<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 3, 1999
===============================================================================
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
----------------------------------------
(Address of Principal Executive Offices)
1998 STOCK OPTION PLAN
------------------
DAVID M. FRIEDSON
CHAIRMAN OF THE BOARD, PRESIDENT 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, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0685
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
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 2,100,000
$.10 PAR VALUE...................... SHARES $7.125-$24.50 $40,335,937.75 $11,213.38
===================================================================================================================================
</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 prices of $7.125, $7.375, $12.8125 and $24.50 for an aggregate of
225,000, 402,500, 22,500 and 1,445,000 options, respectively, to purchase
Common Stock being registered, which have already been granted under the
1998 Stock Option Plan, and (ii) the average of the high and low sale
price of the Common Stock on August 31, 1999 ($14.7188) with respect to
5,000 shares of Common Stock subject to future grants of options under
the 1998 Stock Option Plan.
<PAGE> 2
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ---------------------
* The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as the
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
shall constitute a prospectus which meets the requirements of Section 10(a) of
the Securities Act of 1933, as amended.
2
<PAGE> 3
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, 1998;
(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 1998; 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. Any statement
contained in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in a subsequently filed document
incorporated herein by reference, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Registration Statement.
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.
3
<PAGE> 4
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 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
(5.1) Opinion of Greenberg Traurig, P.A.
(10.1) 1998 Stock Option Plan
(23.1) Consent of Grant Thornton LLP
(23.2) Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
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.
4
<PAGE> 5
(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 Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
5
<PAGE> 6
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 August 30, 1999.
WINDMERE-DURABLE HOLDINGS, INC.
By: /s/ David M. Friedson
------------------------------------
Name: David M. Friedson
Title: Chairman, President and Chief
Executive Officer
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 August 30, 1999
- ----------------------------------
David M. Friedson Officer (Principal Executive Officer)
/s/ Harry D. Schulman Senior Vice President and Chief Financial August 30, 1999
- ---------------------------------- Officer (Principal Financial Officer) and
Harry D. Schulman Director
/s/ Jerald I. Rosen Director August 30, 1999
- ----------------------------------
Jerald I. Rosen
/s/ Harold Strauss Director August 30, 1999
- ----------------------------------
Harold Strauss
/s/ Lai Kin Director August 30, 1999
- ----------------------------------
Lai Kin
/s/ Raymond So Director August 30, 1999
- ----------------------------------
Raymond So
/s/ Leonard Glazer Director August 30, 1999
- ----------------------------------
Leonard Glazer
/s/ Barbara Friedson Garrett Director August 30, 1999
- ----------------------------------
Barbara Friedson Garrett
/s/ Felix S. Sabates Director August 30, 1999
- ----------------------------------
Felix S. Sabates
/s/ Arnold Thaler Director August 30, 1999
- ----------------------------------
Arnold Thaler
/s/ Thomas Kane Director August 30, 1999
- ----------------------------------
Thomas Kane
/s/ Susan Ganz Director August 30, 1999
- ----------------------------------
Susan Ganz
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Desmond Lai Director August 30, 1999
- ----------------------------------
Desmond Lai
/s/ Frederick E. Fair Director August 30, 1999
- ----------------------------------
Frederick E. Fair
/s/ J. Maurice Hopkins Director August 30, 1999
- ----------------------------------
J. Maurice Hopkins
</TABLE>
7
<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
5.1 Opinion of Greenberg Traurig, P.A.
10.1 1998 Stock Option Plan
23.1 Consent of Grant Thornton LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
<PAGE> 1
EXHIBIT 5.1
September 3, 1999
Windmere-Durable Holdings, Inc.
5980 Miami Lakes Drive
Miami Lakes, Florida 33014
Re: Registration Statement on Form S-8 for Windmere-Durable
Holdings, Inc. 1998 Stock Option Plan
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 2,100,000 shares of the Company's Common Stock, par value $.10
per share (the "Common Stock"), pursuant to stock options ("Options") granted
or to be granted under the Company's 1998 Stock Option Plan, as amended (the
"1998 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, as amended and restated; (ii) records of corporate
proceedings of the Company authorizing the 1998 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 approximately 12,000,000 shares of authorized
and unissued Common Stock from which the 2,100,000 shares of Common Stock
proposed to be sold pursuant to the exercise of Options granted under the 1998
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 1998 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 1998
Plan will be duly and validly issued, fully paid and nonassessable.
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.
Very truly yours,
GREENBERG, TRAURIG P.A.
By: /s/ Paul Berkowitz
---------------------------
Paul Berkowitz
<PAGE> 1
EXHIBIT 10.1
---------------------------------------
WINDMERE-DURABLE HOLDINGS, INC.
1998 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"), and its
Subsidiaries by providing an additional incentive to attract and retain
qualified and competent persons who provide services to the Company and its
Subsidiaries, and upon whose efforts and judgment the success of the Company
and its Subsidiaries 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) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the committee appointed by the
Board pursuant to Section 13(a) hereof.
(c) "Common Stock" shall mean the Company's Common Stock, par
value $.10 per share.
(d) "Director" shall mean a member of the Board.
(e) "Fair Market Value" of a Share on any date of reference
shall mean the "Closing Price" (as defined below) of the Common Stock on the
business day immediately preceding such date, unless the Committee or the Board
in its sole discretion shall determine otherwise in a 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 ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices in common use, the last
reported sale price of Common Stock on such system or, if sales prices are not
reported, the mean between the closing high bid and low asked quotations for
such day of Common Stock on such system, as reported in any newspaper of
general circulation 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 or the Board in a fair and uniform manner.
(f) "Incentive Stock Option" shall mean an incentive stock
option as defined in Section 422 of the Internal Revenue Code.
(g) "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
(h) "Non-Qualified Stock Option" shall mean an Option which
is not an Incentive Stock Option.
(i) "Officer" shall mean the Company's Chairman of the Board,
President, Chief Executive Officer, principal financial officer, principal
accounting officer, any vice-president of the Company in charge of a principal
business unit, division or function (such as sales, administration or finance),
any other officer who performs a policy-making function, or any other person
who performs similar policy-making functions for the Company. Officers of
Subsidiaries shall be deemed Officers of the Company if they perform such
policy-making functions for the Company. As used in this paragraph, the phrase
<PAGE> 2
"policy-making function" does not include policy-making functions that are not
significant. If pursuant to Item 401(b) of Regulation S-K (17 C.F.R. ss.
229.401(b)) the Company identifies a person as an "executive officer," the
person so identified shall be deemed an "Officer" even though such person may
not otherwise be an "Officer" pursuant to the foregoing provisions of this
paragraph.
(j) "Option" (when capitalized) shall mean any option granted
under this Plan.
(k) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the rights of such person
under this Plan by reason of the death of such person.
(l) "Outside Director" shall mean a member of the Board who
qualifies as an "outside director" under Section 162(m) of the Internal Revenue
Code and the regulations thereunder and as a "Non-Employee Director" under Rule
16b-3 promulgated under the Securities Exchange Act.
(m) "Plan" shall mean this 1998 Stock Option Plan for the
Company.
(n) "Securities Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended from time to time.
(o) "Share" shall mean a share of Common Stock.
(p) "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 Available for Option Grants. The Committee or the Board may
grant to Optionees from time to time Options to purchase an aggregate of up to
2,100,000 Shares from the Company's authorized and unissued Shares. If any
Option granted under the Plan shall terminate, expire, or be cancelled or
surrendered as to any Shares, new Options may thereafter be granted covering
such Shares.
4. Non-Qualified Options. An Option granted hereunder shall be a
Non-Qualified Stock Option. Incentive Stock Options may not be granted pursuant
hereto.
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 or the
Board, provided such terms are not inconsistent with this Plan or any
applicable law. Optionees shall be (i) those persons selected by the Committee
or the Board from the class of all regular employees of , or persons who
provide consulting or other services as independent contractors to, the Company
or its Subsidiaries, including Directors and Officers who are regular
employees, and (ii) Directors who are not employees of the Company or of any
Subsidiaries. However, persons who are ineligible for registration of shares
under a Form S-8 shall not be granted Options pursuant hereto, including
consultants and advisors who participate in the offer or sale of the Company's
securities in a capital-raising transaction or promote or maintain a market for
the Company's securities. Any person who files with the Committee or the Board,
in a form satisfactory to the Committee or the Board, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
(b) In granting Options, the Committee or the Board 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 or the
Board shall determine. The Committee or the Board shall also have the authority
to consult with and receive recommendations from officers and other personnel
2
<PAGE> 3
of the Company and its Subsidiaries with regard to these matters. The Committee
or the Board may from time to time in granting Options under the Plan 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, or upon
the attainment of stated goals or both, 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 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, 1999 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 an
amount equal to the excess of (i) 1,500 shares of Common Stock or (ii) the
number of options granted to the Director pursuant to Section 5 of the 1996
Plan on that date, 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 provision of this Plan, and in
addition to any other requirements of this Plan, the aggregate number of
Options granted to any one Optionee in any twelve-month period may not exceed
1,500,000, subject to adjustment as provided in Section 10 hereof.
6. Option Price. The option price per Share of any Option shall be any
price determined by the Committee or the Board but shall not be less than the
par value per Share.
7. Exercise of Options. An Option shall be deemed exercised when (i)
the Company 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 or the Board 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. The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Committee or the Board and may consist of: (1) cash, (2) certified or
official bank check, (3) money order, (4) Shares that have been held by the
Optionee for at least six (6) months (or such other Shares as the Company
determines will not cause the Company to realize a financial accounting
charge), (5) the withholding of Shares issuable upon exercise of the Option,
(6) by delivery of a properly executed exercise notice together with such other
documentation, and subject to such guidelines, as the Board or the Committee
and the broker, if applicable, shall require to effect an exercise of the
Option and delivery to the Company of the sale or loan proceeds required to pay
the exercise price and any applicable income or employment taxes, or (7) in
such other consideration as the Committee or the Board deems appropriate, or by
a combination of the above. The Committee or the Board 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 that have been held for
at least 6 months, or through the withholding of Shares issuable upon exercise
of the Option, the value of the Shares surrendered or withheld 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, 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 maker, (ii) be collateralized
by the pledge of the Shares that the Optionee purchases upon exercise of such
Option, (iii) bear interest at the prime rate of the Company's principal
lender, and (iv) contain such other terms as the Committee or 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
3
<PAGE> 4
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. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee or the
Board shall provide in such Option, except as otherwise provided in this
Section 8.
(a) The expiration date of an Option shall be determined by
the Committee or the Board 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 in the event of a "Change in
Control" or in the event that the Committee or the Board exercises its
discretion to provide a cancellation notice with respect to the Option pursuant
to Section 9(b) hereof. For this purpose, the term "Change in Control" shall
mean:
(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
(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 or the Board 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 or previously acquired by the
exercise of any Option.
9. Termination of Option Period. Unless otherwise provided in any
Agreement, the unexercised portion of any Option shall automatically and
without notice terminate and become null and void at the time of the earliest
to occur of the following:
(i) unless the Committee shall otherwise determine
in writing in its sole discretion, the date on which the Optionee's employment
is terminated other than by reason of (A) Cause, which, solely for purposes of
this Plan, shall mean the termination of the Optionee's employment by reason of
the Optionee's willful misconduct or gross negligence, (B) a mental or physical
disability (within the meaning of Internal Revenue Code Section 22(e)) of the
Optionee as determined by a medical doctor satisfactory to the Committee, or
(C) death of the Optionee;
(ii) immediately upon the termination of the
Optionee's employment for Cause;
(iii) twelve months after the date on which the
Optionee's employment is terminated by reason of a mental or physical
disability (within the meaning of Internal Revenue Code Section 22(e)) as
determined by a medical doctor satisfactory to the Committee or the Board;
(iv) (A) twelve months after the date of termination
of the Optionee's employment by reason of death of the Optionee, or, if later,
(B) three months after the date on which the Optionee shall die if such death
shall occur during the one-year period specified in Subsection 9(a)(iii)
hereof.
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All references herein to the termination of the Optionee's employment shall, in
the case of a Optionee who is not an employee of the Company or a Subsidiary,
refer to the termination of the Optionee's service with the Company.
(a) To the extent not previously exercised, (i) each Option
shall terminate immediately in the event of (1) the liquidation or dissolution
of the Company, or (2) any reorganization, merger, consolidation or other form
of corporate transaction in which the Company does not survive, unless the
successor corporation, or a parent or subsidiary of such successor corporation,
assumes the Option or substitutes an equivalent option or right pursuant to
Section 10(c) hereof, and (ii) the Committee or the Board in its sole
discretion may by written notice ("cancellation notice") cancel, effective upon
the consummation of any corporate transaction described in Subsection 8(b)(i)
hereof in which the Company does survive, any Option that remains unexercised
on such date. The Committee or the Board shall give written notice of any
proposed transaction referred to in this Section 9(b) a reasonable period of
time prior to the closing date for such transaction (which notice may be given
either before or after approval of such transaction), in order that Optionees
may have a reasonable period of time prior to the closing date of such
transaction within which to exercise any Options that then are exercisable
(including any Options that may become exercisable upon the closing date of
such transaction). An Optionee may condition his exercise of any Option upon
the consummation of a transaction referred to in this Section 9(b).
(b) 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 that, without the prior written
consent of the Company, the Optionee (i) does 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 at 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 dividend 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, or available for
grant to any person under the Plan, 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 or
the Board may change the terms of Options outstanding under this Plan, with
respect to the option price or the number of Shares subject to the Options, or
both, when, in the Committee's or Board's sole discretion, such adjustments
become appropriate so as to preserve but not increase benefits under the Plan.
(c) In the event of a proposed sale of all or substantially
all of the Company's assets or any reorganization, merger, consolidation or
other form of corporate transaction in which the Company does not survive,
where the securities of the successor corporation, or its parent company, are
issued to the Company's shareholders, then the successor corporation or a
parent of the successor corporation may, with the consent of the Committee or
the Board, assume each outstanding Option or substitute an equivalent option or
right. If the successor corporation, or its parent, does not cause such an
assumption or substitution to occur, or the Committee or the Board does not
consent to such an assumption or substitution, then each Option shall terminate
pursuant to Section 9(b) hereof upon the consummation of sale, merger,
consolidation or other corporate transaction.
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(d) 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 a 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 to, the number of or exercise price
for Shares then subject to outstanding Options granted under the Plan.
(e) 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.
11. Transferability of Options and Shares.
(a) Unless the prior written consent of the Committee or the
Board is obtained (which consent may be withheld for any reason) and the
transaction does not violate the requirements of Rule 16b-3 promulgated under
the Securities Exchange Act, no 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 if applicable Option that has been
assigned or transferred with the prior written consent of the Committee or the
Board, only by the permitted assignee.
(b) Unless the prior written consent of the Committee or the
Board is obtained and the transaction does not violate the requirements of Rule
16b-3 promulgated under the Securities Exchange Act, no Shares acquired by an
Officer 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 violation 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 are reasonably
required to prevent any such violation.
(b) As a condition to any sale or issuance of Shares upon
exercise of any Option, the Committee or the Board may require such agreements
or undertakings as the Committee or the Board may deem necessary or advisable
to facilitate compliance with any applicable 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 endorsed upon the certificate(s) for such Shares that
are, in the opinion of the Committee or the Board, necessary or appropriate to
facilitate compliance with the provisions of any securities laws deemed by the
Committee or the Board to be applicable to the issuance and transfer of such
Shares.
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13. Administration of the Plan.
(a) The Plan shall be administered by the Board or by a
committee appointed by the Board (the "Committee") which shall be composed of
two or more Directors all of whom shall be Outside Directors. The membership of
the Committee shall be constituted so as to comply at all times with the
applicable requirements of Rule 16b-3 promulgated under the Securities Exchange
Act and Section 162(m) of the Internal Revenue Code. The Committee shall serve
at the pleasure of the Board and shall have the powers designated herein and
such other powers as the Board may from time to time confer upon it.
(b) The Board may grant Options pursuant to this Plan to
Directors who are not employees of the Company or any Subsidiary and/or other
persons to whom Options may be granted under Section 5(a) hereof.
(c) The Committee or the Board, from time to time, may adopt
rules and regulations for carrying out the purposes of the Plan. The
determinations by the Committee or the Board, and the interpretation and
construction of any provision of the Plan or any Option by the Committee or the
Board, 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 or beneficiary, 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 Securities 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 to be in compliance with Rule 16b-3, such provision shall
be deemed null and void to the extent required to permit the Plan to comply
with Rule 16b-3. The Committee or the Board may from time to time adopt rules
and regulations under, and amend, the Plan in furtherance of the intent of the
foregoing.
(b) If any provision of the Plan should be held invalid or
illegal for any reason, such determination shall not affect the remaining
provisions hereof, but instead the Plan shall be construed and enforced as if
such provision had never been included in the Plan.
(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 Committee or the
Board may from time to time amend, suspend or terminate the Plan or any Option;
provided, however, that, any amendment to the Plan shall be subject to the
approval of the Company's shareholders, if such shareholder approval is
required by any federal or state law or regulation (including, without
limitation, Rule 16b-3 or to comply with Section 162(m) of the Internal Revenue
Code) or the rules of any Stock exchange or automated quotation system on which
the Common Stock may then be listed or granted. Except to the extent provided
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in Sections 9 and 10 hereof, no amendment, suspension or termination of the
Plan or any Option issued hereunder shall substantially impair the rights or
benefits of any Optionee pursuant to any Option previously granted without the
consent of the Optionee.
17. Effective Date and Termination Date. The effective date of the
Plan is April 30, 1998, and the Plan shall terminate ten years thereafter. The
Plan shall be submitted to the shareholders of the Company for their approval
and adoption and Options hereunder may be granted prior to such approval and
adoption but contingent upon such approval and adoption.
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EXHIBIT 23.1
AUDITOR'S CONSENT
We have issued our report dated February 12, 1999, accompanying the
consolidated financial statements and schedule included in the Annual Report of
Windmere-Durable Holdings, Inc. on Form 10-K for the year ended December 31,
1998. 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.
/s/ Grant Thornton LLP
Miami, Florida
August 31, 1999
