As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED TECHNICAL PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-1581582
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3353 PEACHTREE ROAD, SUITE 920
ATLANTA, GEORGIA 30326
(404) 231-7272
(Address of registrant's principal executive offices)
1997 ADVANCED TECHNICAL PRODUCTS, INC. STOCK OPTION PLAN
ADVANCED TECHNICAL PRODUCTS, INC. NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
TPG HOLDINGS, INC. KEY MANAGEMENT STOCK OPTION PLAN
(Full title of plans)
James S. Carter
Chairman, President and Chief Executive Officer
Advanced Technical Products, Inc.
3353 Peachtree Road, Suite 920
Atlanta, Georgia 30326
(404) 231-7272
Copy to: Eric A. Blumrosen, Esq.
Gardere Wynne Sewell & Riggs, L.L.P.
333 Clay Avenue
Suite 800
Houston, Texas 77002-4086
(713) 308-5500
(Name and address, including zip code, and telephone number,
including area code, of registrant's agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS Proposed Maximum Proposed Maximum
OF SECURITIES TO BE Amount to be Offering Price per Aggregate Offering Amount of
REGISTERED Registered Share (5) Price (5) Registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock, $.01 par value.. 216,000 (1) $15.00 $3,740,000 $956
Common Stock, $.01 par value.. 189,707 (2) $0.41 $77,780 $23
Common Stock, $.01 par value.. 127,500 (3) $13.84 $1,764,600 $521
Common Stock, $.01 par value.. 56,500 (4) $13.84 $781,960 $231
Totals.................... 595,952 $5,864,340 $1,730
========================================================================================================
</TABLE>
(1) Includes 172,500 shares subject to options previously granted under the 1997
Advanced Technical Products, Inc. Stock Option Plan and 43,500 shares
subject to options previously granted under the Advanced Technical Products
Non-Employee Directors Stock Option Plan.
(2) Includes shares subject to options previously granted under the TPG
Holdings, Inc. Key Management Stock Option Plan.
(3) Includes shares subject to options not yet granted under the 1997 Advanced
Technical Products, Inc. Stock Option Plan.
(4) Includes shares subject to options not yet granted under the Advanced
Technical Products Non-Employee Directors Stock Option Plan.
(5) With respect to shares subject to options previously granted, the Proposed
Maximum Offering Price per Shares is calculated pursuant to Rule 457(h),and
as such, is based upon the exercise price of each outstanding option. With
respect to shares subject to options not yet granted, the Proposed Maximum
Offering Price per Shares is estimated in accordance with Rules 457(c) and
457(h) solely for the purpose of calculating the registration fee on the
basis of $13.84 per share, the average of the high and low price of the
Registrant's common stock as reported on the Nasdaq SmallCap Market on
May 12, 1998.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ------------------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Advanced Technical Products, Inc. (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference in this registration statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (File No. 0- 1298).
(2) The Registrant's Current Report on Form 8-K dated March 12, 1998
filed pursuant to Section 12 of the Exchange Act.
(3) The description of the Registrant's Common Stock which is contained
in the Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold under this
registration statement, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following summary is qualified in its entirety by reference to the
complete text of the General Corporation Law of the State of Delaware (the
"DGCL"), the Bylaws of the Registrant (the "Registrant Bylaws") and the Amended
and Restated Certificate of Incorporation of the Registrant (the "Registrant
Charter") referred to below.
Section 145 of the DGCL provides in relevant part that a corporation may
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 an action by or in
the right of the corporation) by reason of the fact that such person 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 such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person's conduct was
unlawful.
In addition, Section 145 of the DGCL provides that a corporation may
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 such
person 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 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 such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person 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 Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon
II-1
<PAGE>
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 Delaware Court of Chancery or such other
court shall deem proper.
Section 145 of the DGCL further provides that nothing in the
above-described provisions shall be deemed exclusive of any other rights to
indemnification or advancement of expenses to which any person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
The Registrant Bylaws provide for the indemnification of each director,
officer, former director and former officer of Registrant, and each person who
shall have served at the request of Registrant as a director or officer of
another corporation in which Registrant owns shares of capital stock or of which
Registrant is a creditor, against expenses actually and necessarily incurred by
him or her in connection with the defense of any action, suit or proceeding in
which he or she is made a party by reason of his or her being or having been a
director or officer of Registrant or of such other corporation. The Registrant
Bylaws also provide that such indemnification shall not be deemed exclusive of
any other rights to which those indemnified may be entitled as a matter of law
or under any bylaw, agreement, vote of stockholders or otherwise.
Section 102(b)(7) of the DGCL provides that a corporation may, in its
certificate of incorporation, eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director except for liability: for any breach of the
director's duty of loyalty to the corporation or its stockholders; for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; under Section 174 of the DGCL (pertaining to certain
prohibited acts including unlawful payment of dividends or unlawful purchase or
redemption of the corporation's capital stock); or for any transaction from
which the director derived an improper personal benefit. The Registrant Charter
does not contain a provision so limiting the personal liability of directors of
the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
4.1 -- 1997 Advanced Technical Products, Inc. Stock Option Plan
(incorporated by reference to Exhibit 10.23 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1997).
4.2 -- Form of Incentive Stock Option Agreement for options granted under
Advanced Technical Products, Inc. Stock Option Plan (incorporated
by reference to Exhibit 10.24 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.3 -- Advanced Technical Products, Inc. Non-Employee Directors Stock
Option Plan (incorporated by reference to Exhibit 10.25 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997).
4.4 -- Form of Nonqualified Stock Option Agreement for options granted
under Advanced Technical Products, Inc. Non-Employee Director
Stock Option Plan (incorporated by reference to Exhibit 10.26 to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997).
4.5* -- TPG Holdings, Inc. Key Management Stock Option Plan (1996)
(including form of Option Agreement).
5.1* -- Opinion of Gardere Wynne Sewell & Riggs, L.L.P., counsel for the
Registrant.
23.1* -- Consent of KPMG Peat Marwick LLP, independent accountants.
23.2* -- Consent of Gardere Wynne Sewell & Riggs, L.L.P. (included in
Exhibit 5.1).
24.1* -- Power of Attorney (included on signature page on page II-5)
- -------------------
* Filed herewith.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this Registration Statement to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Exchange Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Exchange Act and will be governed
by the final adjudication of such issue.
II-4
<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 Atlanta, State of Georgia, on the 14th day of May,
1998.
ADVANCED TECHNICAL PRODUCTS, INC.
(Registrant)
By: /s/ JAMES S. CARTER
James S. Carter, CHAIRMAN OF THE BOARD,
CHIEF EXECUTIVE OFFICER AND PRESIDENT
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints James S. Carter and Garrett L.
Dominy and each of them (with full power in each of them to act alone), his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8,
and to file the same with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below in the city of Atlanta, State of Georgia, on the 14th
day of May, 1998.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JAMES S. CARTER CHAIRMAN OF THE BOARD, May 14, 1998
James S. Carter CHIEF EXECUTIVE OFFICER AND
PRESIDENT
(PRINCIPAL EXECUTIVE OFFICER)
AND DIRECTOR
/s/ GARRETT L. DOMINY EXECUTIVE VICE PRESIDENT, May 14, 1998
Garrett L. Dominy FINANCIAL OFFICER, ASSISTANT
SECRETARY AND TREASURER
(PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER)
AND DIRECTOR
/s/ ALAN W. BALDWIN DIRECTOR May 14, 1998
Alan W. Baldwin
/s/ ROBERT C. SIGRIST DIRECTOR May 14, 1998
Robert C. Sigrist
/s/ LAWRENCE E. WESNESKI DIRECTOR May 14, 1998
Lawrence E. Wesneski
/s/ SAM P. DOUGLASS DIRECTOR May 14, 1998
Sam P. Douglass
/s/ GARY L. FORBES DIRECTOR May 14, 1998
Gary L. Forbes
/s/ JOHN M. SIMON DIRECTOR May 14, 1998
John M. Simon
II-5
<PAGE>
INDEX TO EXHIBITS
4.1 -- 1997 Advanced Technical Products, Inc. Stock Option Plan
(incorporated by reference to Exhibit 10.23 to the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1997).
4.2 -- Form of Incentive Stock Option Agreement for options granted
under Advanced Technical Products, Inc. Stock Option Plan
(incorporated by reference to Exhibit 10.24 to the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1997).
4.3 -- Advanced Technical Products, Inc. Non-Employee Directors Stock
Option Plan (incorporated by reference to Exhibit 10.25 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997).
4.4 -- Form of Nonqualified Stock Option Agreement for options granted
under Advanced Technical Products, Inc. Non-Employee Director
Stock Option Plan (incorporated by reference to Exhibit 10.26
to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997).
4.5* -- TPG Holdings, Inc. Key Management Stock Option Plan (1996)
(including form of Option Agreement).
5.1* -- Opinion of Gardere Wynne Sewell & Riggs, L.L.P., counsel for
the Registrant.
23.1* -- Consent of KPMG Peat Marwick LLP, independent accountants.
23.2* -- Consent of Gardere Wynne Sewell & Riggs, L.L.P. (included in
Exhibit 5.1).
24.1* -- Power of Attorney (included on signature page on page II-5)
- -------------------
* Filed herewith.
II-6
EXHIBIT 4.5
TPG HOLDINGS, INC.
KEY MANAGEMENT STOCK OPTION PLAN (1996)
1. PURPOSES AND DATE OF ADOPTION
The purposes of the TPG Holdings, Inc. Key Management Stock Option Plan
(1996)(the "Plan") are to (a) create stockholder value by providing incentives
to selected Key Employees who contribute, and are expected to contribute,
materially to the success of TPG Holdings, Inc. (the "Company") and its
Subsidiaries; (b) provide a means of rewarding outstanding performance by such
Key Employees; and (c) enhance the interests of such Key Employees in the
Company's and its Subsidiaries' continued success and progress by providing them
a proprietary interest in the Company. Further, the Plan is designed to enhance
the Company's ability to maintain a competitive position in attracting and
retaining qualified key personnel necessary for the continued success and
progress of the Company. This Plan was adopted by the Board (as defined below)
on June 5, 1996.
Options granted under this Plan may be intended to qualify as "incentive
stock options" pursuant to Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or may be nonqualified options, as determined by the
Committee (as defined below) and as set forth in the Option Agreements (as
defined below).
2. DEFINITIONS
As used in this Plan, and in any Option Agreement (as defined below),
the following terms shall have the following meanings, unless the context
requires otherwise:
(a) "COMMON STOCK" shall mean the Common Stock of the Company, par value
$1.00 per share.
(b) "DATE OF GRANT" shall mean the date on which an Option is granted
pursuant to this Plan.
(c) "DISINTERESTED DIRECTOR" shall mean a director who is not, during
the twelve months immediately prior to service as an administrator of the Plan,
or during such service, granted or awarded an Option pursuant to the Plan or
equity securities pursuant to any other plan of the Company or any of its
affiliates (except as to the extent such grant or award would not disqualify
such director as a disinterested director within the meaning of Rule 16b-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(d) "FAIR MARKET VALUE" shall mean the value of the Company as an
on-going concern as determined by the Committee who shall determine such fair
market valuation in good faith.
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<PAGE>
(e) "INCENTIVE STOCK OPTION" means an Option to purchase Common Stock
that meets the requirements of Section 422 of the Code.
(f) "KEY EMPLOYEE" means any employee of the Company or a Subsidiary
selected to participate in this Plan.
(g) "NONSTATUTORY OPTION" means an Option to purchase Common Stock that
does not meet the requirements of Section 422 of the Code or that will not be
treated as an Incentive Stock Option.
(h) "OPTION" means an Incentive Stock Option or a Nonstatutory Option.
(i) "OPTIONEE" shall mean the person to whom an option is granted under
the Plan or who has obtained the right to exercise an option in accordance with
the provisions of the Plan.
(j) "PLAN ADOPTION DATE" means the date on which the Plan is adopted by
the Board (as set forth in Section 1), or approved by the stockholders of the
Company, whichever is earlier.
(k) "SUBSIDIARY" shall mean any now existing or hereinafter organized or
acquired corporation of which more than fifty percent (50%) of the issued and
outstanding voting stock is owned or controlled directly or indirectly by the
Company or through one or more Subsidiaries of the Company.
3. SHARES SUBJECT TO THE PLAN
The aggregate number of shares of Common Stock for which Options may be
granted under this Plan shall not exceed 25,000 shares of Common Stock. Such
shares may be authorized and previously unissued shares or previously issued
shares that have been reacquired by the Company. The total number of shares
authorized under this Plan will be subject to increase or decrease in order to
give effect to the adjustment provisions of Section 9 and to give effect to any
amendment adopted as provided in Section 13. If any Option granted under the
Plan expires, terminates or is canceled for any reason without having been
exercised in full, the corresponding number of shares will again be available
for purposes of the Plan.
4. ADMINISTRATION
(a) THE COMMITTEE. The Plan shall be administered by the Board of
Directors of the Company (the "Board"), if each member is a Disinterested
Director, or, at the option of the Board, a committee of two or more
Disinterested Directors appointed by the Board (the group responsible for
administering the Plan is referred to herein as the "Committee"). A majority of
the Committee will constitute a quorum thereof and the actions of a majority of
the Committee at a meeting at which a quorum is present or actions unanimously
approved in writing by all members of the Committee will be the actions of the
Committee. Vacancies occurring on the Committee will be filled by the
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<PAGE>
Board. The Committee will have full and final authority to interpret the Plan
and the agreements evidencing the Options; to prescribe, amend and rescind rules
and regulations, if any, relating to the Plan; and to make all determinations
(including, without limitation, determinations of fact and law) necessary or
advisable for the administration of the Plan. The Committee's determination in
all matters relating to the interpretation and administration of the Plan will
be conclusive and binding for all purposes and upon all persons including,
without limitation, the Company, the stockholders of the Company, the Committee
and each of the members thereof, the employees of the Company and their
respective successors in interest.
(b) LIABILITY OF COMMITTEE. No member of the Committee will be liable
for anything done or omitted to be done by such member or by any other member of
the Committee in connection with this Plan, except for the willful misconduct or
gross negligence of such member. The Committee will have the power to engage
outside consultants, auditors or other professional help to assist in the
fulfillment of the Committee's duties under this Plan at the Company's expense.
(c) DETERMINATIONS OF THE COMMITTEE. In making its determinations
concerning the Key Employees who will receive Options, as well as the number of
shares of Common Stock to be covered thereby and the time or times at which they
will be granted, the Committee will take into account the nature of the services
rendered by the respective Key Employees, their past, present and potential
contributions to the Company's success and such other factors as the Committee
may deem relevant. The Committee will also determine the form of the Option
Agreements (as defined below) to be issued under the Plan and the terms and
conditions to be included therein, provided such terms and conditions are
consistent with the terms of this Plan. The Committee may, in its discretion or
in accordance with a direction from the Board, waive any provisions of any
Option Agreement provided such waiver is not inconsistent with the terms of this
Plan as then in effect.
5. PARTICIPATION IN PLAN
(a) ELIGIBILITY TO RECEIVE OPTIONS. The Committee may grant Options to
purchase Common Stock to such employees of the Company or its Subsidiaries
(including any director who is also an employee of the Company or one or more of
its Subsidiaries) who are determined by the Committee to be Key Employees of the
Company or one or more of its Subsidiaries on the Date of Grant. The Committee
shall also determine the number of Options, the number of shares of Common Stock
subject to each Option, the exercise price or prices of each Option, the vesting
and exercise period of each Option, whether an Option may be exercised as to
less than all of the shares of Common Stock subject thereto and such other terms
and conditions of each Option, if any, as are not inconsistent with the
provisions of this Plan. In connection with the granting of Incentive Stock
Options, the aggregate Fair Market Value (determined at the Date of Grant of an
Incentive Stock Option) of the shares with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year (under all such plans of the Optionee's employer corporation and its parent
and subsidiary corporations as defined in Section 424 of the Code) shall not
exceed $100,000 or such other amount as from time to time provided in Section
422(d) of the Code or any successor provision.
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<PAGE>
(b) NO GUARANTEE OF EMPLOYMENT. Nothing in the Plan or in an Option
Agreement (as defined below) will in any manner be construed to limit in any way
the right of the Company or a Subsidiary to terminate a Key Employee's
employment at any time, without regard to the effect of such termination on any
rights the Key Employee would otherwise have under the Plan, or give any right
to the Key Employee to remain employed by the Company or a Subsidiary in any
particular position or at any particular rate of compensation.
6. OPTIONS.
(a) GRANT. The Committee may grant Incentive Stock Options and/or
Nonstatutory Stock Options to Key Employees
(b) EXERCISE PRICE. The exercise price or prices for Common Stock
subject to an Option (the "Exercise Price") granted pursuant to the Plan shall
be determined by the Committee at the Date of Grant; provided, however, that (a)
the Exercise Price for any Incentive Stock Options shall not be less than 100%
of the Fair Market Value of the Common Stock at the Date of Grant, and (b) if
the Optionee owns more than 10 percent of the total combined voting power of all
classes of stock of the Company or any of its Subsidiaries, as more fully
described in Section 422(b)(6) of the Code or any successor provision (such
stockholder being referred to herein as a "10-Percent Stockholder"), the
Exercise Price for any Incentive Stock Option granted to such Optionee shall not
be less than 110% of the Fair Market Value of the Common Stock at the Date of
Grant.
(c) OPTION AGREEMENTS. Options will be evidenced by stock option
agreements (the "Option Agreements") in such form as the Committee approves and
containing such terms and conditions, including the period in which the Options
are exercisable, whether in installments or otherwise, as are contained therein,
which need not be the same for all Options.
(d) OPTIONS NON-TRANSFERRABLE. An Option granted under the Plan will by
its terms be non-transferrable by the Key Employee otherwise than by will or the
laws of descent and distribution and during the lifetime of the Key Employee
will be exercisable only by him or her or, if disabled, his or her legal
representative. No transfer of an Option by a Key Employee by will or the laws
of descent and distribution will be effective upon the Company unless the
Company has been furnished with written notice hereof and a copy of the will
and/or such other evidence as the Committee may determine necessary to establish
the validity of the transfer.
(e) PAYMENT ON EXERCISE. No shares of Common Stock will be issued on the
exercise of an Option unless paid for in full at the time of purchase. Payment
for shares of Common Stock purchased upon the exercise of an Option will be made
in cash or by certified or cashier's check. Stock certificates for the shares of
Common Stock so paid for will be issued and delivered to the person entitled
thereto by the Company in person or by certified mail. No person will have any
rights as a stockholder with respect to any shares of Common Stock covered by an
Option unless and until he or she has become the holder of record of such share,
and except as otherwise permitted by Section 9, no adjustment will be made for
dividends (ordinary or extraordinary, whether in cash,
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<PAGE>
securities, or other property or distributions of other rights) in receipt of
such share for which the record date is prior to the date on which such person
has become the holder of record.
(f) ELECTION TO PAY SHARE APPRECIATION IN CASH. Upon an Optionee's
exercise of an Option, the Committee shall have the authority, in its sole
discretion, to elect to pay to that Optionee, in lieu of issuing Common Stock to
such Optionee, the excess of the Fair Market Value of the Common Stock on the
Exercise Date over the Exercise Price (i.e., the appreciation in the underlying
Common Stock).
7. TERM OF STOCK OPTIONS AND LIMITATIONS ON RIGHT TO EXERCISE.
No Incentive Stock Option granted pursuant to this Plan shall be
exercisable (a) more than five (5) years after the Date of Grant with respect to
a 10-Percent Stockholder, and (b) more than ten (10) years after the Date of
Grant with respect to all persons other than 10-Percent Stockholders. No
Nonstatutory Option granted pursuant to this Plan shall be exercisable more than
ten (10) years after the Date of Grant. The Company shall not be required to
issue any fractional shares of Common Stock upon the exercise of any Options
granted under this Plan. No Optionee or his legal representatives, legatees or
distributees, as the case may be, will be, or will be deemed to be, a holder of
any shares of Common Stock subject to an Option unless and until said Option has
been exercised and the Exercise Price for the shares of Common Stock in respect
of which the Option has been exercised has been paid. An Option shall not be
exercisable except the by the Optionee or by a person who has obtained the
Optionee's rights under the Option by will or under the laws of descent and
distribution.
8. TERMINATION OF EMPLOYMENT AND DEATH
The Committee shall determine at the Date of Grant what conditions shall
apply to the exercise of an Option granted under this Plan in the event an
Optionee shall cease to be employed by the Company or a Subsidiary for any
reason. In the event of the death of an Optionee while in the employ of the
Company or a Subsidiary, the Option theretofore granted to him or her shall be
exercisable by the executor or administrator of the Optionee's estate, or if the
Optionee's estate is not in administration, by the person or persons to whom the
Optionee's right shall have passed under the Optionee's will or under the laws
of descent and distribution, within one year following the date of death of such
other period as may be specified in the Option Agreement, but in no case later
than the expiration date of such Option, and then only to the extent that the
Optionee was entitled to exercise such Option at the date of his death.
9. DILUTION OR OTHER ADJUSTMENTS
The number of shares of Common Stock authorized for issuance under this
Plan, as well as the Exercise Price of any Options and the number of shares of
Common Stock issuable under any Option will be subject to adjustment by the
Committee, in its sole discretion, to reflect any stock
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<PAGE>
split, stock dividend, recapitalization, merger, consolidation, reorganization,
combination or exchange of shares of Common Stock or other similar event.
10. EXPIRATION AND TERMINATION OF THE PLAN
Options may be granted at any time under Section 6(a) of the Plan prior
to the tenth anniversary of the Plan Adoption Date, as long as the total number
of shares of Common Stock which may be issued pursuant to Options granted under
this Plan does not (except as provided in Section 9 above) exceed the
limitations of Section 3 above. This Plan may be abandoned, suspended or
terminated at any time by the Board except with respect to any Options then
outstanding under the Plan.
11. RESTRICTIONS ON ISSUANCE OF SHARES
(a) The Company shall not be obligated to sell or issue any shares of
Common Stock upon the exercise of any Option granted under this Plan unless:
(i) the shares with respect to which such Option is being
exercised have been registered under applicable federal securities laws
or the issuance of which is exempt from such registration;
(ii) the prior approval of such sale or issuance has been
obtained from, or such sale or issuance is exempt from, any applicable
state regulatory body having jurisdiction; and
(iii) in the event the Common Stock has been listed on any
exchange, the shares with respect to which such Option is being
exercised have been duly listed on such exchange in accordance with the
procedure specified therefor.
If the shares of Common Stock to be issued upon the exercise of any Option
granted under the Plan are intended to be issued by the Company in reliance upon
the exemptions from the registration requirements of applicable federal
securities laws, the Optionee, if so requested by the Company, shall furnish to
the Company such evidence and representations, including an opinion of counsel
satisfactory to it, as the Company may reasonably request.
(b) Any shares of Common Stock issued to an officer or director of the
Company pursuant to the Plan shall not be transferred until at least six months
have elapsed from the date of grant of such Option to the date of disposition of
the Common Stock underlying such Option.
(c) The Committee may impose such other restrictions on the ownership
and transfer of shares of Common Stock issued pursuant to this Plan as it deems
desirable; any such restrictions shall be set forth in any Option Agreement
entered into hereunder.
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<PAGE>
12. PROCEEDS
The proceeds to be received by the Company upon exercise of any Option
granted under this Plan will constitute general funds of the Company and may be
used for any proper purposes.
13. AMENDMENT OF THIS PLAN
(a) AMENDMENT OF PLAN. The Board may amend the Plan from time to time in
such respects as it may deem advisable in its sole discretion or in order that
the Options granted hereunder shall conform to any change in applicable laws,
including tax laws, or regulations or rulings of administrative agencies or in
order that Options granted or shares of Common Stock acquired upon exercise of
such Options may qualify for simplified registration under applicable securities
or other laws; provided, however, that no amendment may be made which would
materially (a) increase the benefits accruing to participants under this Plan,
(b) increase the number of securities which may be issued under this Plan, other
than in accordance with Section 9 hereof, or (c) modify the requirements as to
eligibility for participation in this Plan, unless and until the same is
approved by the affirmative vote, in person, by proxy or by the written consent,
of the holders of a majority of the shares of Common Stock present and entitled
to vote at a meeting held to take such action at which a quorum is present.
(b) AMENDMENTS RELATING TO INCENTIVE STOCK OPTIONS. To the extent
applicable, this Plan is intended to permit the issuance of Incentive Stock
Options in accordance with the provisions of Section 422 of the Code. This Plan
may be modified or amended at any time, both prospectively and retroactively,
and in such manner as to affect Incentive Stock Options previously granted, if
such amendment or modification is necessary for this Plan and the Incentive
Stock Options granted hereunder to qualify under said provisions of the Code.
14. STOCKHOLDER'S APPROVAL
The Plan shall be submitted to the Company's stockholders for approval.
The Committee may grant Options under the Plan prior to the time of stockholder
approval, which Options will be effective when granted, but if for any reason
the stockholders of the Company do not approve the Plan prior to the one year
from the date of adoption of the Plan by the Board, all Options granted under
the Plan will automatically terminate and be of no effect, and no Option may be
exercised in whole or in part prior to such stockholder approval.
15. LIABILITY OF THE COMPANY
None of the Company, its directors, officers or employees, any of the
Subsidiaries which are in existence or hereafter come into existence or their
directors, officers or employees, shall be liable to any Optionee or other
person if it is determined for any reason by the Internal Revenue Service or any
court having jurisdiction that any incentive stock options granted hereunder do
not qualify for tax treatment as incentive stock options under Section 422 of
the Code.
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<PAGE>
16. MISCELLANEOUS
(a) RESTRICTIONS UPON RESALE OF UNREGISTERED STOCK. If the shares of
Common Stock that have been transferred to a Key Employee pursuant to the terms
of this Plan are not registered under the Securities Act pursuant to an
effective registration statement, such Key Employee, if the Committee deems it
advisable, may be required to represent and agree in writing (i) that any shares
of Common Stock acquired by the Key Employee pursuant to this Plan will not be
sold except pursuant to an effective registration statement under the Securities
Act or pursuant to an exemption from registration under the Securities Act and
(ii) that the Key Employee is acquiring such shares of Common Stock for his or
her account and not with a view to the distribution thereof.
(b) FAIL-SAFE PROVISION. If the Common Stock is or becomes registered
under Section 12 of the Exchange Act, with respect to persons subject to Section
16 of the Exchange Act, transactions under this Plan are intended to comply with
all applicable conditions of Rule 16b-3 or its successors under the Exchange
Act. To the extent any provision of this Plan or action by the Committee fails
to so comply, it shall be deemed null and void, to the extent permitted by law
and deemed advisable by the Committee.
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<PAGE>
STOCK OPTION GRANT
ACCOMPANYING THE
KEY MANAGEMENT STOCK OPTION AGREEMENT
In recognition of your past service, and as an incentive for your future
service, to TPG Holdings, Inc. (the "Company") or any of its Subsidiaries, the
Committee of the Board of Directors hereby grants to you the following stock
options pursuant to the TPG Holdings, Inc. Key
Management Stock Option Plan (1996) (the "Plan"):
1. NONSTATUTORY STOCK OPTIONS.
Nonstatutory stock options to purchase N/A shares of the Company's
Common Stock, $1.00 par value, at an exercise price of $ N/A per share.
2. INCENTIVE STOCK OPTIONS.
Options intended to qualify as incentive stock options to purchase _____
shares of the Company's Common Stock, $1.00 par value, at an exercise price of
$3.38 per share, which the Optionee hereby agrees is at least equal to the fair
market value of the Common Stock as of the date of grant (or 110% of such fair
market value, if the Optionee owns, directly or indirectly, more than 10% of the
combined voting power of all classes of stock of the Company.
Any option granted hereby shall be subject to the terms of the Plan and
the accompanying TPG Holdings, Inc. Key Management Stock Option Agreement.
The accompanying TPG Holdings, Inc. Key Management Stock Option
Agreement, which is attached hereto and made a part hereof, is agreed to and
effective as of June 5, 1996, which date shall be the Date of Grant for purposes
of the Plan and the Key Management Stock Option Agreement.
COMPANY: OPTIONEE:
By:____________________________
____________________________________
Name:_______________________________
Title:______________________________
Address:___________________________
____________________________
____________________________
Social Security No.:_______________________
<PAGE>
KEY MANAGEMENT STOCK OPTION AGREEMENT
This TPG Holdings, Inc. Key Management Stock Option Agreement (this
"Agreement") is entered into by and between TPG Holdings, Inc. (the "Company")
and the individual employee and/or director whose name is set forth on the
immediately preceding page of this Agreement (the "Optionee"), effective as of
the date set forth on such page.
RECITALS
The TPG Holdings, Inc. Key Management Stock Option Plan (1996) (the
"Plan") provides for, among other things, the grant of Nonstatutory Options and
Incentive Stock Options to purchase shares of common stock, $1.00 par value
("Common Stock"), of the Company upon the terms and subject to the conditions,
restrictions, and limitations set forth in the Plan and as determined by the
Committee.
Pursuant to the Plan, the Committee has approved the execution of this
Agreement and the grant to Optionee of the Options set forth on the immediately
preceding page.
AGREEMENT
1. DEFINITIONS.
The capitalized terms used in this Agreement and not otherwise defined
herein shall have the meaning given such terms in the Plan, unless the context
requires otherwise.
2. GRANT.
The Company does hereby grant to the Optionee those Options set forth on
the immediately preceding page, subject to the terms and conditions of the Plan
and this Agreement.
3. VESTING.
The Options granted pursuant to this Agreement shall vest in accordance
with the vesting schedule attached hereto as Schedule A. Options are subject to
forfeiture, as set forth in Section 7 of this Agreement, until such time as the
Options vest pursuant to Schedule A.
4. EXERCISE PRICE.
The exercise price or prices for Options granted pursuant to this
Agreement are set forth on the immediately preceding page of this Agreement.
5. EXERCISE.
(a) METHOD OF EXERCISE. Options may be exercised only by written notice
(the "Exercise Notice") by the Optionee to the Company at its principal
executive office. The date of exercise shall be the date of the postmark of the
Exercise Notice or the date received by the Company if delivered other than by
mail. The Exercise Notice shall state the number of shares covered by the
Options to be exercised, and shall include the Optionee's complete name,
address, and social security number.
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<PAGE>
If the shares of Common Stock to be purchased are covered by an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), any Option granted under this Agreement may be exercised
by a broker-dealer acting on behalf of the Optionee if (i) the broker-dealer has
received from the Optionee or the Company a fully- and duly-endorsed agreement
evidencing such Option, together with instructions signed by the Optionee
requesting the Company to deliver the shares of Common Stock subject to such
Option to the broker-dealer on behalf of the Optionee and specifying the account
into which such shares should be deposited, (ii) adequate provision has been
made with respect to the payment of any withholding taxes due upon such
exercise, and (iii) the broker-dealer and the Optionee have otherwise complied
with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220, or any successor
provision.
(b) PAYMENT ON EXERCISE. No shares of Common Stock will be issued on the
exercise of an Option unless paid for in full at the time of purchase. Payment
for shares of Common Stock purchased upon the exercise of an Option will be made
in cash or by certified or casher's check. Stock certificates for the shares of
Common Stock so paid for will be issued and delivered to the person entitled
thereto by the Company in person or by certified mail. No person will have any
rights as a stockholder with respect to any shares of Common Stock covered by an
Option unless and until he or she has become the holder of record of such share,
and except as otherwise permitted by Section 9 of the Plan and Section 9 of this
Agreement, no adjustment will be made for dividends (ordinary or extraordinary,
whether in cash, securities, or other property or distributions of other rights)
in respect of such share for which the record date is prior to the date on which
such person has become the holder of record.
(c) PAYMENT OF APPRECIATION IN CASH. Upon exercise of an Option, the
Company shall, in its sole discretion, determine whether to issue Common Stock
after payment of the Exercise Price by the Optionee, or, in lieu thereof, pay to
the Optionee, Common Stock or any combination of cash and Common Stock as the
Company deems advisable in an amount equal to the excess of the fair market
value per share on the Exercise Date, as determined by the Company, over the per
share Exercise Price under such Option multiplied by the number of shares of
Common Stock covered by such Option or portion thereof being exercised (the
"Stock Appreciation"). If the Stock Appreciation is paid, the Optionee will not
be required to pay the Exercise Price, and the Option to purchase shares
hereunder shall terminate with respect to the number of shares for which the
Stock Appreciation is paid. Payment of the Stock Appreciation shall be subject
to any applicable withholding and other taxes.
(d) TAX WITHHOLDING. In the case of the exercise of an Option by an
Optionee with respect to which withholding of federal, state, local or other
taxes is required, as determined by the Company in its sole discretion, no
shares of Common Stock will be issued upon the exercise of such Option until
such time as the Optionee has provided the Company with sufficient payment to
satisfy the obligation to withhold such taxes.
6. TERM OF STOCK OPTIONS AND LIMITATIONS ON RIGHT TO EXERCISE
The Option granted pursuant to this Agreement shall terminate at the
first of (a) June 5, 2006, or (b) the date specified in Section 7. Moreover, no
Incentive Stock Option granted pursuant to the Plan shall be exercisable (a)
more than five (5) years after the Date of Grant with respect to a 10- Percent
Stockholder, and (b) more than ten (10) years after the Date of Grant with
respect to all persons other than 10-Percent Stockholders, and no Nonstatutory
Option granted pursuant to the Plan
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<PAGE>
shall be exercisable more than ten (10) years after the Date of Grant. The
Company shall not be required to issue any fractional shares of Common Stock
upon the exercise of any Options granted under this Agreement. No Optionee or
his legal representatives, legatees or distributees, as the case may be, will
be, or will be deemed to be, a holder of any shares of Common Stock subject to
an Option unless and until said Option has been exercised and the Exercise Price
for the shares of Common Stock in respect of which the Option has been exercised
has been paid. An Option shall not be exercisable except by the Optionee or by a
person who has obtained the Optionee's right under the option by will or under
the laws of descent and distribution.
7. TERMINATION OF EMPLOYMENT.
(a) IN GENERAL. No portion of any Option granted pursuant to this
Agreement, whether vested or unvested, shall be exercisable on or after the
termination of the Optionee's employment other than as a result of (i) the
Optionee's death or Disability, as defined below, or (ii) the Optionee's
Termination Without Cause; as defined below. No additional Options shall vest
after the Optionee's termination pursuant to this Section 7(a).
(b) DEATH OR DISABILITY. In the event of the death or disability of the
Optionee while employed by the Company or any Subsidiary, the vested portion of
any Option granted pursuant to this Agreement shall be exercisable within one
year following the date of death or disability, but in no case later than the
expiration date of such Option, and then only to the extent that the Optionee
was entitled to exercise such Option at the date of his death or disability, (i)
in the event of Optionee's death, by the executor or administrator of the
Optionee's estate, or if the Optionee's estate is not in administration, by the
person or persons to whom the Optionee's right shall have passed under the
Optionee's will or under the laws of descent and distribution, or (ii) in the
event of the Optionee's Disability, by the Optionee's personal representative.
Except as otherwise provided in Schedule A, attached hereto, no additional
Options shall vest after the Optionee's termination pursuant to this Section
7(b). "Disability" for purposes of this Agreement shall mean a disability or
illness whereby the Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. The Company shall
determine the date of Disability.
(c) TERMINATION WITHOUT CAUSE. If the Optionee's employment is
Terminated Without Cause, the vested portion of any Option granted pursuant to
this Agreement shall be exercisable by the Optionee for a period of three months
following the date of such termination, but in no event later than the
expiration date of such Option. "Termination Without Cause" for purposes of this
Agreement shall mean termination other than based upon, in the reasonable
discretion of the Company, an Optionee's inability to meet minimum performance
requirements, dishonesty, fraud, negligence, or any other such action or
inaction with a material detrimental effect on the Company or any Subsidiary.
8. OPTIONS NOT TRANSFERABLE.
The Options granted pursuant to this Agreement are non-transferable by
the Optionee and, as such, may not be sold, assigned, pledged, mortgaged, or
otherwise transferred or disposed of other than by will or the laws of descent
and distribution. During the lifetime of the Optionee, such Options are
exercisable only by him or her or, if disabled, his or her legal
representatives. No
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<PAGE>
transfer of an Option by the Optionee by will or the laws of descent and
distribution will be effective upon the Company unless the Company has been
furnished with written notice thereof and a copy of the will and/or such other
evidence as the Committee may determine necessary to establish the validity of
the transfer.
9. DILUTION OR OTHER ADJUSTMENTS.
The number of shares of Common Stock subject to the Options granted
pursuant to this Agreement, as well as the Exercise Price of such Options, will
be subject to adjustment by the Committee, in its sole discretion, to reflect
any stock split, stock dividend, recapitalization, merger, consolidation,
reorganization, combination or exchange of shares of Common Stock or other
similar event.
10. RESTRICTIONS ON ISSUANCE OF SHARES.
(a) IN GENERAL. The Company shall not be obligated to sell or issue any
shares of Common Stock upon the exercise of any Option granted under this
Agreement unless:
(i) the shares with respect to which such Option is being
exercised have been registered under applicable federal securities laws
or the issuance of which is exempt from such registration;
(ii) the prior approval of such sale or issuance has been
obtained from any state regulatory body having jurisdiction; and
(iii) in the event the Common Stock has been listed on any
exchange, the shares with respect to which such Option is being
exercised have been duly listed on such exchange in accordance with the
procedure specified therefor.
If the shares of Common Stock to be issued upon the exercise of any Option
granted under this Agreement are intended to be issued by the Company in
reliance upon the exemptions from the registration requirements of applicable
federal securities laws, the Optionee, if so requested by the Company, shall
furnish to the Company such evidence and representations, including an option of
counsel, satisfactory to it, as the Company may reasonably request.
(a) OFFICERS AND DIRECTORS. Any shares of Common Stock issued to an
officer or director of the Company pursuant to this Agreement shall not be
transferred until at least six months have elapsed from the Date of Grant of
such Option to the date of disposition of the Common Stock underlying such
Option.
11. AMENDMENT OF PLAN AND AGREEMENT.
(a) AMENDMENT OF PLAN AND AGREEMENT. Except as provided in the Plan, the
Board may amend the Plan and this Agreement from time to time in such respects
as it may deem advisable in its sole discretion or in order that the Options
granted hereunder shall conform to any change in applicable laws, including tax
laws, or regulations or rulings of administrative agencies or in order that
Options granted or shares of Common Stock acquired upon exercise of such Options
may qualify for simplified registration under applicable securities or other
laws.
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<PAGE>
(b) AMENDMENTS RELATING TO INCENTIVE STOCK OPTIONS. To the extent
applicable, the Plan and this Agreement are intended to permit the issuance of
Incentive Stock Options in accordance with the provisions of Section 422 of the
Code. This Plan and this Agreement may be modified or amended at any time, both
prospectively and retroactively, and in such manner as to affect Incentive Stock
Options previously granted, if such amendment or modification is necessary for
the Plan, this Agreement, and the Incentive Stock Options granted hereunder to
qualify under said provisions of the Code.
12. LIABILITY OF THE COMPANY.
None of the Company, its directors, officers or employees, any of the
Subsidiaries which are in existence or hereafter come into existence, or their
directors, officers or employees, shall be liable to any Optionee or other
person if it is determined for any reason by the Internal Revenue Service or any
court having jurisdiction that any Incentive Stock Options granted hereunder do
not qualify for tax treatment as incentive stock options under Section 422 of
the Code.
13. NO GUARANTEE OF EMPLOYMENT. Nothing in the Plan or in this Agreement will in
any manner be construed to limit in any way the right of the Company or a
Subsidiary to terminate an Optionee's employment at any time, without regard to
the effect of such termination on any rights the Optionee would otherwise have
under the Plan, or give any right to the Optionee to remain employed by the
Company or a Subsidiary in any particular position or at any particular rate of
compensation.
14. SHAREHOLDER'S AGREEMENT. As a condition precedent to the issuance of shares
pursuant to the terms of this Option, Optionee, or his guardian or personal
representative, must execute a Shareholders' Agreement in the form previously
entered into by the Company and the shareholders of the Company, subject to any
amendment in accordance with the terms of such Shareholders' Agreement before
Optionee exercised the Option, except that the provisions of this Section 14
shall not be applicable if the Common Stock of the Company is traded in the
over-the-counter market, the NASDAQ National Market or upon any securities
exchange. Concurrent with the issuance of such shares, the Optionee, his
personal representative, or his guardian shall execute such Shareholders'
Agreement and deliver such executed agreement to the Company.
15. CONFLICTS WITH PLAN.
In the event of any conflict between the provisions of this Agreement
and the Plan, the provisions of the Plan shall control.
16. MISCELLANEOUS.
(a) RESTRICTIONS UPON RESALE OF UNREGISTERED STOCK. If the shares of
Common Stock that have been transferred to the Optionee pursuant to the terms of
this Agreement are not registered under the Securities Act pursuant to an
effective registration statement, such Optionee, if the Committee deems it
advisable, may be required to represent and agree in writing (i) that any shares
of Common Stock acquired by the Optionee pursuant to this Agreement will not be
sold except pursuant to an effective registration statement under the Securities
Act or pursuant to an exemption from registration under the Securities Act and
(ii) that the Optionee is acquiring such shares of Common Stock for his or her
account and not with a view to the distribution thereof.
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<PAGE>
(b) FAIL-SAFE PROVISION. If the Common Stock is or becomes registered
under Section 12 of the Exchange Act, with respect to persons subject to Section
16 of the Exchange Act, transactions under this Plan and this Agreement are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
this Agreement or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
(c) RECEIPT AND REVIEW OF PLAN. Optionee acknowledges receipt of a copy
of the Plan. Optionee further acknowledges notice of the terms, conditions, and
limitations contained in the Plan, and agrees to the rights of the Company to
repurchase unvested Options and Common Stock pursuant to Section 7 of this
Agreement.
(d) SEVERABILITY. If any provision of this Agreement for any reason
should be found by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality, or enforceability of any remaining provision or portion
thereof, which remaining provision or portion thereof shall remain in full force
and effect as if this Agreement had been adopted without the invalid, illegal,
or unenforceable provision or portion thereof.
(e) EQUITABLE RELIEF. The Company shall be entitled to enforce the terms
and provisions of this Agreement by an action for injunction or specific
performance or any action for damages, or all of them, and any of such actions
may be brought in Atlanta, Fulton County, Georgia.
(f) APPLICABLE STATE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the law of the State of Georgia,
without regard to any conflict of law provisions therein.
(g) This Option is subject to approval of the Plan by the stockholders
of the Company prior to June 5, 1997. Subject to such approval, this Option is
effective on the Date of Grant. If the Plan is not so approved, this Option
will be of no effect. No portion of this Option may be exercised prior to such
stockholder approval.
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<PAGE>
SCHEDULE A
TO
KEY MANAGEMENT STOCK OPTION AGREEMENT
If the Optionee is not terminated prior to the applicable Vesting Date,
then twenty percent (20%) of the Options granted pursuant to this Agreement
shall vest each year, and become exercisable, on the anniversary of the date of
this Agreement in accordance with the following schedule:
VESTING PERCENTAGE VESTING DATE
20% 1st anniversary
20% 2nd anniversary
20% 3rd anniversary
20% 4th anniversary
20% 5th anniversary
PROVIDED, HOWEVER, that upon the termination of the Optionee's employment or
position as a director (or the later to occur of his or her employment or
position as a director if he or she is both an employee and a director) as a
result of death, Disability, Termination Without Cause or Voluntary Termination
for Good Reason, Options granted pursuant to this Agreement shall vest to the
extent and as if the Optionee's employment or position as a director continued
through the next Vesting Date following the date of such termination, and
thereafter shall cease to vest.
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EXHIBIT 5.1
May 14, 1998
Advanced Technical Products, Inc.
3353 Peachtree Rd., Suite 920
Atlanta, Georgia 30326
Re: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
As set forth in the Registration Statement (the "Registration Statement") on
Form S-8 to be filed by Advanced Technical Products, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), relating
to the issuance of up to 595,952 shares (the "Shares") of the Company's common
stock, par value $0.01 per share ("Common Stock") subject to options granted or
to be granted under the 1997 Advanced Technical Products, Inc. Stock Option Plan
and the Advanced Technical Products, Inc. Non-Employee Directors Plan, and
options granted under the TPG Holdings Key Management Stock Option Plan
(collectively, the "Plans"), certain legal matters in connection with the Common
Stock are being passed upon for the Company by us. At your request, this opinion
is being furnished to you for filing as Exhibit 5.1 to the Registration
Statement.
In our capacity as your counsel in the connection referred to above, we have
examined the Amended and Restated Certificate of Incorporation and Bylaws of the
Company and the originals, or copies certified or otherwise identified, of
corporate records of the Company, including minute books of the Company as
furnished to us by the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as
a basis for the opinions hereinafter expressed. In giving such opinions, we have
relied upon certificates of officers of the Company with respect to the accuracy
of the material factual matters contained in such certificates.
We have assumed the authenticity and completeness of all records, certificates
and other instruments submitted to us as originals, the conformity to original
documents of all records, certificates and other instruments submitted to us as
copies, the authenticity and completeness of the originals of those records,
certificates and other instruments submitted to us as copies and the correctness
of all statements of fact contained in all records, certificates and other
instruments that we have examined.
<PAGE>
Advanced Technical Products, Inc.
May 14, 1998
Page 2
Based on the foregoing, and having regard for such legal considerations as we
have deemed relevant, we are of the opinion that, when issued and sold in the
manner referred to in the Plans, the Shares will be legally and validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the federal laws of the United States of
America and the General Corporation Law of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and further consent to the use of our name
wherever appearing in the Registration Statement and any amendments to it.
Very truly yours,
/s/ GARDERE WYNNE SEWELL & RIGGS, L.L.P.
GARDERE WYNNE SEWELL & RIGGS, L.L.P.
EXHIBIT 23.1
The Board of Directors
Advanced Technical Products, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Advanced Technical Products, Inc. of our report dated March 20, 1998,
except as to Note 8, which is as of March 31, 1998, relating to the consolidated
balance sheet of Advanced Tecnical Products, Inc. and subsidiaries as of
December 31, 1997 and the related consolidated statements of income and cash
flows for the year then ended, which report appears in the December 31, 1997
annual report on Form 10-K of Advanced Technical Products, Inc.
Atlanta, Georgia
May 12, 1998
