<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON May 12, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
WINDMERE-DURABLE HOLDINGS, INC.
-------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-1028301
------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5980 MIAMI LAKES DRIVE
MIAMI LAKES, FLORIDA 33014
(305) 362-2611
-------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1996 STOCK OPTION PLAN
- --------------------------------------------------------------------------------
-------------------
DAVID M. FRIEDSON
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
WINDMERE-DURABLE HOLDINGS, INC.
5980 MIAMI LAKES DRIVE
MIAMI LAKES, FLORIDA 33014
---------------------------------------------------
(Name and address of agent for service)
(305) 362-2611
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
COPY TO:
PAUL BERKOWITZ, ESQ.
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0685
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK 850,000 $10.375 - $25.5625 $17,777,642 $6,130.22
$.01 PAR VALUE...................... SHARES
=============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
price of $10.375, 14.875 and $24.188 for an aggregate of 250,000, 10,000
and 34,000 options, respectively, to purchase Common Stock being
registered, which have already been granted under the 1996 Stock Option
Plan, and (ii) the average of the high and low sale price of the Common
Stock on April 17, 1998 ($25.5625) with respect to 556,000 shares of
Common Stock subject to future grants of options under the 1996 Stock
Option Plan.
<PAGE> 2
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997;
(b) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of fiscal year 1997; and
(c) the descriptions of the Registrant's Common Stock and related
matters set forth under the captions "Description of Capital
Stock" and "Dividend Policy" in the Registrant's Registration
Statement on Form S-1 (File No. 002-28383) filed under the
Securities Act of 1933, as amended (the "Act"), including any
amendments to such descriptions in such Registration
Statement.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference 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.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. The Registrant's Amended and Restated Articles of
Incorporation provide that the Registrant shall indemnify and may insure its
officers and directors to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of criminal
laws, unless the director had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful, (b) deriving an
improper personal benefit from a transaction, (c) voting for or assenting to an
unlawful distribution and (d) willful misconduct or conscious disregard for the
best interests of the Registrant in a proceeding by or in the right of the
Registrant to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws. The
effect of the foregoing is to require the Registrant to indemnify the officers
and directors of the Registrant for any claim arising against such persons in
their official capacities if such person acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
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
II-1
<PAGE> 3
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. 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 suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered
hereunder, 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-6 below.
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 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) shall 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.
(2) That, for the purpose of determining any liability under
the 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 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 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 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
II-2
<PAGE> 4
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Miami Lakes, State of Florida on April 30, 1998.
WINDMERE-DURABLE HOLDINGS, INC.
By: /s/ David M. Friedson
--------------------------------------
Name: David M. Friedson
Title: Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David M. Friedson and Burton A.
Honig his true and lawful attorneys-in-fact, each acting alone, with full powers
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ David M. Friedson Chairman, President and Chief Executive Officer April __, 1998
- ----------------------------------- (Principal Executive Officer)
David M. Friedson
/s/ Harry D. Schulman Senior Vice President and Chief Financial Officer April 24, 1998
- ----------------------------------- (Principal Financial Officer)
Harry D. Schulman
/s/ Burton A. Honig Vice President - Finance (Principal Accounting April 22, 1998
- ----------------------------------- Officer)
Burton A. Honig
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Wendy Sager Pomerantz Director April 23, 1998
- -----------------------------------
Wendy Sager Pomerantz
/s/ Jerald I. Rosen Director April 23, 1998
- -----------------------------------
Jerald I. Rosen
/s/ Harold Strauss Director April __, 1998
- -----------------------------------
Harold Strauss
/s/ Lai Kin Director April __, 1998
- -----------------------------------
Lai Kin
/s/ Raymond So Director April __, 1998
- -----------------------------------
Raymond So
/s/ Leonard Glazer Director April 23, 1998
- -----------------------------------
Leonard Glazer
/s/ Barbara Friedson Garrett Director April 23, 1998
- -----------------------------------
Barbara Friedson Garrett
/s/ Felix S. Sabates Director April 21, 1998
- -----------------------------------
Felix S. Sabates
/s/ Arnold Thaler Director April 27, 1998
- -----------------------------------
Arnold Thaler
/s/ Thomas Kane Director April 23, 1998
- -----------------------------------
Thomas Kane
/s/ Susan Ganz Director April 23, 1998
- -----------------------------------
Susan Ganz
/s/ Desmond Lai Director April __, 1998
- -----------------------------------
Desmond Lai
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 Registrant's Articles of Amendment to the Amended and
Restated Articles of Incorporation(1)
4.2 Registrant's Amended and Restated Bylaws(2)
4.3 1996 Stock Option Plan(3)
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A.
23.1 Consent of Grant Thornton LLP
23.2 Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A. (contained in its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of
this Registration Statement
- ----------------------------
(1) Incorporated by reference to Exhibit 3.6 filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1996.
(2) Incorporated by reference to Exhibit 3.5 filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1992.
(3) Incorporated by reference to Exhibit A filed with the Registrant's Proxy
Statement dated April 17, 1997.
II-6
<PAGE> 1
EXHIBIT 4.3
WINDMERE-DURABLE HOLDINGS, INC.
1996 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests of
Windmere-Durable Holdings, Inc., a Florida corporation (the "Company"), by
providing an additional incentive to attract, retain and motivate qualified and
competent persons who are key to the Company and its Subsidiaries, including
employees, officers, directors, independent contractors and consultants and upon
whose efforts and judgment the success of the Company is largely dependent,
through the encouragement of stock ownership in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the
meaning indicated:
(a) "Affiliate" shall mean any corporation other than the
Company that is a member of an affiliated group of corporations, as defined in
Section 1504 (determined without regard to Section 1504(b)) of the Code, of
which the Company is a member.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Committee" shall mean the committee appointed pursuant to
Section 13 hereof to administer the Plan.
(e) "Common Stock" shall mean the Company's Common Stock, par
value $0.10 per share.
(f) "Company" shall refer to Windmere-Durable Holdings, Inc.
(g) "Covered Employee" shall mean any individual who, on the
last day of the taxable year of the Company, is (i) the Chief Executive Officer
of the Company or is acting in such capacity (the "CEO"), (ii) among the four
highest compensated officers of the Company and its Affiliates (other than the
CEO), or (iii) otherwise considered to be "Covered Employee" within the meaning
of Section 162(m) of the Code and the regulations thereunder.
(h) "Director" shall mean a member of the Board.
(i) "Effective Date" shall mean May 14, 1996.
(j) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(k) "Fair Market Value" of a Share on any date of reference
shall be the "Closing Price" (as defined below) of the Common Stock on the
business day immediately preceding such date, unless the Committee in its sole
discretion shall determine otherwise in a
<PAGE> 2
fair and uniform manner. For the purpose of determining Fair Market Value, the
"Closing Price" of the Common Stock on any business day shall be (i) if the
Common Stock is listed or admitted for trading on any United States national
securities exchange, or if actual transactions are otherwise reported on a
consolidated transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system, as reported in any newspaper
of general circulation, (ii) if the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotations System, or any similar
system of automated dissemination of quotations of securities prices in common
use, the last reported sale price of Common Stock for such day on such system,
or (iii) if neither clause (i) or (ii) is applicable, the mean between the high
bid and low asked quotations for the Common Stock as reported by the National
Quotation Bureau, Incorporated if at least two securities dealers have inserted
both bid and asked quotations for Common Stock on at least five of the ten
preceding days. If neither (i), (ii), or (iii) above is applicable, then Fair
Market Value shall be determined in good faith by the Committee in a fair and
uniform manner.
(l) "Incentive Stock Option" shall mean an incentive stock
option as defined in Section 422 of the Code.
(m) "Non-Employee Director" shall refer to a Director who is
not an employee of the Company or any Subsidiary.
(n) "Non-Qualified Stock Option" shall mean an Option which is
not an Incentive Stock Option.
(o) "Option" (when capitalized) shall mean any option granted
under this Plan.
(p) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any permitted assigns.
(q) "Outside Director" shall mean a member of the Board who
(i) is not a current employee of the Company or any Affiliate; (ii) is not a
former employee of the Company or any Affiliate who receives compensation for
prior services (other than benefits under a tax-qualified retirement plan)
during the taxable year; (iii) has not been an officer of the Company or any
Affiliate; (iv) does not receive remuneration from the Company or any
Subsidiary, either directly or indirectly, in any capacity other than as a
Director, and (v) satisfies any other conditions that shall from time to time be
required to qualify as an "outside director" under Section 162(m) of the Code
and the regulations thereunder and as a "Non-Employee Director" under Rule 16b-3
promulgated under the Exchange Act. For this purpose, "Remuneration" shall have
the meaning afforded that term pursuant to Treasury Regulation issued under
Section 162(m) of the Code, and shall exclude any de minimis remuneration
excluded under those Treasury Regulations.
(r) "Plan" shall mean this 1996 Stock Option Plan for the
Company.
(s) "Share(s)" shall mean a share or shares of the Common
Stock.
2
<PAGE> 3
(t) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the Company if, at
the time of the granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50 percent or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
3. SHARES AND OPTIONS. The Committee may grant to Optionees from time
to time Options to purchase an aggregate of up to 850,000 Shares from authorized
and unissued Shares. If any Option granted under the Plan shall terminate,
expire, or be canceled or surrendered as to any Shares, new Options may
thereafter be granted covering such Shares. An Option granted hereunder shall be
either an Incentive Stock Option or a Non-Qualified Stock Option as determined
by the Committee at the time of the grant of such Option and shall clearly state
whether it is an Incentive Stock Option or Non-Qualified Stock Option. All
Incentive Stock Options shall be granted within 10 years from the effective date
of this Plan.
4. DOLLAR LIMITATION. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate Fair Market Value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Code Section 422(b) are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and any Subsidiary),
exceeds $100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement that
may contain any term deemed necessary or desirable by the Committee, provided
such terms are not inconsistent with this Plan or any applicable law. Optionees
shall be those persons selected by the Committee who are Directors and/or
employees of the Company or any Subsidiary.
(b) In granting Options, the Committee shall take into
consideration the contribution the person has made to the success of the Company
or its Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may, from time to time
in granting Options, prescribe such other terms and conditions concerning such
Options as it deems appropriate, including, without limitation, (i) prescribing
the date or dates on which the Option becomes exercisable, (ii) providing that
the Option rights accrue or become exercisable in installments over a period of
years, and/or upon the attainment of stated goals, or (iii) relating an Option
to the continued employment of the Optionee for a specified period of time,
provided that such terms and conditions are not more favorable to an Optionee
than those expressly permitted herein.
(c) The Options granted to employees under this Plan shall be
in addition to regular salaries, pension, life insurance or other benefits
related to their employment with the Company or its Subsidiaries. Neither the
Plan nor any Option granted under the Plan shall
3
<PAGE> 4
confer upon any person any right to employment or continuance of employment by
the Company or its Subsidiaries.
(d) Each Director of the Company on June 1, 1998 and on each
anniversary thereof during the term of the Plan shall receive a grant, as soon
after such date as reasonably possible, of nonqualified options to purchase
1,500 shares of Common Stock at a price not less than 100% of the fair market
value of the Common Stock on the date of the particular option grant.
(e) Notwithstanding any other provisions of the Plan to the
contrary, an Incentive Stock Option shall not be granted to any person owning
directly or indirectly (through attribution under Section 424(d) of the Code) at
the date of grant, 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, as
those terms are defined in Section 424 of the Code, at the date of grant) unless
the option price of such Option is at least 110% of the Fair Market Value of the
Shares subject to such Option on the date the Option is granted, and such Option
by its terms is not exercisable after the expiration of five years from the date
such Option is granted.
(f) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, the aggregate number of Shares
with respect to which Options may be granted to any one Optionee may not exceed
500,000, subject to adjustment as provided in Section 10(a) hereof.
(g) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, Options may not be granted to a
Covered Employee unless the grant of such Option is authorized by, and all of
the terms of such Options are determined by, a Committee that is appointed in
accordance with Section 13 of this Plan and all of whose members are Outside
Directors.
6. OPTION PRICE. The option price per Share of any Option shall be any
price determined by the Committee, but shall not be less than the par value per
Share; provided, however, that in no event shall the option price per Share of
any Incentive Stock Option be less than the Fair Market Value of the Shares
underlying such Option on the date such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i)
the Company or the Committee has received written notice of such exercise in
accordance with the terms of the Option, (ii) full payment of the aggregate
option price of the Shares as to which the Option is exercised has been made,
and (iii) arrangements that are satisfactory to the Committee in its sole
discretion have been made for the Optionee's payment to the Company of the
amount that is necessary for the Company or Subsidiary employing the Optionee to
withhold in accordance with applicable Federal or state tax withholding
requirements. Unless further limited by the Committee in any Option, the option
price of any Shares purchased shall be paid (1) in cash, (2) by certified or
official bank check, (3) by money order, (4) with Shares owned by the Optionee
that have been owned by the Optionee for more than 6 months on the date of
surrender or such other period as may be required to avoid a charge to the
Company's earnings for financial
4
<PAGE> 5
accounting purposes, (5) by authorization for the Company to withhold Shares
issuable upon exercise of the Option, (6) by arrangement with a broker that is
acceptable to the Committee where payment of the Option price is made pursuant
to an irrevocable direction to the broker to deliver all or part of the proceeds
from the sale of the Option Shares to the Company in payment of the Option
price, or (7) any combination of the foregoing. The Committee in its sole
discretion may accept a personal check in full or partial payment of any Shares.
If the exercise price is paid in whole or in part with Shares, the value of the
Shares surrendered shall be their Fair Market Value on the date the Option is
exercised. The Company in its sole discretion may, on an individual basis or
pursuant to a general program established in connection with this Plan, and
subject to applicable law, lend money to an Optionee, guarantee a loan to an
Optionee, or otherwise assist an Optionee to obtain the cash necessary to
exercise all or a portion of an Option granted hereunder or to pay any tax
liability of the Optionee attributable to such exercise. If the exercise price
is paid in whole or part with Optionee's promissory note, such note shall (i)
provide for full recourse to the market, (ii) be collateralized by the pledge of
the Shares that the Optionee purchases upon exercise of such Option, (iii) bear
interest at a rate no less than the price rate of the Company's principal
lender, and (iv) contain such other terms as the Board in its sole discretion
shall reasonably require. No Optionee shall be deemed to be a holder of any
Shares subject to an Option unless and until a stock certificate or certificates
for such Shares are issued to such person(s) under the terms of this Plan. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued, except as
expressly provided in Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Except as otherwise provided in this
Section, any Option shall become exercisable in such amounts, at such intervals
and upon such terms as the Committee shall provide in such Option.
(a) The expiration date of an Option shall be determined by
the Committee at the time of grant, but in no event shall an Option be
exercisable after the expiration of 10 years from the date on which the Option
is granted.
(b) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable:
(i) if there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that shareholders of the Company immediately
before such transaction cease to own at least 51% of the voting stock of the
Company or of any entity that results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) if the shareholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
5
<PAGE> 6
(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
(c) The Committee may in its sole discretion accelerate the
date on which any Option may be exercised and may accelerate the vesting of any
Shares subject to any Option.
9 9. TERMINATION OF OPTION PERIOD.
(a) The unexercised portion of any Option granted to an
Optionee shall automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(i) three months after the date on which the
Optionee's employment with the Company or any Subsidiary, or service as a
Director, is terminated or, in the case of a Non-Qualified Stock Option and
unless the Committee shall otherwise determine in writing in its sole
discretion, the date on which the Optionee's employment with the Company or any
Subsidiary or service as a Director, is terminated, in either case for any
reason other than by reason of (A) Cause, which shall mean "Cause" under such
Optionee's employment agreement, if any, and which, solely for purposes of this
Plan, also shall mean the termination of the Optionee's employment or the
removal of the Optionee as a Director by reason of the Optionee's willful
misconduct or gross negligence, (B) the Optionee's mental or physical disability
(within the meaning of Code Section 22(c)) as determined by a medical doctor
satisfactory to the Committee, or (C) the Optionee's death;
(ii) immediately upon the termination of the
Optionee's employment with the Company or any Subsidiary, or service as a
Director, for Cause;
(iii) twelve months after the date on which the
Optionee's employment with the Company or any Subsidiary, or service as a
Director is terminated by reason of mental or physical disability (within the
meaning of Code Section 22(e)) as determined by a medical doctor satisfactory to
the Committee; or
(iv) (A) twelve months after the date of the
Optionee's death or (B) three months after the date of the Optionee's death if
such death shall occur during the twelve month period specified in Subsection
9(a)(iii) hereof.
(b) The board or the Committee in its sole discretion may be
giving written notice (the "Cancellation Notice") cancel, effective upon the
date of the consummation of any corporate transaction describe din Subsections
8(b)(i), (ii) or (iii) hereof, any Option that remains unexercised on such date.
Such Cancellation Notice shall be given a reasonable period of time prior to the
proposed date of such cancellation and may be given either before or after
approval of such corporation transaction.
(c) Notwithstanding the provisions of this Section 9 or any
other provision in this Plan, the exercise of any Option shall be subject to
satisfaction of the conditions precedent
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that, without the prior written consent of the Company, the Optionee (i) dos not
intend to take employment or render services to others within six months of the
exercise of any Option (ii) has neither taken other employment nor rendered
services to others or (iii) has not and does not intend to engage in conduct
that adversely effects the Company.
10. ADJUSTMENT OF SHARES.
(a) If any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or decrease in the number
of issued and outstanding Shares through the declaration of a stock dividends or
through any recapitalization resulting in a stock split-up, combination or
exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares available for grant under the Plan, and to any one
Optionee, so that the same percentage of the Company's issued and outstanding
Shares shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof then subject to any
outstanding Option, so that the same percentage of the Company's issued and
outstanding Shares shall remain subject to purchase at the same aggregate
exercise price.
(b) Unless otherwise provided in any Option, the Committee may
change the terms of Options outstanding under this Plan, including with respect
to the option price or the number of Shares subject to the Options, or both,
when, in the Committee's sole discretion, such adjustments become appropriate by
reason of a corporate transaction described in Subsections 8(b)(i), (ii) or
(iii) hereof.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or 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 of or
exercise price of Shares then subject to outstanding Options granted under the
Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise or would otherwise prohibit the registration of the
Common Stock on Form S-8.
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11. TRANSFERABILITY OF OPTIONS AND SHARES.
(a) No incentive Stock Option and, unless the Committee's
prior written consent is obtained and the transactions does not violate the
requirements of Rule 16b-3 promulgated under the Exchange Act or would otherwise
prohibit the registration; of the Common Stock on Form S-8, no Non-Qualified
Stock Option, shall be subject to alienation, assignment, pledge, charge or
other transfer other than by the Optionee by will or the laws of descent and
distribution, and any attempt to make any such prohibited transfer shall be
void. Each Option shall be exercisable during the Optionee's lifetime only by
the Optionee, or in the case of a Non-Qualified Stock Option that has been
assigned or otherwise transferred with the Committee's prior written consent,
only by the assignee consented to by the Committee.
(b) Unless the Committee's prior written consent is obtained
and the transaction does not violate the requirements of Rule 16-3 promulgated
under the Exchange Act, no Shares acquired by an Officer, as that term is
defined under Rule 16-3, of the Company or Director pursuant to the exercise of
an Option may be sold, assigned, pledged or otherwise transferred prior to the
expiration of the six-month period following the date on which the Option was
granted.
12. ISSUANCE OF SHARES.
(a) Notwithstanding any other provision of this Plan, the
Company shall not be obligated to issue any Shares unless it is advised by
counsel of its selection that it may do so without violate of the applicable
Federal and State laws pertaining to the issuance of securities, and may require
any stock so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps, as in its judgment as reasonably required to
prevent any such violation.
(b) As a condition of any sale or issuance of Shares upon
exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not limited to, the
following:
(i) a representation and warranty by the Optionee to
the Company, at the time any Option is exercised, that he is acquiring the
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to
be bound by any legends that are, in the opinion of the Committee, necessary or
appropriate to comply with the provisions of any securities law deemed by the
Committee to be applicable to the issuance of the Shares and are endorsed upon
the Shares certificates.
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13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Committee, which
shall consist of not less than two Directors, each of whom shall be Outside
Directors. The Committee shall have all of the powers of the Board with respect
to the Plan. Any member of the Committee may be removed at any time, with or
without cause, by resolution of the Board, and any vacancy occurring in the
membership of the Committee may be filled by appointment of the Board.
(b) The Board may reserve to itself the power to grant Options
to employees or Directors of the Company or any Subsidiary who are not Covered
Employees. If and to the extent that the Board reserves such powers, then all
references herein to the Committee shall refer to the Board with respect to the
Options granted by the Board.
(c) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of the Plan. The Committee's
determinations and its interpretation and construction of any provision of the
Plan shall be final and conclusive.
(d) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the unanimous written approval of the
members of the Committee.
14. WITHHOLDING OR DEDUCTION FOR TAXES. If at any time specified herein
for the making of any issuance or delivery of any Option or Common stock to any
Optionee, any law or regulation of any governmental authority having
jurisdiction in the premises shall require the Company to withhold, or to make
any deduction for, any taxes or take any other action in connection with the
issuance or delivery then to be made, such issuance or delivery shall be
deferred until such withholding or deduction shall have been provided for by the
Optionee or beneficiary, or other appropriate action shall have been taken.
15. INTERPRETATION.
(a) As it is the intent of the Company that the Plan comply in
all respects with Rule 16b-3 promulgated under the Exchange Act ("Rule 16b-3"),
any ambiguities or inconsistencies in construction of the Plan shall be
interpreted to give effect to such intention, and if any provision of the Plan
is found not be in compliance with Rule 16-3, such provision shall be deemed
null and void to the extent required to permit the Plan to comply with Rule
16b-3. The Board and the Committee each may from time to time adopt rules and
regulations under, and amend, the Plan in furtherance of the intent of the
foregoing.
(b) The Plan shall be administered and interpreted so that all
Incentive Stock Options granted under the Plan will qualify as Incentive Stock
Options under section 422 of the code. If any provision of the Plan should be
held invalid for the granting of Incentive Stock Options or illegal for any
reason, such determination shall not affect the remaining provision hereof, but
instead the Plan shall be construed and enforced as if such provision had never
been included in the Plan.
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(c) This Plan shall be governed by the laws of the State of
Florida.
(d) Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
16. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Board and the
Committee each may from time amend the Plan or any Option in accordance with the
rules and regulations of the applicable United States national securities
exchange or automated quotation system; provided, however that, except to the
extent provided in Section 10, no such amendment may, without approval by the
shareholders of the Company, (i) increase the number of securities which may be
issued under the Plan pursuant to the exercise of Incentive stock Options, (ii)
modify the requirements as to eligibility for participation in the Plan or (iii)
increase the aggregate number of Options that may be granted to any one
Optionee; and provided further, that, except to the extent provided in Section
9, no amendment or suspension of the Plan or any Option issued hereunder shall
substantially impair any Option previously granted to any Optionee without the
consent of such Optionee.
17. EFFECTIVE DATE AND TERMINATION DATE. The Plan shall be effective
upon the Effective Date and shall terminate on the 10th anniversary of the
Effective Date.
<PAGE> 1
EXHIBIT 5.1
May 7, 1998
Windmere-Durable Holdings, Inc.
5980 Miami Lakes Drive
Miami Lakes, Florida 33014
Re: Registration Statement on Form S-8 for Windmere-Durable
Holdings, Inc. 1996 Stock Option Plan, as amended
Ladies and Gentlemen:
On the date hereof, Windmere-Durable Holdings, Inc. a Florida
corporation (the "Company"), sent for filing with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-8 (the
"Registration Statement"), under the Securities Act of 1933, as amended (the
"Act"). The Registration Statement relates to the offering and sale by the
Company of up to 850,000 shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), pursuant to stock options ("Options") granted or
to be granted under the Company's 1996 Stock Option Plan, as amended (the "1996
Plan"). We have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Articles of Incorporation
and Bylaws of the Company; (ii) records of corporate proceedings of the Company
authorizing the 1996 Plan; (iii) the Registration Statement and exhibits
thereto; and (iv) such other documents and instruments as we have deemed
necessary for the expression of the 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,
we have relied, to the extent we deemed reasonably appropriate, upon
representations of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 21,000,000 shares of authorized and
unissued Common Stock from which the 850,000 shares of Common Stock proposed to
be sold pursuant to the exercise of Options granted under the 1996 Plan may be
issued. In addition, assuming that the Company maintains an adequate number of
authorized but unissued shares of Common Stock available for issuance to those
persons who exercise their Options, and that the consideration for the
underlying shares of Common Stock issued pursuant to the Options is actually
received by the Company as provided in the 1996 Plan, we are of the opinion that
the shares of Common Stock issued pursuant to the exercise of Options granted
under and in accordance with the terms of the 1996 Plan will be duly and validly
issued, fully paid and nonassessable.
<PAGE> 2
Windmere-Durable Holdings, Inc.
May 7, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
/s/ GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
-----------------------------------
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
<PAGE> 1
Exhibit 23.1
AUDITOR'S REPORT
We have issued our report dated February 10, 1998, accompanying the consolidated
financial statements and schedule incorporated by reference in the Form 10-K of
Windmere-Durable Holdings, Inc. for the year ended December 31, 1997. We hereby
consent to the incorporation by reference of the aforementioned report in the
Registration Statements of Windmere-Durable Holdings, Inc. on Form S-8.
GRANT THORNTON LLP
Miami, Florida
May 11, 1998
