<PAGE>
As filed with the Securities and Exchange Commission on May 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)
5 Shawmut Road
Canton, Massachusetts 02021
(Address of principal executive offices)
ACUITY IMAGING INC. 1991 STOCK OPTION PLAN
ACUITY IMAGING INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
COMPUTER IDENTICS CORPORATION 1987 INCENTIVE STOCK OPTION PLAN
COMPUTER IDENTICS CORPORATION 1993 STOCK INCENTIVE OPTION PLAN
COMPUTER IDENTICS CORPORATION 1996 INCENTIVE STOCK OPTION PLAN
(Full titles of the Plans)
PAT V. COSTA
President and Chief Executive Officer
Robotic Vision Systems, Inc.
5 Shawmut Road
Canton, Massachusetts 02021
(781) 821-0830
(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 246,633 shs. $8.48 $2,091,448 $633.77
- ------------------------------------------------------------------------------------------------------
</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, as amended on Form 10-K/A on April 27, 1998;
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 (File No. 333-44493), declared effective on January 28, 1998;
4. Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1997;
5. Registrant's Quarterly Report on form 10-Q for the fiscal quarter
ended March 31, 1998; and
6. 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
II-2
<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(a) Acuity Imaging Inc. 1991 Stock Option Plan
4(b) Acuity Imaging Inc. Non-Employee Director Stock Option Plan
4(c) Computer Identics Corporation 1987 Incentive Stock Option Plan
4(d) Computer Identics Corporation 1993 Stock Incentive Option Plan
4(e) Computer Identics Corporation 1996 Incentive Stock Option 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
23(b)(ii) Consent of Arthur Andersen LLP
23(c) Consent of Ernst & Young LLP
23(d) Consent of KPMG Peat Marwick LLP
II-3
<PAGE>
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;
(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
II-4
<PAGE>
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 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.
II-5
<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 Town of Canton, Commonwealth of Massachusetts, on the 19th
day of May, 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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Chairman of the
Board, President
and Director (Principal
/s/Pat V. Costa Executive Officer) May 19, 1998
- ----------------------
Pat V. Costa
Vice President -
Finance, Secretary/
Treasurer (Principal
Financial Officer
and Principal
/s/John Arcari Accounting Officer May 19, 1998
- ----------------------
John Arcari
Executive Vice
President
/s/Steven Bilodeau and Director May 19, 1998
- ----------------------
Steven Bilodeau
Senior Vice
President
/s/Howard Stern and Director May 19, 1998
- ----------------------
Howard Stern
/s/Jay M. Haft Director May 19, 1998
- ----------------------
Jay M. Haft
/s/Robert H. Walker Director May 19, 1998
- ----------------------
Robert H. Walker
/s/Donald J. Kramer Director May 19, 1998
- ----------------------
Donald J. Kramer
/s/Mark J. Lerner Director May 19, 1998
- ----------------------
Mark J. Lerner
/s/Frank A. DiPietro Director May 19, 1998
- ----------------------
Frank A. DiPietro
/s/Tomas Kohn Director May 19, 1998
- ----------------------
Tomas Kohn
</TABLE>
<PAGE>
EXHIBIT 4(a)
ACUITY IMAGING, INC.
________________
1991 STOCK OPTION PLAN
________________
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees, consultants,
directors and others who are in a position to make significant contributions to
the success of Acuity Imaging, Inc. and of its affiliated corporations upon
whose judgment, initiative and efforts the Corporation depends for the
successful conduct of its business, to acquire a closer identification of their
interests with those of the Corporation by providing them with opportunities to
purchase stock in the Corporation pursuant to options granted hereunder, thereby
stimulating their efforts on behalf of the Corporation and strengthening their
desire to remain involved with the Corporation.
ARTICLE II
DEFINITIONS
3 "Affiliated Corporation" means any stock corporation of which a majority of
the voting common or capital stock is owned directly or indirectly by the
Corporation.
3.1 "Award" means an Options granted under Article V.
3.2 "Board" means the Board of Directors of the Corporation.
3.3 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
3.4 "Corporation" means Acuity Imaging, Inc., a Delaware corporation, or
its successor.
3.5 "Employee" means any person who is a regular full-time or part-time
employee of the Corporation or an Affiliated Corporation.
3.6 "Option" means an Incentive Stock Option or Non-Statutory Option
granted by the Board under Article V of this Plan in the
<PAGE>
form of a right to purchase stock evidenced by an instrument containing such
provisions as the Board may establish.
3.7 "Plan" means this Acuity Imaging, Inc. 1991 Stock Option Plan.
3.8 "Incentive Stock Option" ("ISO") means an options which qualifies as
an incentive stock option as defined in Section 422 of the Code, as amended.
3.9 "Non-Statutory Option" means any option not intended to qualify as an
Incentive Stock Option.
3.1 "Stock" means the Common Stock, $.01 par value, of the Corporation or
any successor, including any adjustments in the event of changes in capital
structure of the type described in Article X.
ARTICLE III
ADMINISTRATION OF THE PLAN
4 ADMINISTRATION BY BOARD. This Plan shall be administered by the Board of
Directors of the Corporation. The Board may, from time to time, delegate any of
its functions under this Plan to one or more committees. All references in this
Plan to the Board shall also include the committee or committees, if one or more
have been appointed by the Board. From time to time the Board may increase the
size of the committee or committees and appoint additional members thereto,
remove members (with or without cause) and appoint new members in substitution
thereof, fill vacancies however, caused, or remove all members of the committee
or committees and thereafter directly administer the plan. No member of the
Board or a committee shall be liable for any action or determination made in
good faith with respect to the Plan or any options granted under it.
4.1 POWERS. The Board and/or any committee appointed by the Board shall
have full and final authority to operate, manage and administer the Plan on
behalf of the Corporation. This authority includes, but is not limited to:
(a) The power to grant Awards conditionally or unconditionally;
(b) The power to prescribe the form or forms of the instruments
evidencing Awards granted under this Plan;
(c) The power to interpret the Plan;
2
<PAGE>
(d) The power to provide regulations for the operation of the
incentive features of the plan, and otherwise to prescribe and rescind
regulations for interpretation, management and administration of the Plan;
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with the Plan, as the
Board may establish;
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the plan's purpose; and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the plan's purpose, including but not limited
to, banks, insurance companies, brokerage firms and consultants.
4.2 ADDITIONAL POWERS. In addition, as to each Option to buy Stock of the
Corporation, the Board shall have full and final authority in its discretion:
(a) to determine the number of shares of Stock subject to each Option; (b) to
determine the time or times at which Options will be granted; (c) to determine
the option price of the shares of Stock subject to each Option, which price
shall be not less than the minimum price specified in Article V of this Plan;
(d) to determine the time or times when each option shall become exercisable and
the duration of the exercise period (including the acceleration of any exercise
period), which shall not exceed the maximum period specified in Article V; and
(e) to determine whether each Option granted shall be an Incentive Stock Option
or a Non-Statutory Option provided however that no Option shall be considered to
be an Incentive Stock Option to the extent that pursuant to the to the terms of
such Option and the terms of any other Incentive Stock Options granted to such
optionee by the Corporation and its parent and subsidiary corporations after
January 1, 1987, it would permit the optionee to purchase for the first time in
any year Stock, the fair market value of which, determined at the time the
Option is granted, exceeds $100,000 (the "Exercise Limit"), and the remainder of
the Option in excess of the Exercise Limit shall be treated as a Non-Statutory
Option.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including directors who are
Employees) are eligible to be granted Incentive Stock Option and Non-Statutory
Option Awards under this Plan.
4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any consultant,
director (whether or not an Employee) and any other
3
<PAGE>
non-Employee is eligible to be granted Non-Statutory Option Awards under the
Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees, consultants,
directors and other non-Employees to whom Awards shall be granted, the Board
shall weigh factors as are relevant to accomplish the purpose of the plan as
stated in Article I. An individual who has granted an Award may be granted one
or more additional Awards, if the Board so determines. The granting of an Award
to any individual shall neither entitle that individual to, not disqualify him
from, participation in any other grant of Awards.
ARTICLE V
STOCK OPTION AWARDS
6 NUMBER OF SHARES. Subject to the provisions of Article X of this Plan, the
aggregate number of shares of Stock for which Options may be granted under this
Plan shall not exceed 350,000 shares. The shares to be delivered upon exercise
of Options under this Plan shall be made available, at the discretion of the
Board, either from authorized but unissued shares or from previously issued and
reacquired shares of Stock held by the Corporation as treasury shares, including
shares purchased in the open market.
Stock issuable upon exercise of an Option granted under the plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board.
6.1 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option under
this Plan shall expire or terminate unexercised as to any shares covered
thereby, or shall cease for any reason to be exercisable in whole or in part, or
if the Corporation shall reacquire any unvested shares issued pursuant to
Options under the Plan, such shares shall thereafter be available for the
granting of other Options under this Plan.
6.2 TERM OF OPTIONS. The full term of each Option granted hereunder shall
be for such period as the Board shall determine. In the case of Incentive Stock
Options granted hereunder, the term shall not exceed ten (10) years from the
date of granting thereof. Each Option shall be subject to earlier termination as
provided in Sections 6.3 and 6.4. Notwithstanding the foregoing, Options
intended to qualify as "Incentive Stock Options" may not be granted to any
Employee who at the time such Option is granted owns more than ten percent (10%)
of the total combined voting power of all classes of stock of the Corporation or
of its parent or subsidiary corporation unless such Option is not exercisable
after the expiration of five (5) years from the date such Option is granted.
4
<PAGE>
6.3 OPTION PRICE. The Option price shall be determined by the Board at
the time any Option is granted. In the case of Incentive Stock options, the
exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option is granted (but in
no event less than par value), provided that no Incentive Stock Option shall be
granted hereunder to any Employee if at the time of grant the Employee owns more
than 10% of the combined voting power of all classes of stock of the Corporation
or of its parent or subsidiary corporation unless the Incentive Stock Option
price equals not less than 110% of the fair market value of the shares covered
thereby at the time the Incentive Stock Option is granted.
6.4 FAIR MARKET VALUE. If, at the time an Option is granted under the
Plan, the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the latest reported sale price (on that date) of the Stock on the NASDAQ
National Market List, if the Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last quoted
(on that date) by an established quotation service for over-the-counter
securities, if the Stock is not reported on the NASDAQ National Market List.
However, if the Stock is not publicly traded at the time an Option is granted
under the Plan, "fair market value" shall be deemed to be the fair value of the
Stock as determined by the Board after taking into consideration all factors
which it deems appropriate, including, without limitation, recent sale and offer
prices of the Stock in private transactions negotiated at arm's length.
6.5 NON-TRANSFERABILITY OF OPTIONS. No Option granted under this Plan
shall be transferable by the grantee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the grantee's
lifetime only by the grantee.
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each Option granted under this Plan shall be exercisable on
such date or dates and during such periods and for such number of shares as
shall be determined pursuant to the provisions of the instrument evidencing such
Option. The Board shall have the right to accelerate the date of exercise of
any Option, provided that, the Board shall not accelerate the exercise date of
an Incentive Stock Option granted if such acceleration would violate the annual
vesting limitation contained in Section
5
<PAGE>
422(d)(1) of the Code.
6.2 NOTICE OF EXERCISE. A person electing to exercise an Option shall
give written notice to the Corporation of such election and of the number of
shares he or she has elected to purchase and shall at the time of exercise
tender the full purchase price of the shares he or she has elected to purchase.
The purchase price can be paid partly or completely in shares of the
Corporation's Stock valued at "fair market value" as defined in section 5.5
hereof. Until such person has been issued a certificate or certificates for the
shares so purchased, he or she shall possess no rights of a record holder with
respect to any of such shares.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock Option
(and, unless otherwise determined by the Board, no Non-Statutory Option granted
to a person who is, on the date of the grant, an Employee of the Corporation or
an Affiliated Corporation) shall be affected by any change of duties or position
of the optionee (including transfer to or from an Affiliated Corporation), so
long as he or she continues to be an Employee. Employment shall be considered
as continuing uninterrupted during any bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute. A
bona fide leave of absence with the written approval of the Board shall not be
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Corporation or any Affiliated
Corporation to continue the employment of the optionee after the approved period
of absence.
If the optionee shall cease to be an Employee for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
provided that (i) the Board may provide in the instrument evidencing any Option
that the Board may in its absolute discretion, upon any such cessation of
employment, determine (but be under no obligation to determine) that such
accrued purchase rights shall be deemed to include additional shares covered by
such Option; and (ii) unless the Board shall otherwise provide in the instrument
evidencing any Option, upon any such cessation of employment, such remaining
rights to purchase shall in any event terminate upon the earlier of (A) the
expiration of the original term of the option; or (B) where such cessation of
employment is on account of disability, the expiration of one year from the date
of such cessation of employment and, otherwise, the expiration of three months
from such date. For purposes of the plan, the term "disability" shall mean
"permanent and total disability" as defined in Section 22(e)(3) of the Code.
6
<PAGE>
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession of the
legal right to exercise an Option or Options under this Plan, such persons as
shall have acquired, by will or by the laws of descent and distribution, the
right to exercise any Options theretofore granted, may, unless otherwise
provided by the Board in any instrument evidencing any Option, exercise such
Options at any time prior to one year from the date of death; provided, that
such Option or Options shall expire in all events no later than the last day of
the original term of such Option; provided, further, that any such exercise
shall be limited to the purchase rights which have accrued as of the date when
the optionee ceased to be an Employee, whether by death or otherwise, unless the
Board provides in the instrument evidencing such Option that, in the discretion
of the Board, additional shares covered by such Option may become subject to
purchase immediately upon the death of the optionee.
ARTICLE VII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need to be identical) in
such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles V and VI hereof and
may contain such other provisions as the Board deems advisable which are not
inconsistent with the Plan, including restrictions applicable to shares of Stock
issuable upon exercise of Options. In granting any Non-Statutory Option, the
Board may specify that such Non-Statutory Option shall be subject to the
restrictions set forth herein with respect to Incentive Stock Options, or to
such other termination and cancellation provisions as the Board may determine.
The Board may from time to time confer authority and responsibility on one or
more of its own members and/or one or more officers of the Corporation are
authorized and directed to take any and all action necessary or advisable from
time to time to carry out the terms of such instruments.
7
<PAGE>
ARTICLE VIII
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for
any purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Employee the right to continued employment with the Corporation or an
Affiliated Corporation.
ARTICLE IX
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination.
The Board may also amend the Plan from time to time, except that amendments
which affect the following subjects must be approved by stockholders of the
Corporation:
(a) Except as provided in Article X relative to capital changes, the
number of shares as to which Options may be granted pursuant to Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the Plan.
Awards granted prior to suspension or termination of the Plan may not be
canceled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
ARTICLE X
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject to
adjustment in the event of changes in the outstanding Stock of the Corporation
by reason of Stock dividends, Stock splits, recapitalizations, reorganizations,
mergers,
8
<PAGE>
consolidations, combinations, exchanges or other relevant changes in
capitalization occurring after the date of an Award to the same extent as would
affect an actual share of Stock issued and outstanding on the effective date of
such change. Such adjustment to outstanding Options shall be made without change
in the total price applicable to the unexercised portion of such Options, and a
corresponding adjustment in the applicable Option price per share shall be made.
In the event of any such change, the aggregate number and shares for which
Options may thereafter be granted under Section 5.1 of this Plan may be
appropriately adjusted as determined by the Board so as to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant to this
Article X with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
Options (as that term is defined in Section 424(h) of the Code) or would cause
any adverse tax consequences for the holders of such Incentive Stock Options. If
the Board determines that such adjustments made with respect to Incentive Stock
options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the Corporation,
each Option will terminate immediately prior to the consummation of such
proposed action or at such other time and subject to such other conditions as
shall be determined by the Board.
Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. No adjustments
shall be made for dividends paid in cash or in property other than securities of
the Corporation.
No fractional shares shall be issued under the Plan and the optionee shall
receive from the Corporation cash in lieu of such fractional shares.
ARTICLE XI
EFFECTIVE DATE AND TERM OF THE PLAN
The effective date of the Plan is March 13, 1991, subject to acceptance by
the shareholders. The Plan shall continue until such time as it may be
terminated by action of the Board; provided, however, that no Options may be
granted under this Plan on or after the tenth anniversary of the effective date
hereof.
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<PAGE>
ARTICLE XII
CONVERSION OF ISOS INTO NON-STATUTORY OPTIONS;
TERMINATION OF ISOS
The Board, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's Incentive Stock
Options, that have not been exercised on the date of conversion, into Non-
Statutory Options at any time prior to the expiration of such Incentive Stock
Options, regardless of whether the optionee is an Employee of the Corporation or
an Affiliated Corporation at the time of such conversion. Such actions may
include, but not be limited to, extending the exercise period or reducing the
exercise price of such Options. At the time of such conversion, the Board (with
the consent of the optionee) may impose such conditions on the exercise of the
resulting Non-Statutory options as the Board in its discretion may determine,
provided that such conditions shall not be inconsistent with the Plan. Nothing
in the Plan shall be deemed to give any optionee the right to have such
optionee's Incentive Stock Options converted into Non-Statutory Options, and no
such conversion shall occur until and unless the Board takes appropriate action.
The Board, with the consent of the optionee, may also terminate any portion of
any Incentive Stock Option that has not been exercised at the time of such
termination.
ARTICLE XIII
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares pursuant
to Options granted under the Plan shall be used for general corporate purposes.
ARTICLE XIV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under this
Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XV
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Statutory Option or the making of
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a Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the optionee to pay
additional withholding taxes in respect of the amount that is considered
compensation includable in such person's gross income. The Board in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
ARTICLE XVI
NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION
Each Employee who receives an Incentive Stock Option must agree to notify
the Corporation in writing immediately after the Employee makes a Disqualifying
Disposition of any Stock acquired pursuant to the exercise of an Incentive Stock
Option. A Disqualifying Disposition is any disposition (including any sale) of
such Stock before the later of (a) two years after the date the Employee was
granted the Incentive Stock Option or (b) one year after the date the Employee
acquired Stock by exercising the Incentive Stock Option. If the Employee has
died before such Stock is sold, these holding period requirements do not apply
and no Disqualifying Disposition can occur thereafter.
ARTICLE XVII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments evidencing
Options shall be governed by the laws of the Commonwealth of Massachusetts. In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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<PAGE>
EXHIBIT 4(b)
ACUITY IMAGING, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
ARTICLE I
PURPOSE OF PLAN
---------------
This is a stock plan pursuant to which Options to purchase Shares of the
common stock of Acuity Imaging, Inc. shall be granted to non-employee Directors
of the Company. This plan shall be known as the Non-Employee Director Stock
Option Plan (the "Plan"). The purpose of the Plan is to obtain and retain the
services of qualified persons who are not employees of the Company to serve as
directors, and to illustrate the Company's appreciation for their service upon
the Company's Board of Directors. The Plan will make it possible for those
individuals to purchase shares of the Company's Common Stock on terms which will
give them a direct and continuing interest in the future success of the
Company's business.
ARTICLE II
DEFINITIONS
-----------
"Automatic Grant Date" has the meaning set forth in Article IV, Section 1.
"Board" means the Board of Directors of the Company.
"Common Stock" means the $.01 par value common stock of the Company.
"Company" means Acuity Imaging, Inc., a Delaware corporation.
"Director" means a member of the Board of Directors who is not an employee
of the Company.
"Fair Market Value" has the following meaning: If, at the time an Option
is granted under the Plan, the Company's Stock is publicly traded, "fair market
value" shall be determined as of the last business day for which the prices or
quotes discussed in this sentence are available prior to the date such Option is
granted and shall mean (i) the average (on that date) of the high and low
<PAGE>
prices of the Stock on the principal national securities exchange on which the
Stock is traded, if the Stock is then traded on a national securities exchange;
or (ii) the latest reported sale price (on that date) of the Stock on the NASDAQ
National Market List, if the Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last quoted
(on that date) by an established quotation service for over-the-counter
securities, if the Stock is not reported on the NASDAQ National Market List;
provided however, if the Stock is not publicly traded at the time an Option is
granted under the Plan, "fair market value" shall be deemed to be the fair value
of the Stock as determined by the Board after taking into consideration all
factors which it deems appropriate, including, without limitation, recent sale
and offer prices of the Stock in private transactions negotiated at arm's
length.
"Option" means an option to purchase shares of the Stock granted under the
Plan.
"Option Agreement" means an agreement between the Company and an Option,
setting forth the terms and conditions of an Option.
"Optionee" means a person to whom an Option has been granted under this
Plan which has not expired or been fully exercised or surrendered.
"Shares" means shares of Common Stock of the Company.
ARTICLE III
SHARES AVAILABLE FOR OPTIONS
----------------------------
A. Reserved Shares. The Board shall reserve for the purpose of this
----------------
Plan, out of the authorized but unissued Common Stock of the Company, or out of
shares of Common Stock held in its treasury, or partly out of each, as shall be
determined by the Board, a total of 50,000 shares of the Common Stock (or the
number and kind or shares of stock or other securities which, in accordance with
this Article III, shall be substituted for such 50,000 shares or to which said
50,000 shares shall be adjusted). In the event that an Option granted under
this Plan to any Optionee expires or is terminated unexercised as to any Shares
covered thereby, such Shares shall thereafter again be available for the purpose
of this Plan.
B. Adjustment of Number of Shares; Fractional Shares. Each Option
--------------------------------------------------
Agreement shall provide that in the event of any stock dividend payable in the
Stock or any split-up or contraction in the number of shares of the Stock, or
any reclassification or change of outstanding shares of the Stock, in each case
occurring
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<PAGE>
after the date of such Option Agreement and prior to the exercise in full of the
Option, the number and kind of shares for which the Option may thereafter be
exercised shall be proportionately and appropriately adjusted. Each Option
Agreement shall further provide that upon any consolidation or merger of the
Company with or into another company, or any sale or conveyance to another
company or entity of the property of the Company as a whole, or the dissolution
or liquidation of the Company, the Option shall terminate, but the Optionee
shall have the right, immediately prior to such event, to exercise the Option,
to the extent then exercisable by its terms and not theretofore exercised. No
fraction of a share of the Stock shall be purchasable or deliverable, but in the
event any adjustment of the number of shares of the Stock covered by the Option
shall cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares. In the event of changes
in the outstanding Stock by reason of any stock dividend, split-up, contraction,
reclassification, or change of outstanding shares of the Stock of the nature
contemplated by this Article III after the date of adoption of this Plan by the
Board of Directors, the number of shares of the Stock available for the purpose
of the Plan as stated in Article IV and the exercise price per share of each
Option shall be correspondingly adjusted.
ARTICLE IV
GRANTING OF OPTIONS
-------------------
A. Automatic Grants. Each Director serving as such on the date of the
----------------
first meeting of the Board in each calendar year (beginning with 1994) shall
receive a grant of Options to purchase the lesser of (i) 1,550 Shares or (ii)
the number of Shares determined by dividing $25,000 by the Fair Market Value of
a Share of the Company's Common Stock as of the date of such meeting (the
"Automatic Grant Date"). Each Option granted under the Plan shall, subject to
Article V, become fully exercisable one year after the Automatic Grant Date.
B. Option Agreement. As soon as practicable after the grant of an Option
----------------
under this Plan, the Company and the Optionee shall enter into a Stock Option
Agreement evidencing the Option so granted. Such agreement shall be in such
form, consistent with this Plan, as the Board shall deem appropriate.
ARTICLE V
TERMS OF STOCK OPTIONS
----------------------
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<PAGE>
The terms of Options granted under this Plan shall be as follows:
(i) The option price shall be the Fair Market Value of the Shares subject
to the Option on the Automatic Grant Date.
(ii) Options shall not be transferable other than by will or by the laws of
descent and distribution. No Option shall be subject, in whole or in part, to
attachment, execution or levy of any kind.
(iii) Each Option shall expire and all rights thereunder shall end at
the expiration of ten years, and one day after the date on which it was granted,
subject in all cases to earlier expiration as provided in paragraphs (iv) and
(v) of this Article V.
(iv) If an Optionee shall cease to be a Director for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
and upon any such cessation of service as a Director, such remaining rights to
purchase shall in any event terminate upon the earlier of (A) the expiration of
the original term of the option; or (B) where such cessation of service as a
Director is on account of disability, the expiration of one year from the date
of such cessation of service as a Director and, otherwise, the expiration of
three months from such date. For purposes of the Plan, the term "disability"
shall mean "permanent and total disability" as defined in Section 22(e)(3) of
the Internal Revenue Code of 1996, as amended.
(v) Should an Optionee die while in possession of the legal right to
exercise an Option or Options under this Plan, such persons as shall have
acquired, by will or by the laws of descent and distribution, the right to
exercise any Options theretofore granted, may, unless otherwise provided by the
Board in any instrument evidencing any Option, exercise such Options at any time
prior to one year from the date of death; provided, that such Option or Options
shall expire in all events no later than the last day of the original term of
such Option; provided, further that any such exercise shall be limited to the
purchase rights which have accrued as of the date when the Optionee ceased to be
a Director, whether by death or otherwise.
4
<PAGE>
ARTICLE VI
DELIVERY OF SHARES
------------------
No shares shall be delivered upon the exercise of an Option until the
Option price has been paid in full in cash or by check. If required by the Board
no shares will be delivered upon the exercise of an Option until the Optionee
has given the Company a satisfactory written statement that he is purchasing the
shares for investment and not with a view to the sale or distribution of any
such shares and the method of disposal of optioned shares of the Stock as the
Board of Directors may deem advisable in order to assure compliance with
applicable securities laws.
ARTICLE VII
CONTINUATION AS A DIRECTOR
--------------------------
Neither this Plan nor any Option granted hereunder shall confer upon any
individual any right to continue as a member of the Board of Directors or limit
in any respect any rights the Company may have with respect to the Director.
ARTICLE VIII
ADMINISTRATION
--------------
The Board or a committee of the Board may make such rules and regulations
and establish such procedures as it deems appropriate for the administration of
this Plan. In the event of a disagreement as to the interpretation of this Plan
or any amendment thereto or any rule, regulation or procedure thereunder or as
to any right or obligation arising from or related to this Plan, the decision of
the Board or the committee of the Board shall be final and binding upon all
persons in interest, including the Company and its stockholders.
ARTICLE IX
RESERVATION OF SHARES
---------------------
Shares delivered upon the exercise of an Option shall be Shares heretofore
or hereafter authorized and then unissued, or previously issued shares
heretofore or hereafter acquired through purchase in the open market or
otherwise, or some of each. The
5
<PAGE>
Company shall be under no obligation to reserve or to retain in its treasury any
particular number of shares at any time, and no particular Shares, whether
unissued or held as treasury shares, shall be identified as those optioned under
this Plan.
ARTICLE X
TERMINATION AND AMENDMENT OF PLAN
---------------------------------
The Board of Directors may at any time terminate the Plan or make such
modifications of the Plan as it shall deem advisable, provided, that the Board
of Directors may not (a) except as provided in Article III, without approval by
the holders of a majority of the Shares represented within twelve (12) months
after the adoption of such amendment by the Board of Directors, increase the
maximum number of Shares available for option under the Plan or extend the
period during which Options may be granted or exercised or (b) more than once in
any six (6) month period, amend the Plan so as to (1) modify Articles IV or V or
(2) otherwise provide for or permit the grant of Options to Directors, provided,
however, that the Board of Directors may make a modification of the type set
forth in clause (b)(1) or (b)(2) above which is made to comport with changes in
the Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations under either such
statute. No termination or amendment of the Plan may, without the consent of
the Optionee to whom any Option shall theretofore have been granted, adversely
affect the rights of that Optionee under that Option.
ARTICLE XI
EFFECTIVE DATE - STOCKHOLDER APPROVAL
-------------------------------------
This Plan was approved by the Board of Directors and became effective on
January 28, 1994, but no Option granted under this Plan may be exercised until
and unless this Plan is approved by the stockholders of the Company at a meeting
of the stockholders of the Company held within twelve months after such
effective date.
6
<PAGE>
EXHIBIT 4(c)
COMPUTER IDENTICS CORPORATION
1987 INCENTIVE STOCK OPTION PLAN
1. PURPOSE. The purpose of this 1987 Incentive Stock Option Plan (the
"Plan") is to maintain and develop a management capable of assuring the future
success of Computer Identics Corporation (the "Company"). The Plan is designed
to enable the Company to retain the services of executives and key personnel and
to attract new management personnel as and when needed for future operations and
growth; to offer such personnel additional incentives to contribute to the
success of the Company, and to afford such personnel the opportunity to obtain
or increase a proprietary interest in the Company and, thereby, to have an
opportunity to share in its success.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company (the "Board"). Subject to the provisions of the Plan
and the provisions of Section 422A of the Code and applicable regulations issued
pursuant thereto, the Board shall have sole authority, in its absolute
discretion, to determine which of the eligible employees of the Company, shall
be granted options hereunder, the time or times at which such options shall be
granted, the terms of such options and the number of shares to be optioned.
Subject to the provision in the preceding sentence, the Board shall in addition
have the sole authority to construe and interpret the Plan and to do everything
necessary or appropriate to administer the Plan, and all decisions,
determinations and interpretations of the Board shall be binding and conclusive
on all optionees and on their legal representatives and beneficiaries. The Board
may delegate to any other committee of the Board its authority to determine
which eligible employees shall be granted options, the time or times at which
such options shall be granted, and the number of shares to be optioned.
3. ELIGIBILITY. Options may be granted only to salaried employees who
are officers or who are employed in an executive, administrative or professional
capacity by the Company. Directors who are not otherwise officers or employees
of the Company are not eligible to participate in the Plan.
4. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 9,
the maximum number of shares which may be issued under this Plan shall be
500,000 shares of the Company's authorized, but unissued, or reacquired Common
Stock, par value $.10 per share ("Common Stock"). Shares of Common Stock
applicable to the unexercised portions of options which have terminated or
expired may again be optioned under the Plan if at such time options may still
be granted under the Plan. All options hereafter granted
<PAGE>
under the Plan are intended to be "incentive stock options" as defined in
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
5. TERM. The Plan shall become effective upon its adoption by the Board
and shall continue to effect for a period of ten (10) years unless sooner
terminated in accordance with the provisions of Section 12.
6. GRANT OF OPTIONS. Options may be granted to eligible persons in such
number and at such times during the term of the Plan as the Board shall
determine, provided, however, that the aggregate fair market value (determined
as of the time option is granted) of the shares for which incentive stock
options (as that term is defined in Section 422A of the Code) are exercisable
for the first time during any calendar year may not exceed $100,000.
7. TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS. All options granted
under the Plan shall be evidenced by a written agreement executed by the Company
and the Optionee (the "Option Agreement") and shall bein such form as the Board
may from time to time determine and shall be subject to the following terms and
conditions.
7.1 Option Price. The option price per share with respect to each
------------
option shall be determined by the Board, but shall not be less than 100% (110%
in the case of a 10% Shareholder as defined in Section 11 hereof) of the fair
market value of a share of Common Stock on the date the option is granted.
7.2 Term of Option. Subject to the provisions of Section 7.3, each
--------------
option shall be for the term provided for by the Board at the time the option is
granted; provided, however, that no option shall expire later than ten (10)
years (five (5) years in the case of a 10% Shareholder) from the date of grant.
7.3 Exercise Period. At the time an option is granted, the Board
---------------
shall fix the period in which the option may be exercised and the percentage of
shares subject to an option which may be exercised and the percentage of shares
subject to an option which may be exercised in each successive year, provided
that the period during which the option may be exercised (the "Exercise Period")
shall not in any event be more than ten (10) years from the date of grant (five
(5) years in the case of a 10% Shareholder). The Board shall have the right, in
the event of the retirement of any optionee, to shorten the Exercise Period by
the length of time which the Board, in its sole discretion, may deem
appropriate. When an option becomes initially exercisable in whole or in part by
an optionee it shall remain exercisable for the period or periods stated in the
Option Agreement and thereafter shall expire and no longer be exercisable.
2
<PAGE>
7.4 Exercise of Option. (a) Notwithstanding anything to the contrary
------------------
contained herein, an option granted under the Plan shall be exercisable only:
(i) while the optionee is in "continuous employment with the Company,"
or
(ii) for a period ending three (3) months after the termination of the
optionee's employment provided that the optionee's employment had not
been terminated for cause or on account of the optionee's breach of an
employment contract; or
(iii) if the optionee should die while in "continuous employment with
the Company," by the estate of the optionee, within three (3) months
after the date of the optionee's death.
For purposes hereof, "continuous employment with the Company" shall
mean the absence of any interruption or termination of employment by Company or
by any parent or subsidiary of the Company which now exists or is organized or
acquired by the Company hereafter. Continuous employment shall not be considered
interrupted in the case of sick leave, military leave or any other leave of
absence approved by the Company or in the case of transfers between payroll
locations of the Company or between the Company and any parent, subsidiary or
successor.
(b) Except as hereinabove provided, upon termination of an optionee's
employment, his option shall termiante as to all shares with respect to which it
has not theretofore been exercised.
(c) Subject to the terms and conditions hereinbefore set forth, an
option granted hereunder may be exercised by a written notice addressed to the
Board which shall:
(i) state the election to exercise the option, the number of
shares in respect of which it is being exercised, the person in whose
name the stock certificate or certificates for such shares of Common
Stock is to be registered, his address and social security number (or
if more than one, the names, addresses and social security numbers of
all such persons);
(ii) contain such representations and agreements as to the
optionee's investment intent with respect to such shares of Common
Stock as may be satisfactory to counsel for the Company; and
3
<PAGE>
(iii) be signed by the person or persons entitled to exercise the
option, and if the option is being exercised by any person or persons
other than the optionee, be accompanied by proof, satisfactory to
counsel for the Company, of the right of such person or persons to
exercise the option.
Payment of the purchase price of any shares with respect to which the
option is being exercised shall be by certified or bank cashier's or teller's
check and shall be delivered with the notice of exercise. The certificate or
certificates for the shares of Common Stock as to which the option shall be
exercised shall be registered in the name of the person or persons exercising
the option.
8. RESTRICTIONS ON TRANSFER. No option or other rights under the Plan
may be sold, pledged, assigned, hypothecated, transferred or disposed of in any
manner by an optionee other than by will or by the laws of descent and
distribution, and such option shall be exercisable, during his lifetime, only by
the optionee.
9. ADJUSTMENT OF NUMBER OF SHARES UNDER CERTAIN EVENTS. Subject to the
provisions of Section 7.4(a) hereof, if al or any portion of an option is
exercised subsequent to any stock dividend, split-up, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
property or stock, separation, reorganization, or liquidation, as a result of
which shares of any class shall be issued in respect of an outstanding shares of
Common Stock or shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes, the person
or person so exercising such an option shall receive, for the aggregate price
payable upon such exercise of the option, the aggregate number and class of
shares which, if shares of Common Stock (as authorized at the date of the
granting of such option) had been purchased at the date of granting of the
option for the same aggregate price (on the basis of the price per share
provided in the option) and had not been disposed of, such person or persons
would be holding at the time of such exercise, as a result of such purchase and
any such stock dividend, split-up, recapitalization, combination or exchange of
shares, merger, consolidation, acquisition of property or stock, separation,
reorganization, or liquidation; provided, however, that no fractional share
shall be issued upon any such exercise, and the aggregate price paid shall be
appropriately reduced on account of any fractional share not issued. In the
event of any such change in the outstanding Common Stock of the Company, the
aggregate number and class of shares remaining available under the Plan shall be
that number and class which a person, to whom an option had been granted for all
of the available shares under the Plan on the date preceding such change, would
be entitled to receive as provided in the first sentence of this Section 9.
4
<PAGE>
10. MERGER, ETC. NOT INVOLVING ISSUANCE OF SECURITIES. In the event of
any combination, merger, consolidation, reorganization, or liquidation as a
result of which property (other than shares of any class, but including money)
shall be issued in respect of all outstanding shares of Common Stock, the
Company shall give each optionee at least ten (10) days' prior written notice of
any such event, and any option granted pursuant to the Plan, whether or not
vested at that time, to the extent it is still in force and has not been
exercised, shall be accelerated, and any such optionee may upon compliance with
all terms of the Plan, exercise the option to purchase shares of Common Stock
granted hereunder. To the extent such option is not exercised within such ten
(10) day period, it shall expire and have no further force or effect, and the
optionee shall have no further rights in or under such option or to shares of
Common Stock relating to the option which were not purchased at such time
pursuant to the option.
11. 10% SHAREHOLDER. The term "10% Shareholder" as used herein shall mean
an individual who at the time an option is granted to him hereunder is subject
to the provisions of Sections 422A(b)(6) of the Code as the result of his
ownership (directly or under the attribution rules of Section 425(d) of the
Code) of stock possessing 10% of the combined voting power of all classes of
stock in the Company or in any parent or subsidiary of the Company (as
respectively defined in Sections 425(e) and 425(f) of the Code.)
12. TERMINATION AND AMENDMENT OF THE PLAN. The Board may at any time and
from time to time terminate, modify or amend the Plan in any respect; provided,
however, that unless also approved or ratified by a vote of the majority of the
holders of the outstanding shares of the capital stock of the Company entitled
to vote thereon, any such modification or amendment shall not (subject, however,
to the provisions of Section 9 hereof): (i) increase the maximum number of
shares for which options may be granted under the Plan; (ii) reduce the option
price at which options may be granted; (iii) extend the period during which
otpions may be granted or exercised beyond the times originally prescribed; (iv)
change the persons eligible to participate in the Plan; or (v) increase the
number of options that may be granted to an employee. No such termination,
modification or amendment may affect the rights of an optionee under an
outstanding option.
13. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available, and will seek or obtain from any
regulatory body having jurisdiction, any requisite authority in order to issue
and sell such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements of the Plan. Inability of the Company to obtain from
any regulatory body having jurisdiction authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of its
stock hereunder shall relieve the Company of any liability in respect of the
non-issuance or sale of such stock
5
<PAGE>
as to which such requisite authority shall not have been obtained.
14. USE OF PROCEEDS. The proceeds derived from the sale of Common Stock
pursuant to the exercise of options under this Plan will be added to the
Company's working capital and used for general corporate purposes.
6
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EXHIBIT 4(d)
COMPUTER IDENTICS CORPORATION
1993 STOCK INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The Computer Identics Corporation 1993 Incentive Plan is adopted to promote
the interests of the Company by enabling the Company to attract and retain key
employees and consultants with long-term incentives to improve corporate
performance.
2. DEFINITIONS.
As used in the Plan, the following definitions apply to the terms indicated
below:
(a) "Board of Directors" shall mean the Board of Directors of the Company.
(b) "Change in Control" shall mean:
(i) a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act; or
(ii) the occurrence of any of the following events:
(1) any Person is or becomes the "beneficial owner" (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 35% or more of
the combined voting power of the Company's then outstanding
securities;
(2) a majority of individuals who are nominated by the Board of
Directors for election to the Board of Directors on any date, fail to
be elected to the Board of Directors as a direct or indirect result of
any proxy fight or contested election for positions on the Board of
Directors; or
(3) the Board of Directors determines in
<PAGE>
its sole and absolute discretion that there has been a change in
control of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" shall mean the Committee of the Board of Directors
appointed by it from time to time to administer the Plan.
(e) "Common Stock: shall mean the Company's common stock, $.10 par value
per share.
(f) "Company" shall mean Computer Identics Corporation, a Massachusetts
corporation.
(g) "Continuous Employment" means with respect to any Employee, the
continued employment of such Employee by the Company or any Subsidiary without
interruption or termination after the grant of an Option to such Employee.
Continuous Employment shall not be considered interrupted in the case of sick
leave, military leave or any other leave of absence approved by the Board
(provided that such leave is for a period of not more than ninety (90) days or
re-employment upon the expiration of such leave is mandated by contract or
statute) or in the case of transfers between locations of the Company or between
the Company, any Subsidiary or any of their respective successors.
(h) "Disability" shall mean any physical or mental condition constituting
permanent and total disability within the meaning provided by Section 22(e)(3)
of the Code.
(i) "Fair Market Value" of a share of Common Stock with respect to any day
shall be (i) the closing sales price of a share of Common Stock on the
immediately preceding business day during which such Common Stock was traded as
reported on the principal securities exchange on which shares of Common Stock
are then listed or admitted to trading or by the National Association of
Securities Dealers Automated Quotation National Market System, if quoted
thereon, or (ii) if not so listed or admitted to trading or quoted, the average
of the closing bid and asked prices on the immediately preceding business day
during which such Common Stock was traded as reported on the National
Association of Securities Dealers Automated Quotation System or (iii) if not so
reported, as furnished by any member of the National Association of Securities
Dealers, Inc. selected by the Committee. In the event that none of the methods
given above for determining Fair Market Value is applicable, the Fair Market
Value of a share of Common Stock shall be determined by the Committee in its
absolute discretion.
(j) "Fair Market Value" of a share of Common Stock with respect to any day
shall be (i) the closing sales price of a share
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of Common Stock on the immediately preceding business day during which such
Common Stock was traded as reported on the principal securities exchange on
which shares of Common Stock are then listed or admitted to trading or by the
National Association of Securities Dealers Automated Quotation National Market
System, if quoted thereon, or (ii) if not so listed or admitted to trading or
quoted, the average of the closing bid and asked prices on the immediately
preceding business day during which such Common Stock was traded as reported on
the National Association of Securities Dealers Automated Quotation System or
(iii) if not so reported, as furnished by any member of the National Association
of Securities Dealers, Inc. selected by the Committee. In the event that none of
the methods given above for determining Fair Market Value is applicable, Fair
Market Value of a share of Common Stock shall be determined by the Committee in
its absolute discretion.
(k) "Forfeiture Conditions" shall mean conditions such as performance or
duration of employment, the happening of which will result in forfeiture of
Restricted Stock.
(l) "Incentive Award" shall mean an Option, Tandem SAR or Restricted Stock
granted pursuant to the terms of the Plan.
(m) Incentive Stock Option" shall mean an Option which is intended at the
time of grant to be an "incentive stock option" within the meaning of Section
422 of the Code and which is identified as an Incentive Stock Option in the
agreement by which it is evidenced.
(n) "Misconduct" shall mean that the Participant has committed an act of
embezzlement, fraud or theft with respect to the property or business of the
Company or a Subsidiary or deliberately disregarded the rules of the Company or
a Subsidiary in such a manner as to cause material loss, damage or injury to or
otherwise endanger the property, reputation, employees or business prospects of
the Company or a Subsidiary.
(o) "Non-Qualified Stock Option" shall mean an Option which is not an
Incentive Stock Option and which is identified as a Non-Qualified Stock Option
in the agreement by which it is evidence.
(p) "Option" shall mean an option to purchase shares of Common Stock of the
Company granted pursuant to Section 6 hereof. Each Option shall be identified as
either an Incentive Stock Option or a Non-Qualified Stock Option in the
agreement by which it is evidence.
(q) "Participant" shall mean an employee of the Company who is eligible to
participate in the Plan and to whom an Incentive Award is granted pursuant to
the Plan, and, upon his death, his successor, heirs, executors and
administrators ("Successors"), as
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the case may be, to the extent hereinafter set forth. It shall also mean, where
the context indicates, a consultant to the Company to whom a Non-Qualified Stock
Option or Restricted Stock is granted.
(r) "Person" shall mean a "person," as such term is used in Sections 13(d)
and 14(d) of the Exchange Act.
(s) "Plan" shall mean the Computer Identics Corporation 1993 Stock
Incentive Plan, as it may be amended from time to time.
(t) "Predecessors Plan" shall mean the Company's 1987 Incentive Stock
Option Plan.
(u) "Restricted Period" means a period set by the Committee commencing with
the date of a grant of Restricted Stock during which such Restricted Stock is
subject to forfeiture.
(v) "Rule 16b-3" means Rule 16b-3 promulgated by the Commission under the
Act or any similar successor regulation exempting certain transactions involving
stock-based compensation arrangements from the liability provisions of Section
16 of the Act, as adopted and amended from time to time and as interpreted by
formal or informal opinions of, and releases published or other interpretive
advice provided by, the Staff of the Commission.
(w) "Section 16 Person" means an Employee who is subject to Section 16 of
the Act, as interpreted by the rules and regulations promulgated by the
Commission thereunder, as adopted and amended from time to time, and by formal
or informal opinions of, and releases published or other interpretive advice
provided by, the Staff of the Commission.
(x) "Restricted Stock" shall mean Common Stock awarded by the Committee
under Section 8.
(y) "Securities Act" shall mean the Securities Act of 1933, as amended.
(z) "Subsidiary" shall mean any corporation in which at the time of
reference the Company owns, directly or indirectly, stock comprising more than
fifty percent of the total combined voting power of all classes of stock of such
corporation.
(aa) "Tandem SAR" shall mean a stock appreciation right granted pursuant to
Section 7 hereof which is related to an Option. Each Tandem SAR shall be
exercisable only to the extent its related Option is exercisable and only in the
alternative to the exercise of its related Option.
3. STOCK SUBJECT TO THE PLAN.
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Under the Plan, the Committee may grant to Participants (i) Options, (ii)
Tandem SARs or (iii) Restricted Stock. Subject to adjustment as provided in
Section 9 hereof, the Committee may grant Options and Restricted Stock under the
Plan with respect to a number of shares of Common Stock that in the aggregate
does not exceed 600,000 shares, plus such number of the 1,300,000 Shares of
Common Stock authorized for issuance and sale under the Predecessor Plan which
(x) as of the date this Plan is approved by the stockholders of the Company, are
not subject to grants of stock options then outstanding under the Predecessor
Plan (from and after stockholder approval of this Plan, no further grants shall
be made under the Predecessor Plan, but any grants of stock options outstanding
under the Predecessor Plan at the time of such approval shall continue in full
force and effect in accordance with their respective terms) or (y) to the extent
grants outstanding under the Predecessor Plan as of the date of stockholder
approval of this Plan are not exercised in full, are, as of any subsequent date
no longer subject to grants under the Predecessor Plan by reason of such grants
having expired or lapsed or having been cancelled, surrendered, forfeited or
otherwise terminated. The inclusion under this Plan of such Shares reserved for
issuance and sale under the Predecessor Plan as hereinabove provided shall not
be affected by the expiration or other termination of the Predecessor Plan. The
Shares issued and sold upon the exercise of Options may be treasury Shares,
Shares of original issue or a combination thereof. The grant of a Tandem SAR
shall not reduce the number of shares of Common Stock with respect to which
Options or Restricted Stock may be granted pursuant to the Plan.
In the event that any outstanding Option expires, terminates or is
cancelled for any reason (other than pursuant to Paragraph 7(b)(ii) hereof), or
any Restricted Stock is forfeited, the shares of Common Stock subject to the
unexercised portion of such Option or the Shares of Restricted Stock forfeited
shall again be available for grants under the Plan. In the event that an
outstanding Option is cancelled pursuant to Paragraph 7(b)(ii) hereof by reason
of the exercise of a Tandem SAR, the shares of Common Stock subject to the
cancelled portion of such Option shall not again be available for grants under
the Plan.
Shares of Common Stock issued under the Plan may be either newly issued
shares or treasury shares, at the discretion of the Committee.
4. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a Committee of the Board of Directors
consisting of not less than two members of the Board of Directors, each of whom
shall be a "disinterested person" within the meaning of Rule 16b-3. The
Committee shall from time to time designate the key employees of the Company and
its Subsidiaries who
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<PAGE>
shall be granted Incentive Awards and the amount and type of such Incentive
Awards. It shall also have the power to make grants of Non-Qualified Stock
Options and Restricted Stock to consultants and determine the terms and
conditions of such grants.
The Committee shall have full authority to administer the Plan, including
authority to interpret and construe any provision of the Plan and the terms of
any Incentive Award issued under it and to adopt such rules and regulations for
administering the Plan as it may deem necessary. Decisions of the Committee
shall be final and binding on all parties.
The Committee may, in its absolute discretion, accelerate the date on which
any Option granted under the Plan becomes exercisable or the date when the
Restricted Period or Forfeiture Condition of any Restricted Stock expires.
In addition, the Committee may, in its absolute discretion, grant options
to Participants on the condition that such Participants surrender to the
Committee for cancellation such other Incentive Awards (including, without
limitation, Options with higher exercise prices) as the Committee specifies.
Notwithstanding Section 3 herein, prior to the surrender of such other Incentive
Awards, Incentive Awards granted pursuant to the preceding sentence of this
Section 4 shall not count against the limits set forth in such Section 3.
No member of the Committee shall be liable for any action, omission, or
determination relating to the Plan, and the Company shall indemnify and hold
harmless each member of the Committee and each other director or employee of the
Company to whom any duty or power relating to the administration or
interpretation of the Plan has been delegated against any cost or expense
(including counsel fees) or liability (including any sum paid in settlement of a
claim with the approval of the Committee) arising out of any action, omission or
determination relating to the Plan, unless, in either case, such action,
omission or determination was taken or made by such member, director or employee
in bad faith and without reasonable belief that it was in the best interests of
the Company.
5. ELIGIBILITY.
The persons who shall be eligible to receive Incentive Awards pursuant to
the Plan shall be such employees of the Company and its Subsidiaries who have
responsibility for the management of the business of the Company (including
officers of the Company and its Subsidiaries, whether or not they are also
directors of the Company and its Subsidiaries) as the Committee shall select
from time to time. Non-Qualified Stock Options and Restricted Stock may, in the
Committee's discretion, be granted to non-employees rendering important
consulting functions to the Company or its subsidiaries.
6
<PAGE>
6. OPTIONS.
The Committee may grant Options pursuant to the Plan. Such Options shall
be evidenced by agreements in such form as the Committee shall from time to time
approve. Options shall comply with and be subject to the following terms and
conditions:
(a) Identification of Options. All Options granted under the Plan shall be
-------------------------
clearly identified in the agreement evidencing such Options as Incentive Stock
Options or as Non-Qualified Stock Options.
(b) Exercise Price. The exercise price of any Non-Qualified Stock Option
--------------
granted under the Plan shall be such price as the Committee shall determine on
the date on which such Non-Qualified Stock Option is granted; provided, that
such price may not be less than the minimum price required by law. The exercise
price of any Incentive Stock Option granted under the Plan shall be such price
as the Committee shall determine on the date of grant but not less than 100% of
the Fair Market Value of a share of Common Stock on that date.
(c) Term and Exercise of Options.
----------------------------
(i) Each Option shall be exercisable on such date or dates, during
such period and for such number of shares of Common Stock as shall be
determined by the Committee on the day on which such Option is granted
and set forth in the Option agreement with respect to such Option;
provided, however, that no option granted to a Section 16 Person shall
be exercisable prior to the expiration of six months from date of
grant; further provided that no Option shall be exercisable after the
expiration of ten (10) years from the date such Option was granted;
and, provided, further, that each Option shall be subject to earlier
termination, expiration or cancellation as provided in the Plan.
(ii) Each Option shall be exercisable in whole or in part; provided,
that no partial exercise of an Option shall be for an aggregate
exercise price of less than $500. The partial exercise of an Option
shall not cause the expiration, termination or cancellation of the
remaining portion thereof. Upon the partial exercise of an Option,
the agreements evidencing such Option and any related Tandem SARs
shall be returned to the Participant
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<PAGE>
exercising such Option together with the delivery of the certificates
described in Section 6(c)(v) hereof.
(iii) An Option shall be exercised by delivering written notice
specifying the number of shares of Common Stock with respect to which
the Option is being exercised and accompanied by the purchase price.
To constitute an effective exercise of an Option, such notice and
payment shall be addressed to the attention of the Treasurer of the
Company and must be received at the principal executive officer of the
Company (A) with respect to an Option that is terminated for
"Misconduct" pursuant to paragraph (e) of this Section 6, prior to the
time of the occurrence of the event constituting such Misconduct or
(B) with respect to any other Option, by 5:00 p.m., local time, on the
date of expiration or termination of the Option.
(iv) Payment for shares of Common Stock purchased upon the exercise of
an Option and for any withholding taxes shall be made on the effective
date of such exercise either (A) in cash, by check or wire transfer or
(B) in shares of Common Stock already owned by the Participant and
valued at their Fair Market Value on the effective date of such
exercise, or any combination of the above. Any payment in already-
owned Shares of Common Stock shall be effected by the delivery of such
shares duly endorsed in blank or accompanied by stock powers duly
executed in blank. Except as may otherwise be specified by the
Committee in its sole discretion at the time of grant thereof and
reflected in the Option Agreement evidencing such Option, Shares
withheld from the Shares to be issued upon exercise of the Option,
either alone or in any combination with any of the other acceptable
forms of consideration recited in this subparagraph (iv), will also be
an accepted form of consideration for payment of the exercise price
for Shares to be issued upon exercise of an Option and/or of the taxes
required to be withheld in connection with the exercise of an Option.
In addition to, or in any combination with, the acceptable forms of
consideration recited above in this subparagraph (iv), the Committee
may determine in its sole discretion
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<PAGE>
at the time of grant of an Option, and if the Committee so determines,
shall provide in the Option Agreement evidencing such Option, that the
Company will accept in payment of the exercise price for the Shares to
be issued upon exercise of an Option and the taxes required to be
withheld in connection with such exercise, a commitment for the
delivery of the Company of proceeds from the sale, pursuant to a
brokerage or similar arrangement approved in advance by the Committee
in its sole discretion, of Shares to be issued upon exercise of the
Option. The forms of consideration which will be accepted in payment
of the exercise price for an Option and related withholding taxes
shall be specified in the Option Agreement evidencing such Option, and
the person or persons entitled to exercise the Option shall be
entitled to elect from those so specified the form(s) to be used in
effecting payment with respect to a particular exercise; provided that
any election by a Section 16 Person to use already owned Shares or
have Shares withheld from those issuable upon such exercise shall be
effective only made in accordance with the applicable requirements of
Rule 16b-3; and provided further that a commitment for the delivery to
the Company of proceeds from the sale, pursuant to a brokerage or
similar arrangement, of Shares to be issued upon exercise of an Option
will not be accepted from a Section 16 Person if such a sale would be
matched with such exercise to result in "short-swing" profit liability
under Section 16(b) of the Act on the part of such Section 16 Person
with respect to such transaction.
(v) Certificate for shares of Common Stock purchased upon the exercise
of an Option shall be issued in the name of the Participant and
delivered to the Participant as soon as practicable following the
effective date on which the Option is exercised.
(vi) During the lifetime of a Participant, each Option granted to him
shall be exercisable only by him. No Option shall be assignable or
transferable otherwise than by will or by the laws of descent and
distribution.
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<PAGE>
(d) Limitations on Grant of Incentive Stock Options. The provisions set
-----------------------------------------------
forth in subsection (d) are additional requirements to be satisfied if options
are to qualify as incentive stock options under the Internal Revenue Code and
which will be observed, to the extent they are applicable at the time, by the
Committee in making grants intended to be Incentive Stock Options.
(i) The aggregate Fair Market Value of shares of Common Stock with
respect to which Incentive Stock Options are exercisable for the first
time by a Participant during any calendar year under the Plan and any
other stock options plan of the Company shall not exceed $100,000.
Such Fair Market Value shall be determined as of the date on which
each such Incentive Stock Option is granted. In the event that the
aggregate Fair Market Value of shares of Common Stock with respect to
such Incentive Stock Options exceeds $100,000, the portion of the
Incentive Stock Options which exceed $100,000 shall automatically be
deemed to be Non-Qualified Stock Options, all other terms and
provisions of such options shall remain unchanged and the Company
shall designate such options as Non-Qualified Stock Options on its
books and identify any Common Stock issued upon exercise thereof as
deriving from Non-Qualified Stock Options.
(ii) No Incentive Stock Option may be granted to an individual if, at
the time of the proposed grant, such individual owns stock possessing
more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company (within the meaning of Section 425 of
the Code), unless (i) the exercise price of such Incentive Stock
Option is at least one hundred and ten percent of the Fair Market
Value of a share of Common Stock at the time such Incentive Stock
Option is granted and (ii) such Incentive Stock Option is not
exercisable after the expiration of five years from the date such
Incentive Stock Option is granted.
(iii) The term of an option intended to be an Incentive Stock Option
shall not exceed ten (10) years from date of grant.
(e) Effect of Termination of Employment. Except as may otherwise be
-----------------------------------
specified by the Committee in its sole discretion at the time of grant thereof
and reflected in the Option Agreement
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<PAGE>
evidencing such Option, upon the termination of a Participant's Continuous
Employment (other than by reason of the Participant's death, disability or
retirement), he may exercise his Option (to the extent that he was entitled to
exercise it at the time of such termination of employment) until the earlier of
(i) the date three (3) months (or such longer period of time as is determined by
the Committee in its sole discretion at the time of such termination of
employment, provided that if the Committee intends that a particular Option
continue to qualify as an Incentive Stock Option, the Committee will have to
observe such restrictions as may be imposed by applicable tax laws on the post-
termination period within which an Incentive Stock Option may be exercised if it
wishes to ensure that any post-termination exercise of such Option is made only
within the period permitted by such laws) after the effective date of the
termination of his employment or (ii) the expiration date of such Option and the
Option shall terminate on the earlier of such dates; provided, however, that if
the Participant is terminated by the Company for Misconduct, then such Option
shall terminate effective as of the time of the conduct constituting such
Misconduct. The Committee shall determine whether a Participant's employment was
terminated by reason of Misconduct.
(f) Death of Participant. Except as may otherwise be specified by the
--------------------
Committee in its sole discretion at the time of grant thereof and reflected in
the Option Agreement evidencing such Option, upon the death of a Participant:
(i) who is at the time of his death in the employ of the Company or a
Subsidiary and who shall have been in Continuous Employment since the
date of grant of the Option, the Option may be exercised (to the
extent the Participant would have been entitled to do so had he
continued living and terminated employment six (6) months after the
date of death) by his Successor until the earlier of (A) the date six
(6) months (or, if the Committee intends that a particular Option
qualify as an Incentive Stock Option, such lesser period of time
within which the applicable tax laws may require that the Option be
exercised in order for such Option so to qualify) following the date
of the Participant's death or (B) the expiration date of such Option,
and the Option shall terminate on the earlier of such dates; or
(ii) within one (1) month after the termination of Continuous
Employment other than termination by the Company or a Subsidiary for
Misconduct or due to
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<PAGE>
disability, the Option may be exercised (to the extent the Participant
was entitled to do so at the date of termination of Continuous
Employment) by his Successor until the earlier of (A) the date six(6)
months following the date of the Participant's death (or, if the
Committee intends that a particular Option qualify as an Incentive
Stock Option, such lesser period of time within which the applicable
tax laws may require that the Option be exercised in order for such
Option so to qualify), or (B) the expiration date of such Option, and
the Option shall terminate on the earlier of such dates.
(g) Disability of Participant. Except as may otherwise be specified by the
-------------------------
Committee in its sole discretion at the time of grant thereof and reflected in
the Option Agreement evidencing such Option, if a Participant's Continuous
Employment terminates due to Disability, the Option may be exercised (to the
extent the Participant was entitled to do so as of the effective date of the
termination of his employment by reason of such disability) until the earlier of
(i) the date one (1) year after the effective date of such termination of his
employment or (ii) the expiration date of such Option, and the Option shall
terminate on the earlier of such dates.
(h) Retirement of Participant. Except as may otherwise be specified by the
-------------------------
Committee in its sole discretion at the time of grant thereof and reflected in
the Option Agreement evidencing such Option, if a Participant's Continuous
Employment terminates by reason of (A) his retirement at any age entitling him
to benefits under the provisions of any retirement plan of the Company or any
Subsidiary in which such Participant participates; or (B) retirement at any time
after attaining age 60 (whichever circumstance is applicable constituting
"retirement"), the Option may be exercised (to the extent the Participant shall
be entitled to do so as of the effective date of the termination of his
employment by reason of such retirement) until the earlier of (i) the date three
(3) months after the effective date of the termination of his employment or (ii)
the expiration date of such Option, and the Option shall terminate on the
earlier of such dates.
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<PAGE>
(i) Acceleration of Exercise Date Upon Change in Control. Upon the
----------------------------------------------------
occurrence of a Change in Control, each Option granted under the Plan and
outstanding at such time shall become fully and immediately exercisable and
shall remain exercisable until its expiration, termination or cancellation
pursuant to the terms of the Option and the Plan.
(j) Consultants. The provisions of Section 6(e) through (h) shall not
-----------
apply to Options which may be granted to consultants and as to which the
Committee shall specify conditions of termination.
7. TANDEM STOCK APPRECIATION RIGHTS.
The Committee may grant in connection with any Option granted hereunder one
or more Tandem SARs relating to a number of shares of Common Stock less than or
equal to the number of shares of Common Stock subject to the related Option. A
Tandem SAR may be granted at the same time as, or subsequent to the time that,
its related Option is granted. Each Tandem SAR shall be evidenced by an
agreement in such form as the Committee shall from time to time approve. Tandem
SARs shall comply with and be subject to the following terms and conditions:
(a) Benefit Upon Exercise. The exercise of Tandem SAR with respect to any
---------------------
number of shares of Common Stock shall entitle a Participant to a cash payment,
for each such share, equal to the excess of (i) the Fair Market Value of a share
of Common Stock on the effective date of such exercise over (ii) the exercise
price of the related Option. Such payment shall be paid as soon as practical,
but in no event later than the expiration of ten (10) business days, after the
effective date of such exercise.
(b) Term and Exercise of Tandem SAR.
-------------------------------
(i) A Tandem SAR shall be exercisable at the same time and to the same
extent (on a proportional basis, with any fractional amount being
rounded down to the immediately preceding whole number) as its related
Option. Notwithstanding the first sentence of this Paragraph 7(b), a
Tandem SAR relating to an Incentive Stock Option may be exercised with
respect to a share of Common Stock only if the Fair Market Value of
such share on the effective date of such exercise exceeds the exercise
price relating to such share.
(ii) The exercise of a Tandem SAR with respect to a number of shares
of Common Stock shall cause the immediate and automatic cancellation
of its related Option with respect to an equal
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<PAGE>
number of shares. The exercise price of an Option, or the
cancellation, termination or expiration of an Option (other than
pursuant to this paragraph (ii)), with respect to a number of shares
of Common Stock shall cause the automatic and immediate cancellation
of its related Tandem SARs to the extent that the number of shares of
Common Stock subject to such Option after such exercise, cancellation,
termination or expiration is less than the number of shares subject to
such Tandem SARs. Such Tandem SARs shall be cancelled in the order in
which they became exercisable.
(iii) Each Tandem SAR shall be exercisable in whole or in part;
provided, that no partial exercise of a Tandem SAR shall be for an
aggregate exercise price of less than $500. The partial exercise of a
Tandem SAR shall not cause the expiration, termination or cancellation
of the remaining portion thereof. Upon the partial exercise of a
Tandem SAR, the agreements evidencing such Tandem SAR and its related
Option shall be returned to the Participant exercising such Tandem SAR
together with the payment described in Section 7(a) hereof.
(iv) During the lifetime of a Participant, each Tandem SAR granted to
him shall be exercisable only by him. No Tandem SAR shall be
assignable or transferable otherwise than by will or by the laws of
descent and distribution and otherwise than together with its related
Option.
(v) A Tandem SAR shall be exercised by delivering written notice to
the Company's principal office no less than three business days in
advance of the effective date of the proposed exercise. Such notice
shall be accompanied by the applicable agreements evidencing the
Tandem SAR and its related Option shall specify the number of shares
of Common Stock with respect to which the Tandem SAR is being
exercised and the effective date of the proposed exercise and shall be
signed by the Participant.
8. RESTRICTED STOCK.
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<PAGE>
The Committee may make grants of Restricted Stock at such purchase price
or, if permitted by law, such nominal purchase price as it determines upon the
following rules and conditions:
(a) Restricted Stock Grants. Grants of Restricted Stock shall be evidenced
-----------------------
by restricted stock agreements in such form as the Committee determines shall
conform to the requirements of the Plan and may contain such other provisions as
the Committee shall deem advisable. Each Restricted Stock Agreement with a
Section 16 Person shall also provide for such minimum holding period from date
of grant to the disposition of shares as may be required by Rule 16b-3.
(b) Issuance of Restricted Stock. Upon determination of the number of
----------------------------
Shares of Restricted Stock to be granted to a Participant, the Committee shall
direct that a certificate representing the number of Shares of Common Stock to
be issued to the Participant with the Participant as the registered owner. The
certificate representing such Shares shall either be legended to reflect the
restriction as to sale, transfer, assignment, pledge or other encumbrance during
the Restricted Period or, at the election of the Committee, deposited by the
participant, together with a stock power endorsed in blank, with the Company.
(c) Dividends and Voting Rights. During the Restricted Period, the
---------------------------
Participant shall have the right to receive dividends from and to vote the
Shares of Restricted Stock provided that the Committee may, at the time of the
making of the grant, determine and so provide that any stock dividends payable
with respect to Restricted Stock to be deposited with the Company and held by it
subject to forfeiture on the happening of a Forfeiture Condition or release upon
the lapse of same.
(d) Delivery. The Restricted Stock Agreement shall specify (i) the
--------
duration of the Restricted Period and (ii) the nature of the Forfeiture
Conditions, the happening of which will result in the Restricted Stock being
forfeited to the Company. At the end of the Restricted Period, the restrictions
imposed hereunder shall lapse with respect to the number of Shares of Restricted
Stock, as determined by the Committee, the legend shall be removed or the Shares
delivered, as the case may be, with respect to such number. The Committee may,
in its sole discretion, modify or accelerate the vesting of Shares of Restricted
Stock.
(e) Dispositions During Restricted Period. Unless otherwise determined by
-------------------------------------
the Committee at the time of the grant, during the Restricted Period applicable
to any Restricted Stock, none of such Restricted Stock may be sold, assigned,
exchanged, transferred, pledged, hypothecated or otherwise disposed of or
encumbered.
(f) Return or Cancellation of Restricted Stock. Upon the happening of a
------------------------------------------
Forfeiture Condition, all of the Participant's
15
<PAGE>
rights, title and interest in the Restricted Stock shall be forfeited and the
Restricted Stock shall be deemed cancelled and restored either to the authorized
but unissued capital or treasury of the Company. The Participant will promptly
return any certificates representing the Restricted Stock to the Company. Any
such certificates on deposit with the Company shall be cancelled.
(g) Lapse of Forfeiture Condition Upon Change of Control. Upon the
----------------------------------------------------
occurrence of a Change in Control, the Forfeiture Conditions to which
outstanding Shares of Restricted Stock are subject, shall lapse.
9. ADJUSTMENT UPON CHANGES IN COMMON STOCK.
(a) Adjustment in General. The number of Shares covered by each
---------------------
outstanding Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which due to the expiration, lapse, cancellation, surrender, forfeiture or other
termination of an option under this Plan are again available for grant, as well
as the price per Share covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
and outstanding Shares resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of Shares of any other increase or
decrease in the aggregate number of issued and outstanding Shares effected
without receipt of consideration by the Company; provided, however, that the
issuance of Shares pursuant to the conversion or exchange of any securities of
the Company convertible into or exchangeable for Shares shall not be deemed to
have been "effected without receipt of consideration." Any fractional Shares
which would otherwise result from any such adjustments shall be eliminated
either by deleting all fractional Shares or by appropriate rounding to the next
higher (fractions of one-half or more) or lower (fractions of less than one-
half) whole Share. All such adjustments shall be made by the Committee in its
sole discretion. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into or
exchangeable for shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made to, the number of or exercise price for Shares
subject to an Option.
(b) Outstanding Options and Tandem SARs - Certain Mergers. Subject to any
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required action by the shareholders of the Company, in the event that the
Company shall be the surviving corporation in any merger or consolidation
(except a merger or consolidation as a result of which the holders of shares of
Common Stock receive securities of another corporation), each Option and Tandem
SAR outstanding on the date of such merger or consolidation shall pertain to and
apply to the securities which a holder of the number of shares of Common Stock
subject to such Option would have
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received in such merger or consolidation.
(c) Outstanding Options and Tandem SARs - Certain Other Transactions. In
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the event of (i) a dissolution or liquidation of the Company, (ii) a sale of all
or substantially all of the Company's assets, (iii) a merger or consolidation
involving the Company in which the Company is not the surviving corporation or
(iv) a merger or consolidation involving the Company in which the Company is the
surviving corporation but the holders of shares of Common Stock receive
securities of another corporation and/or other property, including cash, the
Committee shall, in its absolute discretion, have the power to:
(A) cancel, effective immediately prior to the occurrence of such event,
each Option (including each Tandem SAR related thereto) (whether or not
then exercisable), and, in full consideration of such cancellation, pay to
the Participant to whom such Option was granted an amount in cash, for each
share of Common Stock subject to such Option, respectively, equal to the
excess of (x) the value, as determined by the Committee in its absolute
discretion, of the property (including cash) received by the holder of a
share of Common Stock as a result of such event over (y) the exercise price
of such Option; or
(B) provide for the exchange of each Option (including any related Tandem
SAR) (whether or not then exercisable) for an option on or stock
appreciation right with respect to, as appropriate, some or all of the
property for which such Option is exchanged and, incident thereto, make an
equitable adjustment as determined by the Committee in its absolute
discretion in the exercise price of the Option or stock appreciation right
or the number of shares or amount of property subject to the option or
stock appreciation right or, if appropriate, provide for a cash payment to
the Participant to whom such Option was granted in partial consideration
for the exchange of the Option.
(d) Outstanding Options and Tandem SARs - Other Changes. In the event of
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any change in the capitalization of the Company or corporate change other than
those specifically referred to in Sections 9(b) or (c) hereof, the Committee
may, in its absolute discretion, make such adjustments in the number and class
of shares subject to Options and Tandem SARs outstanding on the date on which
such change occurs and in the per share exercise price of each such Option and
Tandem SAR as the Committee may consider appropriate to prevent dilution or
enlargement of rights.
(e) No Other Rights. Except as expressly provided in the Plan, no
---------------
Participant shall have any rights by reason of any subdivision or consolidation
of Shares of stock of any class, the
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payment of any dividend, any increase or decrease in the number of Shares of
stock of any class or any dissolution, liquidation, merger or consolidation of
the Company or any other corporation. Except as expressly provided in the Plan,
no issuance by the Company of Shares of stock of any class, or securities
convertible into Shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number of shares of Common
Stock subject to an Incentive Award or the exercise price of any Option and
Tandem SAR.
10. RIGHTS AS A STOCKHOLDER.
No person shall have any rights as a stockholder with respect to any shares
of Common Stock covered by or relating to any Incentive Award granted pursuant
to this Plan until the date of the issuance of a stock certificate with respect
to such shares. Except as otherwise expressly provided in Section 9 hereof, no
adjustment to any Incentive Award shall be made for dividends or their rights
for which the record date occurs prior to the date such stock certificate is
issued.
11. NO SPECIAL EMPLOYMENT RIGHTS; NO RIGHT TO INCENTIVE AWARD.
Nothing contained in the Plan or any Incentive Award shall confer upon any
Participant any right with respect to the continuation of his employment by the
Company or interfere in any way with the right of the Company, subject to the
terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
Participant from the rate in existence at the time of the grant of an Incentive
Award.
No person shall have any claim or right to receive an Incentive Award
hereunder. The Committee's granting of an Incentive Award to a Participant at
any time shall neither require the Committee to grant an Incentive Award to such
Participant or any other Participant or other person at any time nor preclude
the Committee from making subsequent grants to such Participant or any other
Participant or other person.
12. SECURITIES MATTERS.
(a) The Company shall be under no obligation to effect the registration
pursuant to the Securities Act of any shares of Common Stock to be issued
hereunder or to effect similar compliance under any state laws. Notwithstanding
anything herein to the contrary, the Company shall not be obligated to cause to
be issued or delivered any certificates evidencing shares of Common Stock
pursuant to the Plan unless and until the Company is advised by its
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counsel that the issuance and delivery of such certificates is in compliance
with all applicable laws and regulations of governmental authority. The
Committee may require, as a condition of the issuance and delivery of
certificates evidencing shares of Common Stock pursuant to the terms hereof,
that the recipient of such shares make such covenants, agreements and
representations, and that such certificates bear such legends, as the Committee,
in its sole discretion, deems necessary or desirable.
(b) The exercise of any Option granted hereunder shall only be effective at
such time as counsel to the Company shall have determined that the issuance and
delivery of shares of Common Stock pursuant to such exercise is in compliance
with all applicable laws and regulations of governmental authority. The Company
may, in its sole discretion, defer the effectiveness of any exercise of an
Option granted hereunder in order to allow the issuance of shares of Common
Stock pursuant thereto to be made pursuant to registration or an exemption from
registration or other methods for compliance available under federal or state
securities laws. The Company shall inform the Participant in writing of its
decision to defer the effectiveness of the exercise of an Option granted
hereunder. During the period that the effectiveness of the exercise of an
Option has been deferred, the Participant may, by written notice, withdraw such
exercise and obtain the refund of any amount paid with respect thereto.
13. WITHHOLDING TAXES.
Whenever shares of Common Stock are to be issued upon the exercise of an
Option, the Company shall have the right to require the Participant to remit to
the Company in cash an amount sufficient to satisfy federal, state and local
withholding tax requirements, if any, attributable to such exercise prior to the
delivery of any certificate or certificates for such shares. In addition, upon
the exercise of a Tandem SAR, the Company shall have the right to withhold from
any cash payment required to be made pursuant thereto an amount sufficient to
satisfy the federal, state and local withholding tax requirements, if any,
attributable to such exercise. Where withholding obligations are paid by the
withholding of Shares to be issued upon exercise of an Option, such Shares shall
be valued at their Fair Market Value on the date of exercise.
Notwithstanding any other provisions of the Plan, a Section 16(b) Person
may not make an election to pay the exercise price of an Option or related
withholding taxes by having Shares withheld prior to the expiration of six
months after the date on which the applicable Option was granted, except in the
event of the death or Disability of the Participant. A Section 16(b) Person may
not make such elections other than (i) during the 10-day window period beginning
on the third business day following the date of release
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for publication of the Company's quarterly and annual summary statements of
sales and earnings and ending on the twelfth business day following such date or
(ii) at least six months prior to the date as of which the income attributable
to the exercise of such Option is recognized under the Code. Such elections
shall be irrevocable and shall be made by the delivery to the Company's
principal office, to the attention of its Secretary, of a written notice signed
by the Participant.
14. AMENDMENT OF THE PLAN.
The Board of Directors may at any time suspend or discontinue the Plan or
revise or amend it in any respect whatsoever; provided, however, that without
approval of the shareholders no revision or amendment shall (i) except as
provided in Section 9 hereof, increase the number of shares of Common Stock that
may be issued under the Plan, (ii) materially increase the benefits accruing to
individuals holding Incentive Awards granted pursuant to the Plan or (iii)
materially modify the requirements as to eligibility for participation in the
Plan.
15. NO OBLIGATION TO EXERCISE.
The grant to a Participant of an Option and Tandem SAR shall impose no
obligation upon such Participant to exercise such Option and Tandem SAR.
16. TRANSFERS UPON DEATH.
Upon the death of a Participant, outstanding Incentive Awards granted to
such Participant may be exercised only by the executors or administrators of the
Participant's estate or by any person or persons who shall have acquired such
right to exercise by will or by the laws of descent and distribution. No
transfer by will or the laws of descent and distribution of any Incentive Award,
or the right to exercise any Incentive Award, shall be effective to bind the
Company unless the Committee shall have been furnished with (a) written notice
thereof and with a copy of the will and/or such evidence as the Committee may
deem necessary to establish the validity of the transfer and (b) an agreement by
the transferee to comply with all the terms and conditions of the Incentive
Award that are or would have been applicable to the Participant and to be bound
by the acknowledgments mad by the Participant in connection with the grant of
the Incentive Award.
17. EXPENSES AND RECEIPTS.
The expenses of the Plan shall be paid by the Company. Any
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proceeds received by the Company in connection with any Incentive Award will be
used for general corporate purposes.
18. FAILURE TO COMPLY.
In addition to the remedies of the Company elsewhere provided for herein,
failure by a Participant to comply with any of the terms and conditions of the
Plan or the agreement executed by such Participant evidencing an Incentive
Award, unless such failure is remedied by such Participant within ten days after
having been notified of such failure by the Committee, shall be grounds for the
cancellation and forfeiture of such Incentive Award, in whole or in part, as the
Committee, in its absolute discretion, may determine.
19. EFFECTIVE DATE AND TERM OF PLAN.
The Plan was adopted by the Board of Directors on February 26, 1993,
subject to approval by the shareholders of the Company in accordance with
applicable law, the requirements of Section 422 of the Code and the requirements
of Rule 16b-3. No Incentive Awards may be made under the Plan after February
26, 2003. Incentive Awards may be granted under the Plan at any time prior to
the receipt of such shareholder approval; provided, however, that each such
grant shall be subject to such approval. Without limitation on the foregoing,
no Option and Tandem SAR may be exercised prior to the receipt of such approval.
If the Plan is not so approved prior to December 31, 1993, then the Plan and all
Incentive Awards then outstanding hereunder shall forthwith automatically
terminate and be of no force and effect.
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EXHIBIT 4(e)
COMPUTER IDENTICS CORPORATION
1996 INCENTIVE STOCK PLAN
SECTION I. PURPOSE OF THE PLAN.
The purposes of this Computer Identics Corporation 1996 Incentive Stock
Plan (the "1996 Plan") are (i) to provide long-term incentives and rewards to
those key employees (the "Employee Participants") of Computer Identics
Corporation (the "Corporation") and its subsidiaries (if any), and any other
persons other than non-employee directors (the "Non-employee Participants") who
are in a position to contribute to the long-term success and growth of the
Corporation and its subsidiaries, (ii) to assist the Corporation in retaining
and attracting executives and key employees with requisite experience and
ability, and (iii) to associate more closely the interests of such executives
and key employees with those of the Corporation's stockholders. Notwithstanding
the foregoing, if Section 16, as defined in Section II, is applicable to the
Corporation, then any director of the Corporation who is, or within the past
year was, a member of the Committee, as defined in paragraph (a) of Section III,
shall not be eligible to receive any Stock Options.
SECTION II. DEFINITIONS.
"Code" is the Internal Revenue Code of 1986, as it may be amended from time
to time.
"Common Stock" is the $.10 par value common stock of the Corporation.
"Committee" is defined in Section III, paragraph (a).
"Corporation" is defined in Section I.
"Corporation ISOs" are all stock options (including 1996 Plan ISOs) which
(i) are Incentive Stock Options and (ii) are granted under any plans (including
this 1996 Plan) of the Corporation, a Parent Corporation and/or a Subsidiary
Corporation.
"Employee Participants" is defined in Section I.
"Fair Market Value" of any property is the value of the property as
reasonably determined by the Committee.
<PAGE>
"Free Shares" are Restricted Shares as to which the restrictions against
disposition and the obligation of resale to the Corporation have lapsed.
"Incentive Stock Option" is a stock option which is treated as an incentive
stock option under Section 422 of the Code.
"1996 Plan" is defined in Section I.
"1996 Plan ISOs" are Stock Options which are Incentive Stock Options.
"Non-employee Participants" is defined in Section I.
"Non-qualified Option" is a Stock Option which does not qualify as an
Incentive Stock Option or for which the Committee provides, in the terms of such
option and at the time such option is granted, that the option shall not be
treated as an Incentive Stock Option.
"Parent Corporation" has the meaning provided in Section 424(e) of the
Code.
"Participants" are all persons who are either Employee Participants or Non-
employee Participants.
"Permanent and Total Disability" has the meaning provided in Section
22(e)(3) of the Code.
"Restricted Share Awards" are grants of Restricted Shares.
"Restricted Shares" are shares of Common Stock acquired by a Participant
subject to the restrictions set forth in Section IV.
"Section 16" means Section 16 of the Securities Exchange Act of 1934, as
amended, or any similar or successor statute, and any rules, regulations, or
policies adopted or applied thereunder.
"Stockholder Approval" means the affirmative vote of at least a majority of
the shares of Common Stock present and entitled to vote at a duly held meeting
of the stockholders of the Corporation, unless a greater vote is required by
state law or Section 16, if applicable to the Corporation, in which case such
greater requirement shall apply. Stockholder approval may be obtained by written
consent or other means, to the extent permitted by applicable state law.
"Stock Options" are rights granted pursuant to this 1996 Plan to purchase
shares of Common Stock at a fixed price.
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"Subsidiary Corporation" has the meaning provided in Section 424(f) of the
Code.
"Ten Percent Stockholder" means, with respect to a 1996 Plan ISO, any
individual who directly or indirectly owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Corporation or any
Parent Corporation or any Subsidiary Corporation at the time such 1996 Plan ISO
is granted.
SECTION III. ADMINISTRATION.
(a) The Committee. This 1996 Plan shall be administered by a compensation
committee designated by the Board of Directors of the Corporation, which may
include any persons (including any or all of the directors) designated by the
Board of Directors (the administering body is hereafter referred to as the
"Committee"). The Committee shall serve at the pleasure of the Board of
Directors, which may from time to time, and in its sole discretion, discharge
any member, appoint additional new members in substitution for those previously
appointed and/or fill vacancies however caused. A majority of the Committee
shall constitute a quorum and the acts of a majority of the members present at
any meeting at which a quorum is present shall be deemed the action of the
Committee. No person shall be eligible to be a member of the Committee if that
person's membership would prevent the plan from complying with Section 16, if
applicable to the Corporation. At such time as any class of equity security of
the Corporation is registered pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Act"), (i) the Committee shall consist of at least
two members of the Board of Directors and (ii) no member of the Committee while
a member thereof shall be eligible to participate in this Plan, nor may any
person be appointed to the Committee unless he was not eligible to participate
in this 1996 Plan or any other plan of the Corporation at any time within the
one-year period immediately prior to such appointment as provided in Rule 16b-3
promulgated under the Act.
(b) Authority and Discretion of the Committee. Subject to the express
provisions of this 1996 Plan and provided that all actions taken shall be
consistent with the purposes of this 1996 Plan, and subject to ratification by
the Board of Directors only if required by applicable law, the Committee shall
have full and complete authority and the sole discretion to: (i) determine those
persons who shall constitute key employees eligible to be Employee Participants;
(ii) select the Participants to whom awards shall be granted under this 1996
Plan; (iii) determine the size and the form of the award or, if any, to be
granted to any Participant; (iv) determine the time or times such awards shall
be granted including the grant of Stock Options and Restricted Share Awards in
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connection with other awards made, or compensation paid, to the Participant; (v)
establish the terms and conditions upon which such awards may be exercised
and/or transferred, including the exercise of Stock Options in connection with
other awards made, or compensation paid, to the Participant; (vi) make or alter
any restrictions and conditions upon such awards; and (vii) adopt such rules and
regulations, establish, define and/or interpret these and any other terms and
conditions, and make all determinations (which may be on a case-by-case basis)
deemed necessary or desirable for the administration of this 1996 Plan.
Notwithstanding any provision of this 1996 Plan to the contrary, only Employee
Participants shall be eligible to receive 1996 Plan ISOs.
(c) Applicable Law. This 1996 Plan, and all awards shall be governed
by the law of the state in which the Corporation is incorporated.
SECTION IV. AWARDS.
Awards under this 1996 Plan may include Stock Options and Restricted Share
Awards, all as described herein.
(a) Stock Options.
(i) Stock Options shall be evidenced by a written agreement between
the Corporation and the Participant awarded the Stock Option. This
agreement shall be in such form, and contain such terms and conditions (not
inconsistent with this 1996 Plan) as the Committee may determine. If the
Stock Option described therein is not intended to be an Incentive Stock
Option, but otherwise qualifies as an Incentive Stock Option, the agreement
shall include the following, or a similar, statement: "This stock option is
not intended to be an Incentive Stock Option, as that term is described in
Section 422 of the Internal Revenue Code of 1986, as amended."
(ii) Stock Options shall be for such periods as may be determined by
the Committee, provided that in the case of 1996 Plan ISOs, the term of any
such 1996 Plan ISO shall not extend beyond three months after the time the
Participant ceases to be an employee of the Corporation. Notwithstanding
the foregoing, the Committee may provide in a 1996 Plan ISO that in the
event of the Permanent and Total Disability or Death of the Participant,
the 1996 Plan ISO may be exercised by the Participant or his estate (if
applicable) for a period of up to one year after the date of such Permanent
and Total Disability or Death. In no event may a 1996 Plan ISO be
exercisable (including provisions, if any, for exercise in
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installments) subsequent to ten years after the date of grant, or, in the
case of 1996 Plan ISOs granted to Ten Percent Stockholders, more than five
years after the date of grant.
(iii) The purchase price of shares purchased pursuant to any Stock
Option shall be determined by the Committee, and shall be paid by the
Participant or other person permitted to exercise the Stock Option in full
upon exercise, (A) in cash, (B) by delivery of shares of Common Stock
(valued at their Fair Market Value on the date of such exercise), (C) any
other property (valued at its Fair Market Value on the date of such
exercise), or (D) any combination of cash, stock and other property, with
any payment made pursuant to clauses (B), (C) or (D) only as permitted by
the Committee, in its sole discretion. In no event will the purchase price
of Common Stock be less than the par value of the Common Stock.
Furthermore, the purchase price of Common Stock subject to a 1996 Plan ISO
shall not be less than the Fair Market Value of the Common Stock on the
date of the issuance of the 1996 Plan ISO, provided that in the case of
1996 Plan ISOs granted to Ten Percent Stockholders, the purchase price
shall not be less than 110% of the Fair Market Value of the Common Stock on
the date of issuance of the 1996 Plan ISO.
(iv) To the extent that the aggregate Fair Market Value of Common
Stock with respect to which Corporation ISOs (determined without regard to
this section) are exercisable for the first time by any Employee
Participant during any calendar year exceeds $100,000, such Corporation
ISOs shall be treated as options which are not Incentive Stock Options. For
the purpose of this limitation, options shall be taken into account in the
order granted, and the Committee may designate that portion of any
Corporation ISO that shall be treated as not an Incentive Stock Option in
the event that the provisions of this paragraph apply to a portion of any
option, unless otherwise required by the Code or regulations of the
Internal Revenue Service. The designation described in the preceding
sentence may be made at such time as the Committee considers appropriate,
including after the issuance of the Stock Option or at the time of its
exercise. For the purpose of this section, Fair Market Value shall be
determined as of the time the option with respect to such stock is granted.
For the purposes of this limitation, options shall be taken into account in
the order granted.
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(v) At the discretion of the Committee, the Common Stock issued
pursuant to the Stock Options granted hereunder may be subject to
restrictions on vesting or transferability.
(b) Restricted Share Awards. Restricted Shares may be issued for any lawful
consideration and on such terms as may be determined by the Committee,
subject to the restrictions described in the following subsections.
(i) Restricted Shares may not be sold, transferred or otherwise
disposed of, pledged or otherwise encumbered, except (A) if they
become Free Shares in accordance with their terms and the terms of
this 1996 Plan, (B) if the Corporation declines to repurchase such
shares, as provided in this paragraph, or (C) as provided in paragraph
(g) of Section VII. In the event of the recipient's termination of
employment for any reason except death, retirement or permanent
disability, Restricted Shares which have not become Free Shares shall
be delivered to the Corporation within 30 days following such
termination. Within 60 days following a timely delivery of said
shares, the Corporation may repurchase all or a portion of said shares
by paying to the recipient the original acquisition price, if any, for
the number of shares that the Corporation elects to purchase, and the
Corporation will return to the recipient any shares not so purchased.
The restrictions against disposition and the obligation of resale to
the Corporation shall lapse as to any shares which the Corporation
declines to purchase. Any of such shares which are not delivered to
the Corporation within 30 days following the termination of employment
shall be deemed void for all corporate purposes, and shall remain
subject to the restrictions imposed thereon which restrictions shall
not lapse as otherwise provided. Nothing in this Section shall require
the Company to repurchase Restricted Shares issued to Participants
under the 1996 Plan.
(ii) Upon the occurrence of the earlier of the death, retirement or
permanent disability of the recipient of a Restricted Share Award, the
restrictions against disposition and the obligation of resale to the
Corporation of shares as to which
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<PAGE>
such restrictions and obligations have not otherwise lapsed shall
immediately lapse.
(iii) In addition to or in lieu of the terms provided in paragraph
(b)(ii) above, the Committee may, in its discretion, provide terms
pursuant to which Restricted Shares issued to a Participant shall
become Free Shares. In this regard, the Committee may, in its
discretion, provide that the Restricted Shares shall immediately
become Free Shares upon issuance. Such terms shall be incorporated
into the terms of the Restricted Share Award at the time of the
granting of the award, and may also be made a part of an agreement
between the Corporation and the recipient at the time of the transfer
of the Restricted Shares.
(iv) Certificates issued in respect of Restricted Shares awarded under
the 1996 Plan shall be registered in the name of the recipient but
shall bear the following legend if such Restricted Shares do not
immediately become Free Shares:
"The transferability of this certificate and the shares of stock
represented hereby is restricted and the shares are subject to the
further terms and conditions contained in the 1996 Incentive Stock
Plan of Computer Identics Corporation and in a repurchase agreement
executed pursuant thereto. Copies of said plan and agreement are on
file in the office of the Treasurer of the Company at the Company's
offices in Canton, Massachusetts."
(v) In order to enforce the restrictions, terms and conditions on
Restricted Shares, the Committee may in its discretion require each
recipient thereof, immediately upon receipt of a certificate or
certificates representing such shares, to deposit such certificates
together with stock powers and other instructions of transfer as the
Committee may require, appropriately endorsed in blank, with the
Corporation as Escrow Agent under an escrow agreement in such form as
shall be determined by the Committee.
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<PAGE>
SECTION V. AMENDMENT AND TERMINATION; ADJUSTMENTS UPON CHANGES IN STOCK.
(a) The Board of Directors of the Corporation may at any time, and from
time to time, amend, suspend or terminate this 1996 Plan in whole or in part;
provided, however, that neither the Board of Directors nor the Committee may
amend or modify the definition of Employee Participants, materially increase the
benefits accruing to Participants, increase the number of shares of Common Stock
reserved for purposes of this 1996 Plan, extend the term of this 1996 Plan,
materially modify the requirements to be a Participant in this 1996 Plan, or
otherwise modify this 1996 Plan in any way or manner requiring the approval of
the Stockholders under the Code, or rules and regulations thereunder, or Section
16, if applicable to the Corporation, without Stockholder Approval and
compliance with any applicable law, rules, or regulations. Except as provided
herein, no amendment, suspension or termination of this 1996 Plan may affect the
rights of a Participant to whom an award has been granted without such
Participant's consent. The Committee is specifically authorized to convert, in
its discretion, the unexercised portion of any 1996 Plan ISO granted to an
Employee Participant to a Non-qualified Option at any time prior to the
exercise, in full, of such 1996 Plan ISO.
(b) If the Corporation is a party to any merger or consolidation, any
purchase or acquisition of property or stock, or any separation, reorganization
or liquidation, the Board of Directors (or, if the Corporation is not the
surviving corporation, the Board of Directors of the surviving corporation)
shall have the power to make arrangements, which shall be binding upon the
holders of Restricted Shares and unexpired Stock Options, for the substitution
of new options for, or the assumption by another corporation of, any Restricted
Shares or unexpired Stock Options then outstanding hereunder.
(c) If by reason or recapitalization, reclassification, stock split-up,
combination of shares, separation (including a spin-off) or dividend on the
stock payable in shares of Common Stock, the outstanding shares of Common Stock
are increased or decreased or changed into or exchanged for a different number
or kind of shares or other securities of the Corporation, the Board of Directors
shall conclusively determine the appropriate adjustment in the exercise prices
of outstanding Stock Options and repurchase price of outstanding Restricted
Shares and in the number and kind of shares as to which outstanding Stock
Options shall be exercisable.
(d) In the event of a transaction of the type described in paragraphs (b)
and (c) above, the total number of shares of Common Stock on which Stock Options
or as to which Restricted Shares may be granted under this 1996 Plan shall be
appropriately adjusted by the Board of Directors.
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SECTION VI. SHARES OF STOCK SUBJECT TO THE PLAN.
The number of shares of Common Stock that may be the subject of awards
under this 1996 Plan shall not exceed an aggregate of 500,000 shares. Shares to
be delivered under this 1996 Plan may be either authorized but unissued shares
of Common Stock or treasury shares. Any shares subject to a Stock Option
hereunder which for any reason terminates, is canceled or otherwise expires
unexercised, shares reacquired by the Corporation because restrictions do not
lapse and any shares reacquired by the Corporation due to restrictions imposed
on the shares, shares returned because payment is made hereunder in stock of
equivalent value rather than in cash, and/or shares reacquired from a recipient
for any other reason shall, at such time, no longer count towards the aggregate
number of shares which have been the subject of Stock Options and Restricted
Shares issued hereunder, and such number of shares shall be subject to further
awards under this 1996 Plan.
SECTION VII. MISCELLANEOUS PROVISIONS.
(a) Indemnity. Neither the Board of Directors nor the Committee, nor any
members of either, nor any employees of the Corporation or any parent,
subsidiary, or other affiliate, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with their responsibilities with respect to this 1996 Plan, and the Corporation
hereby agrees to indemnify the members of the Board of Directors, the members of
the Committee, and the employees of the Corporation and its parent or
subsidiaries in respect of any claim, loss, damage, or expense (including
reasonable counsel fees) arising from any such act, omission, interpretation,
construction or determination to the full extent permitted by law.
(b) Participation by Foreigners. Without amending this 1996 Plan, except
to the extent required by the Code in the case of Incentive Stock Options, the
Committee may modify grants made to participants who are foreign nationals or
employed outside the United States so as to recognize differences in local law,
tax policy, or custom.
(c) Rights of Recipients of Awards. The holder of any Stock Option granted
under the 1996 Plan shall have no rights as a stockholder of the Corporation
with respect thereto unless and until certificates for shares are issued. Except
as otherwise provided herein, the holder of Restricted Shares will be entitled
to receive any dividends on such shares in the same amount and at the same time
as declared on shares of Common Stock of the Company and shall be entitled to
vote such shares as a stockholder of record.
9
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(d) Assignment of Stock Options. No Stock Option or Restricted Shares or
any rights or interests of the recipient therein shall be assignable or
transferable by such recipient except by will or the laws of descent and
distribution. During the lifetime of the recipient, such Stock Option shall be
exercisable only by, or payable only to, the recipient thereof.
(e) Legal and Other Requirements. No shares of Common Stock shall be issued
or transferred upon grant or exercise of any award under the 1996 Plan unless
and until all legal requirements applicable to the issuance or transfer of such
shares and such other requirements as are consistent with the 1996 Plan have
been complied with to the satisfaction of the Committee. Furthermore, the
Corporation is not obligated to register or qualify Restricted Shares or the
shares of Common Stock to be issued upon exercise of a Stock Option under
federal or state securities laws (or to register them at any time thereafter),
and it may refuse to issue such shares if, in its sole discretion, registration
or exemption from registration is not practical or available. The Committee may
require that prior to the issuance or transfer of Common Stock hereunder, the
recipient thereof shall enter into a written agreement to comply with any
restrictions on subsequent disposition that the Committee or the Company deem
necessary or advisable under any applicable law, regulation or official
interpretation thereof. Certificates of stock issued hereunder may be legended
to reflect such restrictions.
(f) Withholding of Taxes. Pursuant to applicable federal, state, local or
foreign laws, the Corporation may be required to collect income or other taxes
upon the grant of awards to, or exercise of a Stock Option by, a holder. The
Corporation may require, as a condition to the issuance of Restricted Shares or
the exercise of a Stock Option, or demand, at such other time as it may consider
appropriate, that the Participant pay the Corporation the amount of any taxes
which the Corporation may determine is required to be withheld or collected, and
the Participant shall comply with the requirement or demand of the Corporation.
In its discretion, the Corporation may withhold shares to be received upon
exercise of a Stock Option if it deems this an appropriate method for
withholding or collecting taxes.
(g) Pledge of Shares. Notwithstanding restrictions against disposition of
any award made pursuant to the 1996 Plan, the Committee, in its discretion, may
permit any shares acquired under the 1996 Plan to be pledged or otherwise
encumbered to secure borrowing by the recipient thereof solely for the purpose
of obtaining the acquisition price to be paid for such shares, provided, that
the amount of such borrowing may not exceed the acquisition price of such
shares, and the recipient must provide the Corporation with a copy of the
documents executed in connection with such borrowing. Any borrowing made by the
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recipient of an award pursuant to this paragraph (g) must permit the Corporation
to repay the outstanding indebtedness and reacquire the pledged shares in the
event of a default by the recipient under the borrowing documents. Nothing in
this paragraph (g) shall require the Corporation to repay any indebtedness of a
Participant or reacquire shares pledged hereunder.
(h) Right to Awards. No employee of the Corporation or other person shall
have any claim or right to be a Participant in this 1996 Plan or to be granted
an award hereunder. Neither this 1996 Plan nor any action taken hereunder shall
be construed as giving any Participant any right to be retained in the employ of
the Corporation. Nothing contained hereunder shall be construed as giving any
Participant or any other person any equity or interest of any kind in any assets
of the Company or creating a trust of any kind or a fiduciary relationship of
any kind between the Company and any such person. As to any claim for any unpaid
amounts under the 1996 Plan, any Participant or any other person having a claim
for payments shall be an unsecured creditor.
SECTION VII. EFFECTIVE DATE AND TERM OF THIS PLAN.
Provided there is Stockholder Approval on or before December 14, 1996, the
effective date of this 1996 Plan is December 14, 1995 (the "Effective Date") and
awards under this 1996 Plan may be made for a period of ten years commencing on
the Effective Date. The period during which a Stock Option or other award may be
exercised may extend beyond that time as provided herein.
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EXHIBIT 5
May 19, 1998
Robotic Vision Systems, Inc.
425 Rabro Drive East
Hauppauge, New York 11788
Re: Registration of 246,633 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 246,633 shares of Common Stock, par value
$.01 per share, of the Company (the "Shares") issuable upon the exercise of
heretofore granted options (collectively, the "Options") under one of the
following plans:
Acuity Imaging Inc. ("Acuity") 1991 Stock Option Plan;
Acuity Non-Employee Director Stock Option Plan;
Computer Identics Corporation ("CIC") 1987 Incentive
Stock Option Plan;
CIC 1993 Stock Incentive Option Plan; and
CIC 1996 Incentive Stock Option Plan (collectively,
the "Plans")
The Options were assumed by the Company upon its acquisition by merger of Acuity
and of CIC pursuant to the terms of, respectively, that certain Agreement and
Plan of Merger and Reorganization dated as of April 27, 1995, as amended and
restated as of July 11, 1995, by and among the Company, Acuity and RVSI
Acquisition Corp. (the "Acuity Merger Agreement"), and that certain Agreement
and Plan of Merger and Reorganization dated as of July 23, 1996 by and among the
Company, CIC and RVSI Third Acquisition Corp. (the "CIC Merger Agreement" and
collectively, with the Acuity Merger Agreement, the "Merger Agreements").
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 Plans, the Merger Agreements, corporate proceedings of the
Company relating to its assumption of the Options and issuance of the Shares
pursuant to the Plans, 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 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.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that:
(1) The Company is a corporation duly organized 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
Plans and the Merger Agreements 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
(the report on the consolidated financial statements which expresses an
unqualified opinion and refers to the reports of other auditors) appearing in
the Annual Report on Form 10-K/A 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 (the report on the supplemental
consolidated financial statements which expresses an unqualified opinion,
refers to the reports of other auditors and includes an explanatory paragraph
referring to the restatement of the consolidated financial statements for a
pooling of interest in December 1997) appearing in the Registration Statement
No. 333-44493 on Form S-3.
/S/DELOITTE & TOUCHE LLP
Boston, Massachusetts
May 20, 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 Acuity Imaging, Inc. as of September 30, 1995 and for the year
then ended included in the Form 10-K/A 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 dated January 20, 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
May 20, 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 dated January 16, 1998,
and to all references to our firm included in this registration statement.
/s/ARTHUR ANDERSEN LLP
Tucson, Arizona
May 20, 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 Acuity
Imaging Inc. 1991 Stock Option Plan, Acuity Imaging Inc. Non-Employee Director
Stock Option Plan, Computer Identics Corporation 1987 Incentive Stock Option
Plan, Computer Identics Corporation 1993 Stock Incentive Plan and Computer
Identics Corporation 1996 Incentive Stock 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/A) 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 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
May 20, 1998
<PAGE>
EXHIBIT 23(d)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Vanguard Automation, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Robotic Vision Systems, Inc. dated May 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 appears in the Form S-3 of Robotic
Vision Systems, Inc. dated January 20, 1998.
/s/KPMG PEAT MARWICK LLP
Phoenix, Arizona
May 20, 1998
