Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ACETO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
New York 11-1720520
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
One Hollow Lane
Lake Success, New York 11042-1215 (516) 627-6000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
ACETO CORPORATION 1998 OMNIBUS EQUITY AWARD PLAN
(Full Title of the Plan)
LEONARD SCHWARTZ, Chairman
ACETO CORPORATION
One Hollow Lane
Lake Success, New York 11042-1215
(516) 627-6000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
With copy to:
SAMUEL I. HENDLER, Esq.
1983 Marcus Avenue-Suite 121
Lake Success, New York 11042-1016
(516) 616-1850
CALCULATION OF REGISTRATION FEE
Title of Securities To Be Registered: Common Stock $.01 per share
Amount To Be Registered: 500,000 shares
Proposed Maximum Offering Price Per Share (1): $11.00
Proposed Maximum Aggregate Offering Price (1): $5,500,000
Amount Of Registration Fee: $1,529.00
(1) Estimated solely for the purpose of calculating the registration fee,
based on the closing price ($11.00) of the Registrant's Common Stock in the
over-the counter market on November 8, 1999.
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement also constitutes a Post-Effective Amendment to the Registration
Statement on Form S-8 (Registration Statement No. 33-38679) of the Registrant.
<PAGE>
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. (1)
Item 2. Registrant Information and Employee Plan Annual Information. (1)
(1) Information required by Part I 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 (the "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 filed with the Securities and Exchange Commission (the
"Commission") by Aceto Corporation ("Aceto") are incorporated by reference in
this Registration Statement:
Annual Report on Form 10-K for the fiscal year ended June 30, 1998.
Annual Report on Form 10-K for the fiscal year ended June 30, 1999.
Definitive Proxy Statement filed by Aceto pursuant to Section 14 of the
Securities Exchange Act ("Exchange Act") in connection with the annual meeting
of stockholders held on December 10, 1998.
The description of Aceto's Common Stock set forth under the heading
"Description Capital Stock" in Aceto's registration statement on Form S-1
(Registration No 2-18989) filed pursuant to the Securities Act with the
Commission on January 17, 1962, including amendments thereto.
All documents subsequently filed by Aceto pursuant to Section 13 of the
Exchange Act and any definitive proxy statements filed pursuant to Section 14
of the Exchange Act in connection with any subsequent stockholders' meeting and
any reports filed pursuant to Section 15(d) of the Exchange Act, will be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 12 of Article II of Aceto's By-Laws reads in its entirety as follows:
"The Corporation shall indemnify any person, made a party to an action by or in
the right of the Corporation to procure a judgment in its favor by reason of
the fact that he, his testator or intestate, is or was a director, officer, or
employee of the Corporation, against the reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in connection with
the defense of such action, or in connection with an appeal therein, except in
relation to matters as to which such director, officer, or employee is adjudged
to have breached his duty to the Corporation. The Corporation shall indemnify
any person, made, or threatened to be made, a party to an action or proceeding
other than one by or in the right of the Corporation to procure a judgment in
its favor, whether civil or criminal, including an action by or in the right of
any other corporation of any type or kind, domestic or foreign, which any
director, officer, or employee of the Corporation served in any capacity at the
request of the Corporation, by reason of the fact that he, his testator or
intestate, was a director, officer, or employee of the Corporation, or served
such other corporation in any capacity, against judgments, fines, amounts paid
in settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such director, officer, or employee acted, in good faith, for a
purpose which he reasonably believed to be in the best interests of the
Corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful. The foregoing right
of indemnification shall not be exclusive of other rights to which he may be
entitled. The Corporation is empowered to purchase and maintain insurance on
behalf of any person who is or was a director officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director of another corporation against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of sections 722 and 717 of the Business
Corporation Law."
The New York Legislature in July 1987 added Section 402 (b) to the Business
Corporation Law which permits New York corporations, with shareholder approval,
to amend their certificates of incorporation in order to eliminate the personal
liability of directors to a corporation and its stockholders for monetary
damages arising from breaches of the directors' duty of care. However, Section
402 (b) does not permit elimination of the liability of any director if a
judgment or other final adjudication adverse to him establishes that (i) his
acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled, or (ii) that
his action involved (a) an improper declaration of any dividend or other
distribution, (b) an improper redemption by the corporation of its own shares,
(c) the distribution of assets to shareholders after dissolution, without
paying or adequately providing for, with certain exceptions, known liabilities
of the Corporation, or (d) the making of an improper loan to a director.
Section 402 (b) does not authorize any limitation on the ability of a
corporation or its shareholders to obtain injunctive relief, specific
performance or other equitable remedies, and would not apply to acts or
omissions which occurred prior to the filing of an amendment to the
corporation's certificate of incorporation containing the elimination of
directors' liability.
At the Annual Meeting of Aceto's stockholders held on December 10, 1987, the
stockholders approved a new subparagraph (f) to Article SEVENTH of Aceto's
Restated Certificate of Incorporation. The following is the text of the new
subparagraph (f) of Article SEVENTH of the Company's Restated Certificate of
Incorporation; approved at said meeting:
"The personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (b)
of Section 402 of the Business Corporation Law of the State of New York, as the
same may be amended and supplemented."
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Additionally, Aceto maintains directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
3(i) Restated Certificate of Incorporation (incorporated by reference to
Exhibit 4(a)(iii) to Registration Statement No. 2-70623 on Form S-8) (S-8 2-
70623) and incorporated herein by reference.
3(ii) Certificate of Amendment dated November 21, 1985 to Restated Certificate
of Incorporation (incorporated by reference to Exhibit 3(ii) to Aceto's Annual
Report on Form 10-K for the fiscal year ended June 30, 1986) and incorporated
herein by reference.
3(iii) (c) By-laws currently in effect (incorporated by reference to Exhibit
3(iii) c to Aceto's Annual Report on Form 10-K for the fiscal year ended June
30, 1998) (1998 10-K) and incorporated herein by reference.
4.1 Aceto Corporation 1998 Omnibus Equity Award Plan as amended. *
5 Opinion of Samuel I. Hendler*
24(a) Consent of KPMG LLP*
24(b) Consent of Samuel I. Hendler (Included in Exhibit 5) *
* Filed herewith.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-
effective amendment to this Registration Statement;
To include any prospectus required by Section 10(a)(3) of the Securities Act;
To reflect in the prospectus any facts or events arising after the effective
date of this 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 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;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above 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 Aceto pursuant to Section 13 or Section 15 (d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
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
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Aceto's
annual report pursuant to Section 13 or 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of Aceto pursuant
to the foregoing provisions, or otherwise, Aceto has been advised that in the
opinion of the 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 Aceto of expenses incurred or paid by a director, officer or
controlling person of Aceto in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person of
Aceto in connection with the securities being registered, Aceto 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets of 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 duly
authorized, in the Incorporated Village of Lake Success, County of Nassau,
State of New York, on this 9{th} day of November, 1999.
ACETO CORPORATION
By /s/Leonard S. Schwartz /s/ Donald Horowitz
Leonard S. Schwartz Donald Horowitz
Chairman, President Secretary/Treasurer and
and Chief Executive Officer Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signatures Title Date
/s/ Leonard S. Schwartz Chairman, President, November 9, 1999
Leonard S. Schwartz Chief Executive Officer,
and Director
/s/ Donald Horowitz Secretary/Treasurer, November 9, 1999
Donald Horowitz Chief Financial Officer,
and Director
/s/ John Larocca Vice President - Finance November 9, 1999
John Larocca and Controller
/s/ Anthony Baldi Director November 9, 1999
Anthony Baldi
/s/ Richard Amitrano Director November 9, 1999
Richard Amitrano
/s/ Samuel I. Hendler Director November 9, 1999
Samuel I. Hendler
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Board of Directors of the registrant, which administers the Aceto Corporation
1998 Omnibus Equity Award Plan has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
Incorporated Village of Lake Success, County of Nassau, State of New York, on
this 9{th} day of November, 1999.
By /s/ Leonard S. Schwartz
Leonard S. Schwartz
Chairman of the Board of Directors
<PAGE>
Exhibit 4.1
ACETO CORPORATION
1998 OMNIBUS EQUITY AWARD PLAN
SECTION 1.
Purpose.
The purposes of the ACETO CORPORATION 1998 Omnibus Equity Award Plan are to
attract, retain and motivate Eligible Participants, as defined below, to
compensate them for their contributions to the Company's growth and profit and
to encourage them to own the Company's Common stock, thereby promoting the
interests of the Company and its stockholders.
SECTION 2.
Definitions.
As used in the Plan, the following terms shall have the meanings set forth
below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company (ii) a subsidiary of the Company and (iii) any entity
in which the Company has a significant equity or business interest, in any case
as determined by the Board.
"Award" shall mean any Option, Restricted Stock Award, or other stock-based
Award.
"Award Agreement" shall mean any written instrument or document evidencing any
Award, which may, but need not be, executed by an Eligible Participant.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall be deemed to have occurred if: (i) any "person" as
such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than
the Company, any trustee or other fiduciary holding securities under any
employee benefit plan of the Company,) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the voting power of the
Company's then outstanding securities; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this paragraph) whose
election by the Board of Directors or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of the two year
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the Board of
Directors; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 20% of the combined
voting power of the Company's then outstanding securities shall not constitute
a change in Control of the Company; or (iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets. If any of the events enumerated in clauses (i) through (iv) occur the
Board shall determine the effective date of the Change in Control resulting
therefrom, for purposes of the Plan.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder.
"Committee" shall mean a committee of the Board designated by the Board to make
recommendations to the Board with regard to Awards. Until otherwise determined
by the Board, the Executive Committee of the Board (which serves as the
Executive Compensation Committee) shall be the Committee under the Plan.
"Company" shall mean ACETO CORPORATION.
"Eligible Participant" shall mean an employee (including an officer, Executive
Officer or director) of the Company or any Affiliate. Such term shall also
mean any non-employee director, adviser, consultant or independent contractor
to the Company or any Affiliate, and any reference to employment or termination
of employment under the Plan shall be deemed to apply to such director,
adviser, consultant or independent contractor, for the purpose of the Plan
only, as if the services of such person constitute employment services.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Executive Officer" shall mean, at any time, an individual who is an executive
officer of the Company within the meaning of Exchange Act Rule 3b-7 promulgated
and interpreted by the SEC under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time, or who is an officer of the
Company within the meaning of Exchange Act Rule 16a-1(f) as promulgated and
interpreted by the SEC under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time.
"Fair Market Value" Shall mean with respect to any given day, the average of
the mean between the highest and lowest reported sales prices on the principal
national stock exchange on which the Common Stock is traded, or if such
exchange was closed on such day or, if it was open but the Common Stock was not
traded on such day, then on the preceding day that the Common Stock was traded
on such exchange.
"Non-Qualified Stock Option" shall mean an Option which does not meet the
requirements of Section 422 of the Code.
"Option" shall mean a Non-Qualified Stock Option.
"Participant" shall mean any Eligible Participant selected by the Board to
receive an Award under the Plan.
"Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or
political subdivision thereof or other entity.
"Plan" shall mean this ACETO CORPORATION 1998 OMNIBUS EQUITY AWARD PLAN.
"QDRO" shall mean a domestic relations order meeting such requirements as the
Committee shall determine, in its sole discretion.
"Restricted Stock" Shall mean any Share granted under Section 7 of the Plan.
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto and shall include the staff thereof.
"Shares" shall mean shares of the common stock, $ .01 par value, of the
Company.
SECTION 3.
Administration.
(a) Authority of Committee. The Committee shall, subject to the terms of the
Plan and applicable law, make recommendations to the Board with regard to (i)
designation of Participants; (ii) the type or types of Awards to be granted to
an Eligible Participant; (iii) the number of Shares to be covered by Awards;
(iv) terms and conditions of Awards; and (v) unless otherwise expressly
provided in the Plan, designations, determination, interpretations, and
suggested decisions with respect to the Plan or any Award.
(b) Authority of Board. All Awards under the Plan shall be made by the Board,
which shall have full authority to accept, reject or modify any
recommendations of the Committee. All designations, determinations,
interpretations, and other decisions under or with respect to the Plan or any
Award shall be within the sole discretion of the Board, may be made at any time
and shall be final, conclusive, and binding upon all Persons, including the
Company, any Affiliate, any Participant, any holder or beneficiary of any
Award, and any stockholder.
SECTION 4.
Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section 4(b), the
number of Shares with respect to which Awards may be granted under the Plan
shall be five hundred thousand (500,000).
If, after the effective date of the Plan, any Shares covered by an Award
granted under the Plan are forfeited, or if such an Award terminates or is
canceled without the delivery of shares, then the Shares covered by such Award,
or the number of Shares otherwise counted against the aggregate number of
Shares with respect to which Awards may be granted, to the extent of any
such, forfeiture, termination or cancellation, shall again become Shares
with respect to which Awards may be granted. In the event that any Option or
other Award granted hereunder is exercised through the delivery of Shares or in
the event that withholding tax liabilities arising from such Award are
satisfied by the withholding of Shares by the Company, the number of Shares
available for Awards under the Plan shall be increased by the number of Shares
so surrendered or withheld.
(b) Adjustments. In the event that any dividend (other than regular dividends)
or other distribution (whether in the form of cash, Shares, other securities,
or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares, or other similar corporate transaction or
event affects the Shares such that an adjustment is appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan, then adjustment shall be made, in such
manner as shall be equitable, of (i) the number of Shares with respect to which
Awards may be granted, (ii) the number of Shares subject to outstanding Awards,
and (iii) the grant or exercise price with respect to any Award, provided, that
with respect to any Award no such adjustment shall be made to the extent that
such adjustment would be inconsistent with the Plan's meeting the requirements
of Section 162(m) of the Code, as from time to time amended.
(c) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
SECTION 5.
Eligibility.
Any employee (including an officer, Executive Officer or director) of the
Company or any Affiliate, including any non-employee director, advisor,
consultant or independent contractor to the Company or any Affiliate, shall be
an Eligible Participant. To the extent the Board deems it necessary,
appropriate or desirable to comply with foreign law or practice and to further
the purpose of this Plan, the Board may, without amending this Plan, (i)
establish rules applicable to Awards granted to Participants who are foreign
nationals, are employed outside the United States, or both, including rules
that differ from those set forth in this Plan, and (ii) grant Awards to such
Participants in accordance with those rules.
SECTION 6.
Stock Options. - Terms and Conditions.
All Options granted under the Plan shall be Non-qualified Stock Options and
shall be evidenced by Award Agreements which shall be subject to applicable
provisions of the Plan and such other provisions as they may contain including:
(a) Price. The exercise price per Share shall not be less than 100% of the
Fair Market Value of a Share on the date of Award.
(b) Period. The Board, upon recommendation of the Committee may establish
the term of any Option award under the Plan, provided, however, that an Option
shall expire no later than 10 years from the date of Award.
(c) Time of Exercise. The Board, upon recommendation of the Committee, may
establish installment exercise terms in Awards to Participants based on the
Company's publicly traded Share price, and may establish installment exercise
terms based on the passage of time or otherwise, such that the Option becomes
fully exercisable in a series of cumulating portions, and may also establish
other conditions of exercise as it shall determine and may accelerate the
exercisability of any Option granted to a Participant under the Plan.
(d) Payment. No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price in cash, or its equivalent, or
by exchanging Shares owned by the optionee (which are not the subject of any
pledge or other security interest), or by a combination of the foregoing,
provided that the combined value of all cash and cash equivalents and the Fair
Market Value of any such Shares so tendered to the Company as of the date of
such tender is at least equal to such option price.
(e) Exercise. An Option, or portion thereof, shall be exercised by delivery
of a written notice of exercise to the Company, and payment of the full price
of the Shares being exercised. A Participant shall not have any of the rights
or privileges of the holder of Common Stock until such time as Shares of Common
Stock are issued or transferred to the Participant.
SECTION 7.
Restricted Stock
(a) Grant. Subject to the provisions of the Plan, the Board, upon
recommendation of the Committee, shall have authority to determine the
Participants to whom Shares of Restricted Stock shall be granted, the number of
Shares of Restricted Stock to be granted to each Participant, and the other
terms and conditions of such Awards.
Restricted Stock may be awarded to an Eligible Participant in lieu of a
portion, as determined by the Board, of any annual cash bonus earned by such
Participant, which will vest ratably over a period of years determined by the
Board on each anniversary of the date of Award. Such Restricted Stock so
awarded, as set forth in the Award Agreement may have a premium in Shares
greater than the portion of the bonus to be paid in Restricted Shares, which
Premium shares shall be delivered to the Participant when the Award is fully
vested, provided that the Participant is in the employ of the Company when
vesting occurs.
(b) Transfer restrictions. Upon the lapse of the restrictions applicable to
Shares of Restricted Stock, the Company shall deliver certificates for same to
the Participant or the Participant's legal representative.
(c) Payment. Each share of Restricted Stock shall be paid in Shares, upon
the lapse of the restrictions applicable thereto, or otherwise in accordance
with the applicable Award Agreement.
(d) Dividends and Distributions. Dividends and other distributions paid on
or in respect of any Shares of Restricted Stock shall be paid to the
Participant.
SECTION 8.
Termination of Employment.
The following provisions shall apply in the event of the Participant's
termination of employment unless otherwise provided in the Award Agreement:
Non-Qualified Stock Options.
(i) Termination of Employment. If the Participant's employment with the
Company or its Affiliates is terminated for any reason other than death,
permanent and total disability, or retirement, the Participant's right to
exercise any Non-Qualified Stock Option shall terminate, and such Option shall
expire, on the earlier of (A) the first anniversary of such termination of
employment or (B) the date of such Option would have expired had it not been
for the termination of employment. The Participant shall have the right to
exercise such option prior to such expiration to the extent it was exercisable
at the date of such termination of employment and shall not have been
exercised.
(ii) Death, Disability or Retirement. If the Participant's employment with the
Company or its Affiliates is terminated by death, permanent and total
disability, or retirement, the Participant or his or her estate
representative (if employment is terminated by death) shall have the right,
within three (3) months from the date of determination of permanent and
total disability, retirement, or the appointment of an estate representative,
to exercise any Non-Qualified Stock Option to the extent it was
exercisable at the date of such termination of employment and
shall not have been exercised, but in no event shall such option be
exercisable later than the date the Option would have expired had it not been
for the termination of such employment.
(b) Restricted Stock. In the event of a Participant's retirement, permanent
and total disability, or death, or in cases of special circumstances, the Board
may, when it finds that a waiver would be in the best interest of the Company,
waive in whole or in part, any or all remaining restrictions with respect to
such Participant's entitlement to shares of Restricted Stock.
SECTION 9.
Change in Control.
Notwithstanding any other provision of the Plan to the contrary, upon a Change
in Control all outstanding Awards shall vest, become immediately exercisable or
payable and have all restrictions lifted as may apply to the type of Award.
SECTION 10.
Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension discontinuation or termination
shall be made without stockholder approval to: increase the number of shares
issuable; reduce the exercise price of Option or extend the termination period
of the Plan. The Board, however, may not amend or terminate the Plan without a
Participant's consent insofar as it would adversely affect a Participant's
rights to previously granted Awards.
(b) Cancellation. Any Award granted hereunder may be canceled with the
approval and agreement of the Participant in consideration of a cash payment or
alternative Award make to the holder of such canceled Award equal in value to
the Fair Market Value of Such canceled Award.
SECTION 11.
General Provisions
(a) Nontransferability. No Award shall be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant, except
by will or the laws of descent and distribution or pursuant to a QDRO.
(b) No Rights to Awards. No Participant or other Person shall have any claim
to be granted any Award, and there is no obligation for uniformity of treatment
of Participants, or holders or beneficiaries of Awards. The terms and
conditions of Awards need not be the same with respect to each recipient.
(c) Share Certificates. All certificates for Shares or other securities of
the Company delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop transfer orders and other restrictions as
the Board may deem advisable under the Plan or the rules, regulations, and
other requirements of the Securities and Exchange Commission, any stock
exchange upon which such Shares or other securities are then listed, and any
applicable Federal or state laws, and a legend or legends may be put on any
such certificates to make appropriate reference to such restrictions.
(d) Withholding. A Participant may be required to pay to the Company and the
Company shall have the right and is hereby authorized to withhold from any
Award, from any payment due or transfer made under any Award or under the Plan
or from any compensation or other amount owing to a Participant the amount (in
cash, or Shares), of any applicable withholding taxes in respect of an Award,
its exercise, or any payment or transfer under an
Award or under the Plan and to take such other action as may be necessary in
the opinion of the Company to satisfy all obligations for the payment of such
taxes.
(e) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement that shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto.
(f) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
(g) Rights as Stockholder. No holder of an Award of stock options or
beneficiary of any such Award shall have any rights as a stockholder with
respect to such options until he or she has exercised such option and become
the holder of Shares. In connection with each grant of Restricted Stock
hereunder, the applicable Award shall be entitled to the rights of a
stockholder in respect of such Restricted Stock, except for such transfer
restrictions as may be applicable thereto.
(h) Governing Law. The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan and any Award Agreement shall be
determined in accordance with the laws of the State of New York.
(i) Severability. If any provision of the Plan or any Award is or becomes or
is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to
any Person or Award, or would disqualify the Plan or any Award under any
applicable law, such provision shall be construed or deemed amended to conform
to the applicable laws, or if it cannot be construed or deemed amended without,
in the determination of the Board, materially altering the intent of the Plan
or the Award, such provision shall be stricken as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full
force and effect.
(j) Other Laws. The Company may refuse to issue or transfer any Shares or
other consideration under an Award if, it determines that the issuance or
transfer of such shares might violate any applicable law or regulation or
entitle the Company to recover the same under Section 16(b) of the Exchange
Act, and any payment tendered to the Company by a Participant, other holder or
beneficiary in connection with the exercise of such Award shall be promptly
refunded to the relevant Participant, holder, or beneficiary. Without limiting
the generality of the foregoing, no Award granted hereunder shall be construed
as an offer to sell securities of the Company, and no such offer shall be
outstanding, unless the Board has determined that any such offer, if made,
would be in compliance with all applicable requirements of the U.S. federal
securities laws any other laws to which such offer, if made, would be subject.
(k) No Trust Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and a Participant or any other Person. To the
extent that any Person acquires rights pursuant to an Award, such rights shall
be no greater than the rights of any unsecured general creditor of the Company.
(l) No Obligation to Exercise Options. The granting of an Option shall
impose no obligation upon the Participant to exercise such Option.
(m) Plan Expenses. Any expenses of administering this Plan shall be borne by
the Company.
(n) No Warranty of Tax Effect. Except as may be contained in any Award
Agreement, no opinion shall be deemed to be expressed or warranties made as to
the effect of foreign, federal, state, or local tax on any Awards.
SECTION 12.
Share Ownership Guidelines.
It is an objective of this Plan that designated Eligible Participants be owners
of Shares.
(a) Applicability. Share ownership guidelines are applicable to the Chief
Executive Officer ("CEO") and to managerial Participants designated by the
Board ("Designated Participants").
(b) Basis. Share ownership guidelines are in terms of Fair Market Value of
Shares to be owned relative to the positions held and base salaries of
Designated Participants. Ownership levels and guidelines will be reviewed (and
if advisable modified) by the Board (upon recommendation of the Committee)
periodically, based on internal reports and overall operations of the Company.
(c) Targeted Guideline Levels. Designated Participants will either from
inception of the Plan or commencement of employment have five (5) years to
reach the targeted guideline levels of Share ownership (except, that if a
Designated Participant's Base Salary is increased from under $100,000.00 to
100,000.00 or more, such Participant will have three (3) years from the date of
the increase in Base Salary to reach the targeted guideline level of share
ownership), which levels can be changed, modified, or suspended due to
individual or group circumstances. Restricted Stock awarded to a Participant
shall be included in calculating Shares owned.
(d) Guidelines.
Position/Base Salary Guidelines, as a Multiple ("X") of Salary
CEO 2X
Base Salary of $100,000.00 or more 1X
Base Salary of under $100,000.00 1/2 X
SECTION 13.
Stockholder Approval and Effective Dates.
This Plan shall become operative and in effect on such date as it shall be
approved by the stockholders of the Company. No option or Award shall be
granted hereunder after the expiration of ten years after the date that it
shall have become operative and in effect.
<PAGE>
Exhibits 5 and 24(b)
SAMUEL I. HENDLER
LAW OFFICES
1983 MARCUS AVENUE
SUITE 121
LAKE SUCCESS, NEW YORK 11042
TELEPHONE (516) 616-1850
FACSIMILE (516) 616-1852
October 14, 1999
Aceto Corporation
One Hollow Lane
Lake Success, NY 11042-1215
Re: Registration Statement on Form S-8
Aceto Corporation 1998 Omnibus Equity Award Plan
Gentlemen:
I refer to the above referenced Registration Statement on Form S-8 to be filed
by Aceto Corporation (the "Company") with the Securities and Exchange
Commission.
I have examined the Company's corporate records, including its Restated
Certificate of Incorporation and Certificates of Amendment thereof, its By-
Laws, and the minutes of its directors' meetings and stockholders' meetings. I
have examined the foregoing and such other documents and proceedings of the
Company as I deemed appropriate, and am of the opinion that:
The Company was duly incorporated and now validly exist as a corporation
under the laws of the State of New York.
(2) The Aceto Corporation 1998 Omnibus Equity Award Plan has been duly
authorized by the Board of Directors of the Company and has been duly
approved by the stockholders of the Company.
The shares of the Company's Common Stock to be issued to optionees upon
the exercise of stock options pursuant to said plan have been duly and validly
authorized and when issued will be fully paid and non-assessable.
I hereby consent to the use of this opinion as an exhibit to the referenced
Registration Statement.
Very truly yours,
/s/ Samuel I. Hendler
Samuel I. Hendler
<PAGE>
Exhibit 24(a)
Independent Auditor's Consent
The Board of Directors
Aceto Corporation:
We consent to the use of our report dated August 18, 1999, with respect to the
consolidated financial statements of Aceto Corporation and subsidiaries as of
and for the three-year period ended June 30, 1999, and of our report dated
August 14, 1998, with respect to the consolidated financial statements of Aceto
Corporation and subsidiaries as of and for the three-year period ended June 30,
1998, incorporated herein by reference.
KPMG LLP
Melville, New York
November 10, 1999
