As filed with the Securities and Exchange Commission
via EDGAR on February 5, 1998
Registration No. 33- ____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMPUTER PRODUCTS, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 59-1205269
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7900 Glades Road, Suite 500
Boca Raton, Florida 33434
(Address of principal executive offices, including zip code)
ZYTEC CORPORATION 1983 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ZYTEC CORPORATION 1984 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ZYTEC CORPORATION 1985 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ZYTEC CORPORATION 1987 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ZYTEC CORPORATION 1993 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ZYTEC CORPORATION 1996 EMPLOYEE INCENTIVE STOCK OPTION PLAN
-----------------------------------------------------------
(Full title of the plans)
Joseph M. O'Donnell
President
Computer Products, Inc.
7900 Glades Road, Suite 500
Boca Raton, Florida 33434
(561) 451-1000
(Name, address and telephone number,
including area code, of agent for service)
Copies of all communications to:
STEPHEN A. OLLENDORFF, ESQ.
Hertzog, Calamari & Gleason
100 Park Avenue
New York, New York 10017
(212) 481-9500
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===============================================================================
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price fee
- -------------------------------------------------------------------------------
ZYTEC CORPORATION 1983 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 82,940 shares $ 100,596(2) $ 29.68
Stock
$.01 par
value
per share
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ZYTEC CORPORATION 1984 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 15,826 shares $ 29,825(3) $ 8.80
Stock
$.01 par
value
per share
- -------------------------------------------------------------------------------
ZYTEC CORPORATION 1985 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 26,998 shares $ 53,999(4) $ 15.93
Stock
$.01 par
value
per share
- -------------------------------------------------------------------------------
ZYTEC CORPORATION 1987 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 304,304 shares $ 1,025,674(5) $ 302.57
Stock
$.01 par
value
per share
- -------------------------------------------------------------------------------
ZYTEC CORPORATION 1993 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 1,098,827 shares $ 6,337,828(6) $ 1,869.67
Stock
$.01 par
value
per share
- -------------------------------------------------------------------------------
ZYTEC CORPORATION 1996 EMPLOYEE INCENTIVE STOCK OPTION PLAN
- -------------------------------------------------------------------------------
Common 2,415,488 shares $31,986,260(7) $ 9,435.96
Stock
$.01 par
value
per share
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TOTAL 3,944,383 shares $39,534,182 $11,662.60
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(1) Subject to various exercise prices for the options amongst the
different plans and within each plan.
(2) This amount is the sum of the aggregate exercise prices of the options
granted under the 1983 Employee Incentive Stock Option Plan and outstanding on
December 31, 1997, in accordance with Rule 457 (c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act"). 82,940 shares of Common Stock
of the Registrant are being registered hereunder to cover such options.
(3) This amount is the sum of the aggregate exercise prices of the options
granted under the Zytec Corporation 1984 Employee Incentive Stock Option Plan
and outstanding on December 31, 1997, in accordance with Rule 457 (c) and (h)
under the Securities Act. 15,826 shares of Common Stock of the Registrant are
being registered hereunder to cover such options.
(4) This amount is the sum of the aggregate exercise prices of the options
granted under the Zytec Corporation 1985 Employee Incentive Stock Option Plan
and outstanding on December 31, 1997, in accordance with Rule 457 (c) and (h)
under the Securities Act. 26,998 shares of Common Stock of the Registrant are
being registered hereunder to cover such options.
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(5) This amount is the sum of the aggregate exercise prices of the options
granted under the Zytec Corporation 1987 Employee Incentive Stock Option Plan
and outstanding on December 31, 1997, in accordance with Rule 457 (c) and (h)
under the Securities Act. 304,304 shares of Common Stock of the Registrant are
being registered hereunder to cover such options.
(6) This amount is the sum of the aggregate exercise prices of the options
granted under the Zytec Corporation 1993 Employee Incentive Stock Option Plan
and outstanding on December 31, 1997, in accordance with Rule 457 (c) and (h)
under the Securities Act. 1,098,827 shares of Common Stock of the Registrant
are being registered hereunder to cover such options.
(7) This amount is the sum of the aggregate exercise prices of the Zytec
Corporation 1996 Employee Incentive Stock Option Plan and outstanding on
December 31, 1997, in accordance with Rule 457 (c) and (h) under the Securities
Act. 2,415,488 shares of Common Stock of the Registrant are being registered
hereunder to cover such options.
In accordance with the provisions of Rule 462 promulgated under the
Securities Act of 1933, as amended, this Registration Statement will become
effective upon filing with the Securities and Exchange Commission.
This Registration Statement, including all exhibits and attachments,
contains 43 pages. The exhibit index may be found on page 10 of the
consecutively numbered pages of this Registration Statement.
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EXPLANATORY NOTE
Computer Products, Inc. (the "Registrant") hereby files this
Registration Statement on Form S-8 relating to its common stock, par value $.01
per share (the "Common Stock"). The Registration Statement registers 3,944,383
shares of Common stock for issuance pursuant to exercises of options granted
under the (i) Zytec Corporation 1983 Employee Incentive Stock Option Plan,
(ii) Zytec Corporation 1984 Employee Incentive Stock Option Plan, (iii) Zytec
Corporation 1985 Employee Incentive Stock Option Plan, (iv) Zytec Corporation
1987 Employee Incentive Stock Option Plan, (v) Zytec Corporation 1993 Employee
Incentive Stock Option Plan and (vi) Zytec Corporation 1996 Employee Incentive
Stock Option Plan (collectively, the "Zytec Plans").
On December 29, 1997, pursuant to an Agreement and Plan of Merger, dated
as of September 2, 1997, among the Registrant, Zytec Corporation ("Zytec") and
CPI Acquisition Corp. (a wholly-owned subsidiary of the Registrant), the
following events (among others) occurred: (a) CPI Acquisition Corp. merged with
and into Zytec with Zytec surviving as a wholly-owned subsidiary of the
Registrant (the "Merger); (b) each outstanding share of Zytec capital stock, no
par value per share, was converted into a right to receive 1.33 shares of
Common Stock; (c) the Registrant assumed the Zytec Plans; and (d) each
outstanding option to purchase one share of Zytec stock became an option to
acquire 1.33 shares of Common Stock. Prior to the Merger, shares of Zytec
stock were registered for issuance to the Zytec Plans (other than the Zytec
Corporation 1996 Employee Incentive Stock Option Plan) pursuant to a
Registration Statement on Form S-8, Registration No. 33-71602.
As a result of the Merger, shares of Common Stock will be issued
pursuant to exercises of options granted under the Zytec Plans. The purpose of
this Registration Statement is to register shares of Common Stock for issuance
to the Zytec Plans.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 3, 1997, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) All other reports filed by the Registrant since January 3, 1997,
with the Securities and Exchange Commission (the "Commission") pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(c) The description of the Registrant's Common Stock, contained in the
Registrant's Registration Statement on Form 10 filed with the Commission
pursuant to Section 12(g) of the
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Exchange Act, including any subsequent amendment(s) or report(s) filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered herein have
been sold or which deregisters all securities 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.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Bert Sager, Esq., a director of the Registrant, has rendered a legal
opinion as to the validity of the securities being registered hereby. Mr.
Sager beneficially owns 248,255 shares of the Registrant's outstanding Common
Stock and options and other rights to acquire an additional 93,014 shares of
Common Stock.
ITEM 6. Indemnification of Directors and Officers.
Under Article IX of the Registrant's By-Laws, restated as of October 23,
1997, the Registrant shall indemnify each director and officer of the
Registrant to the fullest extent permitted by the provisions of the Business
Corporation Act of the State of Florida (the "FBCA"). Section 607.0850 of the
FBCA generally provides that a corporation has the power to indemnify its
officers and directors against liability incurred in connection with any
proceeding (other than an action by, or in the right of, the corporation) to
which he was a party by reason of the fact that he is or was a director or
officer of the corporation, if he acted in good faith and in a manner he
reasonably believed to be in the best interest of the corporation. Section
607.0850 of the FBCA additionally provides that a corporation shall have the
power to indemnify any person who is a party to any proceeding by or in the
right of the corporation by reason of the fact that he is or was a director or
officer of the corporation against expenses and amounts paid in settlement not
exceeding, in the judgment of such corporation's board of directors, the
estimated expenses of litigating the proceeding to conclusion. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in the best interest of the corporation,
except that no indemnification shall be permitted if such person shall have
been adjudged to be liable unless, and only to the extent that, a court of
competent jurisdiction shall determine upon application that such person is
fairly and reasonably entitled to indemnity for such expenses as such court
shall deem appropriate. Section 607.0850 of the FBCA further provides that any
indemnification, unless pursuant to a court determination, shall be made by the
corporation only upon a determination that indemnification of the director or
officer was proper in the circumstances because he met the applicable standards
of conduct, as described above. Such determination shall be made by the
corporation's board of directors or a committee thereof, by independent legal
counsel or by the shareholders of the corporation.
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The Registrant's By-Laws also provide that the indemnification rights
provided thereby shall not be deemed to be exclusive of any other rights to
which the Registrant's directors and officers may be entitled, including,
without limitation, any rights of indemnification to which they may be entitled
pursuant to any agreement, insurance policy, or otherwise. The Registrant
maintains a directors' and officers' liability insurance policy which, subject
to the limitations and exclusions stated therein, covers the officers and
directors of the Registrant for certain actions or inactions that they may take
or omit to take in their capacities as officers and directors of the
Registrant.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to officers and directors under any
of the foregoing provisions, the Registrant has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended (the "Securities Act"), and
is therefore unenforceable.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Exhibit No. Description
4.1 Zytec Corporation 1983 Employee Incentive Stock Option Plan
4.2 Zytec Corporation 1984 Employee Incentive Stock Option Plan
4.3 Zytec Corporation 1985 Employee Incentive Stock Option Plan
4.4 Zytec Corporation 1987 Employee Incentive Stock Option Plan
4.5 Zytec Corporation 1993 Employee Incentive Stock Option Plan
4.6 Zytec Corporation 1996 Employee Incentive Stock Option Plan
5.1 Opinion of Bert Sager, special counsel to the Registrant,
with respect to the legality of the securities being
registered hereunder
23.1 Consent of Arthur Andersen LLP, independent certified public
accountants for the Registrant
23.2 Consent of Bert Sager, special counsel to the Registrant
(included in the opinion filed as Exhibit 5.1 hereto)
ITEM 9. Undertakings.
Undertaking Required by Regulation S-K, Item 512(a).
The undersigned Registrant hereby undertakes:
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<PAGE>
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(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 which remain unsold at the termination
of the offering.
Undertaking Required by Regulation S-K, Item 512(b).
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Undertaking Required by Regulation S-K, Item 512(h).
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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 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 offered, the Registrant will, unless in the opinion of counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Boca Raton, State of
Florida, on this 5th day of February, 1998.
COMPUTER PRODUCTS, INC.
(Registrant)
By: /s/Joseph M. O'Donnell
------------------------------
Joseph M. O'Donnell, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Joseph M. O'Donnell
- ------------------------------- President and Chief Executive February 5, 1998
Joseph M. O'Donnell Officer (Principal Executive
Officer)
/s/Richard J. Thompson
- ----------------------------- Vice President, Finance and February 5, 1998
Richard J. Thompson Chief Financial Officer,
Secretary and Treasurer
(Principal Financial and
Accounting Officer)
/s/Edward S. Croft, III
- ----------------------------- Director February 5, 1998
Edward S. Croft, III
/s/Fred C. Lee
- ----------------------------- Director February 5, 1998
Fred C. Lee
/s/Lawrence J. Matthews
- ----------------------------- Director February 5, 1998
Lawrence J. Matthews
/s/Stephen A. Ollendorff
- ----------------------------- Director February 5, 1998
Stephen A. Ollendorff
/s/Phillip A. O'Reilly
- ----------------------------- Director February 5, 1998
Phillip A. O'Reilly
/s/Bert Sager
- ----------------------------- Director February 5, 1998
Bert Sager
-8-
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- ----------------------------- Director
A. Eugene Sapp
/s/Ronald D. Schmidt
- ----------------------------- Director February 5, 1998
Ronald D. Schmidt
/s/Lewis Solomon
- ----------------------------- Director February 5, 1998
Lewis Solomon
/s/John M. Steel
- ----------------------------- Director February 5, 1998
John M. Steel
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Exhibit Index
Exhibit No. Description Page
4.1 Zytec Corporation 1983 Employee Incentive
Stock Option Plan 11
4.2 Zytec Corporation 1984 Employee Incentive
Stock Option Plan 16
4.3 Zytec Corporation 1985 Employee Incentive
Stock Option Plan 21
4.4 Zytec Corporation 1987 Employee Incentive
Stock Option Plan 26
4.5 Zytec Corporation 1993 Employee Incentive
Stock Option Plan 31
4.6 Zytec Corporation 1996 Employee Incentive
Stock Option Plan 36
5.1 Opinion of Bert Sager, special counsel to the
Registrant, with respect to the legality of
the securities being registered hereunder 41
23.1 Consent of Arthur Andersen LLP, independent
certified public accountants for the
Registrant 43
23.2 Consent of Bert Sager, special counsel to the
Registrant (included in the opinion filed as
Exhibit 5.1 hereto) 41
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EXHIBIT 4.1
ZYTEC CORPORATION
Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the growth
and general prosperity of Zytec Corporation (hereinafter
called the "Registrant") and any Subsidiaries which it may
from time to time have, by permitting the Registrant, by
grant of Options to Purchase shares of the Registrant's
Common Stock, to attract and retain the best available
employees for positions of substantial responsibility and
to provide certain employees with an additional incentive
to contribute, by the performance of services, to the
future success of the Registrant and its Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which
of the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's
Board of Directors shall be final and binding on all
Optionees hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall
include, among other persons, an employee who is also an
officer and/or director of the Registrant or of any
Subsidiary, presently in existence or hereafter organized
or acquired. No Option shall be granted, however, to a
director of any of the aforementioned corporations who is
not also an employee of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 648,500 of authorized, but unissued,
or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on DECEMBER 16, 1983, and shall continue in
effect until DECEMBER 15, 1993, unless sooner terminated
under section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is
the intent of the Registrant that the Options shall be
issued with an exercise price at least equal to the fair
market value of the stock as of the date of granting the
Option to an Optionee hereunder. The Board of Directors of
the Registrant shall determine the exercise price of an
Option which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Registrant, unless:
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a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option
shall terminate six (6) years after the grant thereof at
5:00 P.M., Minneapolis, Minnesota time, or on such earlier
date as may be required pursuant to Sections 6, 7 or 10
hereof. Except as noted below, from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and
after the fourth anniversary date the Option shall be
exercisable to the extent of 80% of the total number of
shares subject to the Option; and, from and after the fifth
anniversary date the Option shall be exercisable to the
extent of 100% of the total number of shares subject to the
Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and
after the fourth anniversary date the Option shall be
exercisable to the extent of 80% of the total number of
shares subject to the Option; and from and after the fourth
anniversary date plus ten (10) months the Option shall be
exercisable to the extent of 100% of the total number of
shares subject to the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination;
provided, however, in the case of the termination of
employment due to death, or in the case of the termination
of employment of a Disabled Employee, unless such Option
earlier terminates by its terms, the Option shall terminate
twelve (12) months after such termination of employment.
For example, if the Optionee is not a Disabled Employee, or
if the Optionee is not deceased, and he/she voluntarily
terminates employment after the Optionee has held the
Option for 23 months, and assuming the Optionee has not
exercised any portion of such Option prior to such
termination, the Optionee may not at any time thereafter
exercise more than 20% of the Option and such right to
exercise such percentage of the Option shall expire at the
end of three months after such termination.
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8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by
Will or the laws of descent and distribution and may be
exercised by the Optionee's personal representative,
distributees or legatees only to the extent that Options
could have been exercised by the Optionee at the date of
his death, subject to the termination provisions of section
7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
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made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
-14-
<PAGE>
h. "Plan" shall mean the 1993 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. "Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
j. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into
in accordance with the Plan shall not confer on Optionees
any right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
-15-
EXHIBIT 4.2
ZYTEC CORPORATION
Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the growth
and general prosperity of Zytec Corporation (hereinafter
called the "Registrant") and any Subsidiaries which it may
from time to time have, by permitting the Registrant, by
grant of Options to Purchase shares of the Registrant's
Common Stock, to attract and retain the best available
employees for positions of substantial responsibility and to
provide certain employees with an additional incentive to
contribute, by the performance of services, to the future
success of the Registrant and its Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of
the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's Board
of Directors shall be final and binding on all Optionees
hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall include,
among other persons, an employee who is also an officer
and/or director of the Registrant or of any Subsidiary,
presently in existence or hereafter organized or acquired.
No Option shall be granted, however, to a director of any of
the aforementioned corporations who is not also an employee
of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 200,000 of authorized, but unissued,
or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on SEPTEMBER 24, 1984, and shall continue in
effect until SEPTEMBER 23, 1994, unless sooner terminated
under section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is the
intent of the Registrant that the Options shall be issued
with an exercise price at least equal to the fair market
value of the stock as of the date of granting the Option to
an Optionee hereunder. The Board of Directors of the
Registrant shall determine the exercise price of an Option
which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten percent
-16-
<PAGE>
(10%) of the total combined voting power of all classes of
stock of the Registrant, unless:
a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option shall
terminate six (6) years after the grant thereof at 5:00
P.M., Minneapolis, Minnesota time, or on such earlier date
as may be required pursuant to Sections 6, 7 or 10 hereof.
Except as noted below, from and after the first anniversary
date of the grant of the Option, the Option shall be
exercisable to the extent of 20% of the total number of
shares subject to the Option; from and after the second
anniversary date the Option shall be exercisable to the
extent of 40% of the total number of shares subject to the
Option; from and after the third anniversary date the Option
shall be exercisable to the extent of 60% of the total
number of shares subject to the Option; from and after the
fourth anniversary date the Option shall be exercisable to
the extent of 80% of the total number of shares subject to
the Option; and, from and after the fifth anniversary date
the Option shall be exercisable to the extent of 100% of the
total number of shares subject to the Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and after
the fourth anniversary date the Option shall be exercisable
to the extent of 80% of the total number of shares subject
to the Option; and from and after the fourth anniversary
date plus ten (10) months the Option shall be exercisable to
the extent of 100% of the total number of shares subject to
the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination; provided,
however, in the case of the termination of employment due to
death, or in the case of the termination of employment of a
Disabled Employee, unless such Option earlier terminates by
its terms, the Option shall terminate twelve (12) months
after such termination of employment. For example, if the
Optionee is not a Disabled Employee, or if the Optionee is
not deceased, and he/she voluntarily terminates employment
after the Optionee has held the Option for 23 months, and
assuming the Optionee has not exercised any portion of such
Option prior to such termination, the Optionee may not at
any time thereafter exercise more than 20% of the Option and
-17-
<PAGE>
such right to exercise such percentage of the Option shall
expire at the end of three months after such termination.
8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by Will
or the laws of descent and distribution and may be exercised
by the Optionee's personal representative, distributees or
legatees only to the extent that Options could have been
exercised by the Optionee at the date of his death, subject
to the termination provisions of section 7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
-18-
<PAGE>
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
-19-
<PAGE>
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
h. "Plan" shall mean the 1993 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. "Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
j. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into in
accordance with the Plan shall not confer on Optionees any
right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
-20-
EXHIBIT 4.3
ZYTEC CORPORATION
Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the growth
and general prosperity of Zytec Corporation (hereinafter
called the "Registrant") and any Subsidiaries which it may
from time to time have, by permitting the Registrant, by
grant of Options to Purchase shares of the Registrant's
Common Stock, to attract and retain the best available
employees for positions of substantial responsibility and to
provide certain employees with an additional incentive to
contribute, by the performance of services, to the future
success of the Registrant and its Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of
the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's Board
of Directors shall be final and binding on all Optionees
hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall include,
among other persons, an employee who is also an officer
and/or director of the Registrant or of any Subsidiary,
presently in existence or hereafter organized or acquired.
No Option shall be granted, however, to a director of any of
the aforementioned corporations who is not also an employee
of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 151,500 of authorized, but unissued,
or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on OCTOBER 25, 1985, and shall continue in effect
until OCTOBER 24, 1995, unless sooner terminated under
section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is the
intent of the Registrant that the Options shall be issued
with an exercise price at least equal to the fair market
value of the stock as of the date of granting the Option to
an Optionee hereunder. The Board of Directors of the
Registrant shall determine the exercise price of an Option
which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten percent
-21-
<PAGE>
(10%) of the total combined voting power of all classes of
stock of the Registrant, unless:
a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option shall
terminate six (6) years after the grant thereof at 5:00
P.M., Minneapolis, Minnesota time, or on such earlier date
as may be required pursuant to Sections 6, 7 or 10 hereof.
Except as noted below, from and after the first anniversary
date of the grant of the Option, the Option shall be
exercisable to the extent of 20% of the total number of
shares subject to the Option; from and after the second
anniversary date the Option shall be exercisable to the
extent of 40% of the total number of shares subject to the
Option; from and after the third anniversary date the Option
shall be exercisable to the extent of 60% of the total
number of shares subject to the Option; from and after the
fourth anniversary date the Option shall be exercisable to
the extent of 80% of the total number of shares subject to
the Option; and, from and after the fifth anniversary date
the Option shall be exercisable to the extent of 100% of the
total number of shares subject to the Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and after
the fourth anniversary date the Option shall be exercisable
to the extent of 80% of the total number of shares subject
to the Option; and from and after the fourth anniversary
date plus ten (10) months the Option shall be exercisable to
the extent of 100% of the total number of shares subject to
the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination; provided,
however, in the case of the termination of employment due to
death, or in the case of the termination of employment of a
Disabled Employee, unless such Option earlier terminates by
its terms, the Option shall terminate twelve (12) months
after such termination of employment. For example, if the
Optionee is not a Disabled Employee, or if the Optionee is
not deceased, and he/she voluntarily terminates employment
after the Optionee has held the Option for 23 months, and
assuming the Optionee has not exercised any portion of such
Option prior to such termination, the Optionee may not at
any time thereafter exercise more than 20% of the Option and
-22-
<PAGE>
such right to exercise such percentage of the Option shall
expire at the end of three months after such termination.
8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by Will
or the laws of descent and distribution and may be exercised
by the Optionee's personal representative, distributees or
legatees only to the extent that Options could have been
exercised by the Optionee at the date of his death, subject
to the termination provisions of section 7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
-23-
<PAGE>
made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
-24-
<PAGE>
h. "Plan" shall mean the 1993 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. "Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
J. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into in
accordance with the Plan shall not confer on Optionees any
right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
-25-
EXHIBIT 4.4
ZYTEC CORPORATION
Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the growth
and general prosperity of Zytec Corporation (hereinafter
called the "Registrant") and any Subsidiaries which it may
from time to time have, by permitting the Registrant, by
grant of Options to Purchase shares of the Registrant's
Common Stock, to attract and retain the best available
employees for positions of substantial responsibility and to
provide certain employees with an additional incentive to
contribute, by the performance of services, to the future
success of the Registrant and its Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of
the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's Board
of Directors shall be final and binding on all Optionees
hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall include,
among other persons, an employee who is also an officer
and/or director of the Registrant or of any Subsidiary,
presently in existence or hereafter organized or acquired.
No Option shall be granted, however, to a director of any of
the aforementioned corporations who is not also an employee
of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 500,000 of authorized, but unissued,
or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on FEBRUARY 6, 1987, and shall continue in effect
until FEBRUARY 6, 1997, unless sooner terminated under
section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is the
intent of the Registrant that the Options shall be issued
with an exercise price at least equal to the fair market
value of the stock as of the date of granting the Option to
an Optionee hereunder. The Board of Directors of the
Registrant shall determine the exercise price of an Option
which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten percent
-26-
<PAGE>
(10%) of the total combined voting power of all classes of
stock of the Registrant, unless:
a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option shall
terminate six (6) years after the grant thereof at 5:00
P.M., Minneapolis, Minnesota time, or on such earlier date
as may be required pursuant to Sections 6, 7 or 10 hereof.
Except as noted below, from and after the first anniversary
date of the grant of the Option, the Option shall be
exercisable to the extent of 20% of the total number of
shares subject to the Option; from and after the second
anniversary date the Option shall be exercisable to the
extent of 40% of the total number of shares subject to the
Option; from and after the third anniversary date the Option
shall be exercisable to the extent of 60% of the total
number of shares subject to the Option; from and after the
fourth anniversary date the Option shall be exercisable to
the extent of 80% of the total number of shares subject to
the Option; and, from and after the fifth anniversary date
the Option shall be exercisable to the extent of 100% of the
total number of shares subject to the Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and after
the fourth anniversary date the Option shall be exercisable
to the extent of 80% of the total number of shares subject
to the Option; and from and after the fourth anniversary
date plus ten (10) months the Option shall be exercisable to
the extent of 100% of the total number of shares subject to
the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination; provided,
however, in the case of the termination of employment due to
death, or in the case of the termination of employment of a
Disabled Employee, unless such Option earlier terminates by
its terms, the Option shall terminate twelve (12) months
after such termination of employment. For example, if the
Optionee is not a Disabled Employee, or if the Optionee is
not deceased, and he/she voluntarily terminates employment
after the Optionee has held the Option for 23 months, and
assuming the Optionee has not exercised any portion of such
Option prior to such termination, the Optionee may not at
any time thereafter exercise more than 20% of the Option and
-27-
<PAGE>
such right to exercise such percentage of the Option shall
expire at the end of three months after such termination.
8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by Will
or the laws of descent and distribution and may be exercised
by the Optionee's personal representative, distributees or
legatees only to the extent that Options could have been
exercised by the Optionee at the date of his death, subject
to the termination provisions of section 7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
-28-
<PAGE>
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
-29-
<PAGE>
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
h. "Plan" shall mean the 1993 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. "Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
j. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into in
accordance with the Plan shall not confer on Optionees any
right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
-30-
EXHIBIT 4.5
ZYTEC CORPORATION
1993 Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the growth
and general prosperity of Zytec Corporation (hereinafter
called the "Registrant") and any Subsidiaries which it may
from time to time have, by permitting the Registrant, by
grant of Options to Purchase shares of the Registrant's
Common Stock, to attract and retain the best available
employees for positions of substantial responsibility and to
provide certain employees with an additional incentive to
contribute, by the performance of services, to the future
success of the Registrant and its Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of
the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's Board
of Directors shall be final and binding on all Optionees
hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall include,
among other persons, an employee who is also an officer
and/or director of the Registrant or of any Subsidiary,
presently in existence or hereafter organized or acquired.
No Option shall be granted, however, to a director of any of
the aforementioned corporations who is not also an employee
of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 500,000 of authorized, but unissued,
or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on January 29, 1993, and shall continue in effect
until January 29, 2003, unless sooner terminated under
section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is the
intent of the Registrant that the Options shall be issued
with an exercise price at least equal to the fair market
value of the stock as of the date of granting the Option to
an Optionee hereunder. The Board of Directors of the
Registrant shall determine the exercise price of an Option
which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten percent
-31-
<PAGE>
(10%) of the total combined voting power of all classes of
stock of the Registrant, unless:
a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option shall
terminate six (6) years after the grant thereof at 5:00
P.M., Minneapolis, Minnesota time, or on such earlier date
as may be required pursuant to Sections 6, 7 or 10 hereof.
Except as noted below, from and after the first anniversary
date of the grant of the Option, the Option shall be
exercisable to the extent of 20% of the total number of
shares subject to the Option; from and after the second
anniversary date the Option shall be exercisable to the
extent of 40% of the total number of shares subject to the
Option; from and after the third anniversary date the Option
shall be exercisable to the extent of 60% of the total
number of shares subject to the Option; from and after the
fourth anniversary date the Option shall be exercisable to
the extent of 80% of the total number of shares subject to
the Option; and, from and after the fifth anniversary date
the Option shall be exercisable to the extent of 100% of the
total number of shares subject to the Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and after
the fourth anniversary date the Option shall be exercisable
to the extent of 80% of the total number of shares subject
to the Option; and from and after the fourth anniversary
date plus ten (10) months the Option shall be exercisable to
the extent of 100% of the total number of shares subject to
the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination; provided,
however, in the case of the termination of employment due to
death, or in the case of the termination of employment of a
Disabled Employee, unless such Option earlier terminates by
its terms, the Option shall terminate twelve (12) months
after such termination of employment. For example, if the
Optionee is not a Disabled Employee, or if the Optionee is
not deceased, and he/she voluntarily terminates employment
after the Optionee has held the Option for 23 months, and
assuming the Optionee has not exercised any portion of such
Option prior to such termination, the Optionee may not at
any time thereafter exercise more than 20% of the Option and
-32-
<PAGE>
such right to exercise such percentage of the Option shall
expire at the end of three months after such termination.
8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by Will
or the laws of descent and distribution and may be exercised
by the Optionee's personal representative, distributees or
legatees only to the extent that Options could have been
exercised by the Optionee at the date of his death, subject
to the termination provisions of section 7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
-33-
<PAGE>
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
-34-
<PAGE>
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
h. "Plan" shall mean the 1993 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. "Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
j. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into in
accordance with the Plan shall not confer on Optionees any
right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
-35-
EXHIBIT 4.6
ZYTEC CORPORATION
1996 Employee Incentive Stock Option Plan
________________________________________
1. PURPOSE. The purpose of the Plan is to promote the
growth and general prosperity of Zytec Corporation
(hereinafter called the "Registrant") and any Subsidiaries
which it may from time to time have, by permitting the
Registrant, by grant of Options to Purchase shares of the
Registrant's Common Stock, to attract and retain the best
available employees for positions of substantial
responsibility and to provide certain employees with an
additional incentive to contribute, by the performance of
services, to the future success of the Registrant and its
Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by the
Registrant's Board of Directors. Subject to the provisions
of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of
the eligible employees of the Registrant and its
Subsidiaries shall receive Options, the time when Options
shall be granted, and the number of shares to be optioned,
and shall have authority to do everything necessary or
appropriate to administer the Plan including, without
limitation, interpreting the Plan. All decisions,
determinations and interpretations of the Registrant's Board
of Directors shall be final and binding on all Optionees
hereunder.
3. ELIGIBILITY. The class of employees eligible to receive
Options hereunder shall be all Employees of the Registrant
or any Subsidiary. Such an eligible employee shall include,
among other persons, an employee who is also an officer
and/or director of the Registrant or of any Subsidiary,
presently in existence or hereafter organized or acquired.
No Option shall be granted, however, to a director of any of
the aforementioned corporations who is not also an employee
of one of such corporations.
4. STOCK TO BE OPTIONED. Subject to the provisions of section
11, the maximum number of shares which may be optioned and
sold under the Plan is 1,000,000 of authorized, but
unissued, or re-acquired common stock of the Registrant.
5. TERM. The Plan was adopted by the Registrant's Board of
Directors on February 16, 1996, and shall continue in effect
until February 16, 2006, unless sooner terminated under
section 10.
6. OPTION AND EXERCISE PRICE. Except as noted below, it is the
intent of the Registrant that the Options shall be issued
with an exercise price at least equal to the fair market
value of the stock as of the date of granting the Option to
an Optionee hereunder. The Board of Directors of the
Registrant shall determine the exercise price of an Option
which exercise price may vary from Option to Option.
Nevertheless, Options granted on the same date shall have
the same exercise price. Should it subsequently be
determined that any Option was not issued with an exercise
price at least equal to the fair market value of the Common
Stock on the date of the grant thereof, said Option shall
remain nevertheless valid and in full force and effect.
Notwithstanding the foregoing and the provisions of Section
7, no Option shall be granted to an employee who, at the
time of the grant of such Option, owns more than ten percent
(10%) of the total combined voting power of all classes of
stock of the Registrant, unless:
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a. The exercise price for the Option shall be equal to at
least one hundred ten percent (110%) of the fair market
value of the Common Stock subject to such Option on the
date of grant; and
b. Such Option shall terminate five (5) years from the
date of its grant at 5:00 p.m., Minneapolis, Minnesota
time, or on such earlier date as may be required
pursuant to Sections 7 or 10 hereof.
7. TERMINATION AND EXERCISABILITY OF OPTIONS. The Option shall
terminate six (6) years after the grant thereof at 5:00
P.M., Minneapolis, Minnesota time, or on such earlier date
as may be required pursuant to Sections 6, 7 or 10 hereof.
Except as noted below, from and after the first anniversary
date of the grant of the Option, the Option shall be
exercisable to the extent of 20% of the total number of
shares subject to the Option; from and after the second
anniversary date the Option shall be exercisable to the
extent of 40% of the total number of shares subject to the
Option; from and after the third anniversary date the Option
shall be exercisable to the extent of 60% of the total
number of shares subject to the Option; from and after the
fourth anniversary date the Option shall be exercisable to
the extent of 80% of the total number of shares subject to
the Option; and, from and after the fifth anniversary date
the Option shall be exercisable to the extent of 100% of the
total number of shares subject to the Option.
Notwithstanding the foregoing, the vesting schedule for any
Option granted to an employee who, at the time of the grant
of such Option, owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Registrant shall be as follows: from and after the first
anniversary date of the grant of the Option, the Option
shall be exercisable to the extent of 20% of the total
number of shares subject to the Option; from and after the
second anniversary date the Option shall be exercisable to
the extent of 40% of the total number of shares subject to
the Option; from and after the third anniversary date the
Option shall be exercisable to the extent of 60% of the
total number of shares subject to the Option; from and after
the fourth anniversary date the Option shall be exercisable
to the extent of 80% of the total number of shares subject
to the Option; and from and after the fourth anniversary
date plus ten (10) months the Option shall be exercisable to
the extent of 100% of the total number of shares subject to
the Option.
Upon termination of the employment of the Optionee with the
Registrant, whether such termination is due to death,
voluntary termination, involuntary termination, or
otherwise, the Option may be exercised only to the extent
the Optionee was entitled to exercise it as of the date of
said termination of employment. Furthermore, unless such
Option earlier terminates by its terms, the Option held by
the Optionee at such termination of employment shall
terminate three (3) months after such termination; provided,
however, in the case of the termination of employment due to
death, or in the case of the termination of employment of a
Disabled Employee, unless such Option earlier terminates by
its terms, the Option shall terminate twelve (12) months
after such termination of employment. For example, if the
Optionee is not a Disabled Employee, or if the Optionee is
not deceased, and he/she voluntarily terminates employment
after the Optionee has held the Option for 23 months, and
assuming the Optionee has not exercised any portion of such
Option prior to such termination, the Optionee may not at
any time thereafter exercise more than 20% of the Option and
such right to exercise such percentage of the Option shall
expire at the end of three months after such termination.
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<PAGE>
8. LIMIT ON OPTIONS. The aggregate fair market value,
determined as of the time the Option is granted, of the
stock with respect to which Options are exercisable for the
first time by an employee during any calendar year, under
the Plan and any other incentive stock option plan of the
Registrant or a Parent or Subsidiary, shall not exceed
$100,000.
9. OPTIONS NOT TRANSFERABLE. Options are not transferable in
any manner except by Will or the laws of descent and
distribution, and during the lifetime of the Optionee shall
be exercisable only by the Optionee. In the event of an
Optionee's death, such Optionee's Options shall pass by Will
or the laws of descent and distribution and may be exercised
by the Optionee's personal representative, distributees or
legatees only to the extent that Options could have been
exercised by the Optionee at the date of his death, subject
to the termination provisions of section 7 hereof.
10. AMENDMENT OR TERMINATION OF THE PLAN.
a. Notwithstanding anything else provided in the Plan to
the contrary, the Registrant's Board of Directors may
amend the Plan from time to time in such respects as
the Board may deem advisable, including, without
limitation, the right to amend the Plan so as to affect
Options already granted other than to increase the
Option price of Options already granted or other than
to decrease or terminate the Options already granted.
b. The Registrant's Board of Directors may at any time
terminate the Plan. Any such termination of the Plan
shall not affect Options already granted and such
Options shall remain in full force and effect as if
this Plan had not been terminated.
c. Unless otherwise determined by the Registrant's Board
of Directors, Options shall terminate upon the
effectiveness of any liquidation, dissolution, sale of
all or substantially all the assets of the Registrant,
merger of the Registrant into another corporation where
the Registrant is not the survivor thereof, or similar
reorganization, provided that the Registrant has given
notice of the proposed transaction to the Optionee not
less than thirty (30) days prior to such effectiveness.
11. ADJUSTMENTS UPON CHANGES AND CAPITALIZATION. If an Optionee
exercises all or any portion of an Option subsequent to any
change in the number of outstanding shares of the Registrant
occurring by reason of any stock dividend, stock split,
reverse stock split or other similar recapitalization of the
Registrant, there shall be an appropriate adjustment so that
the Optionee shall then receive for the aggregate price paid
by him on such exercise of an Option the number of shares
which he would have held at the time of such exercise if
such Option had been exercised to the same extent prior to
such stock dividend, stock split, reverse stock split or
other similar recapitalization. Notwithstanding the
foregoing, no fractional shares shall be issued or paid for.
12. AGREEMENT AND REPRESENTATIONS OF OPTIONEE. As a condition
to the exercise of any portion of an Option, the Optionee
must represent and agree that any and all shares purchased
under an Option will be acquired for investment and not for
resale. The Registrant may restrict the transfer of the
shares purchased and affix a legend to the certificate
representing such shares stating that such shares may not be
transferred without (i) an opinion of counsel satisfactory
to the Registrant that the proposed transfer may lawfully be
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made without registration under the Federal Securities Act
of 1933 and registration, notice or approval under any
applicable state securities laws, or (ii) such applicable
registration(s), notice(s) and approval(s).
13. EXERCISE OF OPTIONS. Options can be exercised only by
Optionees or other proper party delivering written notice to
the Registrant at its principal office within the Option
period, stating the number of shares as to which the Option
is being exercised and accompanied by payment in full by
certified or cashier's check of the Option price for all
shares designated in the notice. Such notice shall further
contain a representation that such shares are being acquired
for investment and not for resale. Subject to section 14
hereof, the Registrant shall then cause a certificate or
certificates for such shares to be delivered within a
reasonable period.
Options may, subject to any other conditions or limitations
contained in the Plan, be exercised in any sequence
determined by the Optionee.
14. RESERVATION OF SHARES OF COMMON STOCK. The Registrant,
during the term of the Plan, will at all times reserve and
keep available, and will use its commercially reasonable
best efforts to 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.
15. INCOME TAX TREATMENT. Government jurisdiction, income
reporting and tax withholding requirements will be complied
with by the Registrant whenever exercises of Options occur
and any income tax payment and any income tax prepayment
requirements (including any effective tax withholding
requirements imposed by the Registrant) will be effectively
borne by the Optionee. Since federal income tax law is
subject to change and income tax laws vary from state to
state, the Registrant suggests that Optionees consult with
their individual tax advisors prior to exercise of an
Option.
16. DEFINITIONS. As used herein and in the accompanying Option
Agreement, the following definitions shall apply:
a. "Common Stock" shall mean common stock, no par value,
of the Registrant.
b. "Disabled Employee" shall mean an employee who is
disabled within the meaning of section 22(e)(3) of the
Internal Revenue Code.
c. "Incentive Stock Option" shall mean an Option described
in section 422 of the Internal Revenue Code.
d. "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
e. "Option" shall mean a stock option granted pursuant to
the Plan.
f. "Optionee" shall mean a holder of an Option granted
pursuant to the Plan.
g. "Parent" shall mean a corporation (other than the
Registrant) in an unbroken chain of corporations ending
with the Registrant if, at the time of the granting of
the Option, each of the corporations, other than the
Registrant, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in such chain, as defined
in section 425(e) of the Internal Revenue Code.
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h. "Plan" shall mean the 1996 Employee Incentive Stock
Option Plan of the Registrant outlined herein.
i. Shareholders" shall mean the holders of outstanding
shares of the Registrant's common stock.
j. "Subsidiary" shall mean a corporation at least 50%
(voting power) owned by the Registrant, as defined in
section 425(f) of the Internal Revenue Code.
17. NO RIGHT TO CONTINUE EMPLOYMENT. Agreements entered into in
accordance with the Plan shall not confer on Optionees any
right to continuance of employment by the Registrant nor
shall such agreements interfere in any way with the
Optionee's or the Registrant's right to terminate such
employment at any time. Optionees shall have none of the
rights of a shareholder with respect to shares subject to
Options until such shares have been issued to them upon
exercise of Options.
18. SUCCESSORS AND ASSIGNS. Agreements entered into in
accordance with the Plan shall be binding upon the heirs,
successors and assigns of the Registrant and the Optionees.
19. MINNESOTA LAW. Agreements entered into in accordance with
the Plan shall be construed according to the laws of
Minnesota.
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Exhibit 5.1
Letterhead of
Bert Sager
P.O. Box 43-1495
6129 S.W. 70th Street
Miami, FL 33143
(305) 661-5055
February 5, 1998
Computer Products, Inc.
7900 Glades Road
Suite 500
Boca Raton, FL 33434
Computer Products, Inc.
Registration Statement on Form S-8
Dear Sirs:
I have acted as special counsel for Computer Products,
Inc., a Florida corporation (the "Registrant"), in connection
with Registration Statement on Form S-8 (the "Registration
Statement") that is being filed by the Registrant with the
Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "1933 Act"). This Registration
Statement being filed with respect to 3,944,383 shares of common
stock, par value $.01 per share (the "Common Stock"), of the
Registrant relating to the Zytec Corporation 1983 Employee
Incentive Stock Option Plan, Zytec Corporation 1984 Employee
Incentive Stock Option Plan, Zytec Corporation 1985 Employee
Incentive Stock Option Plan, Zytec Corporation 1987 Employee
Incentive Stock Option Plan, Zytec Corporation 1993 Employee
Incentive Stock Option Plan, and Zytec Corporation 1996 Employee
Incentive Stock Option Plan (the "Plans").
You have requested me to render to you the following
opinion. In connection with the opinion, I have examined
originals, or copies certified or otherwise identified to my
satisfaction, of all corporate and other documents and records of
the Registrant and all certificates of public officials and
officers of the Registrant, and have made such other
investigations, as I have deemed necessary or appropriate in
connection with rendering this opinion. As to questions of fact
material to this opinion, I have, when relevant facts were not
independently established by me, relied upon certificates of
public officials and information supplied to me by officers of
the Registrant.
For purposes of this opinion, I have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to me as originals and the conformity to
authentic originals of all documents submitted to me as
certified, conformed or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. The Registrant is a corporation duly organized and
validly existing under the laws of the State of Florida.
2. All requisite corporate actions have been taken to
authorize the issuance of the shares of Common Stock being
registered under the Registration Statement pursuant to the 1933
Act.
3. The shares of Common Stock, when issued and sold in
accordance with the provisions of the Plans, will be legally
issued, fully paid and non-assessable when the Registrant shall
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have received therefor the consideration provided in the Plans
(but not less than the par value thereof).
I am an attorney admitted to practice in the State of
Florida and do not purport to be an expert in, or to render any
opinions concerning, the laws of any jurisdiction other than the
United States of America and the State of Florida.
This opinion is rendered to you and is solely for your
benefit in connection with the above transaction. This opinion
may not be relied upon by you for any other purpose, or furnished
to, quoted to or relied upon by any other person, firm or
corporation without my prior written consent.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement, to the use of my name as your counsel
with respect to the Registration Statement and to all references
made to us therein.
/s/ Bert Sager
-----------------
Bert Sager
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to
the incorporation by reference in this registration statement of
our report dated October 28, 1997 on the consolidated financial
statements of Computer Products, Inc. included in Computer
Products, Inc.'s Form 8-K dated October 30, 1997. We also
consent to the incorporation by reference in this registration
statement of our report dated September 15, 1997 on the combined
financial statements of the Elba Group included in Computer
Product Inc.'s Form 8-K/A dated September 22, 1997 and to all
references to our Firm included in this registration statement.
Our report dated January 17, 1997 on the consolidated financial
statements of Computer Products, Inc. included in Computer
Products, Inc.'s Form 10-K for the year ended January 3, 1997 is
no longer appropriate since reclassified financial statements
have been presented giving effect to Computer Products, Inc.'s
subsequent decision to account for RTP Corp. as a discontinued operation.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida
February 5, 1998
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