<PAGE> 1
As filed with the Securities and Exchange Commission on May 4, 1998
Registration No.
----------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ALLEN TELECOM INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 38-0290950
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
25101 Chagrin Boulevard, Beachwood, Ohio 44122
(Address of Principal Executive Offices Including Zip Code)
ALLEN TELECOM INC. 1992 STOCK PLAN
AND INDIVIDUAL STOCK OPTION AGREEMENTS
BETWEEN ALLEN TELECOM INC. AND CERTAIN DIRECTORS
(Full Title of the Plan)
Robert A. Youdelman, Executive Vice President,
Chief Financial Officer and Assistant Secretary
Allen Telecom Inc.
25101 Chagrin Blvd., Beachwood, Ohio 44122
(Name and Address of Agent For Service)
(216) 765-5800
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Title of Amount to be Proposed Maxi- Proposed Maxi- Amount of
Securities to Registered (1)(2) mum Offering mum Aggregate Registration
be Registered Price Per Share (3) Offering Price (3) Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, par
value $1.00 per share 1,382,000 $15.74 $21,752,680 $6,591.00
Preferred Stock
Purchase Rights 1,382,000
==================================================================================================================================
</TABLE>
(1) Each share of Common Stock, $1.00 par value per share ("Common Stock")
includes one Series C Junior Participating Preferred Stock Purchase
Right ("Right"). Each Right, when exercisable, entitles the holder to
purchase 0.01 (subject to adjustment in certain events) share of Series
C Junior Participating Preferred Stock of the Registrant. Such Rights
are not currently exercisable or transferrable independently of the
shares of Common Stock.
(2) Pursuant to Rule 416 of the Securities Act of 1933 ("Securities Act"),
this Registration Statement also covers such additional shares of
Common Stock as may become issuable pursuant to the anti-dilution
provisions of Allen Telecom Inc. 1992 Stock Plan, as amended and
restated as of May 1, 1998 ("Plan").
(3) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and
Regulations under the Securities Act, on the basis of the average of
the high and low sale prices of such securities on the New York Stock
Exchange, Composite Transaction Tape on April 29, 1998, within five
business days prior to filing.
Exhibit Index Appears on Page 4
Page 1 of 4 Pages
<PAGE> 2
Part II
Pursuant to General Instruction E to Form S-8, the contents of
Registration Statement No. 33-52420 on Form S-8 as filed by Allen Telecom Inc.
(formerly named The Allen Group Inc.) (the "Registrant") with the Securities and
Exchange Commission ("SEC") on September 25, 1992, previously incorporated by
reference in Registration Statement 33-58951 on Form S-8 as filed by the
Registrant with the SEC on May 1, 1995, are incorporated herein by reference.
Item 8. Exhibits
--------
4(a) Second Restated Certificate of Incorporation.
4(b) By-laws, as amended and restated through December 4, 1997.
4(c) Certificate of Designation, Preferences and Rights of Series C
Junior Participating Preferred Stock.
4(d) Rights Agreement, dated as of January 20, 1998, between the
Registrant and Harris Trust Company of New York, as Rights
Agent (filed as Exhibit Number 4.1 to Registrant's
Registration Statement on Form 8-A filed January 9, 1998 and
incorporated herein by reference).
4(e) Allen Telecom Inc. 1992 Stock Plan, as amended and restated as
of May 1, 1998.
4(f) Form of Non-Qualified Option to Purchase Stock granted to
certain directors of the Registrant on February 19, 1997
(filed as Exhibit Number 10(q) to Registrant's Form 10-K
Annual Report for the fiscal year ended December 31, 1996
(Commission file number 1-6016) and incorporated herein by
reference).
5 Opinion of Counsel of McDara P. Folan, III, regarding the
legality of the securities being registered.
23(a) Consent of Independent Auditors, Coopers & Lybrand L.L.P., to
the incorporation by reference in this Registration Statement
of their report on the consolidated financial statements and
the financial statement schedule included in the Registrant's
Annual Report on Form 10-K for its fiscal year ended December
31, 1997.
23(b) Consent of Counsel (included in Exhibit 5).
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beachwood, State of Ohio, on May 1, 1998.
ALLEN TELECOM INC.
By: /s/ Robert G. Paul
-----------------------------------------------------
Robert G. Paul, President and Chief Executive Officer
Page 2 of 4 Pages
<PAGE> 3
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert G. Paul President, Chief Executive Officer May 1, 1998
- ----------------------------------- and Director (Principal Executive
Robert G. Paul Officer)
/s/ Robert A. Youdelman Executive Vice President, Chief May 1, 1998
- ----------------------------------- Financial Officer and Assistant
Robert A. Youdelman Secretary (Principal Financial
Officer)
/s/ James L. LePorte, III Vice President, Treasurer and May 1, 1998
- ----------------------------------- Controller (Principal Accounting
James L. LePorte, III Officer)
/s/ Philip Wm. Colburn Chairman of the Board and Director May 1, 1998
- -----------------------------------
Philip Wm. Colburn
/s/ Jill K. Conway Director May 1, 1998
- -----------------------------------
Jill K. Conway
/s/ Albert H. Gordon Director May 1, 1998
- -----------------------------------
Albert H. Gordon
/s/ William O. Hunt Director May 1, 1998
- -----------------------------------
William O. Hunt
/s/ J. Chisholm Lyons Vice Chairman of the Board and May 1, 1998
- ----------------------------------- Director
J. Chisholm Lyons
/s/ John F. McNiff Director May 1, 1998
- -----------------------------------
John F. McNiff
/s/ Charles W. Robinson Director May 1, 1998
- -----------------------------------
Charles W. Robinson
Director May 1, 1998
- -----------------------------------
William M. Weaver, Jr.
</TABLE>
Page 3 of 4 Pages
<PAGE> 4
EXHIBIT INDEX
-------------
4(a) Second Restated Certificate of Incorporation.
4(b) By-laws, as amended and restated through December 4, 1997.
4(c) Certificate of Designation, Preferences and Rights of Series C
Junior Participating Preferred Stock.
4(d) Rights Agreement, dated as of January 20, 1998, between the
Registrant and Harris Trust Company of New York, as Rights
Agent (filed as Exhibit Number 4.1 to Registrant's
Registration Statement on Form 8-A filed January 9, 1998 and
incorporated herein by reference).
4(e) Allen Telecom Inc. 1992 Stock Plan, as amended and restated as
of May 1, 1998.
4(f) Form of Non-Qualified Option to Purchase Stock granted to
certain directors of the Registrant on February 19, 1997
(filed as Exhibit Number 10(q) to Registrant's Form 10-K
Annual Report for the fiscal year ended December 31, 1996
(Commission file number 1-6016) and incorporated herein by
reference).
5 Opinion of Counsel of McDara P. Folan, III, regarding the
legality of the securities being registered.
23(a) Consent of Independent Auditors, Coopers & Lybrand L.L.P., to
the incorporation by reference in this Registration Statement
of their report on the consolidated financial statements and
the financial statement schedule included in the Registrant's
Annual Report on Form 10-K for its fiscal year ended December
31, 1997.
23(b) Consent of Counsel (included in Exhibit 5).
Page 4 of 4 Pages
<PAGE> 1
Exhibit 4(a)
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
ALLEN TELECOM INC.
ALLEN TELECOM INC., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
I. The name of the corporation is Allen Telecom Inc.
II. The name under which the corporation was originally incorporated is
ALN, Inc.
III. The date on which the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of Delaware is
February 3, 1969.
IV. The corporation filed a Restated Certificate of Incorporation on
November 20, 1984 (the "First Restated Certificate of Incorporation").
V. This Second Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the corporation's First
Restated Certificate of Incorporation as heretofore amended or supplemented, and
there is no discrepancy between those provisions and the provisions of this
Second Restated Certificate of Incorporation.
VI. This Second Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the corporation in accordance with Section 245 of
the General Corporation Law of Delaware.
VII. The text of the Second Restated Certificate of Incorporation of
the corporation is herein set forth in full:
FIRST. The name of the corporation is
ALLEN TELECOM INC.
SECOND. The address of its registered office in the State of Delaware
is The Corporation Trust Center, No. 1029 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is:
To carry on and conduct any and every kind of manufacturing,
distribution and service business; to manufacture, process, fabricate,
rebuild, service, purchase or otherwise acquire, to design, invent or
develop, to import or export, and to distribute,
<PAGE> 2
lease, sell, assign or otherwise dispose of and generally deal in and
with raw materials, products, goods, wares, merchandise and real and
personal property of every kind and character; and to provide services
of every kind and character.
To conduct any lawful business, to exercise any lawful purpose
and power, and to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of Incorporation, together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business or purposes
of the corporation.
FOURTH. The total number of shares of stock which the corporation shall
have authority to issue is fifty-three million (53,000,000), of which three
million (3,000,000) shares shall be Preferred Stock, without par value, and
fifty million (50,000,000) shares shall be Common Stock of the par value of $1
per share. The Preferred Stock shall be issued from time to time in one or more
series with such distinctive serial designations and (a) may have such voting
powers, full or limited, or may be without voting powers; (b) may be subject to
redemption at such time or times and at such prices; (c) may be entitled to
receive dividends (which may be cumulative or noncumulative) at such rate or
rates, on such conditions, and at such times, and payable in preference to, or
in such relation to, the dividends payable on any other class or classes or
series of stock; (d) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the corporation; (e) may be made convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the corporation, at
such price or prices or at such rates of exchange, and with such adjustments;
and (f) shall have such other relative, participating, optional or other special
rights, qualifications, limitations or restrictions thereof, all as shall
hereafter be stated and expressed in the resolution or resolutions providing for
the issue of such Preferred Stock from time to time adopted by the board of
directors pursuant to authority so to do which is hereby vested in the board.
Each share of Common Stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the stockholders of the
corporation, on all propositions before such meetings.
The number of authorized shares of any class of stock of the
corporation, including but without limitation the Preferred Stock and the Common
Stock, may be increased or decreased by the affirmative vote of the holders of a
majority of the stock of the corporation entitled to vote.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
2
<PAGE> 3
To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created.
By a resolution of a majority of the whole board, to designate one or
more committees, each committee to consist of two or more of the directors of
the corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. Any such committee, to the extent provided in the
resolution or in the by-laws of the corporation, shall have and may exercise
the powers of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; provided, however, the by-laws may
provide that in the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called upon such notice as is required by statute,
or when authorized by the written consent of the holders of a majority of the
voting stock issued and outstanding, to sell, lease or exchange all or
substantially all of the property and assets of the corporation, including its
good will and its corporate franchises, upon such terms and conditions and for
such consideration, which may consist in whole or in part of money or property
including shares of stock in, and/or other securities of, any other corporation
or corporations, as its board of directors shall deem expedient and for the
best interests of the corporation.
SIXTH. The number of directors of the corporation shall be such as from
time to time shall be fixed by or in the manner provided in the by-laws, which
shall not be less than three.
SEVENTH. The corporation shall indemnify each director, officer,
employee or agent of the corporation and each person who is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise in
the manner and to the extent provided in the by-laws of the corporation as the
same may be amended from time to time.
No director shall be personally liable to the corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director shall be liable under
Section 174 of Title 8 of the Delaware Code (the Delaware General Corporation
Law) or any amendment thereto or successor provision thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, he or she (a) shall have breached his or her duty of loyalty to the
corporation or its stockholders, (b) shall not have acted in good faith or, in
failing to act, shall not have acted in good faith, (c) shall have acted in a
manner involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional misconduct or
a knowing violation of law or (d) shall have derived an improper personal
benefit. Neither the amendment nor repeal of this paragraph, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with
3
<PAGE> 4
this paragraph, shall eliminate or reduce the effect of this paragraph in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this paragraph, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
EIGHTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
NINTH. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
TENTH. Any corporate action upon which a vote of stockholders is
required or permitted may be taken without a meeting or vote of stockholders
with the written consent of stockholders having not less than fifty-one percent
(51%) of all of the stock entitled to vote upon the action if a meeting were
held; provided that in no case shall the written consent be by holders having
less than the minimum percent of the total vote required by statute for the
proposed corporate action and provided that prompt notice be given to all
stockholders of the taking of corporate action without a meeting by less than
unanimous written consent.
ELEVENTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
4
<PAGE> 5
IN WITNESS WHEREOF, Allen Telecom Inc. has caused this Second Restated
Certificate of Incorporation to be signed by Robert G. Paul, its President and
Chief Executive Officer, and attested to by McDara P. Folan, III, its Secretary,
this 1st day of May, 1998.
ALLEN TELECOM INC.
By: /s/ Robert G. Paul
---------------------------
Robert G. Paul, President
and Chief Executive Officer
ATTEST:
/s/ McDara P. Folan, III
- -----------------------------------
McDara P. Folan, III, Secretary
5
<PAGE> 1
Exhibit 4(b)
As amended and restated through
December 4, 1997
ALLEN TELECOM INC.
* * * * * * *
B Y - L A W S
* * * * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the offices of the corporation in Beachwood, Ohio, or
at such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1974, shall be held on the fourth Tuesday in April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
a board of directors by a plurality vote, which may or may not be by written
ballot as determined by the board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE> 2
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting at least ten (10) days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chairman of the board or president and shall
be called by the chairman of the board, president or secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given at least ten (10) days before the date of the meeting, to
each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting, at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express
2
<PAGE> 3
provision of the statutes or of the certificate of incorporation, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 10. Each stockholder shall at every meeting of the stockholders
be entitled to one (1) vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be voted
on after three (3) years from its date, unless the proxy provides for a longer
period.
Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, by any provision of the statutes, the meeting and vote of stockholders
may be dispensed with if all of the stockholders who would have been entitled to
vote upon the action if such meeting were held shall consent in writing to such
corporate action being taken; or if the certificate of incorporation authorizes
the action to be taken with the written consent of the holders of less than all
of the stock who would have been entitled to vote upon the action if a meeting
were held, then on the written consent of the stockholders having not less than
such percentage of the number of votes as may be authorized in the certificate
of incorporation; provided that in no case shall the written consent be by the
holders of stock having less than the minimum percentage of the vote required by
statute for the proposed corporate action, and provided that prompt notice must
be given to all stockholders of the taking of corporate action without a meeting
and by less than unanimous written consent.
Section 12. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by
the board of directors. Any stockholders of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the secretary, request the board of directors to fix a record
date. The board of directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the board of
directors within ten (10) days following the receipt of such a request, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of stockholders meetings are
recorded, to the attention of the secretary of the corporation. Delivery shall
be by hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the board of directors and prior action by the
board of directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
board of directors adopts the resolution taking such prior action.
3
<PAGE> 4
Section 13. In advance of any meeting of stockholders, the board of
directors may appoint three or more inspectors of election, who need not be
stockholders, as to the matters to be submitted to a vote at any such meeting.
The inspectors of election shall (i) determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of proxies, (ii)
receive votes or ballots, (iii) hear and determine all challenges and questions
arising in any way in connection with the right to vote, (iv) count and tabulate
all votes and (v) determine and report to the meeting the results. The
inspectors shall take an oath that they will perform their duties impartially,
in good faith, and to the best of their ability and as expeditiously as is
practical. In the absence of appointment by the board of directors, the
inspectors may be appointed by the chairman of the board or the president.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three (3) nor more than fifteen (15), as may be
designated from time to time by the board of directors. The directors shall be
elected at the annual meeting of stockholders, except as provided in Section 2
of this Article, and each director elected shall hold office until his successor
is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent
(10%) of the total number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be held to fill any
such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by its
board of directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
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<PAGE> 5
THE CHAIRMAN OF THE BOARD
Section 4. The board of directors may choose a chairman of the board
who shall hold the position until his or her successor is chosen and qualifies
and who may be removed at any time by the affirmative vote of a majority of the
board of directors. Any vacancy occurring in the position of chairman of the
board may be filled by the board of directors. The chairman of the board shall
preside at all meetings of the board of directors and stockholders, and shall
have such other powers and duties as may from time to time be prescribed by the
board of directors, upon written directions given to him or her pursuant to
resolutions duly adopted by the board of directors. The chairman of the board
shall not be an officer of the corporation.
THE VICE CHAIRMAN OF THE BOARD
Section 5. The board of directors may choose a vice chairman of the
board who shall hold the position until his or her successor is chosen and
qualifies and who may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in the position of
vice chairman of the board may be filled by the board of directors. The vice
chairman of the board shall perform the duties of the chairman of the board in
the absence of the chairman or in the event of his or her inability or refusal
to act, and also shall perform such other duties as the board of directors may
from time to time prescribe. The vice chairman of the board shall not be an
officer of the corporation.
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 7. The first meeting of each newly elected board of directors
shall be held without other notice than this by-law immediately after and at the
same place as the annual meeting of stockholders. In the event such meeting is
not held at said time and place, the meeting may be held at such time and place
as shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors or as shall be specified in a written waiver
signed by all the directors.
Section 8. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 9. Special meetings of the board of directors for any purpose
or purposes may be called by the chairman of the board or president, and the
chairman of the board, president or the secretary shall call a special meeting
upon request of two directors. If given personally, by telephone or by telegram,
the notice shall be given at least the day prior to the meeting. Notice may be
given by mail if it is mailed at least five days before the meeting. In the
event of an emergency which in the judgment of the chairman of the board or
president requires immediate action, a special meeting may be convened without
notice, consisting of those directors who are immediately available by telephone
and can be joined in the meeting by conference telephone.
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The actions taken at such a meeting shall be valid if at least a quorum of the
directors participates either personally or by conference telephone.
Section 10. At all meetings of the board, a majority of the total
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 11. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may, by resolution passed by a
majority of the whole board, designate one (1) or more committees, each
committee to consist of one (1) or more of the directors of the corporation. The
board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution,
shall have and may exercise the powers of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it;
provided, however, that in the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Such committee
or committees shall have such name or names as may be determined from time to
time by resolution adopted by the board of directors.
Section 13. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 14. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary, a
treasurer and a controller. The board of directors may also choose a chief
executive officer, a chief operating officer, a chief financial officer,
additional vice-presidents, including senior vice-presidents, group
vice-presidents and assistant vice-presidents, and one (1) or more assistant
secretaries, assistant treasurers and assistant controllers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one (1) or more
vice-presidents, a secretary, a treasurer and a controller.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
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THE PRESIDENT
Section 6. The president shall have general and active management of
the business of the corporation and shall see that all orders and resolutions of
the board of directors are carried into effect, and in the absence of the
chairman of the board and the vice chairman of the board or in the event of
their inability or refusal to act shall preside at all meetings of the
stockholders and the board of directors.
Section 7. He shall possess the power to sign all certificates,
contracts and other instruments which may be authorized by the board of
directors, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the board of directors to some other officer or agent of the
corporation.
CHIEF EXECUTIVE OFFICER
Section 8. The board of directors may from time to time appoint a chief
executive officer who shall, subject to the control of the board of directors,
have responsibility for the general supervision of all aspects of the business
of the corporation and corporate development, expansion and contraction and
long-range planning of the corporation, including, without limitation, the
acquisition, development and disposition of facilities necessary to implement
the foregoing. The chief executive officer shall have and exercise such further
powers and duties as may be specifically delegated or vested in him from time to
time by these by-laws or by the board of directors. He shall possess the power
to sign all certificates, contracts and other instruments which may be
authorized by the board of directors, except where required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation. The chief executive officer may combine his
duties with those of any other office assigned to him by the board of directors.
CHIEF OPERATING OFFICER
Section 9. The board of directors may from time to time appoint a chief
operating officer who shall, subject to the control of the board of directors,
have responsibility for the operations and functioning of the corporation's
operating units and programs and the allocation among the corporation's
operating units and programs of other officers and principal executive personnel
of the corporation. The chief operating officer shall also perform such other
duties and have such other powers as may be assigned to him by the board of
directors. He shall possess the power to sign all certificates, contracts and
other instruments which may be authorized by the board of directors, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation. The
chief operating officer may combine his duties with those of any other office
assigned to him by the board of directors.
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CHIEF FINANCIAL OFFICER
Section 10. The board of directors may from time to time appoint a
chief financial officer who shall, subject to the control of the board of
directors, have responsibility for the corporation's finances and financial
planning, the allocation among the corporation's operating units and programs of
the corporation's financial resources and the corporation's internal accounting,
auditing and financial controls. The chief financial officer shall also perform
such other duties and have such other powers as may be assigned to him by the
board of directors. He shall possess the power to sign all certificates,
contracts and other instruments which may be authorized by the board of
directors, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the board of directors to some other officer or agent of the
corporation. The chief financial officer may combine his duties with those of
any other office assigned to him by the board of directors.
THE SENIOR VICE-PRESIDENTS AND VICE-PRESIDENTS
Section 11. In the absence of the president or in the event of his
inability or refusal to act, the senior vice-president or vice-president (or in
the event there be more than one (1) senior vice-president or vice-president,
the senior vice-presidents or vice-presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the president, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the president. They shall possess
the power to sign all certificates, contracts and other instruments which may be
authorized by the board of directors, except where required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation. The senior vice-presidents and
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 12. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 13. The assistant secretary, or if there be more than one (1),
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election), shall,
in the absence of the secretary or in the event of his
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inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 14. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 15. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 16. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six (6) years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office and for the restoration
to the corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 17. The assistant treasurer, or if there shall be more than one
(1), the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE CONTROLLER AND ASSISTANT CONTROLLERS
Section 18. The controller shall have the custody of the accounting
records of the corporation and shall keep full and accurate accounts of the
financial condition and results of operations of the corporation in books
belonging to the corporation and shall maintain the accounting and internal
control systems of the corporation and implement the corporation's policies and
procedures with respect to internal accounting and auditing and financial
controls.
Section 19. The controller shall render to the president and the board
of directors, at its regular meetings, or when the board of directors so
requires, financial statements reflecting the results of operations and
financial condition of the corporation.
Section 20. The assistant controller, or if there shall be more than
one (1), the assistant controllers in the order determined by the board of
directors (or if there be no such determination,
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then in the order of their election), shall, in the absence of the controller or
in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the controller and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
INDEMNIFICATION
Section 1. INDEMNIFICATION IN ACTIONS OTHER THAN IN AN ACTION BY OR IN
THE RIGHT OF THE CORPORATION. To the full extent permitted by Delaware law from
time to time in effect and subject to the provisions of Section 3 of this
Article, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. To the full extent permitted by Delaware law from time to time in
effect and subject to the provisions of Section 3 of this Article, the
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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Section 3. DETERMINATION OF CONDUCT. Any indemnification under Sections
1 and 2 of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Sections 1 and 2. Such determination shall be made (1) by a majority of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel (compensated by the corporation) in a
written opinion, or (3) by the stockholders.
Section 4. RIGHT TO PAYMENT OF EXPENSES. To the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 5. PAYMENT OF EXPENSES IN ADVANCE. Expenses (including
attorneys' fees) incurred by an officer or director in defending a civil,
criminal, administrative or investigative action, suit or proceeding, or threat
thereof, may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
Section 6. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. The term "corporation" as used in this Article shall include the
Michigan predecessor of the corporation.
Section 7. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article or of Section 145 of
the General Corporation Law.
Section 8. RIGHTS TO CONTINUE. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 9. CONDITIONAL INDEMNIFICATION FOR CERTAIN PROCEEDINGS.
Notwithstanding anything in this Article to the contrary, (i) no director,
officer, employee or agent shall be entitled
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to indemnification pursuant to this Article in connection with any action, suit
or proceeding initiated by such person unless the board of directors has
authorized or consented to the initiation of such action, suit or proceeding,
and (ii) in the event that the corporation has entered into an indemnification
agreement with a director or officer, approved by the board of directors, and
the terms of any provision of such agreement conflict with any terms set forth
in this Article VI, the provision set forth in such agreement shall govern.
ARTICLE VII
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
Section 2. Where a certificate is countersigned (1) by a transfer agent
other than the corporation or its employee, or (2) by a registrar other than the
corporation or its employee, any other signature on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
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TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at the
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation begins on the first day
of January and ends on the thirty-first day of December in each year.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting.
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Exhibit 4(c)
CERTIFICATE OF DESIGNATION
of
SERIES C JUNIOR PARTICIPATING
PREFERRED STOCK
of
ALLEN TELECOM INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
Allen Telecom Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Company"), DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the
Company by its Restated Certificate of Incorporation, as amended, and pursuant
to the provisions of Section 151 of the General Corporation Law, the Board of
Directors of the Company has adopted the following resolution providing for the
issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company (hereinafter called the "Board
of Directors" or the "Board") by the Restated Certificate of Incorporation of
the Company, as amended, a series of Preferred Stock, without par value (the
"Preferred Stock"), of the Company be, and it hereby is, created, and that the
designation and amount thereof and the powers, designations, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
I. Designation and Amount
----------------------
The shares of such series will be designated as Series C Junior
Participating Preferred Stock (the "Series C Preferred") and the number of
shares constituting the Series C Preferred is 500,000. Such number of shares may
be increased or decreased by resolution of the Board; PROVIDED, HOWEVER, that no
decrease will reduce the number of shares of Series C Preferred to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Company
convertible into Series C Preferred.
<PAGE> 2
II. Dividends and Distributions
---------------------------
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock ranking prior to the Series C Preferred with respect to
dividends, the holders of shares of Series C Preferred, in preference to the
holders of Common Stock, par value $1.00 per share (the "Common Stock"), of the
Company, and of any other junior stock, will be entitled to receive, when, as
and if declared by the Board out of funds legally available for the purpose,
dividends payable in cash (except as otherwise provided below) on such dates as
are from time to time established for the payment of dividends on the Common
Stock (each such date being referred to herein as a "Dividend Payment Date"),
commencing on the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series C Preferred (the "First Dividend Payment
Date"), in an amount per share (rounded to the nearest cent) equal to the
greater of (i) $1.00 or (ii) subject to the provision for adjustment hereinafter
set forth, one hundred times the aggregate per share amount of all cash
dividends, and one hundred times the aggregate per share amount (payable in
kind) of all non-cash dividends, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Dividend Payment Date or, with respect to the First
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series C Preferred. In the event that the Company at any time (i)
declares a dividend on the outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivides the outstanding shares of Common Stock, (iii)
combines the outstanding shares of Common Stock into a smaller number of shares,
or (iv) issues any shares of its capital stock in a reclassification of the
outstanding shares of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), then, in each such case and regardless of whether any
shares of Series C Preferred are then issued or outstanding, the amount to which
holders of shares of Series C Preferred would otherwise be entitled immediately
prior to such event under clause (ii) of the preceding sentence will be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Company will declare a dividend on the Series C Preferred as
provided in the immediately preceding paragraph immediately after it declares a
dividend on the Common Stock (other than a dividend payable in shares of Common
Stock). Each such dividend on the Series C Preferred will be payable immediately
prior to the time at which the related dividend on the Common Stock is payable.
(c) Dividends will accrue on outstanding shares of Series C Preferred
from the Dividend Payment Date next preceding the date of issue of such shares,
unless (i) the date of issue of such shares is prior to the record date for the
First Dividend Payment Date, in which case dividends on such shares will accrue
from the date of the first issuance of a share of Series C Preferred or (ii) the
date of issue is a Dividend Payment Date or is a date after the record date for
the determination of holders of shares of Series C Preferred entitled to receive
a dividend and before such Dividend Payment Date, in either of which events such
dividends will accrue from such Dividend Payment Date. Accrued but unpaid
dividends will cumulate from the applicable
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<PAGE> 3
Dividend Payment Date but will not bear interest. Dividends paid on the shares
of Series C Preferred in an amount less than the total amount of such dividends
at the time accrued and payable on such shares will be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
may fix a record date for the determination of holders of shares of Series C
Preferred entitled to receive payment of a dividend or distribution declared
thereon, which record date will be not more than 60 calendar days prior to the
date fixed for the payment thereof.
III. Voting Rights
-------------
The holders of shares of Series C Preferred will have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Preferred will entitle the holder thereof
to one hundred votes on all matters submitted to a vote of the
stockholders of the Company. In the event the Company at any time (i)
declares a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (ii) subdivides the outstanding shares of
Common Stock, (iii) combines the outstanding shares of Common Stock
into a smaller number of shares, or (iv) issues any shares of its
capital stock in a reclassification of the outstanding shares of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), then, in each such case and regardless of
whether any shares of Series C Preferred are then issued or
outstanding, the number of votes per share to which holders of shares
of Series C Preferred would otherwise be entitled immediately prior to
such event will be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other
Preferred Stock Designation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series C Preferred
and the holders of shares of Common Stock and any other capital stock
of the Company having general voting rights will vote together as one
class on all matters submitted to a vote of stockholders of the
Company.
(c) Except as set forth in the Restated Certificate of
Incorporation, as amended, or herein, or as otherwise provided by law,
holders of shares of Series C Preferred will have no voting rights.
IV. Certain Restrictions
--------------------
(a) Whenever dividends or other dividends or distributions payable on
the Series C Preferred are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
C Preferred outstanding have been paid in full, the Company will not:
3
<PAGE> 4
(i) Declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the shares
of Series C Preferred;
(ii) Declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution, or winding up) with the
shares of Series C Preferred, except dividends paid ratably on the
shares of Series C Preferred and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) Redeem, purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the shares of Series C
Preferred; PROVIDED, HOWEVER, that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Company ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the
shares of Series C Preferred; or
(iv) Redeem, purchase or otherwise acquire for consideration
any shares of Series C Preferred, or any shares of stock ranking on a
parity with the shares of Series C Preferred, except in accordance with
a purchase offer made in writing or by publication (as determined by
the Board) to all holders of such shares upon such terms as the Board,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
may determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(b) The Company will not permit any majority-owned subsidiary of the
Company to purchase or otherwise acquire for consideration any shares of stock
of the Company unless the Company could, under paragraph (a) of this Article IV,
purchase or otherwise acquire such shares at such time and in such manner.
V. Reacquired Shares
-----------------
Any shares of Series C Preferred purchased or otherwise acquired by the
Company in any manner whatsoever will be retired and canceled promptly after the
acquisition thereof. All such shares will upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock subject to the conditions and restrictions on
issuance set forth herein, in the Restated Certificate of Incorporation of the
Company, as amended, or in any other Preferred Stock Designation creating a
series of Preferred Stock or any similar stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
--------------------------------------
Upon any liquidation, dissolution or winding up of the Company, no
distribution will be made (a) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution, or winding up) to the
shares of Series C Preferred unless, prior thereto,
4
<PAGE> 5
the holders of shares of Series C Preferred have received $100 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment; PROVIDED, HOWEVER, that
the holders of shares of Series C Preferred will be entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to one hundred times the aggregate amount to be distributed per
share to holders of shares of Common Stock or (b) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution, or winding up) with the shares of Series C Preferred, except
distributions made ratably on the shares of Series C Preferred and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution, or winding up. In the
event the Company at any time (i) declares a dividend on the outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding shares of Common Stock, (iii) combines the outstanding shares of
Common Stock into a smaller number of shares, or (iv) issues any shares of its
capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), then,
in each such case and regardless of whether any shares of Series C Preferred are
then issued or outstanding, the aggregate amount to which each holder of shares
of Series C Preferred would otherwise be entitled immediately prior to such
event under the proviso in clause (a) of the preceding sentence will be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
VII. Consolidation, Merger, Etc.
---------------------------
In the event that the Company enters into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then, in each such case, each share of Series C Preferred will at the
same time be similarly exchanged for or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to one
hundred times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Company at any
time (a) declares a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (b) subdivides the outstanding shares of Common
Stock, (c) combines the outstanding shares of Common Stock into a smaller number
of shares, or (d) issues any shares of its capital stock in a reclassification
of the outstanding shares of Common Stock (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series C Preferred are then issued or outstanding, the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series C Preferred will be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
5
<PAGE> 6
VIII. Redemption
----------
The shares of Series C Preferred are not redeemable.
IX. Rank
----
The Series C Preferred rank, with respect to the payment of dividends
and the distribution of assets, junior to all other series of the Company's
Preferred Stock.
X. Amendment
---------
Notwithstanding anything contained in the Restated Certificate of
Incorporation of the Company, as amended, to the contrary and in addition to any
other vote required by applicable law, the Restated Certificate of Incorporation
of the Company, as amended, may not be amended in any manner that would
materially alter or change the powers, preferences or special rights of the
Series C Preferred so as to affect them adversely without the affirmative vote
of the holders of at least 80% of the outstanding shares of Series C Preferred,
voting together as a single series.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Company by its President and attested by its Secretary this 6th
day of January, 1998.
/s/ Robert G. Paul
--------------------------------
Robert G. Paul
President
Attest:
/s/ McDara P. Folan, III
- ---------------------------------
McDara P. Folan, III
Secretary
6
<PAGE> 1
Exhibit 4(e)
Conformed Copy
ALLEN TELECOM INC
1992 STOCK PLAN, AS AMENDED
1. PURPOSE. The purpose of this 1992 Stock Plan (the "Plan") is to
advance the interests of Allen Telecom Inc. (the "Company") and its stockholders
by providing an incentive for attracting and retaining key employees of the
Company and its subsidiaries and increasing their identification with the
Company and its objectives. The Plan permits grants of options to purchase
shares of Common Stock, $1.00 par value, of the Company ("Common Stock") and
awards of shares of Common Stock that are restricted as provided in Section 6
("Restricted Shares"). Awards of Restricted Shares may be in lieu of or in
addition to grants of options under the Plan. It is intended that options issued
under this Plan shall constitute (a) incentive stock options ("Incentive Stock
Options") within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and the treasury regulations promulgated
thereunder, to the extent provided in Section 5(a) hereof, or (b) options which
do not qualify as incentive stock options ("Non-qualified Stock Options").
2. SHARES SUBJECT TO PLAN. The total number of shares of Common Stock
with respect to which options may be granted and Restricted Shares may be
awarded under the Plan shall not exceed 3,528,221. Shares awarded as Restricted
Shares or issued upon exercise of options granted under the Plan may be
authorized and previously unissued shares, issued shares which have been
reacquired by the Company or a combination thereof. In the event that any
Restricted Shares shall be forfeited or any option granted under the Plan shall
terminate, expire or, with the consent of the optionee, be canceled as to any
shares of Common Stock, without having been exercised in full, new awards of
Restricted Shares may be made or new options may be granted with respect to such
shares without again being charged against the maximum share limitation set
forth above in this Section 2. In addition, upon the full or partial payment of
any option price by the transfer to the Company of shares of Common Stock or
upon satisfaction of tax withholding obligations in connection with any such
exercise or the lapsing of restrictions on any Restricted Shares or any other
payment made or benefit realized under this Plan by the transfer or
relinquishment of shares of Common Stock, only the net number of shares of
Common Stock actually issued or transferred by the Company, after subtracting
the number of shares of Common Stock so transferred or relinquished, shall be
charged against the maximum share limitation set forth above in this Section 2;
provided, however, that the number of shares of Common Stock actually issued or
transferred by the Company upon the exercise of Incentive Stock Options shall
not exceed such maximum share limitation.
No employee shall be granted options for more than 200,000 shares of
Common Stock, or awarded more than 100,000 Restricted Shares, under the Plan in
any one fiscal year of the Company, subject to adjustments as provided in
Section 7 of this Plan.
<PAGE> 2
3. ADMINISTRATION. The Plan shall be administered by a Stock Option
Committee, or any successor Committee (hereinafter called the "Committee"),
which shall be appointed by the Board of Directors of the Company and shall
consist of such number of directors, not less than two, as shall be determined
by the Board, who shall serve at the pleasure of the Board, and each of whom
shall at the time of designation and service be a "disinterested person" within
the meaning of Rule 16b-3 of the Securities and Exchange Commission or any
successor provision at the time in effect ("Rule 16b-3"). Vacancies occurring in
the membership of the Committee shall be filled by appointment by the Board. If
for any reason the Committee is unable to perform its functions and duties under
the Plan, the Board of Directors may perform any of such functions and duties.
In such event, the quorum and voting requirements specified in this Section 3
with respect to the Committee shall be applicable to the Board of Directors.
The Committee, from time to time, may adopt rules and regulations for
carrying out the provisions and purposes of the Plan. The interpretation and
construction by the Committee of any provisions of, and the determination of any
question arising under, the Plan, any such rule or regulation, or any agreement
granting options or Restricted Shares under the Plan, shall be final and
conclusive and binding on all persons interested in the Plan.
The Committee shall maintain written minutes of its proceedings. A
majority of the Committee shall constitute a quorum, and the acts of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by all the members, shall be acts of the Committee.
4. ELIGIBILITY. The Committee, in its sole discretion, shall determine
the officers and other key employees of the Company and its subsidiaries (who
need not have been so employed on the date of adoption of the Plan) to whom
options and Restricted Shares shall be granted, the time or times when they
shall be granted, when options may be exercised and the number of shares to be
awarded as Restricted Shares or to be covered by each option so granted. No
director who is not an officer or employee of the Company or a subsidiary
thereof and no member of the Committee, during the time of his service as such,
shall be eligible to receive an option or any Restricted Shares under the Plan.
No person who owns or, under the provisions of Section 425(d) of the Code, is
considered as owning, stock possessing more than 10 percent of the total
combined voting power of all classes of stock of the Company or of any
subsidiary of the Company shall be eligible to receive an option or Restricted
Shares under the Plan. The Committee shall be under no duty to provide terms of
like duration for options granted under the Plan.
5. TERMS AND CONDITIONS OF OPTIONS. All options approved by the
Committee under the Plan shall be evidenced by stock option agreements in
writing (hereinafter called "option agreements"), in such form as the Committee
may from time to time approve, executed on behalf of the Company by one or more
members of the Committee. Each such agreement shall be subject to the Plan and,
in addition to such other terms and conditions as the Committee may deem
desirable, shall provide in substance as follows:
(a) LIMITATIONS. The aggregate Fair Market Value (as defined in Section
5(c) hereof) of the shares of Common Stock (determined as of the date of grant)
with respect to which Incentive
2
<PAGE> 3
Stock Options may be first exercisable by an optionee during any calendar year
under this Plan and all other option plans of the Company and its subsidiaries
shall not exceed $100,000; provided, however, that, to the extent permitted by
the Code and the treasury regulations promulgated thereunder, nothing contained
in this section 5(a) shall be interpreted to prevent an optionee (i) from
exercising in any year subsequent to the year in which an Incentive Stock Option
first became exercisable the whole or any portion of such Incentive Stock Option
not exercised in the year such Incentive Stock Option first became exercisable,
(ii) from exercising in whole or in part any Incentive Stock Option granted on
or before December 31, 1986, under any other plan of the Company, or (iii) from
exercising Incentive Stock Options in full pursuant to the terms of Section 7(c)
hereof. Non-qualified Stock Options may be exercised by an optionee without
regard to the limitations stated in the previous sentence.
(b) CONSIDERATION AND PERIOD OF EMPLOYMENT. Each option agreement shall
contain an agreement by the optionee, as consideration for the option or options
granted thereunder, that he will remain in the employ of the Company or a
subsidiary thereof for a period of two years, or such longer period as the
Committee may specify, from the date of the grant thereof, but that nothing
contained in the Plan or such provisions shall confer any right on such optionee
to continue in the employ of the Company or any subsidiary by which he is
employed or be deemed to affect in any way any right of the Company or such
subsidiary to terminate his employment at any time.
(c) NUMBER AND PRICE OF SHARES. Each option agreement shall specify the
number of shares of Common Stock covered by such option and the purchase price
per share thereof. Such price shall be equal to 100% of the Fair Market Value of
the shares as of the date such option is granted ("Fair Market Value"). Such
Fair Market Value shall be the last sale price of Common Stock on the day next
preceding such date as reported on the New York Stock Exchange Composite Tape
or, in the event that no sale shall have taken place on a national securities
exchange on such next preceding day, the last sale price of Common Stock on the
next preceding day on which there was a sale as reported on the New York Stock
Exchange Composite Tape or the fair market value on such date as determined by
the Committee in accordance with applicable law and regulations. The option
price shall be subject to adjustment as provided in Section 7 hereof.
(d) TIME OF EXERCISE. Each option agreement shall set forth the period
during which it may be exercised which shall be determined by the Committee at
the time of grant, provided that each Non qualified Stock Option shall expire
not more than ten years and two days after the date such Option is granted and
each Incentive Stock Option shall expire not more than ten years after the date
such Option is granted (the period set forth in each option agreement being
hereinafter referred to as "option period").
(e) MANNER OF EXERCISE. Each option agreement shall provide that any
option therein granted shall be exercisable only by giving in each case written
notice of exercise, accompanied by full payment of the purchase price either (i)
in cash (including check, bank draft or money order, or wire or other transfer
of funds, or advice of credit to the Company) or (ii) at the discretion of the
Committee, in shares of Common Stock with a fair market value equal to the
purchase price or a combination of cash and shares of Common Stock which in the
aggregate are
3
<PAGE> 4
equal in value to such purchase price. At the discretion of the Committee, the
option agreement may provide that shares of Common Stock may be issued in the
name of the optionee and another person jointly with the right of survivorship.
(f) PURCHASE OF OPTION BY COMPANY. Any option at any time granted under
the Plan may contain (or be amended to contain, subject to Section 13 hereof) a
provision to the effect that the optionee (or any person entitled to act under
Section 5(g) hereof) shall have the right (the "Right"), at any time at which
the fair market value is in excess of the exercise price and prior to exercising
the option, in whole or in part, to request that the Company purchase all or any
portion of the option as shall then be exercisable at a price equal to the
difference between (i) an amount equal to the option price multiplied by the
number of shares subject to that portion of the option in respect of which such
request shall be made and (ii) an amount equal to such number of shares
multiplied by the fair market value of the Company's Common Stock (within the
meaning of Section 422 of the Code and the treasury regulations promulgated
thereunder). The Company shall have no obligation to make any purchase pursuant
to such request, but if it elects to do so, such portion of the option as to
which the request is made shall be surrendered to the Company. The purchase
price for the portion of the option so to be surrendered shall be paid by the
Company, at the election of the Committee, either in cash or in shares of Common
Stock (valued as of the date and in the manner provided in clause (ii) above),
or in any combination of cash and Common Stock, which may consist, in whole or
in part, of shares of authorized but unissued Common Stock or shares of Common
Stock held in the Company's treasury. No fractional share of Common Stock shall
be issued or transferred and any fractional share shall be disregarded. Shares
covered by that portion of any option purchased by the Company pursuant hereto
and surrendered to the Company shall not be available for the granting of
further options or Restricted Shares under the Plan. All determinations to be
made by the Company hereunder shall be made by the Committee.
(g) TERMINATION OF EMPLOYMENT. Each option agreement shall provide
substantially as follows: Except as hereinafter set forth, no option shall be
exercisable after the date of termination of the optionee's employment. If an
optionee's employment terminates for any reason, such option may be exercised by
the optionee within three months after such termination, but only to the extent
that it was exercisable on the date of such termination. If an optionee shall
die within such three-month period, or if termination of his employment shall
have been due to such optionee's death, such option may be exercised at any time
within one year after such death by the optionee's executor or administrator or
by his distributee to whom the option may have been transferred by will or by
the laws of descent and distribution but only to the extent that it was
exercisable on the date of the optionee's death. Notwithstanding anything to the
contrary herein, if upon an optionee's termination of employment the optionee
becomes a senior management consultant to the Company and/or its subsidiaries
under a post-employment consulting arrangement, such option shall continue to
vest under its original vesting schedule, and may be exercised by the optionee,
during the period ending on the earliest of (i) the ninetieth (90th) day
following the date that the optionee permanently ceases to render consulting
services to the Company and/or its subsidiaries, for any reason other than
cessation by reason of death, under a post-employment consulting arrangement,
(ii) the date that is one year after the date described in clause (i) if the
optionee ceases to render consulting services on account of his death (in which
case such option may be exercised by the optionee's executor or administrator or
by his distributee
4
<PAGE> 5
to whom the option may have been transferred by will or by the laws of descent
and distribution, but only to the extent that it was exercisable on the date of
the optionee's death), or (iii) the date that is the five-year anniversary of
the date the optionee terminates employment with the Company and its
subsidiaries. The foregoing provision shall not extend the period during which
an option may be exercised beyond the date it expires by its terms.
(h) NON-TRANSFERABILITY OF OPTIONS, RIGHTS OR LIMITED RIGHTS. Each
option agreement shall provide that any option therein granted and any related
Right or Limited Right (as hereinafter defined) is not transferable by the
optionee other than by will or by the laws of descent and distribution and that,
during the lifetime of the optionee, such option may be exercised only by the
optionee or such optionee's legal representative.
(i) PRIOR OUTSTANDING OPTIONS. Each option agreement evidencing an
Incentive Stock Option shall provide that, if such Incentive Stock Option is
exercisable by its terms, it may be exercised while there is outstanding (within
the meaning of Section 422(c)(7) of the Code) any other Incentive Stock Option
to purchase shares of Common Stock of the Company or of a corporation which is a
subsidiary of the Company or of a predecessor corporation of the Company or such
subsidiary.
(j) ADJUSTMENTS. Each option agreement shall provide for adjustment of
the number and kind of shares under option and the purchase price per share in
the manner provided in Section 7 hereof.
6. RESTRICTED SHARES. (a) AWARDS. The Committee may from time to time
in its discretion award Restricted Shares to officers and other key employees
and may determine the number of Restricted Shares awarded and the terms and
conditions of, and the amount of payment, if any, to be made by the employee
for, such Restricted Shares. Each award of Restricted Shares will be evidenced
by a written agreement executed on behalf of the Company by one or more members
of the Committee and containing terms and conditions not inconsistent with the
Plan as the Committee shall determine to be appropriate in its sole discretion.
(b) RESTRICTED PERIOD; LAPSE OF RESTRICTIONS. At the time an award of
Restricted Shares is made, the Committee shall establish a period of time (the
"Restricted Period") applicable to such award which shall not be less than one
year nor more than ten years. Each award of Restricted Shares may have a
different Restricted Period. At the time an award is made, the Committee may, in
its discretion, prescribe conditions for the incremental lapse of restrictions
during the Restricted Period and for the lapse or termination of restrictions
upon the occurrence of other conditions in addition to or other than the
expiration of the Restricted Period with respect to all or any portion of the
Restricted Shares. Such conditions may include, without limitation, the death or
disability of the employee to whom Restricted Shares are awarded, retirement of
the employee pursuant to normal or early retirement under any retirement plan of
the Company or termination by the Company of the employee's employment other
than for cause, or the occurrence of an Acceleration Date (as defined in Section
7(c) hereof). Such conditions may also include performance measures, which, in
the case of any such award of Restricted Shares to an employee who is a "covered
employee" within the meaning of Section 162(m) of the Code, shall be based on
one or more of the following criteria: earnings per share, market value per
share,
5
<PAGE> 6
return on invested capital, return on operating assets and return on equity. The
Committee may also, in its discretion, shorten or terminate the Restricted
Period or waive any conditions for the lapse or termination of restrictions with
respect to all or any portion of the Restricted Shares at any time after the
date the award is made.
(c) RIGHTS OF HOLDER; LIMITATIONS THEREON. Upon an award of Restricted
Shares, a stock certificate representing the number of Restricted Shares awarded
to the employee shall be registered in the employee's name and, at the
discretion of the Committee, will be either delivered to the employee with an
appropriate legend or held in custody by the Company or a bank for the
employee's account. The employee shall generally have the rights and privileges
of a stockholder as to such Restricted Shares, including the right to vote such
Restricted Shares, except that the following restrictions shall apply: (i) with
respect to each Restricted Share, the employee shall not be entitled to delivery
of an unlegended certificate until the expiration or termination of the
Restricted Period, and the satisfaction of any other conditions prescribed by
the Committee, relating to such Restricted Share; (ii) with respect to each
Restricted Share, such share may not be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of until the expiration of the Restricted
Period, and the satisfaction of any other conditions prescribed by the
Committee, relating to such Restricted Share; and (iii) all of the Restricted
Shares as to which restrictions have not at the time lapsed shall be forfeited
and all rights of the employee to such Restricted Shares shall terminate without
further obligation on the part of the Company unless the employee has remained a
regular full-time employee of the Company or any of its subsidiaries, or a
consultant to the Company or a subsidiary under a post-employment consulting
arrangement, until the expiration or termination of the Restricted Period and
the satisfaction of any other conditions prescribed by the Committee applicable
to such Restricted Shares. Upon the forfeiture of any Restricted Shares, such
forfeited shares shall be transferred to the Company without further action by
the employee. At the discretion of the Committee, cash and stock dividends with
respect to the Restricted Shares may be either currently paid or withheld by the
Company for the employee's account, and interest may be paid on the amount of
cash dividends withheld at a rate and subject to such terms as determined by the
Committee. The employee shall have the same rights and privileges, and be
subject to the same restrictions, with respect to any shares received pursuant
to Section 7(a) hereof.
(d) DELIVERY OF UNRESTRICTED SHARES. Upon the expiration or termination
of the Restricted Period and the satisfaction of any other conditions prescribed
by the Committee, the restrictions applicable to the Restricted Shares shall
lapse and a stock certificate for the number of Restricted Shares with respect
to which the restrictions have lapsed shall be delivered, free of all such
restrictions, except any that may be imposed by law, to the employee or the
employee's beneficiary or estate, as the case may be. The Company shall not be
required to deliver any fractional share of Common Stock but will pay, in lieu
thereof, the fair market value (determined as of the date the restrictions
lapse) of such fractional share to the employee or the employee's beneficiary or
estate, as the case may be.
7. EFFECT OF CERTAIN CHANGES. (a) The Committee may make or provide for
such adjustments in the option price and in the number or kind of shares or
other securities covered by outstanding options and to the number and class of
shares available for awards of Restricted Shares under the Plan or to any
outstanding Restricted Shares as the Committee in its
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sole discretion, exercised in good faith, shall determine is equitably required
to prevent dilution or enlargement of rights of optionees and holders of
Restricted Shares that would otherwise result from (i) any stock dividend, stock
split, combination of shares, issuance of rights or warrants to purchase stock,
recapitalization or other changes in the capital structure of the Company, (ii)
any merger, consolidation, reorganization, split-up, split-off, spin-off or
partial or complete liquidation, or (iii) any other corporate transaction or
event having an effect similar to any of the foregoing. The Committee also may
make or provide for such adjustments in the number or kinds of shares of Common
Stock or other securities which may be acquired pursuant to the options granted
under the Plan and the number of such securities to be awarded to each optionee
as the Committee in its sole discretion, exercise in good faith, shall determine
is appropriate to reflect any transaction or event described in the preceding
sentence. The determination of the Committee as to what adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive.
(b) In the event of the proposed dissolution or liquidation of the
Company, in addition to the alternatives described in subsection (a) of this
Section 7, the Committee may provide that the holder of each option then
exercisable shall have the right to exercise such option (at its then option
price) solely for the kind and amount of shares of stock and other securities,
property, cash or any combination thereof receivable upon such dissolution or
liquidation by a holder of the number of shares of Common Stock for which such
option might have been exercised immediately prior to such dissolution or
liquidation, or the Committee may provide, in the alternative, that each option
granted under the Plan shall terminate as of a date to be fixed by the Board,
provided, however, that not less than thirty (30) days written notice of the
date so fixed shall be given to each optionee, who shall have the right, during
the period of thirty (30) days preceding such termination, to exercise the
option as to all or any part of the shares of Common Stock covered thereby,
including shares as to which such option would not otherwise be exercisable.
(c) If while unexercised options remain outstanding under the Plan (i)
any "person", as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (other than the Company,
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a transaction
described in clause (i), (iii) or (iv) of this subsection) whose election by the
Board or nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof, (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than (a) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either
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<PAGE> 8
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 30% of the combined voting
power of the Company's then outstanding securities, or (iv) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets, then from and after the date on which public
announcement of the acquisition of such percentage shall have been made, or the
date on which the change in the composition of the Board set forth above shall
have occurred, or the date of any such stockholder approval (any such date being
referred to herein as the "Acceleration Date"), all options shall be exercisable
in full, whether or not otherwise exercisable, but subject, however, in the case
of an Incentive Stock Option, to Section 5(i) hereof. Following the Acceleration
Date, (1) the Committee shall, in the case of a merger, consolidation,
liquidation or sale or disposition of assets, promptly make an appropriate
adjustment to the number and class of shares of Common Stock available for
options and Restricted Shares, and to the amount and kind of shares or other
securities or property receivable upon exercise of any outstanding options after
the effective date of such transaction, and the price thereof, and (2) the
Committee may, in its discretion, permit the cancellation of outstanding options
in exchange for a cash payment in an amount per share subject to any such option
equal to the amount that would be payable pursuant to Section 14(b) hereof upon
exercise of a Limited Right (as defined in Section 14(a) hereof) under those
circumstances, provided, however, that, for purposes of such cancellation and
cash-out, the Acceleration Date shall be restricted in such manner as the
Committee may determine is necessary to comply with the conditions and
requirements of Rule 16b-3 to prevent short-swing profit liability to the holder
thereof under Section 16(b) of the Exchange Act.
(d) Subsections (b) and (c) of this Section 7 shall not apply to a
merger or consolidation in which the Company is the surviving corporation and
shares of Common Stock are not converted into or exchanged for stock or
securities of any other corporation, cash or any other thing of value.
Notwithstanding the preceding sentence, in case of any consolidation or merger
of another corporation into the Company in which the Company is the surviving
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from par value to no par value, or
as a result of a subdivision or combination, but including any change in such
shares into two or more classes or series of shares), the Committee may provide
that the holder of each option then exercisable shall have the right to exercise
such option solely for the kind and amount of shares of stock and other
securities (including those of any new direct or indirect parent of the
Company), property, cash or any combination thereof receivable upon such
reclassification, change, consolidation or merger by the holder of the number of
shares of Common Stock for which such option might have been exercised.
(e) In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any such change shall be deemed
to be the Common Stock within the meaning of the Plan.
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(f) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive,
provided that each Incentive Stock Option granted pursuant to this Plan shall
not be adjusted in a manner that causes such option to fail to continue to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(g) Except as hereinbefore expressly provided in this Section 7, the
optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to the option or the
number or price of Restricted Shares. The grant of an option or of Restricted
Shares pursuant to the Plan shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structures or to merge or to consolidate or to
dissolve, liquidate or sell or transfer all or part of its business or assets.
8. FINANCING OF EXERCISE OF OPTIONS AND PURCHASE OF RESTRICTED SHARES.
To the extent permitted by the regulations of the Federal Reserve Board
governing margin requirements in effect at the time of exercise of any option or
purchase of any Restricted Shares (including any exemption from margin
requirements for employee stock option plans if such exemption is available),
the Company may extend credit, or arrange for the extension of credit, to each
employee who exercises an option or purchases Restricted Shares, at the time of
such exercise or purchase, to assist the employee in the purchase of stock. Such
credit will be collateralized by the stock purchased and will be in an amount
not greater than the lesser of (i) the option or purchase price of the stock or
(ii) the amount of credit permitted by regulations of the Federal Reserve Board.
The rate of interest, terms of repayment and provisions for release of
collateral with respect to each such credit will be as determined by the
Committee at the time the credit is extended, but in any event shall be in
accordance with any applicable regulations of the Federal Reserve Board.
9. RELOAD OPTIONS. In the event the optionee exercises an option and
pays all or a portion of the purchase price in shares of Common Stock, in the
manner permitted by Section 5(e) hereof, such optionee may, in the Committee's
sole discretion, be issued by the Committee a new option to purchase additional
shares of Common Stock equal to the number of shares of Common Stock surrendered
to the Company in such payment. Such new option shall have a purchase price
equal to the Fair Market Value per share (as defined in Section 5(c) hereof) on
the date such new option is granted, and shall have an option period (as defined
in Section 5(d) hereof) which commences six months from the date of grant of the
new option and expires on the same date as the option period of the original
option so exercised by payment of the purchase price in shares of Common Stock.
10. SUBSIDIARY. For the purpose of the Plan a subsidiary of the Company
shall be any corporation which at the time qualifies as a subsidiary thereof
under the definition of "subsidiary
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corporation" contained in Section 425 of the Code, as the same may be amended
from time to time. A transfer of employment from the Company to such a
subsidiary or vice versa or between two such subsidiaries shall not be deemed a
termination of employment.
11. GOVERNMENT REGULATIONS. The Plan, the award or purchase of
Restricted Shares and the grant and exercise of options thereunder, and the
Company's obligation to sell and deliver shares of stock pursuant to any such
award, purchase or exercise, shall be subject to all applicable federal and
state laws, rules and regulations and to such approvals by any regulatory or
government agency as may be required. The Company shall not be required to issue
or deliver any certificate or certificates for shares of its Common Stock prior
to (i) the admission of such shares to listing on any stock exchange on which
the stock may then be listed and (ii) the completion of any registration or
other qualification of such shares under any state or federal law or rulings or
regulations of any government body, which the Company shall, in its sole
discretion, determine to be necessary or advisable.
12. TERM OF THE PLAN. The effective date of the Plan shall be February
27, 1992. The Plan shall terminate ten years from the effective date or on such
earlier date as may be determined by the Board of Directors. In any case,
termination shall be deemed to be effective as of the close of business on the
day of termination. No option may be granted, and no Restricted Shares may be
awarded, after such termination. Termination of the Plan, however, shall not
affect outstanding options or Restricted Shares which have been granted prior to
such termination, and all unexpired options and Restricted Shares shall continue
in force and operation after termination of the Plan except as they may lapse or
terminate by their own terms and conditions and the terms of the Plan shall
continue to apply to such options and Restricted Shares.
13. AMENDMENT OF THE PLAN. The Board of Directors of the Company at any
time and from time to time may suspend or amend the Plan in any respect,
provided, however, that no amendment which requires stockholder approval in
order for the exemptions available under Rule 16b-3 to continue to be applicable
to the Plan shall be effective unless the same shall be approved by the
stockholders of the Company entitled to vote thereon. Without the written
consent of the optionee or the holder of Restricted Shares, no amendment,
modification, suspension or termination of the Plan may adversely affect any
option or Restricted Shares previously granted under the Plan; but it shall be
conclusively presumed that any adjustment for change as provided in Section 7
does not adversely affect any such right.
14. LIMITED RIGHTS. (a) The Committee shall have authority to grant a
limited stock appreciation right (a "Limited Right") to the holder of any option
with respect to all or some of the shares of Common Stock covered by such
option. A Limited Right may be granted either at the time of grant of the
related option or any time thereafter during its term. A Limited Right may be
granted to an optionee irrespective of whether such optionee is being granted or
has been granted a Right under Section 5(f) hereof. A Limited Right shall
automatically be exercised on the "Acceleration Date" (as defined in Section
7(c) hereof). Each Limited Right shall be exercisable only if, and to the extent
that, the related option is exercisable pursuant to Section 7(c) hereof or
otherwise, and, in the case of a Limited Right granted in respect of an
Incentive Stock Option, only when the Fair Market Value per share of Common
Stock exceeds the option price per share. Notwithstanding the provisions of the
two immediately preceding sentences, no
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Limited Right may be exercised until the expiration of six (6) months from the
date of grant of the Limited Right. Upon the exercise of a Limited Right, the
related option shall cease to be exercisable to the extent of the shares of
Common Stock with respect to which such Limited Right is exercised, but shall be
considered to have been exercised to that extent for purposes of determining the
number of shares of Common Stock available for the grant of further stock
options and Rights or the award of further Restricted Shares pursuant to this
Plan. Upon the exercise or termination of an option, the Limited Right with
respect to such option shall terminate to the extent of the shares of Common
Stock with respect to which such option was exercised or terminated.
(b) Upon the exercise of a Limited Right, the holder thereof shall
receive in cash whichever of the following amounts is applicable.
(i) in the case of an exercise of Limited Rights by reason of
an acquisition of Common Stock described in Section 7(c)(i) hereof, an
amount equal to the Acquisition Spread (as defined in Section 14(d)
hereof);
(ii) in the case of an exercise of Limited Rights by reason of
the change in composition of the Board of Directors described in
Section 7(c)(ii), an amount equal to the Spread (as defined in Section
14(e) hereof);
(iii) in the case of an exercise of Limited Rights by reason
of stockholder approval of an agreement described in Section 7(c)(iii),
an amount equal to the Merger Spread (as defined in Section 14(g)
hereof); or
(iv) in the case of an exercise of Limited Rights by reason of
stockholder approval of a plan or agreement described in Section
7(c)(iv), an amount equal to the Liquidation Spread (as defined in
Section 14(i) hereof).
Notwithstanding the foregoing, in the case of a Limited Right granted
in respect of an Incentive Stock Option, the holder may not receive an amount in
excess of such amount as will enable such option to qualify as an Incentive
Stock Option.
(c) The term "Acquisition Price per Share" as used in this Section 14
shall mean, with respect to the exercise of any Limited Right by reason of an
acquisition of Common Stock described in Section 7(c)(i), the greater of (i) the
highest price per share shown on the Statement on Schedule 13D or amendment
thereto filed by the holder of 30% (or such greater percentage as shall be
required in order for the exemptions available under Rule 16b-3 to continue to
be applicable to the Plan) or more of the Company's Common Stock which gives
rise to the exercise of such Limited Right, and (ii) the highest Fair Market
Value (as defined in Section 5(c) hereof) per share of Common Stock during the
sixty-day period ending on the date such Limited Right is exercised. Any
securities or property which are part or all of the consideration paid for
shares of Common Stock in such acquisition shall be valued in determining the
Acquisition Price per share at the higher of (A) the valuation placed on such
securities or property by the corporation, person or other entity having such
consideration or (B) the valuation placed on such securities or property by the
Committee.
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(d) The term "Acquisition Spread" as used in this Section 14 shall mean
an amount equal to the product computed by multiplying (i) the excess of (A) the
Acquisition Price per Share over (B) the option price per share of Common Stock
at which the related option is exercisable, by (ii) the number of shares of
Common Stock with respect to which the Limited Right is being exercised.
(e) The term "Spread" as used in this Section 14 shall mean, with
respect to the exercise of any Limited Right by reason of a change in the
composition of the Board described in Section 7(c)(ii), an amount equal to the
product computed by multiplying (i) the excess of (A) the highest Fair Market
Value per share of Common Stock during the sixty-day period ending on the date
the Limited Right is exercised over (B) the option price per share of Common
Stock at which the related option is exercisable, by (ii) the number of shares
of Common Stock with respect to which such Limited Right is being exercised.
(f) The term "Merger Price per Share" as used in this Section 14 shall
mean, with respect to the exercise of any Limited Right by reason of stockholder
approval of an agreement described in Section 7(c)(iii), the greater of (i) the
fixed or formula price for the acquisition of shares of Common Stock specified
in such agreement if such fixed or formula price is determinable on the date on
which such Limited Right is exercised, and (ii) the highest Fair Market Value
per share of Common Stock during the sixty-day period ending on the date such
Limited Right is exercised. Any securities or property which are part or all of
the consideration for the acquisition of shares of Common Stock specified in
such agreement shall be valued in determining the Merger Price per Share at the
higher of (A) the valuation placed on such securities or property by the
corporation, person or other entity paying such consideration or (B) the
valuation placed on such securities or property by the Committee.
(g) The term "Merger Spread" as used in this Section 14 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Merger Price per Share over (B) the option price per share of Common Stock at
which the related option is exercisable, by (ii) the number of shares of Common
Stock with respect to which the Limited Right is being exercised.
(h) The term "Liquidation Price per Share" as used in this Section 14
shall mean, with respect to the exercise of any Limited Right by reason of
stockholder approval of a plan or agreement described in Section 7(c)(iv), the
greater of (i) the fixed or formula price for the acquisition of shares of
Common Stock specified in such plan or agreement if such fixed or formula price
is determinable on the date on which such Limited Right is exercised, and (ii)
the highest Fair Market Value per share of Common Stock during the sixty-day
period ending on the date such Limited Right is exercised. Any securities or
property which are part or all of the consideration for the acquisition of
shares of Common Stock specified in such plan or agreement shall be valued in
determining the Liquidation Price per Share at the higher of (A) the valuation
placed on such securities or property by the corporation, person or other entity
paying such consideration or (B) the valuation placed on such securities or
property by the Committee.
(i) The term "Liquidation Spread" as used in this Section 14 shall mean
an amount equal to the product computed by multiplying (i) the excess of (A) the
Liquidation Price per Share over (B) the option price per share of Common Stock
at which the related option is exercisable, by (ii)
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the number of shares of Common Stock with respect to which the Limited Right is
being exercised.
(j) Notwithstanding any other provision of the Plan, no Right granted
pursuant to Section 5(f) hereof may be exercised at a time when any Limited
Rights held by the holder of such Right may be exercised.
15. WITHHOLDING OF TAXES. To the extent that the Company is required to
withhold or receive federal, state, local or foreign taxes in connection with
any payment made or benefit realized by an employee or other person under this
Plan, it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the employee or such other person make
arrangements satisfactory to the Company for payment of any taxes required to be
withheld. At the discretion of the Committee, any such arrangements may include,
without limitation, relinquishment of a portion of any such payment or benefit
or the surrender of outstanding shares of Common Stock, and any agreement
pertaining to a grant of options or an award of Restricted Shares under the Plan
may make such relinquishment the elective or mandatory form of satisfying such
taxes. At the discretion of the Committee, in connection with any payment made
or benefit realized by an employee or other person under this Plan, the Company
and any such employee or other person also may make similar arrangements with
respect to the payment of any taxes with respect to which withholding is not
required.
May 1, 1998
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Exhibit 5
[ALLEN TELECOM INC. LETTERHEAD]
May 4, 1998
McDara P. Folan, III
Vice President, Secretary & General Counsel
Securities and Exchange Commission
Judiciary Plaza
450 5th Street, N.W.
Washington, DC 20549
Re: Allen Telecom Inc. 1992 Stock Plan, as amended and restated as
--------------------------------------------------------------
of May 1, 1998
--------------
Ladies and Gentlemen:
I have acted as counsel for Allen Telecom Inc., a Delaware corporation
(the "Registrant"), in connection with the Allen Telecom Inc. 1992 Stock Plan,
as amended and restated as of May 1, 1998 (the "Plan"). I have examined such
documents, records and matters of law as we have deemed necessary for purposes
of this opinion, and based thereon, I am of the opinion that the Registrant's
Common Stock, $1.00 par value per share (the "Common Stock"), that may be issued
or transferred and sold pursuant to the Plan and the authorized forms of Stock
Option Agreements and Restricted Stock Agreements thereunder (the "Agreements")
will be, when issued or transferred and sold in accordance with the Plan and
such Agreements, duly authorized, validly issued, fully paid and nonassessable
so long as the consideration received by the Company is at least equal to the
par value of the Common Stock.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 filed by the Registrant to effect
registration of the Common Stock to be issued and sold pursuant to the Plan
under the Securities Act of 1933.
Very truly yours,
/s/ McDara P. Folan, III
McDara P. Folan, III
Vice President, Secretary and
General Counsel
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated February 13, 1998 on our audits of the
consolidated financial statements and financial statement schedule of Allen
Telecom Inc.
/s/ COOPERS & LYBRAND L.L.P.
Cleveland, Ohio
May 1, 1998
