revised.
<PAGE> 2
2) At any time after ______ years from the Date of Grant, the Option
may be exercised as to the total number of Optioned Shares subject
thereto (or remaining Optioned Shares subject thereto if previously
partially exercised), provided the Optionee is employed by the Company
or an affiliate at the end of such ______ year period.
(b) The vested portion of the Option need not be exercised all at one
time with respect to the total number of vested Optioned Shares, but
may be exercised with respect to any vested part of such Shares,
subject to the provisions of subparagraph (i)(a) of this paragraph 4,
from time to time during the term of the Option. To the extent that
the Option is not exercised with respect to the total number of such
Optioned Shares, the remaining Optioned Shares shall remain subject to
the Option at any time thereafter in accordance with the terms of this
Agreement. Notwithstanding anything herein to the contrary, in no
event may the Option be exercised for a fractional Share.
(c) The Option shall not be exercisable after the expiration of the
term provided in paragraph 3 hereof, and except as provided in
subparagraph (i)(d) of this paragraph 4, the Option shall be
exercisable only if the Optionee is an employee of the Company or an
affiliate on the date of exercise (as determined hereunder) and has
been in Continuous Employment, as defined in subparagraph (i)(d) of
this paragraph 4, from the Date of Grant until the date of exercise.
(d) For purposes of this Agreement, "Continuous Employment" shall mean
employment by the Company or an affiliate without any interruption or
termination thereof. Employment shall not be considered interrupted
or terminated in case of sick leave, military leave or any other leave
of absence approved by the Company, or in the case of transfers
between payroll locations of the Company or between the Company, any
affiliate, and any successor thereof.
If the Optionee's Continuous Employment is terminated for reasons
other than for cause or the Optionee's death or disability, then to
the extent that the Optionee would have been entitled to exercise the
Option immediately prior to such termination, the Option may be
exercised within a period of three months from the date of such
termination, and, unless exercised, the Option shall expire at the end
of such period. Notwithstanding anything herein to the contrary, in
no event may the Option be exercised after the expiration of its term.
If the Optionee's Continuous Employment is terminated for cause,
the Option (including the portion that the Optionee would have been
entitled to exercise immediately prior to such termination) shall
expire simultaneously with such termination.
If the Optionee's Continuous Employment is terminated by reason of
the Optionee's disability or by reason of the Optionee's death, then
to the extent that the Optionee would have been entitled to exercise
the Option immediately prior to the Optionee's disability or death,
the Option may be exercised within a period of one year from the date
of such disability or death, by the Optionee or on the Optionee's
behalf by the Optionee's legal representative (in the event of the
Optionee's disability), or by the person or persons (including the
Optionee's estate) to whom the Optionee's rights under the Option
shall have passed by will or by the laws of descent and distribution
(in the event of the Optionee's death), and, unless exercised, the
<PAGE> 3
Option shall expire at the end of such period. Notwithstanding
anything herein to the contrary, in no event may the Option be
exercised after the expiration of its term.
(ii) Method of Exercise. Except as otherwise provided in this
paragraph 4 or in paragraph 5 hereof, the Option shall be
exercisable by delivery of written notice of such exercise to the
Company, accompanied by payment of the Option Price of the
Optioned Shares with respect to which the Option is being
exercised, in accordance with the procedure prescribed herein.
Each such notice of exercise shall:
(a) state the election to exercise the Option, the number of
Shares with respect to which it is being exercised, the address and
Social Security Number of the person in whose name the certificate(s)
evidencing the Optioned Shares are to be issued;
(b) contain such representations and agreements as to investment
intent with respect to such Optioned Shares as may be satisfactory to
the Company's counsel;
(c) be signed by the person entitled to exercise the Option and,
if the Option is being exercised by any person or persons other than
the Optionee, be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person or persons to exercise the
Option; and
(d) be accompanied by payment of the full amount of the Option
Price of the Optioned Shares with respect to which the Option is being
exercised in cash, or a certified or bank cashier's check and be
delivered in person or by certified mail to the Secretary of the
Company.
Such payment need not accompany the written notice of exercise if
the Optioned Shares have been registered pursuant to the Securities
Act of 1933, as amended ("Act"), and the Optionee, either (a) in the
notice of exercise directs that the stock certificate or certificates
for the Optioned Shares as to which the Option is exercised by
delivered to a broker-dealer registered with the Securities and
Exchange Commission that is a member of the New York Stock Exchange or
any other broker-dealer acceptable to the Committee (as defined in the
Plan), as the agent for the Optionee, which broker-dealer delivers to
the Company its unconditional and irrevocable undertaking that, at the
time such stock certificate or certificates are delivered, such
broker-dealer will pay the Company an amount in cash equal to such
payment, plus the amount ("withholding amount") of all Federal, state
and/or local taxes of any kind which the Company is required to
withhold with respect to the exercise of the Option; or (b) furnishes
with said notice (m) shares of Common Stock (endorsed in favor of the
Company) having a Fair Market Value (as defined in the Plan) equal to
the amount of such payment or (n) instructions that the Company
withhold from the Optioned Shares to be delivered a number of Optioned
Shares having a fair market value equal to the Option Price plus, in
either case, if the Committee shall approve, the withholding amount;
provided, however, that the exercise of the Option and the election of
the Optionee to have shares withheld are (x) pursuant to an
irrevocable election made not less than six months prior to the
exercise; or (y) made during the period beginning on the third
<PAGE> 4
business day following the date of release of the Company's quarterly
or annual summary statements of sales and earnings and ending on the
twelfth business day following such date.
(iii) Certificates for Shares. The certificate or certificates for Shares
as to which the Option has been exercised shall be registered in the name
of the person or persons exercising the Option. Until the issuance of the
Shares (as evidenced by the delivery of the Stock certificate and
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or
any other rights as a stockholder shall exist with respect to the Optioned
Shares, notwithstanding the exercise of the Option. No adjustment will be
made for a dividend or other rights for which the record date is prior to
the date the Shares are issued, except as provided in paragraph 6 hereof.
5. Non-Transferability of Option. The Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than
by will or the laws of descent and distribution and may be exercised during
the lifetime of the Optionee only by such Optionee, except as otherwise
provided therein. Any attempted sale, pledge, assignment, hypothecation,
transfer or other disposition of the Option contrary to the provisions of
the Plan or this Agreement shall be null and void and without effect and,
upon the happening of any such event, the Board or Committee, in its sole
discretion, may terminate the Option forthwith.
6. Adjustments Upon Changes in Capitalization. If there is any change in the
Shares by reason of any stock dividend, spin-off, split-up, spin-out,
recapitalization, merger, consolidation, reorganization, combination or
exchange of shares, the number of Shares subject to the Option and the
price thereof, as applicable, shall be appropriately adjusted by the
Committee.
Neither the issuance of Shares for a consideration, the issuance of rights
or options to acquire Shares, nor the issuance of Shares on the conversion
of a debenture or capital stock, shall be considered a change in the
Company's capital structure for these purposes. However, the Committee may
make or provide for such adjustments in the number and/or kind of Optioned
Shares as the Committee in its sole discretion may determine is appropriate
to reflect any event of the type described in the preceding sentence.
No fractional Share shall be issued upon any exercise of the Option
following an adjustment made pursuant to this paragraph 6, and the Option
Price to be paid shall be appropriately adjusted on account of any
fractional Share not issued upon such an exercise.
The liquidation or dissolution of the Company, or merger or consolidation
in which the Company is not the surviving or resulting corporation, shall
cause the Option to expire to the extent it is unexercised at such time.
7. Approval of Counsel and Investment Representation. The exercise of the
Option and delivery of Shares pursuant thereto shall be subject to approval
by the Company's counsel that such exercise and issuance comply with all
relevant provision of law, including, without limitation, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended,
the rules and regulations promulgated under each of such acts, and the
requirements of any stock exchange upon which Shares may then be listed.
As a condition of the exercise of the Option, the Committee may require the
person exercising the Option to represent and warrant that the Shares are
<PAGE> 5
being purchased only for investment and without any present intention to
sell or distribute such Shares, if, in the opinion of counsel for the
Company, such a representation is required by any of the aforementioned
relevant provisions of law.
8. Reservations of Shares. The Company, during the term of this Option, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of this Agreement.
The inability of the Company to obtain from any regulatory body having
jurisdiction, authority or approval deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the nonissuance or sale
of such Shares as to which the requisite authority or approval shall not
have been obtained.
9. Restrictions on Shares. Shares issued upon the exercise of the Option
shall be issued only to the holder of the Option. Any restrictions upon
transfer of Shares issued upon exercise of the Option which in the opinion
of counsel to Company are required by the Securities Act of 1933, as
amended, shall be noted on the certificates therefor by appropriate legend.
10. Resale or Transfer. Upon any sale or transfer of the Shares purchased upon
exercise of the Option, the Optionee shall satisfy the Company that either
(i) the Shares to be so sold or transferred have been registered under the
Securities Act of 1933, as amended, and that there is in effect a current
prospectus satisfying the requirements of Subsection 10(a) of said Act
which is being or shall be delivered to the purchaser or transferee at or
prior the time of delivery of the certificates evidencing the Shares to be
sold or transferred, or (ii) such Shares may then be sold without such
registration without violating Section 5 of Said Act. In addition, the
Optionee shall satisfy the Company that any other restrictions upon the
transfer of such Shares, imposed either under the Plan or this Agreement,
have been complied with or are inapplicable.
11. Withholding Taxes. The Optionee agrees, as a condition to the grant of the
Option evidenced by this Agreement, that, if applicable, the Company or an
affiliate, to the extent required by law, shall deduct from any payments of
any kind otherwise due to the Optionee the aggregate amount of Federal,
state or local taxes of any kind required by law to be withheld with
respect to the exercise of the Option, or, if no such payments are due or
to become due to the Optionee, that the Optionee will pay to the Company or
affiliate, or make arrangements satisfactory to the Company regarding
payment to the Company or affiliate of, the aggregate amount of any such
taxes.
12. Benefits of Agreement. This Agreement shall inure to the benefit of and,
except as otherwise provided herein, shall be binding upon each successor
of the Company. All obligations imposed upon the Optionee and all rights
granted to the Company under this Agreement shall be binding upon the
Optionee's heirs, legal representatives and successors. This Agreement
shall be the sole and exclusive source of any and all rights which the
Optionee, the Optionee's heirs, legal representatives or successors may
have in respect of the Plan or any Options or Shares granted or issued
thereunder whether to himself or to any other person. Nothing contained
herein shall confer upon the Optionee any right with respect to continuance
of Optionee's employment or limit (absent any other agreement to the
<PAGE> 6
contrary) in any way whatsoever the right of the Company to terminate the
Optionee's employment at anytime for any reason whatsoever.
13. Notices. Each notice relating to this Agreement shall be in writing and
delivered in person or by certified mail to the proper address. Each
notice shall be deemed to have been given on the date it is received. Each
notice to the Company shall be addressed to it at 5080 North 40th Street,
Suite 475, Phoenix, Arizona 85018, attention of Joe G. Warren Jr. Each
notice to the Optionee, or other person or persons then entitled to
exercise the Option, shall be addressed to the Optionee, or such other
person or persons, at the Optionee's address below specified. Anyone to
whom a notice may be given under this Agreement may designate a new address
by notice to that effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in
its name by its President or one of its Vice Presidents and its corporate seal
to be hereunto affixed and attested by its Secretary or one of its Assistant
Secretaries and the Optionee has hereunto set his hand all as of the day, month
and year first above written.
BOWMAR INSTRUMENT CORPORATION
By
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Attest:
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Optionee
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Address
<PAGE> 1
EXHIBIT 99.2(b)
BOWMAR INSTRUMENT CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
1994 FLEXIBLE STOCK PLAN
Restricted Stock Award Agreement made as of _______________, between Bowmar
Instrument Corporation, an Indiana Corporation (hereinafter referred to as the
("Company"), and _______________ hereinafter referred to as the
("Participant"), a key employee of the Company or a Subsidiary.
The Participant has been employed by the Company or a Subsidiary and has
therefore provided outstanding service.
In accordance with the 1994 Flexible Stock Plan (hereinafter referred to as
the "Plan"), the Company desires, in connection with such employment and in
recognition of the service provided to the Company, to award to the
Participant, subject to the restrictions set forth below, shares ("Shares") of
Common stock, without par value (stated value $.10 per share), of the Company
("Restricted Stock").
NOW, THEREFORE, in consideration of the premises, the Company and the
Participant agree as follows:
1. Award of Restricted Stock. Pursuant to the determination by the Committee,
the Company subject to the terms, definitions and provisions of the Plan
and this Agreement, hereby awards on _________________, to the Participant
_________ Shares of Restricted Stock ("Award"). The terms, definitions and
provisions of the Plan are incorporated by reference herein and in all
cases shall control in any case of conflict between the terms, definitions
and provisions of the Plan and of this Agreement.
2. Restrictions. Restricted Stock issued or transferred to a Participant
shall be subject to the following restrictions:
(a) None of the Restricted Stock may be sold, assigned transferred,
pledged, hypothecated or otherwise encumbered or disposed of during
the Restricted Period (as specified in paragraph 4 hereof);
(b) All or part of the Restricted Stock shall be forfeited and shall be
returned to the Company by the Participant, and all rights of the
Participant to such forfeited Restricted Stock shall terminate without
any payment of consideration by the Company, unless the Participant
remain in the continuous employment of the Company for the number of
years specified in Paragraph 4 hereof.
3. Rights as a Shareholder. Upon the making of this Award the Participant
shall, subject to the restriction set forth in Paragraph 2 hereof, have all
of the rights of a shareholder with respect to the Restricted Stock,
including but not limited to the right to vote such shares of Restricted
Stock and the right to receive all dividends paid thereon.
4.* Restricted Period. All restrictions on the Share subject to the Award
shall lapse on the __________ anniversary of the date of Award. The
restrictions on the remaining Shares shall lapse on the ____________
anniversary of the date of Award.
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* If the restrictions on any Award are to lapse after more than two periods,
this paragraph will be appropriately revised.
<PAGE> 2
5. Lapse of Restrictions on Death, Total Disability, or Retirement. In the
event that the employment of the Participant is terminated prior to the
lapse of all or part of the restrictions on the Restricted Stock, and such
termination is by reason of the Participant's death, total disability, or
retirement at normal retirement age 65 or late, the Committee, in its sole
discretion, may accelerate at the time at which any remaining restrictions
lapse or remove any of such restrictions.
6. Lapse at Discretion of the Committee. In addition to its powers under
Paragraph 5 hereof, the Committee may at any time, in its sole direction,
accelerate the time at which any or all restrictions will lapse or remove
any or all of such restrictions.
7. Withholding Taxes. The participant agrees, as a condition of this Award,
that the Company shall, to the extent permitted by law, deduct from any
payments of any kind otherwise due to the participant the aggregate amount
of any Federal, State or local taxes of any kind required by law to be
withheld with respect to the Shares subject to the Award or, if no such
payments are due or to become due to the participant, that the Participants
will pay to the Company, or make arrangements satisfactory to the Company
regarding payment to the Company of, the aggregate amount of any such
taxes. Until such amount has been paid or arrangements satisfactory to the
Company have been made, no stock certificates free of a legend reflecting
the restrictions set forth in Paragraph 2 hereof shall be issued to the
Participant.
8. Code Section 83(b) Election Forbidden. The Participant agrees as a
condition of this Award, that the Participant will not make an election
under Section 83(b) for the Internal Revenue Code of 1954, as amended, with
respect to such Award. If the Participant makes such an election, all
shares of Restricted Stock awarded to the Participant shall be forfeited to
the Company.
9. Compliance with Securities and Exchange Commission Requirements. No
certificate for Restricted Stock shall be issued until the Company shall
have taken such action, if any, as is then required in order to comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and any other applicable laws, as well as
with the Shares may, at the time, be listed.
10. Designation of Beneficiary. The Participant may, with the consent of the
Committee, designate a beneficiary to receive, in the event of the
Participant's death, any rights to which the Participant may be entitled
under the Plan. Designation of a beneficiary by the Participant shall be
made in writing and shall be filed with the Committee. The consent of the
beneficiary to any revocation or change in designation shall not be
required. The Committee shall be entitled to rely on the last designation
of a beneficiary, of which it has received notice, and shall not be liable
to any person by reason of making payments pursuant to the Plan to such
beneficiary.
11. Effect of this Award on the Employment Relationship Between the Company and
the Participant. This award shall in no way, now or hereafter, reduce,
enlarge or modify the employment relationship between the Company and the
Participant. Nothing contained in the Plan or in the Award shall be
construed as conferring upon the Participant any right to continue in the
employ of the Company.
<PAGE> 3
12. Responsibility for Correctness of Address. The Committee shall not be
required to determine, or to make any investigation to determine, the
identity or mailing address of any Participant or beneficiary and it shall
have discharged its obligation in that respect when it shall have sent any
documents or papers by regular mail to such Participant or beneficiary at
such address as may be designated to it by such Participant or beneficiary,
or, if the Participant makes no such designation, at the Participant's last
address on the records of the Company.
13. Notices and Deliveries. All notices hereunder shall be in writing. Any
notices, payment or deliveries to the Company or the Committee shall be
directed to the Company or the Committee, as the case may be, at the
following address:
Bowmar Instrument Corporation
5080 N. 40th Street, Suite 475
Phoenix, AZ 85018
Any notices, payments or deliveries (other than to the Company or the
Committee) shall be directed to the addressee at the address designated by said
addressee by notice to the Company. If no address is designated by a
Participant or beneficiary, all notices may be sent to the Participant's last
known address. Unless otherwise specified herein, notices shall be delivered
by hand or sent by registered or certified mail, return receipt requested.
14. Binding Upon Heirs, etc. This Agreement shall be binding upon, and shall
insure to the benefit of, the Company, its successors and assigns, and the
Participant, and the Participant's heirs, executors, administrators and
legal representatives.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its
name and attested to by its duly authorized officers, and the Participant has
executed this Agreement, all as of the date, month and year first above
written.
BOWMAR INSTRUMENT CORPORATION
By
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Title
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Attest:
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Participant
[Seal] --------------------------------------------------
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Address
