As filed with the Securities and Exchange Commission on June 12, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
CYBEX INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
NEW YORK 11-1731581
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
10 TROTTER DRIVE
MEDWAY, MASSACHUSETTS 02053
(508) 533-4300
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
CYBEX INTERNATIONAL, INC.
1995 OMNIBUS INCENTIVE PLAN
(Full Title of Plan)
PETER C. HAINES
PRESIDENT
CYBEX INTERNATIONAL, INC.
10 TROTTER DRIVE
MEDWAY, MASSACHUSETTS 02053
(508) 533-4300
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
JEFFREY J. WEINBERG, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1) Share(2) Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
Common Shares, par value $0.10 per
share 500,000 shares $10.875 $5,437,500 $1,648.00
====================================================================================================================================
<FN>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the closing price of the Registrant's Common Stock as
reported on the American Stock Exchange on June 10, 1997.
====================================================================================================================================
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement registers 500,000 additional
common shares of CYBEX International, Inc. (the "Company"), par value $.10 per
share (the "Common Stock"), for issuance pursuant to Benefits, as defined in and
granted under the Company's 1995 Omnibus Incentive Plan, as amended. The
contents of an earlier Registration Statement on Form S-8 in respect of the
Company's 1995 Omnibus Incentive Plan, as filed with the Securities and Exchange
Commission on June 5, 1995, Registration No. 33-59945, are hereby incorporated
by reference.
1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Medway, State of Massachusetts, on this 11th day
of June 1997.
CYBEX INTERNATIONAL, INC.
By: /s/ Peter C. Haines
--------------------------------------------
Name: Peter C. Haines
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Arthur W. Hicks, Jr.
and James H. Carll acting individually, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Peter C. Haines President and Chief Executive June 11, 1997
- --------------------------------- Officer (Principal Executive
Peter C. Haines Officer)
/s/ William S. Hurley Vice President and June 11, 1997
- --------------------------------- Chief Financial Officer
William S. Hurley (Principal Financial and
Accounting Officer)
/s/ John Aglialoro Director June 11, 1997
- ---------------------------------
John Aglialoro
/s/ James H. Carll Director June 11, 1997
- ---------------------------------
James H. Carll
/s/ Joan Carter Director June 11, 1997
- ---------------------------------
Joan Carter
/s/ Kay Knight Clarke Director June 11, 1997
- ---------------------------------
Kay Knight Clarke
/s/ Arthur W. Hicks, Jr. Director June 11, 1997
- ---------------------------------
Arthur W. Hicks, Jr.
2
<PAGE>
/s/ Thomas W. Kahle Director June 11, 1997
- ---------------------------------
Thomas W. Kahle
/s/ Jerry Lee Director June 11, 1997
- ---------------------------------
Jerry Lee
/s/ Robert R. McMillan Director June 11, 1997
- ---------------------------------
Robert R. McMillan
/s/ Alan H. Weingarten Director June 11, 1997
- ---------------------------------
Alan H. Weingarten
3
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
3(a)(1) - Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 3(a)(1) to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996).
3(a)(2) - Certificate of Amendment to the Certificate of
Incorporation of the Company, dated May 30, 1988
(incorporated by reference to Exhibit 3(a)(2) to the
Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
3(a)(3) - Certificate of Amendment to the Certificate of
Incorporation of the Company, dated August 7, 1996
(incorporated by reference to Exhibit 3(a)(3) to the
Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
3(b) - By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3(b) to the Company's Annual
Report on Form 10-K for the year ended December 31,
1987).
5 - Opinion of Weil, Gotshal & Manges LLP.
10(xx) - CYBEX International, Inc. 1995 Omnibus Incentive Plan, as
amended.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
WEIL, GOTSHAL & MANGES LLP
A Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
Writer's Direct Line
June 11, 1997
CYBEX International, Inc.
2100 Smithtown Avenue
Ronkonkoma, New York 11779
Ladies and Gentlemen:
We have acted as counsel to CYBEX International, Inc., a New
York corporation (the "Company"), in connection with the preparation
and filing of the Registration Statement of the Company on Form S-8
under the Securities Act of 1933 (the "Registration Statement").
Capitalized terms defined in the Registration Statement and used but
not otherwise defined herein are used herein as so defined.
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and of
officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or
comparable documents of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the 500,000 shares of Common
Stock, par value $.10 per share, of the Company (the "Common Stock")
to be issued and sold by the Company
<PAGE>
CYBEX International, Inc.
June 3, 1997
Page 2
pursuant to the Registration Statement have been duly authorized and,
when issued and sold as contemplated by the Registration Statement and
the Company's 1995 Omnibus Incentive Plan, will be validly issued,
fully paid and nonassessable, except, where applicable, as provided by
Section 630 of the New York Business Corporation Law.
The opinions expressed herein are limited to the laws of the
State of New York and the federal laws of the United States, and we
express no opinion as to the effect on the matters covered by this
letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those
opinions may not be used or relied upon by any other person, nor may
this letter or any copies thereof be furnished to a third party, filed
with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent, we hereby consent to be named in
the Prospectus as the attorneys who have passed upon the legality of
the securities being offered thereby and to the filing of this opinion
as an exhibit to the Registration Statement.
Very truly yours,
CYBEX INTERNATIONAL, INC.
1995 OMNIBUS INCENTIVE PLAN
1. PURPOSE. The CYBEX International, Inc. 1995 Omnibus Incentive Plan (the
"Plan") is intended to provide incentives which will attract and retain highly
competent persons as officers and key employees of CYBEX International, Inc.
(the "Company") and its subsidiaries, by providing them opportunities to acquire
shares of the common stock, $.10 par value per share, of the Company ("Common
Stock") or to receive monetary payments based on the value of such shares
pursuant to the Benefits described herein. Furthermore, the Plan, together with
the Company's Stock Ownership Requirements Policy, is intended to assist in
aligning the interests of the Company's officers and key employees to those of
its shareholders.
2. ADMINISTRATION. (a) The Plan will be administered by a committee (the
"Committee") appointed by the Board of Directors of the Company from among its
members (which may be the Compensation Committee), which shall be comprised of
not less than two non-employee members of the Board; provided, however, that
each member of the Committee must qualify as a "disinterested person" within the
meaning of Rule 16b-3 (or any successor rule) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it deems necessary for the proper administration of the Plan and
to make such determinations and interpretations and to take such action in
connection with the Plan and any Benefits (as defined below) granted hereunder
as it deems necessary or advisable. All determinations and interpretations made
by the Committee shall be binding and conclusive on all participants and their
legal representatives. No member of the Board, no member of the Committee and no
employee of the Company shall be liable for any act or failure to act hereunder,
by any other member or employee or by any agent to whom duties in connection
with the administration of this Plan have been delegated or, except in
circumstances involving his or her bad faith, gross negligence or fraud, for any
act or failure to act by the member or employee.
(b) The Committee may delegate its powers and duties under the Plan to one
or more officers of the Company or to a committee of such officers, subject to
such terms, conditions and limitations as the Committee may establish in its
sole discretion; provided, however, that the Committee shall not delegate its
powers and duties under the Plan with regard to officers and key employees of
the Company who are subject to Section 16 of the Exchange Act.
3. PARTICIPANTS. Participants will consist of such officers and key
employees of the Company and its subsidiaries as the Committee in its sole
discretion determines to be significantly responsible for the success and future
growth and profitability of the Company and whom the Committee may designate
from time to time to receive Benefits under the Plan. Non-employee directors of
the Company shall not be eligible to participate in the Plan. Designation of a
participant in any year shall not require the Committee to designate such person
to receive a Benefit in any other year or, once designated, to receive the same
type or amount of Benefit as granted to the participant in any other year. The
1
NYFS10...:\80\60380\0001\2286\APP4227U.180
<PAGE>
Committee shall consider such factors as it deems pertinent in selecting
participants and in determining the type and amount of their respective
Benefits.
4. TYPE OF BENEFITS. Benefits under the Plan may be granted in any one or
a combination of (a) Stock Options, (b) Stock Appreciation Rights, (c) Stock
Awards, (d) Performance Awards and (e) Bonus Stock Purchase Awards (each as
described below, and collectively, the "Benefits"). Benefits shall be evidenced
by agreements (which need not be identical) in such forms as the Committee may
from time to time approve.
5. COMMON STOCK AVAILABLE UNDER THE PLAN. The aggregate number of shares
of Common Stock that may be subject to Benefits, including Stock Options,
granted under this Plan shall be 750,000 shares of Common Stock, which may be
authorized and unissued or treasury shares, subject to any adjustments made in
accordance with Section 11 hereof. Any shares of Common Stock subject to a Stock
Option which for any reason is cancelled (excluding shares subject to a Stock
Option cancelled upon the exercise of a related Stock Appreciation Right) or
terminated without having been exercised, or any Stock Awards or Performance
Awards which are forfeited, shall again be available for Benefits under the
Plan, to the extent permitted by Rule 16b-3 under the Exchange Act regarding the
availability of such shares.
6. STOCK OPTIONS. Stock Options will consist of awards from the Company
that will enable the holder to purchase a specific number of shares of Common
Stock, at set terms and at a fixed purchase price. Stock Options may be
"incentive stock options" ("Incentive Stock Options") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") or
Stock Options which do not constitute Incentive Stock Options ("Nonqualified
Stock Options"). The Committee will have the authority to grant to any
participant one or more Incentive Stock Options, Nonqualified Stock Options, or
both types of Stock Options (in each case with or without Stock Appreciation
Rights). Each Stock Option shall be subject to such terms and conditions
consistent with the Plan as the Committee may impose from time to time, subject
to the following limitations:
(a) EXERCISE PRICE. Each Stock Option granted hereunder shall have
such per-share exercise price as the Committee may determine at the date
of grant; provided, however, that the per-share exercise price for
Incentive Stock Options shall not be less than 100% of the Fair Market
Value (as defined below) of the Common Stock on the date the option is
granted.
(b) PAYMENT OF EXERCISE PRICE. The option exercise price may be paid
in cash or, in the discretion of the Committee, by the delivery of shares
of Common Stock of the Company then owned by the participant, by the
withholding of shares of Common Stock for which a Stock Option is
exercisable, or by a combination of these methods. In the discretion of
the Committee, payment may also be made by delivering a properly executed
exercise notice to the Company together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount of
sale or loan proceeds to pay the exercise price. To facilitate the
foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms. The Committee may prescribe
any other method of paying the exercise
2
<PAGE>
price that it determines to be consistent with applicable law and the
purpose of the Plan, including, without limitation, in lieu of the
exercise of a Stock Option by delivery of shares of Common Stock of the
Company then owned by a participant, providing the Company with a
notarized statement attesting to the number of shares owned, where upon
verification by the Company, the Company would issue to the participant
only the number of incremental shares to which the participant is entitled
upon exercise of the Stock Option. In determining which methods a
participant may utilize to pay the exercise price, the Committee may
consider such factors as it determines are appropriate, including, without
limitation, compliance of the participant with the Company's Stock
Ownership Requirements Policy.
(c) EXERCISE PERIOD. Stock Options granted under the Plan shall be
exercisable at such time or times and subject to such terms and conditions
as shall be determined by the Committee; provided, however, that no Stock
Option shall be exercisable later than ten years after the date it is
granted. All Stock Options shall terminate at such earlier times and upon
such conditions or circumstances as the Committee shall in its discretion
set forth in such option at the date of grant.
(d) LIMITATIONS ON INCENTIVE STOCK OPTIONS. Incentive Stock Options
may be granted only to participants who are employees of the Company or
one of its subsidiaries (within the meaning of Section 424(f) of the Code)
at the date of grant. The aggregate Fair Market Value (determined as of
the time the option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by a
participant during any calendar year (under all option plans of the
Company and of any parent corporation or subsidiary corporation (as
defined in Sections 424(e) and (f) of the Code, respectively) shall not
exceed $100,000. For purposes of the preceding sentence, Incentive Stock
Options will be taken into account in the order in which they are granted.
Incentive Stock Options may not be granted to any participant who, at the
time of grant, owns stock possessing (after the application of the
attribution rules of Section 424(d) of the Code) more than 10% of the
total combined voting power of all classes of stock of the Company or any
parent or subsidiary corporation of the Company, unless the option price
is fixed at not less than 110% of the Fair Market Value of the Common
Stock on the date of grant and the exercise of such option is prohibited
by its terms after the expiration of five years from the date of grant of
such option.
7. STOCK APPRECIATION RIGHTS. The Committee may, in its discretion, grant
Stock Appreciation Rights to the holders of any Stock Options granted hereunder.
In addition, Stock Appreciation Rights may be granted independently of, and
without relation to, options. A Stock Appreciation Right means a right to
receive a payment, in cash or Common Stock, equal to the excess of (x) the Fair
Market Value, or other specified valuation, of a specified number of shares of
Common Stock on the date the right is exercised over (y) the Fair Market Value,
or other specified valuation, of such shares of Common Stock on the date the
right is granted, all as determined by the Committee. Each Stock Appreciation
Right shall be subject to such terms and conditions as the Committee shall
impose from time to time, including, without limitation, rights conditioned upon
the occurrence of certain events, such as a Change in Control (as defined below)
of the Company.
3
<PAGE>
8. STOCK AWARDS. Stock Awards (which includes mandatory stock bonus
incentive compensation) will consist of Common Stock transferred to participants
with or without other payments therefor as additional compensation for services
to the Company. Stock Awards shall be subject to such terms and conditions as
the Committee determines appropriate, including, without limitation,
restrictions on the sale or other disposition of such shares, the right of the
Company to reacquire such shares for no consideration upon termination of the
participant's employment within specified periods, and conditions requiring that
the shares be earned in whole or in part upon the achievement of performance
goals established by the Committee over a designated period of time. The
Committee may require the participant to deliver a duly signed stock power,
endorsed in blank, relating to the Common Stock covered by such an Award. The
Committee may also require that the stock certificates evidencing such shares be
held in custody or bear restrictive legends until the restrictions thereon shall
have lapsed. The Stock Award shall specify whether the participant shall have,
with respect to the shares of Common Stock subject to a Stock Award, all of the
rights of a holder of shares of Common Stock of the Company, including the right
to receive dividends and to vote the shares.
9. PERFORMANCE AWARDS.
(a) Performance Awards may be granted to participants at any time and from
time to time, as shall be determined by the Committee. The Committee shall have
complete discretion in determining the number, amount and timing of awards
granted to each participant. Such Performance Awards may take the form of, as
determined by the Committee, including, without limitation, cash, shares of
Common Stock, performance units and performance shares, or any combination
thereof. Performance Awards may be awarded as short-term or long-term
incentives. The Committee shall set performance goals at its discretion which,
depending on the extent to which they are met, will determine the number and/or
value of Performance Awards that will be paid out to the participants, and may
attach to such Performance Awards one or more restrictions. Performance goals
may be based upon, without limitation, Company-wide, divisional, project team,
and/or individual performance.
(b) The Committee shall have the authority at any time to make adjustments
to performance goals for any outstanding Performance Awards which the Committee
deems necessary or desirable unless at the time of establishment of goals the
Committee shall have precluded its authority to make such adjustments.
(c) Payment of earned Performance Awards shall be made in accordance with
terms and conditions prescribed or authorized by the Committee. The participant
may elect to defer, or the Committee may require the deferral of, the receipt of
Performance Awards upon such terms as the Committee deems appropriate.
10. BONUS STOCK PURCHASE AWARDS.
(a) The Committee may by written notice permit a participant selected by
the Committee to elect to purchase shares of Common Stock with up to a maximum
percentage, as determined by the Committee, of funds otherwise payable to such
participant pursuant to the Company's annual bonus
4
<PAGE>
incentive compensation program ("Bonus Stock Purchase Awards"). Only those
participants who make timely Bonus Conversion Elections (as defined below) shall
be eligible to receive a Bonus Stock Purchase Award. The amount purchased in
accordance with a Bonus Conversion Election shall be subject to reduction or to
such other limitations as are from time to time established by the Committee.
(b) Not later than on a participant's annual bonus payment date, each
participant selected by the Committee may make an irrevocable election ("Bonus
Conversion Election") to convert a fixed percentage of his or her annual
incentive bonus for that fiscal year by filing a conversion election form (as
may be prescribed by the Committee) with the Committee; provided, however, that
any participant who is subject to Section 16 of the Exchange Act must elect to
convert his or her annual incentive bonus at least six months prior to the day
the amount of such bonus is determined, or at such other time as the Committee
may establish.
(c) On a participant's annual incentive bonus payment date, an amount
equal to the portion of the participant's bonus that is validly converted shall
be used to purchase a number of shares of Common Stock, at a per-share purchase
price fixed by the Committee; provided, however, that the per-share purchase
price shall not be less than 85% of the Fair Market Value of the Common Stock on
the regular bonus payment date had it been paid in cash. On the same date or as
soon as practicable thereafter, such number of shares of Common Stock shall be
registered in the participant's name, and stock certificates shall be issued
therefor to the participant.
(d) Bonus Stock Purchase Awards shall be subject to such terms and
conditions as the Committee determines appropriate, including, without
limitation, restrictions on the sale or other disposition of such shares. The
Committee may also require that stock certificates evidencing such shares bear
restrictive legends until the restrictions thereon shall have lapsed.
11. ADJUSTMENT PROVISIONS; CHANGE IN CONTROL.
(a) If there shall be any change in the Common Stock of the Company,
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split, reverse stock split, split up, spinoff, combination of shares,
exchange of shares, dividend in kind or other like change in capital structure
or distribution (other than normal cash dividends) to shareholders of the
Company, an adjustment shall be made to each outstanding Stock Option and Stock
Appreciation Right such that each such Stock Option and Stock Appreciation Right
shall thereafter be exercisable for such securities, cash and/or other property
as would have been received in respect of the Common Stock subject to such Stock
Option or Stock Appreciation Right had such Stock Option or Stock Appreciation
Right been exercised in full immediately prior to such change, and such an
adjustment shall be made successively each time any such change shall occur. In
addition, in the event of any such change, in order to prevent dilution or
enlargement of participants' rights under the Plan, the Committee will have
authority to adjust, in an equitable manner, the number and kind of shares that
may be issued under the Plan, the number and kind of shares subject to
outstanding Benefits, the exercise price applicable to outstanding Benefits, and
the Fair Market Value of the Common Stock and other value determinations
applicable to outstanding Benefits. Appropriate adjustments may also be made by
the Committee in the terms of any
5
<PAGE>
Benefits under the Plan to reflect such changes and to modify any other terms of
outstanding Benefits on an equitable basis, including modifications of
performance targets and changes in the length of performance periods. In
addition, the Committee is authorized to make adjustments to the terms and
conditions of, and the criteria included in, Benefits in recognition of unusual
or nonrecurring events affecting the Company or the financial statements of the
Company, or in response to changes in applicable laws, regulations, or
accounting principles. Notwithstanding the foregoing, (i) each such adjustment
with respect to an Incentive Stock Option shall comply with the rules of Section
424(a) of the Code, and (ii) in no event shall any adjustment be made which
would render any Incentive Stock Option granted hereunder other than an
incentive stock option for purposes of Section 422 of the Code.
(b) Notwithstanding any other provision of this Plan, if there is a Change
in Control of the Company, all then outstanding Stock Options and Stock
Appreciation Rights shall immediately become exercisable. For purposes of this
Section 11(b), a "Change in Control" of the Company shall be deemed to have
occurred upon any of the following events:
(i) A change in control of the direction and administration of the
Company's business of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under
the Exchange Act; or
(ii) During any period of two (2) consecutive years, the individuals
who at the beginning of such period constitute the Company's Board of
Directors or any individuals who would be "Continuing Directors" (as
hereinafter defined) cease for any reason to constitute at least a
majority thereof; or
(iii) The Company's Common Stock shall cease to be publicly traded; or
(iv) The Company's Board of Directors shall approve a sale of all or
substantially all of the assets of the Company, and such transaction shall
have been consummated; or
(v) The Company's Board of Directors shall approve any merger,
consolidation, or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of any
event described in Section 11(b)(ii) or (iii) above, and such transaction
shall have been consummated.
Notwithstanding the foregoing, any spin-off of a division or subsidiary of the
Company to its shareholders shall not constitute a Change in Control of the
Company.
For purposes of this Section 11(b), "Continuing Directors" shall mean the
directors of the Company in office on the Effective Date (as defined below) and
any successor to any such director and any additional director who after the
date of such effectiveness (i) was nominated or selected by a majority of the
Continuing Directors in office at the time of his nomination or selection and
(ii) is not an "affiliate" or "associate" (as defined in Regulation 12B under
the Exchange Act) at the time of his nomination or selection of any person who
is the beneficial owner, directly or indirectly, of securities
6
<PAGE>
representing ten percent (10%) or more of the combined voting power of the
Company's outstanding securities then ordinarily entitled to vote for the
election of directors.
The Committee, in its discretion, may determine that, upon the occurrence
of a Change in Control of the Company, each Stock Option and Stock Appreciation
Right outstanding hereunder shall terminate within a specified number of days
after notice to the holder, and such holder shall receive, with respect to each
share of Common Stock subject to such Stock Option or Stock Appreciation Right,
in an amount equal to the excess of the Fair Market Value of such shares of
Common Stock immediately prior to the occurrence of such Change in Control over
the exercise price per share of such Stock Option or Stock Appreciation Right;
such amount to be payable in cash, in one or more kinds of property (including
the property, if any, payable in the transaction) or in a combination thereof,
as the Committee, in its discretion, shall determine. The provisions contained
in the preceding sentence shall be inapplicable to a Stock Option or Stock
Appreciation Right granted within six (6) months before the occurrence of a
Change in Control if the holder of such Stock Option or Stock Appreciation Right
is subject to the reporting requirements of Section 16(a) of the Exchange Act.
12. NONTRANSFERABILITY. Each Benefit granted under the Plan to a
participant shall not be transferable otherwise than by will or the laws of
descent and distribution, and shall be exercisable, during the participant's
lifetime, only by the participant. In the event of the death of a participant
while the participant is rendering services to the Company, each Stock Option or
Stock Appreciation Right theretofore granted to him shall be exercisable during
such period after his death as the Committee shall in its discretion set forth
in such option or right at the date of grant (but not beyond the stated duration
of the option or right) and then only:
(a) By the executor or administrator of the estate of the deceased
participant or the person or persons to whom the deceased participant's
rights under the Stock Option or Stock Appreciation Right shall pass by
will or the laws of descent and distribution; and
(b) To the extent that the deceased participant was entitled to do so
at the date of his or her death. Notwithstanding the foregoing, at the
discretion of the Committee, an award of a Benefit other than an Incentive
Stock Option may permit the transferability of a Benefit by a participant
solely to members of the participant's immediate family or trusts or
family partnerships for the benefit of such persons, subject to any
restriction included in the award of the Benefit.
13. OTHER PROVISIONS. The award of any Benefit under the Plan may also be
subject to such other provisions (whether or not applicable to the Benefit
awarded to any other participant) as the Committee determines appropriate,
including, without limitation, for the installment purchase of Common Stock
under Stock Options, for the installment exercise of Stock Appreciation Rights,
to assist the participant in financing the acquisition of Common Stock, for the
forfeiture of, or restrictions on resale or other disposition of, Common Stock
acquired under any form of Benefit, for the acceleration of exercisability or
vesting of Benefits in the event of a change in control of the Company, for the
payment of the value of Benefits to participants in the event of a change in
control of the Company, or
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to comply with federal and state securities laws, or understandings or
conditions as to the participant's employment in addition to those specifically
provided for under the Plan.
14. FAIR MARKET VALUE. For purposes of this Plan and any Benefits awarded
hereunder, Fair Market Value shall be the closing price for the Company's Common
Stock on the date of calculation (or on the last preceding trading date if
Common Stock was not traded on such date) if the Company's Common Stock is
readily tradeable on a national securities exchange or other market system, and
if the Company's Common Stock is not readily tradeable, Fair Market Value shall
mean the amount determined in good faith by the Committee as the fair market
value of the Common Stock of the Company.
15. WITHHOLDING. All payments or distributions of Benefits made pursuant
to the Plan shall be net of any amounts required to be withheld pursuant to
applicable federal, state and local tax withholding requirements. If the Company
proposes or is required to distribute Common Stock pursuant to the Plan, it may
require the recipient to remit to it or to the corporation that employs such
recipients an amount sufficient to satisfy such tax withholding requirements
prior to the delivery of any certificates for such Common Stock. In lieu
thereof, the Company or the employing corporation shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the recipient as the Committee shall prescribe. The
Committee may, in its discretion and subject to such rules as it may adopt
(including any as may be required to satisfy applicable tax and/or non-tax
regulatory requirements), permit an optionee or award or right holder to pay all
or a portion of the federal, state and local withholding taxes arising in
connection with any Benefit consisting of shares of Common Stock by electing to
have the Company withhold shares of Common Stock having a Fair Market Value
equal to the amount to be withheld.
16. TENURE. A participant's right, if any, to continue to serve the
Company as an officer, employee, or otherwise, shall not be enlarged or
otherwise affected by his or her designation as a participant under the Plan.
17. UNFUNDED PLAN. Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in
meeting its obligations under the Plan. Nothing contained in the Plan, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship between the Company and any
participant, beneficiary, legal representative or any other person. To the
extent that any person acquires a right to receive payments from the Company
under the Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company. All payments to be made hereunder shall be paid
from the general funds of the Company and no special or separate fund shall be
established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in the Plan. The Plan is not intended to
be subject to the Employee Retirement Income Security Act of 1974, as amended.
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18. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Benefit. The Committee shall
determine whether cash, or Benefits, or other property shall be issued or paid
in lieu of fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
19. DURATION, AMENDMENT AND TERMINATION. No Benefit shall be granted more
than ten years after the Effective Date; provided, however, that the terms and
conditions applicable to any Benefit granted prior to such date may thereafter
be amended or modified by mutual agreement between the Company and the
participant or such other persons as may then have an interest therein. Also, by
mutual agreement between the Company and a participant hereunder, under this
Plan or under any other present or future plan of the Company, Benefits may be
granted to such participant in substitution and exchange for, and in
cancellation of, any Benefits previously granted such participant under this
Plan, or any other present or future plan of the Company. The Board of Directors
may amend the Plan from time to time or suspend or terminate the Plan at any
time. However, no action authorized by this Section 19 shall reduce the amount
of any existing Benefit or change the terms and conditions thereof without the
participant's consent. No amendment of the Plan shall, without approval of the
stockholders of the Company, (i) materially increase the total number of shares
which may be issued under the Plan; (ii) materially increase the amount or type
of Benefits that may be granted under the Plan; or (iii) materially modify the
requirements as to eligibility for Benefits under the Plan.
20. GOVERNING LAW. This Plan, Benefits granted hereunder and actions taken
in connection herewith shall be governed and construed in accordance with the
laws of the State of New York (regardless of the law that might otherwise govern
under applicable New York principles of conflict of laws).
21. COMPLIANCE WITH RULE 16B-3. With respect to persons subject to Section
16 of the Exchange Act, transactions under the Plan are intended to comply with
all applicable conditions of Rule 16b-3 (or its successors) promulgated under
the Exchange Act. To the extent any provision of the Plan or action by the
Committee fails to comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
22. EFFECTIVE DATE. (a) The Plan shall become effective as of March 8,
1995, the date on which the Plan was adopted by the Board of Directors (the
"Effective Date"), provided that the Plan is approved by the shareholders of the
Company at an annual meeting or any special meeting of shareholders of the
Company, and such approval of shareholders shall be a condition to the right of
each participant to receive any Benefits hereunder. Any Benefits granted under
the Plan prior to such approval of shareholders shall be effective for purposes
of Section 16 of the Exchange Act as of the date such shareholder approval is
obtained and for all other purposes as of the date of grant (unless, with
respect to any Benefit, the Committee specifies otherwise at the time of grant),
but no such Benefit may be exercised or settled and no restrictions relating to
any Benefit may lapse prior to such shareholder approval, and if shareholders
fail to approve the Plan as specified hereunder, any such Benefit shall be
cancelled.
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(b) This Plan shall terminate on March 7, 2005 (unless sooner terminated
by the Board of Directors).
10
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the registration of 500,000 shares under the
1995 Omnibus Incentive Plan of CYBEX International, Inc. of our report dated
March 6, 1997, with respect to the consolidated financial statements of CYBEX
International, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Melville, New York
June 12, 1997
