Registration No. 33 -
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Lotus Development Corporation
-------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
04-2755502
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(IRS employer identification no.)
55 Cambridge Parkway, Cambridge, MA 02142
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(Address of principal executive offices)
Lotus Development Corporation 1992 Stock Option Plan
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(Full title of the plan)
Thomas M. Lemberg, Esq.
Lotus Development Corporation
55 Cambridge Parkway
Cambridge, MA 02142
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(Name and address of agent for service)
(617) 577-8500
-------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate offering registration
per share price fee
- ------------------- ---------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 6,000,000 shares $34.375 (A) $206,250,000 $71,120.69
============================================================================================
(A) Average of high and low prices for May 11, 1995 computed in accordance
with Rule 457(h) solely for the purpose of calculating the registration fee.
</TABLE>
Exhibit index is located on page 5.
______________________________________________________________________________
This Registration Statement relates to the offer of additional
securities of the same class as other securities for which a
registration statement on Form S-8 relating to the Registrant's
1992 Stock Option Plan is effective. As a result, only
information required by the current registration statement and
that is not included in that prior registration statement is set
forth below. The prior registration statement on Form S-8, filed
on December 3, 1993 (No. 33-51263) is incorporated herein by
reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference in
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994, filed March 30, 1995. (Commission
file number 0-11626.)
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the Registrant's
fiscal year ended December 31, 1994.
(c) The Registrant's Registration Statement on Form 8-A
filed on February 24, 1984 pursuant to Section 12(g) of the
Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant
to Section 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, shall be deemed to be
incorporated by reference in this Registration Statement and
shall be part hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of shares of Common Stock
offered hereby has been passed upon by Larry J. Braverman, Senior
Corporate Counsel of the Registrant. Mr. Braverman is employed
by the Registrant, is an Assistant Secretary of the Registrant
and is eligible to receive options to purchase Common Stock under
the Registrant's Amended and Restated 1983 Non-Qualified Stock
Option Plan and 1992 Stock Option Plan. Mr. Braverman
beneficially owns options to purchase 7,400 shares of Common
Stock, all of which options were granted under such plans.
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Item 8. Exhibits.
4(a) Lotus Development Corporation 1992 Stock Option Plan
(filed herewith).
4(b) Rights Agreement dated as of November 7, 1988, between the
Company and The First National Bank of Boston as Rights
Agent in respect of Preferred Share Purchase Rights (filed
as Exhibit 1 to the Registrant's Registration Statement on
Form 8-A filed November 10, 1988, and incorporated herein
by reference).
4(c) Amendment dated as of April 5, 1990 between The First
National Bank of Boston as Rights Agent in respect of
Preferred Share Purchase Rights (filed as Exhibit 28(a) to
the Registrant's Current Report on Form 8-K dated April 5,
1990, and incorporated herein by reference).
4(d) Amendment dated as of September 16, 1991 between The First
National Bank of Boston as Rights Agent in respect of
Preferred Share Purchase Rights (filed as Exhibit 28(a) to
the Registrant's Current Report on Form 8-K filed
September 16, 1991, and incorporated herein by reference).
5 Opinion of Senior Corporate Counsel of the Registrant as to
the validity of the issuance of the shares of Common Stock
being registered. (filed herewith).
23(a) Consent of Coopers & Lybrand L.L.P. (filed herewith).
23(b) Consent of Senior Corporate Counsel of the Registrant
(contained in opinion filed as Exhibit 5).
24 Power of Attorney (filed herewith).
[Signature page is next page.]
3 of 22
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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 Cambridge, Commonwealth of Massachusetts, on this
15th day of May, 1995.
LOTUS DEVELOPMENT CORPORATION
By: /s/ Jim P. Manzi
-------------------------
Jim P. Manzi, President
Pursuant to the requirement of the Securities Act of 1933,
this registration statement has been signed by the following
persons and on the date indicated.
/s/ Jim P. Manzi May 15, 1995
- ----------------------------------
Jim P. Manzi, Chairman, President
and Director
(Principal Executive Officer)
/s/ Richard S. Braddock May 15, 1995
- ----------------------------------
Richard S. Braddock, Director
/s/ Elaine L. Chao May 15, 1995
- ----------------------------------
Elaine L. Chao, Director
/s/ William H. Gray, III May 15, 1995
- ----------------------------------
William H. Gray, III, Director
/s/ Michael E. Porter May 15, 1995
- ----------------------------------
Michael E. Porter, Director
/s/ Henri A. Termeer May 15, 1995
- ----------------------------------
Henri A. Termeer, Director
/s/ Edwin J. Gillis May 15, 1995
- ----------------------------------
Edwin J. Gillis, Senior Vice
President of
Finance and Operations
(Principal Financial Officer)
/s/ William J. Sample May 15, 1995
- -----------------------------------
William J. Sample, Director of
Financial Services
(Principal Accounting Officer)
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EXHIBIT INDEX
Sequentially
Exhibit Numbered Page
------- -------------
4(a) Lotus Development Corporation 1992 Stock
Option Plan 6
4(b) Rights Agreement dated as of November
7, 1988, between the Company and The
First National Bank of Boston as
Rights Agent in respect of Preferred
Share Purchase Rights (filed as
Exhibit 1 to the Registrant's
Registration Statement on Form 8-A
filed November 10, 1988, and
incorporated herein by reference)
4(c) Amendment dated as of April 5, 1990
between the The First National Bank of
Boston as Rights Agent in respect of
Preferred Share Purchase Rights (filed
as Exhibit 28(a) to the Registrant's
Current Report on Form 8-K dated
April 5, 1990, and incorporated herein
by reference)
4(d) Amendment dated as of September 16,
1991 between the The First National
Bank of Boston as Rights Agent in
respect of Preferred Share Purchase
Rights (filed as Exhibit 28(a) to the
Registrant's Current Report on Form
8-K filed September 16, 1991, and
incorporated herein by reference)
5 Opinion of Senior Corporate Counsel of
the Registrant 18
23(a) Consent of Coopers & Lybrand L.L.P. 20
23(b) Consent of Senior Corporate Counsel of the
Registrant (contained in opinion filed as
Exhibit 5) 18
24 Power of Attorney 21
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EXHIBIT 4(a)
LOTUS DEVELOPMENT CORPORATION
-----------------------------
1992 STOCK OPTION PLAN
----------------------
1. PURPOSE OF THE PLAN.
The purpose of the LOTUS DEVELOPMENT CORPORATION 1992
STOCK OPTION PLAN (the "Plan") is (i) to further the growth and
success of LOTUS DEVELOPMENT CORPORATION, a Delaware corporation
(the "Company"), and its Subsidiaries (as hereinafter defined) by
enabling officers, employees and consultants of the Company and
any of its Subsidiaries to acquire shares of Common Stock , $.01
par value (the "Common Stock"), of the Company, thereby
increasing their personal interest in such growth and success,
and (ii) to provide a means of rewarding outstanding performance
by such persons to the Company and/or its Subsidiaries. Options
granted under the Plan may be either "incentive stock options"
("ISOs"), intended to qualify as such under the provisions of
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or non-qualified stock options ("NSOs"). For purposes
of the Plan, the terms "Parent" and "Subsidiary" shall mean
"Parent Corporation" and "Subsidiary Corporation", respectively,
as such terms are defined in Sections 425(e) and (f) of the Code.
Unless the context otherwise requires, any ISO or NSO shall
hereinafter be referred to as an "Option".
2. ADMINISTRATION OF THE PLAN.
a. Stock Option Committee.
-----------------------
The Plan shall be administered by a Stock Option
Committee (the "Committee") of the Board of Directors of the
Company (the "Board") consisting of two or more non-employee
directors who shall be ineligible to participate in the Plan and
who shall be appointed to such Committee from time to time by the
Board; provided, however, that, so long as the Plan shall be
required to comply with Rule 16b-3 ("Rule 16b-3") promulgated by
the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), in
order to permit transactions pursuant to the Plan by officers and
employee directors of the Company to be exempt from the
provisions of Section 16(b) of the 1934 Act, each member of the
Committee, at the effective date of his or her appointment to the
Committee, at the effective date of his or her appointment to the
Committee, shall be a "disinterested person" within the meaning
of Rule 16b-3. The members of the Committee may be removed at
any time either with or without cause by the Board. Any vacancy
on the Committee, whether due to action of the Board or any other
cause, shall be filled by the Board.
b. Procedures.
-----------
The Committee shall from time to time select a Chairman
from among its members and shall adopt such rules and regulations
as it shall deem appropriate concerning the holding of meetings
and the administration of the Plan. A majority of the entire
Committee shall constitute a quorum and the actions of a majority
of the members of the Committee present at a meeting at which a
quorum is present, or actions approved in writing by all of the
members of the Committee, shall be the actions of the Committee;
provided, however, that if the Committee consists of only two
members, both shall be required to constitute a quorum and to act
at a meeting or to approve actions in writing.
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c. Interpretation.
---------------
Except as otherwise expressly provided in the Plan, the
Committee shall have all powers with respect to the
administration of the Plan, including, without limitation, full
power and authority to interpret the provisions of the Plan and
any Option Agreement (as defined in Section 5.b), and to resolve
all questions arising under the Plan. All decisions of the
Committee shall be conclusive and binding on all participants in
the Plan.
3. SHARES OF STOCK SUBJECT TO THE PLAN.
a. Number of Shares.
-----------------
Subject to the provisions of Section 9 (relating to
adjustments upon changes in capital structure and other corporate
transactions), the number of shares of Common Stock subject at
any one time to Options granted under the Plan, plus the number
of shares of Common Stock theretofore issued and delivered
pursuant to the exercise of Options granted under the Plan, shall
not exceed 12,000,000 shares. If and to the extent that Options
granted under the Plan terminate, expire or are cancelled without
having been fully exercised, new Options may be granted under the
Plan with respect to the shares of Common Stock covered by the
unexercised portion of such terminated, expired or cancelled
Options.
b. Character of Shares.
--------------------
The shares of Common Stock issuable upon exercise of an
Option granted under the Plan shall be (i) authorized but
unissued shares of Common Stock, (ii) shares of Common Stock held
in the Company's treasury or (iii) a combination of the
foregoing.
c. Reservation of Shares.
----------------------
The number of shares of Common Stock reserved for
issuance under the Plan shall at no time be less than the maximum
number of shares which may be purchased at any time pursuant to
outstanding Options.
4. ELIGIBILITY.
a. General.
--------
ISOs may be granted by the Committee under the Plan
only to persons who are officers or employees (including
directors who are officers or employees) of the Company or any of
its Subsidiaries. NSOs may be granted by the Committee under the
Plan only to persons who are officers or employees (including
directors who are officers or employees) of the Company or any of
its Subsidiaries and to consultants (including natural persons
and entities) to the Company or any of its Subsidiaries. Options
granted under the Plan shall be, in the discretion of the
Committee, either ISOs or NSOs. Notwithstanding the foregoing,
Options may be conditionally granted to persons who are
prospective employees of the Company or any of its Subsidiaries;
provided, however, that any such conditional grant of an ISO to a
prospective employee shall, by its terms, become effective no
earlier than the date on which such person actually becomes an
employee.
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b. Exceptions.
-----------
Notwithstanding anything contained in Section 4.a. to
the contrary:
(i) no ISO may be granted under the Plan to an
employee who owns, directly or indirectly (within the
meaning of Sections 422(b)(6) and 425(d) of the Code), stock
possessing more than 10% of the total combined voting power
of all classes of stock of the Company or of its Parent, of
any, unless (A) the Option Price (as defined in Section
6.a.) of the shares of Common Stock subject to such ISO is
fixed at not less than 110% of the Fair Market Value on the
date of grant (as determined in accordance with Section
6.b.) of such shares and (B) such ISO by its terms is not
exercisable after the expiration of five years from the date
it is granted; and
(ii) no Option may be granted to a person (A)
who has been appointed pursuant to Section 2.a. to serve on
the Committee effective as of a future date at any time
during the period from the date such appointment is made to
the date such appointment is to become effective or (B) who
is serving as a member of the Committee.
(iii) no individual participant under the Plan
may be granted Options to purchase more than 250,000 shares
of Common Stock in the aggregate during any calendar year.
5. GRANT OF OPTIONS.
a. General.
--------
Options may be granted under the Plan at any time and
from time to time on or prior to the Expiration Date (as defined
in Section 12). Subject to the provisions of the Plan, the
Committee shall have plenary authority, in its sole discretion,
to determine:
(i) the person (from among the class of persons
eligible to receive Options under the Plan) to whom Options
shall be granted (the "Optionees");
(ii) the time or times at which Options shall be
granted;
(iii) the number of shares subject to each
Option;
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(iv) the Option Price of the shares subject to
each Option, which price shall be not less than the minimum
specified in Section 4.b.(i) or 6.a. (as applicable); and
(v) the time or times when each Option shall
become exercisable and the duration of the exercise period.
b. Option Agreements.
------------------
Each Option granted under the Plan shall be designated
as an ISO or an NSO and shall be subject to the terms and
conditions applicable to ISOs and/or NSOs (as the case may be)
set forth in the Plan. In addition each Option shall be
evidenced by a written agreement (an "Option Agreement"),
containing such terms and conditions and in such form, not
inconsistent with the Plan, as the Committee shall, in its
discretion, provide. Each Option Agreement shall be executed by
the Company and the Optionee.
c. No Evidence of Employment.
--------------------------
Nothing contained in the Plan or in any Option
Agreement shall confer upon any Optionee any right with respect
to the continuation of his or her employment by the Company or
any of its Subsidiaries or interfere in any way with the right of
the Company or any such Subsidiary (subject to the terms of any
separate agreement to the contrary), at any time to terminate
such employment or to increase or decrease the compensation of
the Optionee from the rate in existence at the time of the grant
of an Option.
d. Date of Grant.
--------------
The date of grant of an Option under this Plan shall be
the date as of which the Committee approves the grant; provided,
however, that in the case of an ISO, the date of grant shall in
no event be earlier than the date as of which the Optionee
becomes an employee of the Company or one of its Subsidiaries.
6. OPTION PRICE.
a. General.
--------
Subject to Section 9, the price (the "Option Price") at
which each share of Common Stock subject to an Option granted
under the Plan may be purchased shall be determined by the
Committee at the time the Option is granted; provided, however,
that (i) in the case of an ISO, subject to Section 4.b.(i), such
Option Price shall in no event be less than 100% of the Fair
Market Value on the date of grant (as determined in accordance
with Section 6.b.) of such share of Common Stock and (ii) in the
case of an NSO, such Option Price shall in no event be less than
100% the Fair Market Value on the date of grant (as determined in
accordance with Section 6.b.) of such share of Common Stock.
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b. Determination of Fair Market Value.
-----------------------------------
Subject to the requirements of Section 422 of the Code,
for purposes of the Plan, the "Fair Market Value" of shares of
Common Stock shall be equal to:
(i) if such shares are publicly traded, (x) the
closing price, if applicable, or the average of the last bid
and asked prices on the date of grant or, if lower, the
average of the daily closing prices (or the mean between the
last bid and asked prices for days on which no sales took
place) of the 30 business days immediately preceding the
date of grant, in the over-the-counter market as reported by
NASDAQ, or (y) if the Common Stock is then traded on a
national securities exchange or on the NASDAQ National
Market System, the average of the high and low prices on the
date of grant or, if the date of grant is not a day on which
the Common Stock is traded, the average of the high and low
prices on the next succeeding day on which the Common Stock
is traded; or
(ii) If there is no public trading market for
such shares, the fair value of such shares on the date of
grant as determined by the Committee after taking into
consideration all factors which it deems appropriate,
including, without limitation, recent sale and offer prices
of the Common Stock in private transactions negotiated at
arms' length.
Anything contained in the Plan to the contrary
notwithstanding, all determinations pursuant to Section 6.b.(ii)
shall be made without regard to any restriction other than a
restriction which, by its terms, will never lapse.
7. EXERCISABILITY OF OPTIONS.
a. Committee Determination.
------------------------
Each Option granted under the Plan shall be exercisable
at such time or times, or upon the occurrence of such event or
events, and for such number of shares subject to the Option, as
shall be determined by the Committee and set forth in the Option
Agreement evidencing such Option. If an Option is not at the
time of grant immediately exercisable, the Committee may (i) in
the Option Agreement evidencing such Option, provide for the
acceleration of the exercise date or dates of the subject Option
upon the occurrence of specified events and/or (ii) at any time
prior to the complete termination of such Option, accelerate the
exercise date or dates of such Option.
b. Automatic Termination.
----------------------
The unexercised portion of any Option granted under the
Plan shall automatically terminate and shall become null and void
and be of no further force or effect upon the first to occur of
the following:
(i) the tenth anniversary of the date on which
such Option is granted or, in the case of any ISO granted to
a person described in Section 4.b.(i), the fifth anniversary
of the date on which such ISO is granted;
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(ii) the expiration of six months from the date
that the Optionee ceases to be an officer or employee of the
Company or any of its Subsidiaries (other than as a result
of an Involuntary Termination (as defined in subparagraph
(iii) below) or a Termination For Cause (as defined in
subparagraph (iv) below)); provided, however, that if the
Optionee shall die during such six-month period, the time of
termination of the unexercised portion of such Option shall
be determined in accordance with subparagraph (iii) below;
(iii) the expiration of 12 months or such
shorter period as provided in the Option from the date that
the Optionee ceases to be an officer or employee of the
Company or any of its Subsidiaries, if such termination is
due to such Optionee's death or permanent and total
disability (within the meaning of Section 22(e)(3) of the
Code) (an "Involuntary Termination");
(iv) the expiration of three months from that
date that the Optionee ceases to be an officer or employee
of the Company or any of its Subsidiaries, if such
termination is for cause or is otherwise attributable to a
breach by the Optionee of an employment or other similar
agreement with the Company or any such Subsidiary (a
"Termination For Cause");
(v) the expiration of such period of time or the
occurrence of such event (including the expiration of
shorter periods of time with respect to the events described
in subparagraphs (i), (ii), (iii) and (iv) above) as the
Committee in its discretion may provide in the Option
Agreement;
(vi) the effective date of a Corporate
Transaction (as defined in Section 9.b.(i) to which Section
9.b.(ii) (relating to assumptions and substitutions of
Options) does not apply; provided, however, that an
Optionee's right to exercise any Option outstanding prior to
such effective date shall in all events be suspended during
the period commencing 10 days prior to the proposed
effective date of such Corporate Transaction and ending on
either the actual effective date of such Corporate
Transaction or upon receipt of notice from the Company that
such Corporate Transaction will not in fact occur; and
(vii) except to the extent permitted by Section
9.b.(ii), the date on which an Option or any part thereof or
right or privilege relating thereto is transferred
(otherwise than by will or the laws of descent and
distribution), assigned, pledged, hypothecated, attached or
otherwise disposed of by the Optionee.
The Committee shall have the power to determine what
constitutes a Termination For Cause, and the date upon which such
Termination For Cause shall occur. All such determinations shall
be final and conclusive and binding upon the Optionee.
Anything contained in the Plan to the contrary
notwithstanding, unless otherwise provided in an Option
Agreement, no Option granted under the Plan shall be affected by
any change of duties or position of the Optionee (including a
transfer to or from the Company or one of its Subsidiaries), so
long as such Optionee continues to be an officer or employee of
the Company or one of its Subsidiaries.
11 0f 22
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c. Limitations on Exercise.
------------------------
Anything contained in the Plan to the contrary
notwithstanding, an ISO granted under the Plan to an Optionee
shall not be exercisable to the extent that the aggregate Fair
Market Value on the date of grant of such ISO (as determined in
accordance with Section 6.b.) of all stock with respect to which
incentive stock options are exercisable for the first time by
such Optionee during any calendar year (under all plans of the
Company and its Subsidiaries) exceeds $100,000.
8. PROCEDURE FOR EXERCISE.
a. Payment.
--------
At the time an Option is granted under the Plan, the
Committee shall, in its discretion, specify one or more of the
following forms of payment which may be used by an Optionee upon
exercise of his Option:
(i) cash or personal or certified check payable
to the Company in an amount equal to the aggregate Option
Price of the shares with respect to which the Option is
being exercised;
(ii) stock certificates (in negotiable form)
representing shares of Common Stock having a Fair Market
Value on the date of exercise (as determined in accordance
with Section 6.b. as if the date of exercise were the date
of grant) equal to the aggregate Option Price of the shares
with respect to which the Option is being exercised; or
(iii) a combination of the methods set forth in
clauses (i) and (ii).
b. Notice.
-------
An Optionee (or other person, as provided in Section
10.b.) may exercise an Option granted under the Plan in whole or
in part (but for the purchase of whole shares only), as provided
in the Option Agreement evidencing his or her Option, by
delivering a written notice (the "Notice") to the Secretary of
the Company. The Notice shall:
(i) state that the Optionee elects to exercise
the Option;
(ii) state the number of shares with respect to
which the Option is being exercised (the "Optioned Shares");
(iii) state the method of payment for the
Optioned Shares (which method must be available to the
Optionee under the terms of his or her Option Agreement);
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(iv) state the date upon which the Optionee
desires to consummate the purchase (which date must be prior
to the termination of such Option and no later than 30 days
from the delivery of such Notice);
(v) include any representations of the Optionee
required pursuant to Section 10.a.;
(vi) if the Option is exercised pursuant to
Section 10.b. by any person other than the Optionee, include
evidence to the satisfaction of the Committee of the right
of such person to exercise the Option; and
(vii) include such further provisions consistent
with the Plan as the Committee may from time to time
require.
The exercise date of an Option shall be the date on
which the Company receives the Notice from the Optionee.
Within 30 days of the exercise of the Option, the
Optionee shall deliver to the Company a copy of any election
filed by the Optionee with the Internal Revenue Service under
Section 83(b) of the Code.
c. Issuance of Certificates.
-------------------------
The Company shall issue a stock certificate in the name
of the Optionee (or such other person exercising the Option in
accordance with the provisions of Section 10.b.) for the Optioned
Shares as soon as practicable after receipt of the Notice and
payment of the aggregate Option Price for such shares. Neither
the Optionee nor any person exercising an Option in accordance
with the provisions of Section 10.b. shall have any privileges as
a stockholder of the Company with respect to any shares of stock
subject to an Option granted under the Plan until the date of
issuance of a stock certificate pursuant to this Section 8.c.
9. ADJUSTMENTS.
a. Changes in Capital Structure.
-----------------------------
Subject to Section 9.b., if the Common Stock is changed
by reason of a stock split, reverse stock split, stock dividend
or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation or
reorganization, the Committee shall make such adjustments in the
number and class of shares of stock with respect to which Options
may be granted under the Plan as shall be equitable and
appropriate in order to make such Options, as nearly as may be
practicable, corresponding adjustment changing the number and
class of shares allocated to, and the Option Price of, each
Option or portion thereof outstanding at the time of such change
shall likewise be made. Anything contained in the Plan to the
contrary notwithstanding, in the case of ISOs, no adjustment
under this Section 9.a. shall be appropriate if such adjustment
(i) would constitute a modification, extension or renewal of such
ISOs within the meaning of Sections 422 and 425 of the Code, and
the regulations promulgated by the Treasury Department
thereunder, or (ii) would, under Section 422 of the Code and the
regulations promulgated by the Treasury Department thereunder, be
considered the adoption of a new plan requiring stockholder
approval.
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b. Corporate Transactions.
-----------------------
The following rules shall apply in connection with the
dissolution or liquidation of the Company, a reorganization,
merger or consolidation in which the Company is not the surviving
corporation, or a sale of all or substantially all of the assets
of the Company to another person or entity (a "Corporate
Transaction"):
(i) each holder of an Option outstanding at such
time shall be given (A) written notice of such Corporate
Transaction at lest 20 days prior to its proposed effective
date (as specified in such notice) and (B) an opportunity,
during the period commencing with delivery of such notice
and ending 10 days prior to such proposed effective date, to
exercise the Option to the full extent to which such Option
would have been exercisable by the Optionee at the
expiration of such 20-day period; provided, however, that
upon the effective date of a Corporate Transaction, all
Options granted under the Plan not so exercised shall
automatically terminate; and
(ii) anything contained in the Plan to the
contrary notwithstanding, Section 9.b.(i) shall not be
applicable if provision shall be made in connection with
such Corporate Transaction for the assumption of outstanding
Options by, or the substitution for such Options of new
options covering the stock of, the surviving, successor or
purchasing corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number, kind and
option prices of shares subject to such options; provided,
however, that in the case of ISOs, the Committee shall, to
the extent not inconsistent with the best interests of the
Company or its Subsidiaries (such best interests to be
determined in good faith by the Committee in its sole
discretion), use its best efforts to ensure that any such
assumption or substitution will not constitute a
modification, extension or renewal of the ISOs within the
meaning of Section 425(h) of the Code and the regulations
promulgated by the Treasury Department thereunder.
c. Special Rules.
--------------
The following rules shall apply in connection with
Section 9.a. and b. above:
(i) no fractional shares shall be issued as a
result of any such adjustment, and any fractional shares
resulting from the computations pursuant to Section 9.a. or
b. shall be eliminated without consideration from the
respective Options;
(ii) no adjustment shall be made for cash
dividends or the issuance to stockholders of rights to
subscribe for additional shares of Common Stock or other
securities; and
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(iii) any adjustments referred to in Section
9.a. or b. shall be made by the Committee in its sole
discretion and shall be conclusive and binding on all
persons holding Options granted under the Plan.
10. RESTRICTIONS ON OPTIONS AND OPTIONED SHARES.
a. Compliance With Securities Laws.
--------------------------------
No Options shall be granted under the Plan, and no
shares of Common Stock shall be issued and delivered upon the
exercise of Options granted under the Plan, unless and until the
Company and/or the Optionee shall have complied with all
applicable Federal or state registration, listing and/or
qualification requirements and all other requirements of law or
of any regulatory agencies having jurisdiction.
The Committee in its discretion may, as a condition to
the exercise of any Option granted under the Plan, require an
Optionee (i) to represent in writing that the shares of Common
Stock received upon exercise of an Option are being acquired for
investment and not with a view to distribution and (ii) to make
such other representations and warranties as are deemed
appropriate by counsel to the Company. Stock certificates
representing shares of Common Stock acquired upon the exercise of
Options that have not been registered under the Securities Act
shall, if required by the Committee, bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE SECURITIES ACT OF 1933 OR AN OPINION
OF COUNSEL TO THE COMPANY THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT."
b. Nonassignability of Option Rights.
----------------------------------
No Option granted under this Plan shall be assignable
or otherwise transferable by the Optionee except by will or by
the laws of descent and distribution. An Option may be exercised
during the lifetime of the Optionee only by the Optionee. If an
Optionee dies, his or her Option shall thereafter be exercisable,
during the period specified in Section 7.b.(ii) or (iii) (as the
case may be), by his or her executors or administrators to the
full extent to which such Option was exercisable by the Optionee
at the time of his or her death.
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11. EFFECTIVE DATE OF PLAN.
This Plan shall become effective on the date (the
"Effective Date") of its adoption by the Board; provided,
however, that no Option shall be exercisable by an Optionee
unless and until the Plan shall have been approved by the
stockholders of the Company in accordance with the provisions of
its Certificate of Incorporation and By-laws, which approval
shall be obtained within 12 months before or after the adoption
of the Plan by the Board.
12. EXPIRATION AND TERMINATION OF THE PLAN.
Except with respect to Options then outstanding, the
Plan shall expire on the date (the "Expiration Date") which is
the first to occur of (i) the tenth anniversary of the date on
which the Plan is adopted by the Board, (ii) the tenth
anniversary of the date on which the Pan is approved by the
stockholders of the Company and (iii) the date as of which the
Board, in its sole discretion, determines that the Plan shall
terminate. Any Options outstanding as of the Expiration Date
shall remain in effect until they have been exercised or
terminated or have expired by their respective terms.
13. AMENDMENT OF PLAN.
The Board may at any time prior to the Expiration Date
modify and amend the Plan in any respect; provided, however, that
the approval of the holders of a majority of the votes that may
be cast by all of the holders of shares of Common Stock and
preferred stock of the Company, if any, entitled to vote (voting
as a single class) shall be obtained prior to any such amendment
becoming effective if such approval is required by law or is
necessary to comply with regulations promulgated by the SEC under
Section 16(b) of the 1934 Act or with Section 422 of the Code or
the regulations promulgated by the Treasury Department
thereunder.
14. CAPTIONS.
The use of captions in this Plan is for convenience.
The captions are not intended to provided substantive rights.
15. DISQUALIFYING DISPOSITIONS.
If Optioned Shares acquired by exercise of an ISO
granted under this Plan are disposed of within two years
following the date of grant of the ISO or one year following the
transfer of the Optioned Shares to the Optionee (a "Disqualifying
Disposition"), the holder of the Optioned Shares shall,
immediately prior to such Disqualifying Disposition, notify the
Company in writing of the date and terms of such Disqualifying
Disposition and provided such other information regarding the
Disqualifying Disposition as the Company may reasonably require.
16. WITHHOLDING TAXES.
Whenever under the Plan shares of Common Stock are to
be delivered by an Optionee upon exercise of an NSO, the Company
shall be entitled to require as a condition of delivery that the
Optionee remit or, in appropriate cases, agree to remit when due,
an amount sufficient to satisfy all current or estimated future
Federal, state and local withholding tax and employment tax
requirements relating thereto. At the time of a Disqualifying
Disposition, the Optionee shall remit to the Company in cash the
amount of any applicable Federal, state and local withholding
taxes and employment taxes.
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17. OTHER PROVISIONS.
Each Option granted under the Plan may contain such
other terms and conditions not inconsistent with the Plan as may
be determined by the Committee, in its sole discretion.
Notwithstanding the foregoing, each ISO granted under the Plan
shall include those terms and conditions which are necessary to
qualify the ISO as an "incentive stock option" within the meaning
of Section 422 of the Code and the regulations thereunder and
shall not include any terms or conditions which are inconsistent
therewith.
18. NUMBER AND GENDER.
With respect to words used in this Plan, the singular
form shall include the plural form, the masculine gender shall
include the feminine gender, and vise-versa, as the context
requires.
19. GOVERNING LAW.
The validity and construction of this Plan and the
instruments evidencing the Options granted hereunder shall be
governed by the laws of the State of Delaware.
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Exhibit 5
May 15, 1995
Lotus Development Corporation
55 Cambridge Parkway
Cambridge, MA 02142
Attn: Board of Directors
Lotus Development Corporation
6,000,000 Shares of Common Stock, $.01 Par Value
------------------------------------------------
Dear Sirs:
I am employed as Senior Corporate Counsel by Lotus
Development Corporation, a Delaware corporation (the "Company"),
and have counseled the Company in connection with the
registration under the Securities Act of 1933, as amended, of an
additional 6,000,000 shares (the "Shares") of Common Stock, $.01
par value, of the Company for sale to employees and consultants
of the Company pursuant to the Lotus Development Corporation
1992 Stock Option Plan (the "Plan").
In that connection, I have examined originals, or copies
certified or otherwise identified to my satisfaction, of such
documents, corporate records and other instruments as I have
deemed necessary for the purposes of this opinion. In my
examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me by officers of
the company as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents.
Based upon the foregoing, I am of the opinion that:
1. The Company is a validly existing corporation in good
standing under the laws of the State of Delaware.
2. The issuance and sale of the Shares have been duly
authorized and, when issued, delivered and paid for upon the
exercise of options granted under the Plan in accordance with the
provisions of the Plan, the Shares will be validly issued, fully
paid and nonassessable.
I am admitted to the Bar of the Commonwealth of
Massachusetts and I express no opinion as to laws of any other
jurisdiction other than, to the extent set forth below, the
Delaware General Corporation Law. To the extent that matters of
Delaware corporate law are involved in the opinions set forth
above, you should be aware that I am not admitted to the Bar of
the State of Delaware and am not an expert in the law of such
jurisdiction. Accordingly, such opinions concerning Delaware
corporate law are based upon my reasonable (although not
necessarily complete) familiarity with the Delaware General
Corporation Law as a result of my prior involvement in
transaction involving such law.
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I hereby consent to the inclusion of this opinion as Exhibit
5 to the Registration Statement on Form S-8 being filed by the
Company.
Very truly yours,
/s/ Larry J. Braverman
----------------------
Larry J. Braverman
Senior Corporate Counsel
LJB/taw
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Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
registration statement of Lotus Development Corporation on Form
S-8 and in the related prospectus with respect to the Lotus
Development Corporation 1992 Stock Option Plan of our reports
dated January 24, 1995 on our audits of the consolidated
financial statements and financial statement schedules of Lotus
Development Corporation as of December 31, 1994 and 1993 and for
each of the three years in the period ended December 31, 1994,
which reports are included or incorporated by reference in the
Annual Report on Form 10-K of Lotus Development Corporation for
the year ended December 31, 1994.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 17, 1995
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EXHIBIT 24
POWER OF ATTORNEY
-----------------
Each of the undersigned directors and officers of Lotus
Development Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint EDWIN J.
GILLIS and THOMAS M. LEMBERG, and each of them, his/her true and
lawful attorneys and agents to do any and all acts and things in
his/her name and on his/her behalf in his/her stead as if he/she
were present and acting him/herself, including without limitation
to execute, deliver and file with governmental authorities any
and all instruments and other documents for him/her and in
his/her name in the respective capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary
or advisable to enable the Corporation and its subsidiaries to
comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and
Exchange Commission in connection with the registration on Form
S-8 of shares of Common Stock, $.01 par value (the "Common
Stock"), of the Corporation reserved for issuance upon the
exercise of options which have been granted to employees and
consultants of the Corporation and its subsidiaries under the
Lotus Development Corporation 1992 Stock Option Plan; in such
case including specifically, but without limitation, power and
authority to sign for him/her in his/her name in the respective
capacities indicated below any and all registration statements
and amendments (including without limitation post-effective
amendments) thereto; and each of the undersigned does hereby
ratify and confirm all that said attorneys and agents, or either
of them, shall do or cause to be done by virtue hereof.
This Power of Attorney may be executed in one or more
counterparts, each of which shall be deemed an original but all
of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned directors and officers
of the Corporation have hereunto set their hands in the
respective capacities and on the respective dates indicated.
/s/ Jim P. Manzi May 15, 1995
- ----------------------------------
Jim P. Manzi, Chairman, President
and Director
(Principal Executive Officer)
/s/ Richard S. Braddock May 15, 1995
- ----------------------------------
Richard S. Braddock, Director
/s/ Elaine L. Chao May 15, 1995
- ----------------------------------
Elaine L. Chao, Director
/s/ William H. Gray, III May 15, 1995
- ----------------------------------
William H. Gray, III, Director
/s/ Michael E. Porter May 15, 1995
- ----------------------------------
Michael E. Porter, Director
/s/ Henri A. Termeer May 15, 1995
- ----------------------------------
Henri A. Termeer, Director
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/s/ Edwin J. Gillis May 15, 1995
- ----------------------------------
Edwin J. Gillis, Senior Vice
President of
Finance and Operations
(Principal Financial Officer)
/s/ William J. Sample May 15, 1995
- ----------------------------------
William J. Sample, Director
of Financial Services
(Principal Accounting Officer)
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