<PAGE>
As filed with the Securities and Exchange Commission on January 20, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ROBOTIC VISION SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 11-2400145
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
425 Rabro Drive East
Hauppauge, New York 11788
(Address of principal executive offices)
VANGUARD AUTOMATION, INC. 1993 LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
PAT V. COSTA
President and Chief Executive Officer
Robotic Vision Systems, Inc.
425 Rabro Drive East
Hauppauge, New York 11788
(516) 273-9700
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
IRA I. ROXLAND, Esq.
Cooperman Levitt Winikoff Lester & Newman, P.C.
800 Third Avenue
New York, New York 10021
(212) 688-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed Amount of
Amount to maximum maximum registration
Title of securities to be registered be registered offering price aggregate fee
per share* offering price*
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share.. 328,749 shs. $.70 $230,124 $100
- ------------------------------------------------------------------------------------------------------
</TABLE>
* All shares to be registered on this Form S-8 are issuable pursuant to
options which previously have been granted.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Robotic Vision Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission, are incorporated
herein by reference and made a part hereof:
1. Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997;
2. Registrant's Current Report on Form 8-K dated December 18, 1997,
as amended on Form 8-K/A on January 16, 1998;
3. Registrant's Registration Statement on Form S-3 dated January
20, 1998; and
4. Registrant's Registration Statement on Form 8-A (File No. 0-8623)
containing a description of Registrant's Common Stock, par value
$.01 per share (the "Common Stock").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") after the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all Common Stock registered hereby has been sold or which deregisters such
Common Stock then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents (such documents, and the documents listed above,
being hereinafter referred to as "Incorporated Documents"). Any statement
contained in an Incorporated Document shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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<PAGE>
Item 4. Description of Securities.
The Common Stock of Registrant is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
Article SEVENTH of the Certificate of Incorporation of the
Registrant provides with respect to the indemnification of directors and
officers that the Registrant shall indemnify to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law, as amended from time
to time, each person that such Section grants the Registrant power to
indemnify. Article TENTH of the Certificate of Incorporation of the
Registrant also provides that no director shall be liable to the corporation
or any of its stockholders for monetary damages for breach of fiduciary duty
as a director, except with respect to (1) a breach of the director's duty of
loyalty to the corporation of its stockholders, (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) liability under Section 174 of the Delaware General Corporation Law
or (4) a transaction from which the director derived an improper personal
benefit, it being the intention of the foregoing provision to eliminate the
ability of the corporation's directors to the corporation or its stockholders
to the fullest extent permitted by Section 102(b)(7) of Delaware General
Corporation Law, as amended from time to time.
Section 145 of the Delaware Corporation Law provides, inter alia,
that to the extent a director, officer, employee or agent of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding, whether civil, criminal, administrative or investigative or in
defense of any claim, issue or matter therein (hereinafter, a "Proceeding"),
by reason of the fact that he is or was a director, officer, employee or agent
of a corporation or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise (collectively an "Agent"
of the corporation), he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 145 also provides that a corporation may indemnify any person
who was or is a party or is a party or is threatened to be made a party to any
threatened Proceeding by
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<PAGE>
reason of the fact that he is or was an Agent of the corporation, against
expenses (including attorneys' fees) judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner 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; provided, however, that
in an action by or in the right of the corporation, the corporation may not
indemnify such person in respect of any claim, issue, or matter as to which he
is adjudged to be liable to the corporation unless, and only to the extent
that, the Court of Chancery or the court in which such proceeding was brought
determines that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is reasonably entitled to indemnity.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4 Vanguard Automation, Inc. 1993 Long-Term Incentive Plan
5 Opinion of Cooperman Levitt Winikoff Lester & Newman, P.C. as
to the legality of the Common Stock registered hereby
23(a) Consent of Deloitte & Touche LLP
23(b)(i) Consent of Arthur Andersen LLP
(ii) Consent of Arthur Andersen LLP
23(c) Consent of Ernst & Young LLP
23(d) Consent of KPMG Peat Marwick LLP
23(e) Consent of Cooperman Levitt Winikoff Lester & Newman, P.C.
(reference is made to Exhibit 5 herein)
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment to
this Registration Statement;
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<PAGE>
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by 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
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain unsold at
the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions of the Certificate of
Incorporation of the Registrant and the provisions of the Delaware law
described under Item 6 above, the Registrant has been advised that in the
opinion of the
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<PAGE>
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Hauppauge, State of New York, on the 16th day of
January, 1998.
ROBOTIC VISION SYSTEMS, INC.
By: /s/Pat V. Costa
---------------
Pat V. Costa, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the dates indicated.
Signature Title Date
Chairman of the
Board, President
and Director (Principal
/s/Pat V. Costa Executive Officer) January 16, 1998
- ---------------------
Pat V. Costa
Executive Vice
President, Secretary/
Treasurer and
Director (Principal
Financial Officer
and Principal
/s/Robert H. Walker Accounting Officer January 16, 1998
- ---------------------
Robert H. Walker
Executive Vice President
/s/ Steven Bilodeau and Director January 16, 1998
- ---------------------
Steven Bilodeau
Senior Vice President
/s/Howard Stern and Director January 16, 1998
- ---------------------
Howard Stern
/s/Jay M. Haft Director January 16, 1998
- ---------------------
Jay M. Haft
Donald J. Kramer Director
Mark J. Lerner Director
Frank A. DiPietro Director
Tomas Kohn Director
<PAGE>
EXHIBIT 4
VANGUARD AUTOMATION, INC.
1993 LONG-TERM INCENTIVE PLAN
Dated January 8, 1993
Enacted: April 1, 1993
1. PURPOSES.
The purpose of the 1993 Long-Term incentive Plan of Vanguard Automation, Inc.
(herein referred to as the "Plan") is to promote and advance the interest of
Vanguard Automation, Inc. (the "Company") and its shareholders by strengthening
the Company's ability to attract, motivate and retain managerial and other key
employees, and to strengthen the mutuality of interests between such employees
and the Company's shareholders.
2. DEFINITIONS.
For purposes of the Plan, the following terms shall have the meanings set forth
below:
a. "Award" or "Awards" means a grant or other conveyance of value made to
a Participant under Sections 6 through 12, inclusive, of the Plan.
b. "Board" means Board of Directors of the Company.
c. "Code" means the Internal Revenue Code of 1986, as in effect from
time to time or any successor thereto, together with rules, and interpretations
promulgated thereunder.
d. "Committee" means the Compensation Committee of the Board constituted
in Section 3 (Administration) of the Plan, unless the Board as provided appoints
another Committee to administer the Plan.
e. "Common Stock" means the common Stock of the Company or any security
of the Company identified by the Committee issued in substitution, exchange or
lieu thereof.
f. "Company" means Vanguard Automation, Inc., an Arizona corporation, or
any successor corporation.
g. "Contingent Award" means an Award granted Pursuant to the provisions
of Section 10 (Contingent Awards) of the Plan.
h. "Disability" means total and permanent disability as determined by the
Committee in accordance with standards and procedures similar to those, under
the Company's long-term disability plan.
<PAGE>
i. "Dividend Equivalent Award" means an award granted pursuant to the
provisions of Section 11 (Dividend Equivalent Awards) of the Plan.
j. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time and in effect, or any, successor statute.
k. "Fair Market Value" means, on any given date, the market value of
Company stock as determined by an independent Valuation company commissioned
specifically to determine Company value.
l. "Incentive Stock Option" means any Stock Option granted pursuant to
the provisions of Section 6 (Stock Options) of the Plan that is intended to be
and is specifically designated as an "Incentive Stock Option" within the Section
422 of the Code.
m. "Non-Qualified Stock Option" means any Stock option granted pursuant
to the provisions of Section 6 (Stock Options) of the Plan that is not an
Incentive Stock Option.
n. "Participant" means a person who is granted an Award under the Plan.
o. "Performance Award" means an Award granted pursuant to the provisions
of Section 9 (Performance Awards) of the Plan, the vesting of which is
contingent on performance attainment.
p. "Performance Grant" means an Award granted pursuant to the provisions
of Section 9 (Performance Awards) of the Plan.
q. "Plan" means this 1993 Long-Term Incentive Plan of the Company, as set
forth herein and as it may be hereafter amended from time to time and in effect.
r. "Restricted Stock Award" means an Award granted pursuant to the
provisions of Section 8 (Restricted Stock) of the Plan.
s. "Restricted Stock Grant" means an Award of shares of Common Stock
granted pursuant to the provisions of Section 8 (Restricted Stock) of the Plan.
t. "Retirement" means retirement from active employment with the Company
and its Subsidiaries on or after the normal retirement date specified in the
Company's Retirement Plan or such earlier retirement date as approved by the
Committee for purposes of this Plan.
u. "Stock Appreciation Right" means a right to receive an amount
representing the appreciation in Fair Market Value of Common Stock granted
pursuant to the provisions of Section 7 (Stock Appreciation Rights) of the Plan.
2
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v. "Stock Option" means a right to purchase shares of Common Stock
granted pursuant to the provisions of Section 6 (Stock Options) of the Plan.
w. "Subsidiary" means any corporation or entity in which the Company
directly or indirectly controls 50% or more of the total voting power of all
classes of its stock having voting power.
3. ADMINISTRATION.
a. Composition of Committee. The Plan shall be administered by the
Committee to be appointed from time to time by the Board and comprised of not
less than three of the then members of the Board who may qualify to administer
the Plan as contemplated by Rule 16b-3 of the Exchange Act or any successor.
Members of the Committee shall serve at the pleasure of the Board and the Board
may from time to time remove members from, or add members to, the Committee. A
majority of the members of the Committee shall constitute a quorum for the
transaction of business. Action approved in writing by a majority of the
members of the Committee then serving shall be fully as effective as if the
action had been taken by unanimous vote at a meeting duly called and hold.
b. Powers of Committee. The Committee is authorized to construe and
Interpret the Plan, to promulgate, amend and rescind rules and regulations
relating to the implementation of the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. The Committee may
designate persons other than members of the committee to carry out its
responsibilities under such conditions and limitations as it may prescribe,
except that the Committee may not delegate its authority with regard to
selection for participation of and the granting of awards to persons subject to
Section 16(a) and 16(b) of the Exchange Act. Any determination, decision or
action of the committee in connection with the construction, interpretation,
administration, or application of the Plan shall be final, conclusive and
binding upon all persons participating in the Plan. The Committee's powers
include but are not limited to modifications, procedures and subplans as are
necessary to comply with provisions of the laws of foreign countries in which
the Company and its Subsidiaries may operate to assure the viability of the
benefits of Awards made to Participants employed in such countries and to meet
the intent of the Plan. The Company shall effect the granting of awards under
the Plan in accordance with the determinations made by the Committee, by
execution of instruments in writing in such forms as approved by the Committee.
c. Liability of Committee Members. No member of the Board or the
Committee will be liable for any action or determination made in good faith by
the board or the Committee with respect to the Plan or any Award under it.
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<PAGE>
4. DURATION OF PLAN AND COMMON STOCK SUBJECT TO PLAN.
a. Term. The Plan shall remain in effect until terminated by the
Committee.
b. Shares of Common Stock Subject to Plan. The maximum number of shares
of Common Stock in respect for which Awards may be granted under the Plan,
subject to adjustment as provided in Section 16 of the Plan, in each fiscal year
during any part of which the Plan is effective shall be one percent (1%) of the
total issued and outstanding shares of Common Stock as of the thirty-first day
of May (May 31st) of each such year the Plan is in effect.
c. Accounting for Number of Shares. For the purpose of computing the
total number of shares of Common Stock available for Awards under the "Plan",
there shall be counted against the foregoing limitations the number of shares of
Common stock subject to issuance upon exercise or settlement of Awards and the
number of shares of Common Stock which equal the Value of Restricted Stock
Grants and other stock-based Awards in each case determined as at the dates on
which such Awards are granted. If any Awards are forfeited, terminated,
cancelled, expire unexercised, settled in cash in lieu of stock or exchanged for
other Awards, the shares of Common Stock which were theretofore subject to such
Awards shall again be available for Awards under the Plan to the extent of such
forfeiture or expiration of such Awards. Further, any shares of Common Stock
which are used as full or partial payment to the Company by a Participant of the
purchase price of shares of Common Stock upon exercise of a Stock Option shall
again be available for Awards under the Plan, as shall any shares covered by
Stock Appreciation Rights which are not issued as payment upon exercise. Any
unused portion of the percentage limit for any fiscal year shall be carried
forward and by made available for Awards in succeeding calendar years.
d. Source of Stock Issued Under the Plan. Common Stock which may be
issued under the Plan may be either, at the discretion of the Committee,
authorized and unissued shares or issued shares which have been reacquired by
the Company. No fractional shares of Common Stock shall be issued under the
Plan.
5. PERSONS ELIGIBLE FOR AWARDS.
a. General. Persons eligible for Awards under the Plan shall consist of
managerial and other key employees of the Company and its Subsidiaries who hold
positions of significant responsibility or whose performance or potential
contribution, in the judgment of the Committee, would benefit the future success
of the Company.
4
<PAGE>
b. Incentive Stock Options. No person will be eligible for the grant of
an Incentive Stock Option who owns or would own immediately before the grant of
such option, directly or indirectly, stock possessing more than ten percent of
the total combined voting power of all classes of stock of the Company or of any
parent or Subsidiary corporation. The immediately preceding limitation on
eligibility does not apply if, at the time such Incentive Stock Option is
granted, the inactive Stock Option price is at least 110% of then Fair Market
Value.
6. STOCK OPTIONS.
Stock Options granted under the Plan may be in the form of Incentive Stock
Options or Non-Qualified Stock Options and such Stock Options shall be subject
to the following terms and conditions and shall contain such additional terms
and conditions, not inconsistent with the express provisions of the Plan, as the
Committee shall deem desirable:
a. Grant. Stock Options may be granted under the Plan on such terms and
conditions not inconsistent with the Provisions of the Plan and in such form as
the Committee may from time to time approve. Stock Options may be granted
alone, in addition to, or in tandem with other Awards under the Plan.
b. Stock Option Price. The option exercise price per share of Common
Stock purchasable under a Stock Option shall be determined by the Committee at
the time of grant, except that the exercise price for Non-Qualified Stock
Options or Incentive Stock Options shall be no less than one-hundred percent
(100%) of the Fair Market Value of the Common Stock on the date of the grant of
such Stock Option and may be based on the achievement of pre-established
performance objectives measured at the end of a specified performance period.
c. Option Term. The term of each Stock Option shall be determined by the
Committee except that the term of Incentive Stock Options shall not exceed ten
(10) years after the date the Incentive Stock Option is granted.
d. Exercisability. A Stock Option shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee at the date of grant; provided, however, that no Incentive Stock
Option shall be exercisable during the first twelve (12) months after the date
such Incentive Stock Option is granted. Except as provided in Section 14
(Termination of Employment) of the Plan, no Stock Option may be exercised unless
the holder thereof is at the time of such exercise in the employ of the Company
or a Subsidiary and has been continuously so employed since the date such Stock
Option was granted. Options designated as Incentive Stock Options will not
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<PAGE>
remain Incentive Stock Options after the latest time of exercise allowed
pursuant to the Code.
e. Method of Exercise. Upon the exercise of an Option, the purchase
price will be payable in full cash, or, at the discretion of the Committee, by
assignment and delivery to the Company of shares of Common Stock owned by the
Optionee; or in the discretion of the Committee, by a promissory note secured by
shares of Common Stock bearing interest at a rate determined by the Committee,
or by a combination of any of the above. Any shares so assigned and delivered
to the Company in payment or partial payment of the purchase price will be
valued at their Fair Market Value on the exercise date.
f. Whole shares. No fractional shares will be issued pursuant to the
exercise of an Option nor will any cash payment be made in lieu of fractional
shares.
g. Special Rule for Incentive Stock Option. With respect to Incentive
Stock Options granted under the Plan, the aggregate Fair Market Value
(determined as of the date the Incentive Stock Option is granted) of the number
of shares with respect to which Incentive Stock Options are exercisable for the
first time by a Participant during any calendar year shall not exceed one
hundred thousand dollars ($100,000) or such other limit as may be required by
the Code.
Notwithstanding the foregoing, each provision of the Plan and each Option
agreement relating to an Incentive Stock Option shall be construed so that each
Incentive Stock Option shall be an incentive stock option as defined in Section
422 of the Internal Revenue Code of 1986, as amended, or any statutory provision
that may replace such Section, and any provisions thereof that cannot be so
construed shall be disregarded. In no event may an Awardee be granted Incentive
Stock Options which do not comply with the limitations prescribed by Section
422(d) of the Internal Revenue Code of 1986, as amended, or any successor
section or limitation and any implementing regulations.
7. STOCK APPRECIATION RIGHTS.
The grant of Stock Appreciation Rights under the Plan shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the express terms of the Plan, as the
Committee shall deem desirable.
a. Value of a Stock Appreciation Right. A Stock Appreciation Right is an
Award entitled a Participant to receive an amount equal to or (if the Committee
shall determine at the time of grant) less than the excess of the Fair Market
Value of a share of Common Stock on the date of exercise over the Fair Market
Value of
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<PAGE>
a share of Common Stock on the date of grant of the Stock Appreciation Right, or
such other price as set by the Committee, multiplied by the number of shares of
Common Stock with respect to which the Stock Appreciation Right shall have been
exercised.
b. Grant. Stock Appreciation Right may be granted in tandem with, in
addition to, or completely independent of and without relation to, a Stock
Option or any other Award under the Plan. A Stock Appreciation Right may be
granted in tandem with a Stock Option or other Award either at the time of grant
or at any time thereafter during the, term of the Option or other Award.
c. Exercise. A Stock Appreciation Right may be exercised by a
Participant in accordance with procedures established by the Committee. The
Committee may also provided that a Stock Appreciation Right shall be
automatically exercised on one or more specified dates.
(1) Term and Exercise of Rights Granted in Tandem. A Stock
Appreciation Right granted in tandem with an Option or other Award will entitle
the holder, upon exercise, to surrender such Option or any portion thereof to
the extent unexercised, with respect to the number of shares as to which such
Appreciation right is exercised, and to receive payment of an amount computed
pursuant to Section 7(c)(1) (i) & (ii). Such Option will, to the extent
surrendered, then cease to be exercisable. A Stock Appreciation Right granted
hereunder will be exercisable at such time or times, only to the extent that the
related Option is exercisable and will not be transferable except to the extent
that such related option may be transferable. Upon the exercise of an
Appreciation Right granted in tandem with an Option, the Holder will be entitled
to receive payment of any amount determined by multiplying:
(i) The difference by subtracting the purchase price of a share
of Common Stock specified in the related option from the Fair Market Value of a
share of Common Stock on the date of exercise of such Stock Appreciation Right,
by
(ii) The number of shares as to which such Stock Appreciation
Right will have been exercised.
(2) Term and Exercise of Stock Option Appreciation Rights Granted
without Relation to an Option. A Stock Appreciation Right granted without
relationship and completely independent of an Option will be exercisable as
determined by the Committee. A Stock Appreciation Right granted without
relationship to an Option will entitle the holder, upon exercise of the stock
Appreciation Right, to receive payment of an amount determined by multiplying:
(i) The difference obtained by subtracting the Fair Market Value
of a share of Common Stock on the date the Stock Appreciation Right is granted
from the Fair Market Value of a Share
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<PAGE>
of Common Stock on the date of exercise of such Stock Appreciation Right, by
(ii) The number of shares as to which such Stock Appreciation
Right will have been exercised.
d. Form of Payment. Payment of the amount determined under Section 7(c)
may be made solely in whole shares of Common Stock valued at their Fair Market
Value on the date of exercise of the Stock Appreciation Right or in the sole
discretion of the Committee, solely in cash, or a combination of cash and shares
as the Committee deems advisable. If the Committee decides that payment may be
made in shares of Common Stock, and the amount payable results in a factional
share, payment for the fractional share will be made in cash. Any Stock
Appreciation Right exercised upon or subsequent to the occurrence of a Change in
Control (as defined in Section 17) shall be paid in cash.
8. RESTRICTED STOCK.
Restricted Stock Awards shall be subject to the following terms and conditions
and shall contain such additional terms and conditions, not inconsistent with
the express provisions of the Plan, as the Committee shall deem desirable:
a. Restricted Stock Grants. A Restricted Stock Grant is an
Award of shares of Common Stock of the Company transferred to a Participant at a
price determined by the Committee and subject to such terms and conditions as
the Committee deems appropriate, including, without limitation, restrictions on
the sale, assignment, transfer or other disposition of such shares and the
requirement that the Participant forfeit such shares back to the Company upon
termination of employment for specified reasons within a specified period of
time or the requirement that the participant forfeit such shares or a portion of
such shares if certain performance objectives are not met. The transfer price
of Restricted Stock Grants may be at no cost, or below, at, or above market
price as determined by the Committee.
b. Grants of Restricted Stock. Restricted Stock Grants may be granted
under the Plan in such form and on such terms and conditions as the Committee
may from time to time approve. Restricted Stock Grants may be granted alone, in
addition to, or in tandem with other Awards under the Plan. Subject to the
terms of the Plan, the Committee shall determine the number of Restricted Stock
Grants to be granted to a participant and the Committee may impose different
terms and conditions on any particular Restricted Stock Grant made to any
Participant. Each Participant receiving a Restricted Stock Grant shall be
issued a stock certificate in respect of such shares of Common Stock. Such
certificate shall be registered in the name of such Participant, shall be
accompanied by
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<PAGE>
a stock power duly executed by such Participant, and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to such
Award, which certificate evidencing such shares shall be held in custody by the
Company until the restrictions thereon shall have lapsed.
c. Restricted Period. Restricted Stock Grants shall provide that in
order for a Participant to vest in such Awards, the Participant must fulfill
specific requirements, as determined by the Committee. In setting the
performance requirements, the Committee may use such measures as continued
employment for a specified period of time, stock price appreciation, achievement
of financial objectives or any such other requirements as it deems appropriate.
The period of time between Grant and the vesting of Restricted Stock due to the
fulfillment of the performance requirements is the restriction period
("Restriction Period"). During the Restriction Period, a Participant may not
sell, assign, transfer, pledge, encumber or otherwise alienate, hypothecate or
dispose of shares of Common Stock received under a Restricted Stock Grant. The
Committee, in its sole discretion, may provide for the lapse of restrictions in
installments during the Restriction Period. Such lapse of restrictions will be
subject to the terms of Section 14 (Termination of Employment). The Committee,
in its sole discretion, may provide for the lapse of any or all restrictions in
the event of the Participant's death, total and permanent disability, or
retirement. Upon expiration of the applicable Restriction Period (or lapse of
restrictions during the Restriction Period where the restrictions lapse in
installments) the Participant shall be entitled to receive his or her Restricted
Award or portion thereof, as the case may be.
d. Rights as a Shareholder. Except as provided in Section 11 and subject
to the terms of the Restricted Stock Grant, a Participant shall have, with
respect to the shares of Common Stock received under a Restricted Stock Grant,
all other rights of a shareholder of the Company, including the right to vote
the shares, and the right to receive any cash or stock dividends. Stock
dividends issued with respect to the shares covered by a Restricted Stock Grant
shall be treated as additional shares under the Restricted Stock Grant and shall
be subject to the same restrictions and other terms and conditions that apply to
shares under the Restricted Stock Grant with respect to which such dividends are
issued.
9. PERFORMANCE STANDARDS.
Performance Awards shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with the
express provisions of the Plan, as the Committee shall deem desirable:
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a. Performance Grants. A Performance Grant is an Award granted to a
Participant subject to such terms and conditions as the Committee deems
appropriate, including, without limitation, the requirement that the Participant
forfeit rights to the Award or a portion of such Awards in the event certain
performance criteria are not met within a designated period of time.
b. Grants of Awards. Performance Awards may be granted under the Plan
in such form as the Committee may from time to time approve. Performance Awards
may be granted alone, in addition to, or in tandem with other Awards under the
Plan. Subject to the terms of the Plan, the Committee shall determine the
number and value of Performance Awards to be granted to a Participant and the
Committee may impose different terms and conditions on any particular
Performance Award made to any Participant.
c. Performance Goals and Performance Periods. Performance Awards shall
provide that in order for a Participant to vest in such Awards the Company must
achieve certain performance goals ("Performance Goals") over a designated
performance period ("Performance Period"). The Performance Goals and
Performance Period shall be established by the Committee in its sole discretion.
The Committee shall establish Performance Goals for each Performance Period.
The Committee shall also establish a schedule or schedules for Such performance
Period setting forth the portion of the Performance Award which will be earned
or forfeited based on the degree of achievement of the Performance Goals
actually achieved or exceeded.
In setting Performance Goals, the Committee may use such measures as
return on equity, earnings growth, revenue growth, comparisons to peer companies
or such other measure or measures of performance in such manner as it deems
appropriate. During the Performance Period, the Committee shall have the
authority to adjust upward or downward the Performance Goals in such manner as
it deems appropriate.
10. CONTINGENT AWARDS.
The Committee may grant Awards of either Stock Options or Restricted Stock
wherein the vesting of Options or the lapse of restrictions on Restricted Stock
to Participants is contingent upon the retention of ownership for a specified
period of time, or is obtained through the exercise of vested Stock Options or
the lapse of restrictions on Restricted Stock previously granted under this
Plan. The grant size, vesting limitations, or restriction requirements of
Contingent Awards is determined solely at the discretion of the Committee.
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11. DIVIDEND EQUIVALENT AWARDS.
Awards of Stock Options, Stock Appreciation Rights, and all other stock-based
Awards may, at the discretion of the Committee, earn dividend equivalents. In
respect of any such Award which is outstanding on a dividend record date for
Common Stock, the Participant may be credited with an amount equal to the amount
of cash or stock dividends that would have been paid on the shares of Common
Stock covered by such Award had such covered shares been issued and outstanding
on such dividend record date. The Committee shall establish such rules and
procedures governing the crediting of dividend equivalents, including the
timing, form of payment, and payment contingencies of such Dividend Equivalents,
as it deems are appropriate or necessary. In addition, Dividend Equivalents may
be granted on a stand-alone basis or granted in tandem with other Awards under
this Plan. Tandem and/or stand-alone Dividend Equivalent Awards are paid in
cash subject to conditions as determined by the Committee.
12. OTHER STOCK-BASED AND COMBINATION AWARDS.
a. Other Stock-Based Awards. The Committee may grant other Awards under
the Plan pursuant to which Common Stock is or may in the future be acquired, or
Awards denominated in stock units, including Awards valued using measures other
than market value. Such other Stock-Based Grants may be granted either alone,
in addition to, or in tandem with any other type of Award granted under the
Plan.
b. Awards in Tandem. The Committee may also grant Awards under the Plan
in tandem or in combination with other Awards or in exchange of Awards, or in
tandem, or in combination with, or as alternatives to grants or rights under any
other employee plan of the Company, including the plan of any acquired entity.
c. Authority of Committee. Subject to the provisions of the Plan, the
Committee shall have authority to determine the individuals to whom and the time
or times at which such Awards shall be made, the number of shares of Common
Stock to be granted or covered pursuant to such Awards, and any and all other
conditions and/or terms of the Awards.
13. DEFERRAL ELECTIONS.
The Committee may permit a Participant to elect to defer his or her receipt of
the payment of cash or the delivery of shares of Common Stock that would
otherwise be due to such participant by virtue of the exercise, earn out or
lapse of restrictions of an Award made under the Plan. If any such election is
permitted, the Committee shall establish rules and procedures for such payment
deferrals,
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including the possible (a) payment or crediting of reasonable interest on such
deferred amounts credited in cash, (b) payment or crediting dividend equivalents
in respect of deferrals credited in units of Common Stock, and (c) impact on a
participant's current tax liability.
14. TERMINATION OF EMPLOYMENT.
The terms and conditions under which an Award my be exercised after a
Participant's termination of employment shall be determined by the Committee.
a. Stock Appreciation Rights and Options. A Stock Appreciation Right or
an Option held by a person who was an Employee at the time such Stock
Appreciation Right and Option was granted will expire immediately if and when
the Participant ceases to be an Employee, except as follows:
(1) If the employment of an Employee is terminated by the Company
other than for cause, for which the Company will be the sole judge, then the
Stock Appreciation Rights and Options will expire ninety (90) days thereafter
unless by their terms they expire sooner, plus such additional times as the
Committee shall determine. During said period, the Stock Appreciation Rights
and Options may be exercised in accordance with their terms, but only to the
extent exercisable on the date of termination of employment. Termination for
cause shall result in the immediate expiration of all Options and/or Stock
Appreciation Rights.
(2) If the Employee retires at normal retirement age as defined in the
Retirement Plan, or retires with the consent of the Company at an earlier age on
or after age 65, the Stock Appreciation Rights and Options of the Employee will
expire three (3) years thereafter unless by their terms they expire sooner. If
the Employee retires prior to age 65, but with the consent of the Company, the
Stock Appreciation Rights and Options will expire ninety (90) days thereafter
unless by their terms they expire sooner. During said period, the Stock
Appreciation Rights and Options may be exercised in accordance with their terms,
but normally only to the extent exercisable on the date of Retirement. The
Committee may determine to accelerate vesting upon Retirement, or allow vesting
to continue, after Retirement.
(3) If an Employee dies or becomes permanently disabled while employed
by the Company, the Stock Appreciation Rights and Options of the Employee will
expire one year after the date of death or permanent and total disability unless
by their terms they expire sooner. If the Employee dies or becomes permanently
and totally disabled within ninety (90) days referred to in subparagraphs (1) or
(2) above, the Stock Appreciation Rights and Options will expire one year after
the date of death or permanent
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and total disability, unless by their terms they expire sooner. Notwithstanding
the foregoing, the Committee may, in its sole discretion, allow such additional
time to exercise as deemed appropriate.
b. Restricted Awards. In the event a holder of a Restricted Award ceases
to be an Employee for any reason prior to age 65, any such Restricted Award
subject to restrictions at the time of his or her employment terminates will be
returned to the Company unless the Committee determines otherwise. If the
Employee retires with the approval of the Company or after age 65, the Committee
may waive restriction on Awards based on the prorated achievement of the
restriction requirements. The Committee, in its sole discretion, may allow
accelerated vesting of Restricted Stock upon the termination of any employee.
c. Performance Awards. In the event a holder of a Performance Award
ceases to be an employee before the end of the Performance Period related to the
holder's Performance Award, except in the event of the holder's retirement on or
before age 65, disability or death or otherwise as determined by the Committee,
the Performance Award is forfeited. In the event of the holder's retirement
with Company approval on or after age 65, disability or death, the Committee
will determine whether payment of a part of the Performance Award would be
appropriate based on the prorated achievement of the Performance Goals and, if
appropriate, the Committee will determine the amount of the Award, if any , and
the date the Award is payable.
d. Dividend Equivalents and Contingent Awards. In the event a holder of
a Dividend Equivalent or Contingent Award ceases to be an employee before these
Awards are paid, the Committee will determine whether payment or a part of the
Award would be appropriate and, if appropriate, the Committee will determine the
amount of the Award, if any, and the date the Award is paid.
e. Leave of Absence Status and Vesting Upon Retirement. The Committee
may in its sole discretion determine, (1) with respect to an Award, treat any
Participant who is on leave of absence for any reason will be considered as
still in the employ of the Company, provided that rights to such Award during a
leave of absence will be limited to the extent to which such right was earned or
vested at the commencement of such leave of absence, or (2) with respect to any
Stock Appreciation Rights and Options of any employee who is retiring at normal
retirement age or with the consent of the Company at an earlier age, that the
Stock Appreciation Rights and/or Options of such employee will accelerate and
become fully exercisable on a date specified by the Committee which is not later
than the effective date of such employee's Retirement.
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15. NON-TRANSFERABILITY OF AWARDS.
No Award under the Plan, and no rights or interests therein, shall be assignable
or transferable by a Participant except by will or the laws of descent and
distribution. During the lifetime of a Participant, Stock Options and Stock
Appreciation Rights are exercisable only by, and payments in settlement of
Awards will be payable only to, the Participant or his or her legal
representative.
16. ADJUSTMENT PROVISIONS.
a. No Limitation on Board. The existence of the Plan and the Awards
granted hereunder shall not affect or restrict in any way the right or power of
the Board or the shareholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Company's capital stock or the rights thereof, the dissolution or
liquidation of the Company or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding.
b. Effect of Change in Capitalization. Subject to Section 17(c), if the
outstanding shares of Common Stock of the Company are increased, decreased, or
exchanged for a different number or kind of shares or other securities, or if
additional shares or new or different shares or other securities are distributed
with respect to such shares of Common Stock or other securities, through
merger, consolidation, sale of all or substantially all the property of the
Company, reorganization, recapitalization, re-classification, stock dividend,
stock split, reverse stock split or other distribution with respect to such
shares of Common Stock, or other securities, an appropriate and proportionate
adjustment may be made in (1) the maximum number and kind of shares provided in
Section 4, (2) the number and kind of shares and/or the price for each share or
other unit of other securities subject to the then-outstanding Awards, and (3)
the number and kind of shares and/or the price for each share or other unit of
any other securities subject to then-outstanding Awards without change in the
aggregate purchase price or value as to which such Awards remain exercisable or
subject to restrictions.
c. Dissolution or Liquidation. Despite the provisions of Section 17(b),
upon dissolution or liquidation of the Company or upon a reorganization, merger,
or consolidation of the Company with one or more corporations as a result of
which the Company is not the surviving corporation, or upon the sale of all or
substantially all the property of the Company, all Awards then outstanding under
the Plan will be fully vested and exercisable and all restrictions
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will immediately cease, unless provisions are made in connection with such
transaction for the continuance of the Plan and the assumption or the
substitution for such Awards by new Awards covering the stock of a successor
employer corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and the kind of shares and prices.
d. Other Adjustment Provisions. The Committee may also make appropriate
adjustments in the number of shares covered by the Plan, and the price or other
value of any outstanding Awards in the event of a spin-off or other distribution
(other than normal cash dividends) of Company assets to shareholders. In the
event that another corporation or business entity is or is in the process of
being acquired by the Company, and the Company agrees to assume outstanding
employee stock options and/or the obligation to make future grants of options or
rights to employees of the acquired entity, the aggregate number of shares of
Common Stock available for Awards under Section 4 of the Plan may be increased
accordingly.
17. CHANGE IN CONTROL.
a. Effect of Awards. In the event of pending takeover bid or tender
offer pursuant to which 30% or more of the outstanding securities of the Company
is acquired, whether or not deemed a tender offer under applicable state or
federal laws, or in the event that any person makes any filing under Sections
13(d) or 14(d) of the Exchange Act with respect to the Company, the Committee
may, in its sole discretion, without obtaining shareholder approval, take any
one or more of the following actions to the extent permitted in Section 18 with
respect to individual Eligible Persons and Participants or to all Eligible
Persons and Participants:
(1) Accelerate the exercise dates of any outstanding Stock
Appreciation Right or Option, or make all outstanding Appreciation Rights or
Options fully vested and exercisable;
(2) Determine that all or any portion of conditions associated with a
Restricted Stock Award have been met;
(3) Grant a cash bonus Award to any of the holders of outstanding
Options;
(4) Grant Stock Appreciation Rights to holders of outstanding options;
(5) Pay cash to any or all option holders in exchange for the
cancellation of their outstanding Options;
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(6) Make any other adjustments or amendments to the Plan and
outstanding Awards and Substitute new Awards.
b. The actions cited above in Section 17(a)(1) through (6) are subject to
such restrictions so as not to constitute a "parachute payment" to employees as
defined by Section 280G of the Internal Revenue Service Code in effect at the
time of such action. If such actions cause payments to constitute a parachute
payment affected by Section 280G, the Committee will make appropriate
adjustments to the Awards to the largest amount as will result in no portion
being subject to the excise tax imposed by Section 4999 of the Code or the
disallowance of a deduction by the Company pursuant to Section 280G(a) of the
Code.
c. A "Change in Control" of the Company shall have occurred when a
person, alone or together with its Affiliates and Associates, becomes the
beneficial owner of 30% or more of the general voting power of the Company.
d. "Affiliate or Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
e. "Person" for the purpose of this numbered paragraph of the Plan, means
an individual, firm, corporation or other entity or any successor to such
entity, but "Person" shall not include the Company, any Subsidiary, any
Affiliate or Associate of the Company, any employee benefit plan or employee
stock plan of the Company, any Subsidiary, or any person organized, appointed,
established or holding Voting Stock by, for or pursuant to the terms of such a
plan or any person who acquires 20% or more of the general voting power of the
Company in a transaction or series of transactions by the Board.
f. "Voting Stock" means shares of the Company's capital stock having
general voting power, with "voting Power" meaning the power under ordinary
circumstances (and not merely upon the happening of contingency) to vote in the
election of directors.
g. Authority of Committee. Adjustments under section 17 made by the
Committee will be final, binding and conclusive. No fractional shares will be
issued under the Plan on account of any such adjustments.
18. AMENDMENT AND TERMINATION OF PLAN.
a. Rule 16(b)-3 of the Exchange Act. The Company's Board of Directors
may amend or terminate the Plan, subject to shareholder approval to the extent
necessary for the continued applicability of Rule 16(b)-3 under the Exchange
Act. In addition, if the provisions of Rule 16(b)-3 or any successor rule are
amended, the
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Board may amend the Plan as it deems appropriate as a result of any
modifications to such Rule.
b. Consent of Participant. No amendment, suspension or termination of
the Plan will, without the consent of the Participant, alter, terminate, impair
or adversely affect any right or obligation under any Award previously granted
under the Plan.
19. MISCELLANEOUS.
a. Tax Withholding. The Company shall have the right to deduct from any
settlement, including the delivery or vesting of shares, made under the Plan any
federal, state or local taxes of any kind required by law to be withheld with
respect to such payments or take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such taxes.
If Common Stock is used to satisfy tax withholding, such stock shall be valued
based on the Fair Market Value when tax withholding is required to be made.
b. No Right to Employment. Neither the adoption of the Plan nor the
granting of any Award shall confer upon any employee of the Company or of any
Subsidiary any right to continue employment with the Company or any right to
continue employment with the Company or any Subsidiary, as the case may be, nor
shall it interfere in any way with the right of the Company or a Subsidiary to
terminate the employment with or without cause.
c. Unfunded Plan. The Plan shall be unfunded and the Company shall not
be required to segregate any assets that may at any time be presented by Awards
under the Plan. Any liability of the Company to any person with respect to any
Award under the Plan shall be based solely upon any contractual obligations that
may be effected pursuant to the Plan. No such obligations of the Company shall
be deemed to be secured by any pledge of, or other encumbrance on, any property
of the Company.
d. Payment to Trust. The Committee is authorized to cause to be
established a trust agreement or several trust agreements to make payment of
amounts due or to become due to Participants in the Plan.
e. Annulment of Awards. The grant of any Award under the Plan payable in
cash is provisional until cash is paid in settlement thereof. The grant of any
Award payable in Common Stock is provisional until the Participant becomes
entitled to the Certificate in Settlement thereof. In the event the employment
of a Participant is terminated for cause, any Award which is provisional shall
be annulled as of the date of such termination or cause. For the purpose of
this Section, the term "terminated for cause" means any discharge for violation
of the policies and
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procedures of the Company or for other job performance or conduct which as
determined by the Committee is detrimental to the best interests of the Company.
f. Other Company Benefit and Compensation Programs. Payments and other
benefits received by a Participant under an Award made pursuant to the Plan
shall not be deemed a part of a participant's regular, recurring compensation
for purposes of the termination indemnity or severance pay law of any country
and shall not be included in, nor have any effect on, the determination of
benefits under any other employee benefit plan or similar arrangement provided
by the Company or a Subsidiary unless expressly so provided by such other plan
or arrangements, or except where the Committee expressly determines that
inclusion of an Award or portion of an Award should be included to accurately
reflect competitive compensation practices or to recognize that an Award has
been made in lieu of a portion of competitive annual cash compensation. Awards
under the Plan may be made in combination with or in tandem with, or as
alternatives to, grants, awards or payments under any Company or Subsidiary
plans. The Plan notwithstanding, the Company or any Subsidiary may adopt such
other compensation programs and additional compensation arrangements as it deems
necessary to attract, retain and reward employees for their service with the
Company and its Subsidiaries.
g. Securities Law Restrictions. No shares of Common Stock shall be
issued under the Plan unless and until counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable federal and
state securities and other laws, rules and regulations and by any regulatory
agencies having jurisdiction and by any stock exchanges upon which the Common
Stock may be listed.
Certificates for shares of Common Stock delivered under the Plan may be subject
to such stock-transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Common Stock is then
listed, and any applicable Federal or state securities laws. The Committee may
cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions; the Company may require the Participant to take
any reasonable action to met such requirements.
h. Award Agreement. Each Participant receiving an Award under the Plan
shall enter into an agreement with the Company in a form specified by the
Committee agreeing to the terms and conditions of the Award and such related
matters as the Committee shall, in its sole discretion determine.
i. Cost of Plan. The cost and expenses of administering the Plan shall
be borne by the Company.
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j. Governing Law. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Arizona.
k. Effective Date. The Plan shall be effective upon its approval by the
Company's shareholders.
l. Rights of Participants, Beneficiaries or Other Persons Claiming. No
Participant and no beneficiary or other Person claiming under or through such
Participant shall have any right, title or interest in or to any shares of
Common Stock allocated or reserved under the Plan or subject to any Award except
as to such shares of Common Stock, if any, that have been issued or transferred
to such Participant.
m. Participant's Beneficiary. No Award and no right under the Plan,
contingent or otherwise, will be assignable or subject to any encumbrance,
pledge or charge of any nature except that, under such rules and regulations as
the Company may establish pursuant to the terms of the Plan, a beneficiary may
be designated with respect to an Award in the event of death of a Participant.
If such beneficiary is the executor or administrator of the estate of the
Participant, any rights with respect to such Award may be transferred to the
person or persons or entity (including a trust) entitled thereto under the will
of the holder of such Award.
n. Loans to Participants. The Company may make a loan to a Participant
in connection with (1) the exercise of an Option in an amount not to exceed the
aggregate exercise price of the Option being exercised and the grossed up amount
of any federal and state taxes payable in connection with such exercise for the
purpose of assisting such optionee to exercise such Option and (2) Restricted
Stock Award in an amount not to exceed the grossed up amount of any federal and
state taxes payable upon expiration of any applicable forfeiture provision for
the purpose of assisting the holder of the Award to enjoy the rights thereunder.
o. Other Provisions of Awards. The forms of Options and Stock
Appreciation Rights granted under the Plan may contain such other provisions as
the Committee may deem advisable. Without limiting the foregoing and if so any
Option or Stock Appreciation right granted under the Plan then subject to
exercise and discharge its obligation in respect of the Option or Stock
Appreciation Right, either by payment to the Participant of an amount of cash
equal to the excesses, if any, of the Fair Market Value, at such time, of the
shares subject to the portion of the Option or Stock Appreciation Right so
cancelled over the aggregate purchase price specified in the Option or Stock
Appreciation Right covering such shares, or by issuance or transfer to the
Participant of shares of Common Stock with a Fair Market Value, at such time,
equal to any such excess, or by a combination of cash and shares. Upon any such
payment of cash or issuance of shares, (1) there shall be charged
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against the aggregate limitations set forth in Section 4(b) a number of shares
equal to the number of shares so issued plus the number of shares purchasable
with the amount of any cash paid to the Participant on the basis of the Fair
Market Value as of the date of payment, and (2) the number of shares subject to
the portion of the Option so cancelled, less the number of shares so charged
against such limitations, shall thereafter be available for other grants.
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EXHIBIT 5
January 16, 1998
Robotic Vision Systems, Inc.
425 Rabro Drive East
Hauppauge, New York 11788
Re: Registration of 328,749 shares of Common Stock, par value
$.01 per share, under the Securities Act of 1933, as amended
Ladies and Gentlemen:
In our capacity as counsel to Robotic Vision Systems, Inc. a Delaware
corporation (the "Company"), we have been asked to render this opinion in
connection with a Registration Statement on Form S-8, being filed
contemporaneously herewith by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Registration
Statement"), covering an aggregate of 328,749 shares of Common Stock,
par value $.01 per share, of the Company (the "Shares") issuable upon the
exercise of options under the 1993 Long-Term Incentive Plan (the "Plan") of
Vanguard Automation, Inc., the Company's wholly-owned subsidiary ("Vanguard").
In that connection, we have examined the Certificate of Incorporation, as
amended, and the By-Laws, as amended, of the Company, the
Registration Statement, the Plan, that certain Agreement and Plan of Merger and
Reorganization dated October 30, 1997 (the "Merger Agreement") by and among the
Company, RVSI Southwest Acquisition Corp. and Vanguard, corporate proceedings of
the Company relating to the issuance of the Shares pursuant to the Plan, and
such other instruments and documents as we deemed relevant under the
circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records furnished to us by the Company include all corporate proceedings taken
by the Company to date.
Based upon the subject to the foregoing, we are of the opinion that:
(1) The Company has been duly incorporated and validly existing under
the laws of the state of Delaware; and
(2) The Shares have been duly authorized and, when issued pursuant to
the Plan and the Merger Agreement and in accordance with the resolutions adopted
by the Board of Directors of the Company, will be legally issued, fully paid,
and nonassessable.
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
COOPERMAN LEVITT WINIKOFF
LESTER & NEWMAN, PC
By: /s/ Ira Roxland
A Member of the Firm
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Robotic Vision Systems, Inc. on Form S-8 of our report dated December 9, 1997
appearing in the Annual Report on Form 10-K of Robotic Vision Systems, Inc. for
the year ended September 30, 1997.
We also consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated December 9, 1997 relating to the supplemental
financial statements of Robotic Vision Systems, Inc. and subsidiaries as of
September 30, 1997 and 1996 and for each of the three years in the period ended
September 30, 1997 appearing in the Registration Statement on Form S-3 to be
dated January 20, 1998.
/s/ DELOITTE & TOUCHE LLP
Jericho, New York
January 15, 1998
<PAGE>
EXHIBIT 23(b)(i)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Robotic Vision Systems, Inc. on Form
S-8 of our report dated November 6, 1995 covering the audited financial
statements of Actuity Imaging, Inc. as of September 30, 1995 and for the year
then ended included in the Form 10-K of Robotic Vision Systems, Inc. for the
year ended September 30, 1997 and in Robotic Vision Systems Inc.'s Registration
Statement on Form S-3 to be dated January 15, 1998 relating to the Vanguard
Automation Inc. Merger and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 15, 1998
<PAGE>
EXHIBIT 23(b)(ii)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 of our reports dated November 21, 1997, (except with
respect to the matter discussed in Note 15, as to which the date is December 9,
1997) and June 30, 1997, (except with respect to the matter discussed in Note
16, as to which the date is December 9, 1997) related to Vanguard Automation,
Inc. included in Robotic Vision Systems, Inc.'s Form 8-K/A to be dated January
16, 1998, and to all references to our firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
Tucson, Arizona
January 15, 1998
<PAGE>
EXHIBIT 23(c)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Robotic Vision Systems, Inc. on Form S-8 pertaining to the Company's 1996
Vanguard Automation, Inc. 1993 Long-Term Incentive Plan of our report dated
February 8, 1996, with respect to the 1995 consolidated financial statements and
schedule of Computer Identics Corporation and subsidiaries included in the
Annual Report (Form 10-K) of Robotic Vision Systems, Inc., for the year ended
September 30, 1997.
We also consent to the incorporation by reference of our report in this
Registration Statement on Form S-8 of our report dated February 8, 1996, with
respect to the 1995 consolidated financial statements and schedule of Computer
Identics Corporation and subsidiaries relating to the supplemental financial
statements of Robotic Vision Systems, Inc. appearing in the Registration
Statement on Form S-3 to be dated January 20, 1998, of Robotic Vision Systems,
Inc. and the reference therein to our firm as "Experts" in the Prospectus.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
January 15, 1998
<PAGE>
EXHIBIT 23(d)
CONSENT OF INDEPENDENT AUDITORS
We consent to incorporation herein by reference in the Registration Statement on
Form S-8 of Robotic Vision Systems, Inc. dated January 20, 1998 of our report
dated February 23, 1996, relating to the statements of operations, changes in
stockholders' deficiency, and cash flows of Vanguard Automation, Inc. for the
year ended December 31, 1995, which report is included in the Form S-3 of
Robotic Vision Systems, Inc. dated January 20, 1998.
/s/ KPMG PEAT MARWICK LLP
Phoenix, Arizona
January 16, 1998
