<PAGE> 1
As filed with the Securities and Exchange Commission on April 28, 1998
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WEGENER CORPORATION
-------------------
(Exact name of registrant as specified in its charter)
Delaware 81-0371341
-------- ----------
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
11350 Technology Circle, Duluth, Georgia 30136
--------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1998 INCENTIVE PLAN
-------------------
(Full Title of the Plan)
ROBERT A. PLACEK
President and Chief Executive Officer
11350 Technology Circle
Duluth, Georgia 30136
(770) 623-0096
--------------
(Name, address, telephone number, including
area code, of agent for service)
----------------------
Copies Requested to:
Terry Ferraro Schwartz, Esq.
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, N.E.
Suite 3100, Promenade II
Atlanta, Georgia 30309-3592
(404) 815-3731
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
---------------- ---------- -------- -------- ----------------
<S> <C> <C> <C> <C>
Options and Shares of
$.001 par value 1,000,000 $3.1875 $3,187,500 $941.00
Common Stock Shares
- -----------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low reported
prices of the Common Stock on the Nasdaq Small Cap Market on April 24,
1998.
=====================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities and Exchange
Act of 1934, 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 to be part hereof from the date of filing such
documents:
1. The Company's Annual Report on Form 10-K for the year ended
August 29, 1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
November 28, 1997;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
February 27, 1998; and
4. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A of Telecrafter Corporation,
predecessor to the Company, Registration No. 0-11003 as filed
with the Commission on March 25, 1983.
ITEM 4. DESCRIPTION OF SECURITIES.
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No response is required to this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws provide for
indemnification of directors and officers of the Company to the full extent
permitted by Delaware law.
Section 145 of the General Corporation Law of the State of Delaware
provides generally 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, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at its request in
such capacity in another corporation or business association, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
In addition, pursuant to the authority of Delaware law, the
Certificate of Incorporation of the Company also eliminates the monetary
liability of directors to the fullest extent permitted by Delaware law.
<PAGE> 3
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
]]Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No response to this Item is required.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference
into this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.1 Registrant's 1998 Incentive Plan.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (contained
in their opinion filed as Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page to
this Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in 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 of 1933, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
II-2
<PAGE> 4
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Duluth, State of Georgia, on this 24th day of April,
1998.
WEGENER CORPORATION
By: /s/ C. Troy Woodbury, Jr.
-----------------------------------------
C. Troy Woodbury, Jr.
Treasurer and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert A. Placek and C. Troy Woodbury,
Jr. and each of them, 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 or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith,
including a Registration Statement filed under Rule 462(b) of the Securities Act
of 1993, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any 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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Robert A. Placek President, Chief April 24, 1998
- ------------------------------- Executive Officer and
Robert A. Placek Director
(Principal Executive Officer)
/s/ C. Troy Woodbury, Jr. Treasurer, Chief April 24, 1998
- ------------------------------- Financial Officer and
C. Troy Woodbury, Jr. Director
(Principal Financial and
Accounting Officer)
/s/ James H. Morgan, Jr. Director April 24, 1998
- -------------------------------
James H. Morgan, Jr.
/s/ Joe K. Parks Director April 24, 1998
- -------------------------------
Joe K. Parks
</TABLE>
II-4
<PAGE> 6
Exhibit Index
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.1 1998 Incentive Plan.
23.1 Consent of BDO Seidman, LLP.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
SMITH, GAMBRELL & RUSSELL, LLP LETTERHEAD
April 27, 1998
Board of Directors
Wegener Corporation
11350 Technology Circle
Duluth, Georgia 30155
RE: Wegener Corporation
Registration Statement on Form S-8
1,000,000 Shares of Common Stock
1998 Incentive Plan
Gentlemen:
We have acted as counsel for Wegener Corporation (the "Company") in
connection with the registration of 1,000,000 shares of its $.01 par value
Common Stock (the "Shares") reserved to the Company's 1998 Incentive Plan, as
amended (the "Plan") pursuant to a Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "Act"), covering the Shares.
In connection therewith, we have examined the following:
(1) The Certificate of Incorporation of the Company, as amended,
certified by the Secretary of State of the State of Delaware;
(2) The Bylaws of the Company, certified as complete and correct by
the Secretary of the Company;
(3) The minute book of the Company, certified as correct and complete
by the Secretary of the Company;
(4) Certificate of Good Standing with respect to the Company, issued
by the Secretary of State of the State of Delaware; and
(5) The Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission pursuant to the Act (the
"Registration Statement").
<PAGE> 2
Board of Directors
Wegener Corporation
April 27, 1998
Page 2
Based upon such examination and upon examination of such other
instruments and records as we have deemed necessary, we are of the opinion that:
(A) The Company has been duly incorporated under the laws of the
State of Delaware and is validly existing under the laws of that
state.
(B) The 1,000,000 Shares covered by the Registration Statement have
been legally authorized by the Company and when sold in
accordance with the terms described in said Registration
Statement, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, or the rules and regulations of
the Securities and Exchange Commission thereunder.
Sincerely,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ Terry Ferraro Schwartz
---------------------------------------------
Terry Ferraro Schwartz
<PAGE> 1
EXHIBIT 10.1
WEGENER CORPORATION
1998 INCENTIVE PLAN
EFFECTIVE DATE: JANUARY 1, 1998
<PAGE> 2
WEGENER CORPORATION
1998 INCENTIVE PLAN
Table of Contents
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
1. Purpose and Amendment.............................................. 3
2. Definitions........................................................ 3
3. Shares Subject to the Plan......................................... 6
4. Grant of Awards and Award Agreements............................... 7
5. Stock Options and Stock Appreciation Rights........................ 7
6. Performance Units.................................................. 11
7. Restricted Stock................................................... 13
8. Deferred Stock..................................................... 14
9. Certificates for Awards of Stock................................... 15
10. Loans and Supplemental Cash Payments............................... 16
11. Beneficiary........................................................ 17
12. Administration of the Plan......................................... 18
13. Amendment or Discontinuance........................................ 19
14. Adjustments in Event of Change in
Common Stock...................................................... 20
15. Change in Control.................................................. 20
16. Options to Non-Employee Directors.................................. 22
17. Miscellaneous...................................................... 22
</TABLE>
2
<PAGE> 3
WEGENER CORPORATION
1998 INCENTIVE PLAN
EFFECTIVE DATE: JANUARY 1, 1998
1. Purpose and Amendment
The Wegener Corporation 1998 Incentive Plan has been adopted for the
purpose of attracting and retaining persons of ability as directors, employees
or consultants or advisors of Wegener Corporation and its subsidiaries, motivate
and reward good performance, encourage such employees to continue to exert their
best efforts on behalf of the Company and its subsidiaries and provide
opportunities for stock ownership by such employees in order to increase their
proprietary interest in the Company by providing incentive awards to Key
Employees (as hereinafter defined), whose responsibilities and decisions
directly affect the performance of the Company and its subsidiaries. Such
incentive awards may, in the discretion of the Board or Committee, consist of
common stock of the Company (subject to such restrictions as the Board or
Committee may determine or as provided herein), performance units or stock
appreciation rights payable in such stock or cash, or incentive or nonqualified
stock options to purchase such stock, or any combination of the foregoing,
together with supplemental cash payments, all as the Board or Committee may
determine.
2. Definitions
When used herein, the following terms shall have the following
meanings:
"Award" means an award granted to any Eligible Participant or Key
Employee in accordance with the provisions of the Plan in the form of Options,
SARS, Restricted Stock, Deferred Stock or Performance Units, or any combination
of the foregoing.
"Beneficiary" means the beneficiary or beneficiaries designated
pursuant to Section 11 to receive the amount, if any, payable under the Plan
upon the death of an Eligible Participant or Key Employee.
"Board" means the Board of Directors of the Company.
"Change in Control" means the happening of any of the following:
3
<PAGE> 4
(A) receipt by the Company of a report on Schedule 13D filed
with the Securities and Exchange Commission pursuant to Section 13(d)
of the Securities Exchange Act of 1934 (the "1934 Act") disclosing
that any person, group, corporation or other entity (other than the
Company, a wholly-owned subsidiary of the Company, Robert A. Placek,
or a present stockholder of the Company for whom a Schedule 13D has
been filed) is the beneficial owner, directly or indirectly, of 20
percent or more of the outstanding stock of the Company;
(B) the purchase, after the date hereof, by any person (as
defined in Section 13(d) of the 1934 Act), corporation or other entity
other than the Company or a wholly-owned subsidiary of the Company, of
shares pursuant to a tender or exchange offer to acquire any stock of
the Company (or securities convertible into stock) for cash,
securities or any other consideration, provided that, after
consummation of the offer, such person, group, corporation or other
entity is the beneficial owner (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of 20 percent or more of the
outstanding stock of the Company (calculated as provided in paragraph
(d) of Rule 13d-3 under the 1934 Act in the case of rights to acquire
stock);
(C) approval by the stockholders of the Company of any (i)
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of
stock of the Company would be converted into cash, securities or other
property, other than a consolidation or merger of the Company in which
holders of its common stock immediately prior to the consolidation or
merger have substantially the same proportionate ownership of common
stock of the surviving corporation immediately after the consolidation
or merger as immediately before, or (ii) sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the Company;
or
(D) a change in the majority of the members of the Board of
Directors within a 12- month period unless the election or nomination
for election by the Company's stockholders of each new director was
approved by the vote of two-thirds of the directors then still in
office who were in office at the beginning of the 12-month period.
"Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended. (All citations to sections of the Code are to such sections
as they may from time to time be amended or renumbered.)
"Committee" means the Committee, if any, appointed by the Board
pursuant to Section 12. If no Committee is appointed by the Board, the Board
shall function as and in place of the Committee.
"Company" means Wegener Corporation and its successors and assigns.
"Deferred Stock" means Stock credited to an Eligible Participant or
Key Employee under the Plan subject to the requirements of Section 8 and such
other restrictions as the Committee deems appropriate or desirable.
4
<PAGE> 5
"Eligible Participant(s)" shall mean directors, officers, Key
Employees of the Company and its subsidiaries, consultants, advisors and other
persons who may not otherwise be eligible to receive qualified incentive stock
options under Section 422 of the Code.
"Fair Market Value" means, as of any date, the closing price of the
Common Stock as reported by any national stock exchange on which the Stock is
listed or on the NASDAQ National Market or NASDAQ Small Cap Market, if
applicable, or, if no sales of Stock have taken place on such date, the closing
price on the most recent preceding date on which selling prices were quoted;
provided, however, that at the time of grant of any Award other than an
incentive stock option, the Committee, in its sole discretion, may elect to
determine Fair Market Value for all purposes under the Plan with respect to such
Award, based on the average of the closing prices, as of the date of
determination and a period of up to nine trading days immediately preceding such
date.
"Key Employee" means an officer or other key employee of any
Participating Company who, in the judgment of the Committee, is responsible for
or contributes to the management, growth or profitability of the business of any
Participating Company.
"Option" means an option to purchase Stock, including Restricted Stock
or Deferred Stock, if the Committee so determines, subject to the applicable
provisions of Section 5 and awarded in accordance with the terms of the Plan and
which may be an incentive stock option qualified under Section 422 of the Code
or a nonqualified stock option.
"Participating Company" means the Company or any subsidiary or other
affiliate of the Company; provided, however, for incentive stock options only,
"Participating Company" means the Company or any corporation which at the time
such option is granted under the Plan qualifies as a subsidiary of the Company
under the definition of "subsidiary corporation" contained in Section 425(f) of
the Code.
"Non-Employee Director" shall mean each such person who is a member of
the Board of Directors of the Company but who is not a full-time employee of the
Company.
5
<PAGE> 6
"Performance Unit" means a performance unit subject to the
requirements of Section 6 and awarded in accordance with the terms of the Plan.
"Plan" means the Wegener Corporation 1998 Incentive Plan, as the same
may be amended, administered or interpreted from time to time.
"Restricted Stock" means Stock delivered under the Plan subject to the
requirements of Section 7 and such other restrictions as the Committee deems
appropriate or desirable.
"SAR" means a stock appreciation right subject to the appropriate
requirements under Section 5 and awarded in accordance with the terms of the
Plan.
"Stock" means the $.01 par value common stock of the Company.
"Total Disability" means the complete and permanent inability of an
Eligible Participant or Key Employee to perform all of his or her duties under
the terms of his or her employment, service or contractual arrangement, with any
Participating Company, as determined by the Committee upon the basis of such
evidence, including independent medical reports and data, as the Committee deems
appropriate or necessary.
3. Shares Subject to the Plan
The aggregate number of shares of Stock which may be awarded under the
Plan or subject to purchase by exercising an Option shall not exceed one million
(1,000,000) shares. Such shares shall be made available either from authorized
and unissued shares or shares held by the Company in its treasury. The Committee
may, in its discretion, decide to award other securities issued by the Company
that are convertible into Stock or make such other securities subject to
purchase by an Option, in which event the maximum number of shares of Stock into
which such other securities may be converted shall be used in applying the
aggregate share limit under this Section 3 and all provisions of the Plan
relating to Stock shall apply with full force and effect with respect to such
convertible securities. If, for any reason, any shares of Stock awarded or
subject to purchase by exercising an Option under the Plan are not delivered or
are reacquired by the Company, for reasons including, but not limited to, a
forfeiture of Restricted
6
<PAGE> 7
Stock or Deferred Stock or termination, expiration or a cancellation with the
consent of a participant of an Option, SAR or a Performance Unit, such shares of
Stock shall again become available for award under the Plan.
4. Grant of Awards and Award Agreements
(a) Subject to the provisions of the Plan, the Committee shall, (i)
determine and designate from time to time those Eligible Participants and Key
Employees or groups of Eligible Participants and Key Employees to whom Awards
are to be granted; (ii) determine the form or forms of Award to be granted to
any Eligible Participant or Key Employee; (iii) determine the amount or number
of shares of Stock, including Restricted Stock or Deferred Stock if the
Committee so determines, subject to each Award; (iv) determine the terms and
conditions of each Award; (v) determine whether and to what extent Eligible
Participants and Key Employees shall be allowed or required to defer receipt of
any Awards or other amounts payable under the Plan to the occurrence of a
specified date or event; provided, however, that no Award shall be granted after
the expiration of ten years from the effective date of the Plan.
(b) Each Award granted under the Plan shall be evidenced by a written
Award Agreement, in a form approved by the Committee. Such agreement shall be
subject to and incorporate the express terms and conditions, if any, required
under the Plan or as required by the Committee for the form of Award granted and
such other terms and conditions as the Committee may specify.
5. Stock Options and Stock Appreciation Rights
(a) With respect to Options and SARS, the Committee shall (i)
authorize the grant of incentive stock options, nonqualified stock options, SARs
or a combination of incentive stock options, nonqualified stock options and
SARS; (ii) determine the number of shares of Stock subject to each Option or the
number of shares of Stock that shall be used to determine the value of an SAR;
(iii) determine whether such Stock shall be Restricted Stock or Deferred Stock,
in the Committee's discretion, (iv) determine the time or times when and the
manner in which each Option shall be exercisable and the duration of the
exercise period; and (v) determine whether or not all or part of each Option may
be
7
<PAGE> 8
canceled by the exercise of an SAR; provided, however, that (A) no Option shall
be granted after the expiration of ten years from the effective date of the Plan
and (B) the aggregate Fair Market Value (determined as of the date an Option is
granted) of the Stock (disregarding any restrictions in the case of Restricted
Stock) for which incentive stock options granted to any Key Employee under this
Plan may first become exercisable in any calendar year shall not exceed
$100,000.
(b) The exercise period for a nonqualified stock option shall not
exceed ten years and one day from the date of grant, and the exercise period for
an incentive stock option or SAR, including any extension which the Committee
may from time to time decide to grant, shall not exceed ten years from the date
of grant; provided, however, that, in the case of an incentive stock option
granted to a Key Employee who, at the time of grant, owns stock possessing more
than ten percent of the total combined voting power of all classes of stock of
the Company (a "Ten Percent Stockholder"), such period, including extensions,
shall not exceed five years from the date of grant.
(c) The Option or SAR price per share shall be determined by the
Committee at the time any Option is granted and shall be not less than (i) in
the case of incentive stock options and any tandem SARs, 100% of the Fair Market
Value, or in the case of an Option granted to a Ten Percent Stockholder, 110% of
the Fair Market Value, or (ii) in the case of any other Options or SARS, at
least 75% of Fair Market Value, disregarding any restrictions in the case of
Restricted Stock or Deferred Stock, on the date the option is granted, as
determined by the Committee.
(d) No part of any Option or SAR may be exercised until (i) the
Eligible Participant or Key Employee who has been granted the Award shall have
remained in the employ or service of a Participating Company for such period, if
any, after the date on which the Option or SAR is granted, as the Committee may
specify, or (ii) achievement of such performance or other criteria, if any, by
the Eligible Participant or Key Employee, the Company or any subsidiary,
affiliate or division of the Company, as the Committee may specify, and the
Committee may further require exercisability in installments.
8
<PAGE> 9
(e) Subject to Section 10(c), except as otherwise provided in the Plan,
the purchase price of the shares as to which an Option shall be exercised shall
be paid to the Company at the time of exercise either in cash or in such other
consideration as the Committee deems appropriate, including Stock, or, with
respect to nonqualified options, Restricted Stock or Deferred Stock, already
owned by the optionee, having a total fair market value, as determined by the
Committee, equal to the purchase price, or a combination of cash and such other
consideration having a total fair market value, as so determined, equal to the
purchase price; provided, however, that if payment of the exercise price is made
in whole or in part in the form of Restricted Stock or Deferred stock, the Stock
received upon the exercise of the Option shall be Restricted Stock or Deferred
Stock, as the case may be, at least with respect to the same number of shares
and subject to the same restrictions or other limitations as the Restricted
Stock or Deferred Stock paid on the exercise of the Option.
(f) (i) If a Key Employee who has been granted an Option or SAR
dies (A) while an employee of any Participating Company, or (B) within three
months after termination of his or her employment because of his or her Total
Disability, his or her Options or SARs may be exercised, to the extent that the
Key Employee shall have been entitled to do so on the date of his or her death
or such termination of employment, by the person or persons to whom the rights
under the option or SAR pass by will, or if no such person has such right, by
his or her executors or administrators, at any time, or from time to time,
within 12 months after the date of death or within such other period, and
subject to such terms and conditions as the Committee may specify, but not later
than the expiration date specified in Section 5(b) above.
(ii) If the Key Employee's employment by any Participating
Company terminates because of his or her Total Disability and such participant
has not died within the following three months, he or she may exercise his or
her Options or SARS, to the extent that he or she shall have been entitled to do
so at the date of the termination of his or her employment, at any time, or from
time to time, within 12 months after the date of the termination of his or her
employment within such other period, and
9
<PAGE> 10
subject to such terms and conditions as the Committee may specify, but not later
than the expiration date specified in Section 5(b) above.
(iii) If the Key Employee's employment terminates for any
other reason, he or she may exercise his or her Options or SARs to the extent
that he or she shall have been entitled to do so at the date of the termination
of his or her employment, at any time, or from time to time, within three months
after the date of the termination of his or her employment or within such other
period, and subject to such terms and conditions as the Committee may specify,
but not later than the expiration date specified in Section 5(b) above.
(g) No Option or SAR granted under the Plan shall be transferable
other than by will or by the laws of descent and distribution. During the
lifetime of the optionee, an Option shall be exercisable only by him or her.
(h) With respect to an incentive stock option, the Committee shall
specify such terms and provisions as the Committee may determine to be necessary
or desirable in order to qualify such Option as an incentive stock option within
the meaning of Section 422 of the Code.
(i) Upon exercise of an SAR, the Eligible Participant or Key Employee
shall be entitled, subject to such terms and conditions as the Committee may
specify, to receive upon exercise thereof all or a portion of the excess of (i)
the Fair Market Value of a specified number of shares of Stock at the time of
exercise, as determined by the Committee, over (ii) a specified amount which
shall not, subject to Section 5(j), be less than the Fair Market Value of such
specified number of shares of Stock at the time the SAR is granted. Upon
exercise of an SAR, payment of such excess shall be made as the Committee shall
specify at the time of the grant of an SAR or otherwise (A) in cash, (B) through
the issuance or transfer of whole shares of Stock, including Restricted Stock or
Deferred Stock, with a Fair Market Value, disregarding any restrictions in the
case of Restricted Stock or Deferred Stock, at such time equal to any such
excess, or (C) a combination of cash and shares of Stock with a combined fair
market value at such time equal to any such excess, all as determined by the
Committee; provided, however, a
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fractional share of Stock shall be paid in cash equal to the Fair Market Value
of the fractional share of Stock, disregarding any restrictions in the case of
Restricted Stock or Deferred Stock, at such time. If the full amount of such
value is not paid in Stock, then the shares of Stock representing such portion
of the value of the SAR not paid in Stock shall again become available for award
under the Plan.
(j) If the Award granted to an Eligible Participant or Key Employee
allows such person to elect to cancel all or any portion of an unexercised
option by exercising a related SAR, then the Option price per share of Stock
shall be used as the specified price in Section 5(i), to determine the value of
the SAR upon such exercise, and, in the event of the exercise of such SAR, the
Company's obligation in respect of such Option or such portion thereof will be
discharged by payment of the SAR so exercised. In the event of such a
cancellation, the number of shares as to which such Option was canceled shall
again become available for award under the Plan less the number of shares
received by the optionee upon such cancellation. Any such SAR shall be
transferable only by will or by the laws of descent and distribution. During the
lifetime of the optionee, such SAR shall be exercisable only by him or her.
6. Performance Units
(a) The Committee shall determine a performance period (the
"Performance Period") of one or more years and shall determine the performance
objectives for grants of Performance Units. Performance objectives may vary from
participant to participant and shall be based upon such performance criteria or
combination of factors as the Committee may deem appropriate, including, but not
limited to, minimum earnings per share, return on equity or performance by a
subsidiary or division of the Company. Performance Periods may overlap and
participants may participate simultaneously with respect to Performance Units
for which different Performance Periods are prescribed.
(b) At the beginning of a Performance Period, the Committee shall
determine for each participant or group of participants eligible for Performance
Units with respect to that Performance Period the range of dollar values, if
any, which may be fixed or may vary in accordance with such performance
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or other criteria specified by the Committee, which shall be paid to a
participant as an Award if the relevant measure of Company performance for the
Performance Period is met.
(c) If during the course of a Performance Period there shall occur a
significant event or events (a "Significant Event") as determined by the
Committee, including, but not limited to, a reorganization of the Company, which
the Committee expects to have a substantial effect on a performance objective
during such period, the Committee may revise such objective.
(d) If an Eligible Participant or Key Employee terminates service with
all Participating Companies during a Performance Period because of death, Total
Disability, retirement on or after age 65, or at an earlier age with the consent
of the Company, or a Significant Event, as determined by the Committee, that
Eligible Participant or Key Employee shall be entitled to payment in settlement
of each Performance Unit for which the Performance Period was prescribed (i)
based upon the performance objectives satisfied at the end of such period and
(ii) prorated for the portion of the Performance Period during which the
Eligible Participant or Key Employee was employed or retained by any
Participating Company; provided, however, the Committee may provide for an
earlier payment in settlement of such Performance Unit in such amount or amounts
and under such terms and conditions as the Committee deems appropriate or
desirable with the consent of the Eligible Participant or Key Employee. If an
Eligible Participant or Key Employee terminates service with all Participating
Companies during a Performance Period for any other reason, such Eligible
Participant or Key Employee shall not be entitled to any payment with respect to
that Performance Period unless the Committee shall otherwise determine.
(e) Each Performance Unit may be paid in whole shares of Stock,
including Restricted Stock or Deferred Stock (together with any cash
representing fractional shares of Stock), or cash, or a combination of Stock and
cash either as a lump sum payment or in annual installments, all as the
Committee shall determine, at the time of grant of the Performance Unit or
otherwise, commencing as soon as practicable after the end of the relevant
Performance Period. If and to the extent the full value
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<PAGE> 13
of a Performance Unit is not paid in Stock, then the shares of Stock
representing the portion of the value of the Performance Unit not paid in Stock
shall again become available for award under the Plan.
7. Restricted Stock
(a) Restricted Stock may be received by an Eligible Participant or Key
Employee either as an Award or as the result of an exercise of an Option or SAR
or as payment for a Performance Unit. Restricted Stock shall be subject to a
restriction period (after which restrictions shall lapse) which shall mean a
period commencing on the date the Award is granted and ending on such date or
upon the achievement of such performance or other criteria as the Committee
shall determine (the "Restriction Period"). The Committee may provide for the
lapse of restrictions in installments where deemed appropriate.
(b) Except as otherwise provided in this Section 7, no shares of
Restricted Stock received by an Eligible Participant or Key Employee shall be
sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of
during the Restriction Period; provided, however, the Restriction Period for any
recipient of Restricted Stock shall expire and all restrictions on shares of
Restricted Stock shall lapse upon the recipient's death, Total Disability,
retirement on or after age 65 or an earlier age with the consent of the Company,
or upon a Significant Event, as determined by the Committee.
(c) Except as otherwise provided in Section 7(b) above, if an Eligible
Participant or Key Employee terminates employment or service with all
Participating Companies for any reason before the expiration of the Restriction
Period, all shares of Restricted Stock still subject to restriction shall,
unless the Committee otherwise determines, be forfeited by the recipient and
shall be reacquired by the Company, and, in the case of Restricted Stock
purchased through the exercise of an Option, the Company shall refund the
purchase price paid on the exercise of the Option. Upon such forfeiture, such
forfeited shares of Restricted Stock shall again become available for award
under the Plan.
(d) The Committee may require, under such terms and conditions as it
deems appropriate or desirable, that the certificates for Restricted Stock
delivered under the Plan be held in custody by a bank
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or other institution, or that the Company may itself hold such shares in custody
until the Restriction Period expires or until restrictions thereon otherwise
lapse, and may require, as a condition of any receipt of Restricted Stock, that
the recipient shall have delivered a stock power endorsed in blank relating to
the Restricted Stock.
(e) Nothing in this Section 7 shall preclude a recipient of Restricted
Stock from exchanging any shares of Restricted Stock subject to the restrictions
contained herein for any other shares of Stock that are similarly restricted.
8. Deferred Stock
(a) Deferred Stock may be credited to an Eligible Participant or Key
Employee either as an Award or as the result of an exercise of an Option or SAR
or as payment for a Performance Unit. Deferred Stock shall be subject to a
deferral period which shall mean a period commencing on the date the Award is
granted and ending on such date or upon the achievement of such performance or
other criteria as the Committee shall determine (the "Deferral Period"). The
Committee may provide for the expiration of the Deferral Period in installments
where deemed appropriate.
(b) Except as otherwise provided in this Section 8, no Deferred Stock
awarded hereunder shall be sold, exchanged, transferred, pledged, hypothecated
or otherwise disposed of during the Deferral Period; provided, however, the
Deferral Period shall expire upon the recipient's death, Total Disability,
retirement on or after age 65 or an earlier age with the consent of the Company,
or upon a Significant Event, as determined by the Committee.
(c) At the expiration of the Deferral Period, the recipient of
Deferred Stock shall be entitled to receive a certificate pursuant to Section 9
for the number of shares of Stock equal to the number of shares of Deferred
Stock credited on his or her behalf. Amounts equal to any dividends declared
during the Deferral Period with respect to the number of shares of Deferred
Stock credited to a recipient shall be paid to such recipient within 30 days
after each dividend was declared unless, at the time of the Award the Committee
determined that such dividends should be reinvested in additional shares of
Deferred
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Stock, in which case additional shares of Deferred Stock shall be credited based
on the Stock's Fair Market Value at the time of each such dividend.
(d) Except as otherwise provided in Section 8(b), if an Eligible
Participant or Key Employee terminates employment or service with all
Participating Companies for any reason before the expiration of the Deferral
Period, all shares of Deferred Stock shall, unless the Committee otherwise
determines, be forfeited by the Key Employee or Eligible Participant, and, in
the case of Deferred Stock purchased through the exercise of an Option, the
Company shall refund the purchase price paid on the exercise of the Option. Upon
such forfeiture, such forfeited shares of Deferred Stock shall again become
available for award under the Plan.
9. Certificates for Awards of Stock
(a) Subject to Section 7(d), each Eligible Participant or Key Employee
entitled to receive shares of Stock under the Plan shall be issued a certificate
for such shares. Such certificate shall be registered in the name of the
Eligible Participant or Key Employee and shall bear an appropriate legend
reciting the terms, conditions and restrictions, if any, applicable to such
shares and shall be subject to appropriate stop-transfer orders.
(b) The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to (i) the listing of such shares on any
stock exchange or quotation system on which the Stock may then be listed and
(ii) the completion of any registration or qualification of such shares under
any Federal or state law, or any ruling or regulation of any government body
which the Company shall, in its sole discretion, determine to be necessary or
advisable.
(c) All certificates for shares of Stock delivered under the Plan
shall also be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other requirements
of the Securities and Exchange Commission, any stock exchange or quotation
system upon which the Stock is then listed and any applicable Federal or state
securities laws; and the Committee may cause a legend or legends to be placed on
any such certificates to make
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appropriate reference to such restrictions. The foregoing provisions of this
Section 9(c) shall not be effective if and to the extent that the shares of
Stock delivered under the Plan are covered by an effective and current
registration statement under the Securities Act of 1933, or if and so long as
the Committee determines that application of such provisions is no longer
required or desirable. In making such determination, the Committee may rely upon
an opinion of counsel for the Company.
(d) Except for the restrictions on Restricted Stock or Deferred Stock
under Sections 7 and 8, each Eligible Participant or Key Employee who receives
an award of Stock shall have all of the rights of a stockholder with respect to
such shares, including the right to vote the shares and receive dividends and
other distributions. No Eligible Participant or Key Employee awarded an Option,
an SAR, Performance Unit or Deferred Stock shall have any right as a stockholder
with respect to any shares subject to such Award prior to the date of issuance
to him or her of a certificate or certificates for such shares, except as
otherwise provided under Section 8 with respect to Deferred Stock.
10. Loans and Supplemental Cash Payments
(a) The Committee may provide for supplemental cash payments or loans
to Eligible Participants or Key Employees at such time and in such manner as the
Committee may determine in connection with Awards granted under the Plan.
(b) Supplemental cash payments shall be subject to such terms and
conditions as the Committee may specify; provided, however, in no event shall
the amount of such payment exceed (i) in the case of an Option, the excess of
the Fair Market Value of the shares of Stock, disregarding any restrictions in
the case of Restricted Stock or Deferred Stock, purchased through the Option on
the date of exercise over the option price, or (ii) in the case of an Award of
an SAR, Performance Unit, Restricted Stock or Deferred Stock, the value of the
shares of Stock and other consideration issued in payment of such Award; and
provided, however, in the case of an incentive stock option, no supplemental
cash payment shall be made if it would disqualify such option under Section 422
of the Code.
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(c) In the case of loans, any such loan shall be evidenced by a
written loan agreement or other instrument in such form and with such terms and
conditions, including, without limitation, provisions for interest, payment
schedules, collateral, forgiveness, events of default or acceleration of such
loans or parts thereof, as the Committee shall specify; provided, however, that
in the case of an incentive stock option, the interest rate set by the Committee
under such an arrangement shall be no lower than that required to avoid the
imputation of unstated interest under the Code and the Committee shall specify
no such term or condition that would result in such option failing to qualify as
an incentive stock option.
11. Beneficiary
(a) Each Eligible Participant or Key Employee, as the case may be,
shall file with the Committee a written designation, signed by the Eligible
Participant or Key Employee, of one or more persons as the Beneficiary who shall
be entitled to receive the Award, if any, payable under the Plan upon his or her
death, and the designation may name one or more persons as contingent
Beneficiaries. An Eligible Participant or Key Employee may from time to time
revoke or change his or her Beneficiary designation without the consent of any
prior Beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless
received by the Committee prior to the Eligible Participant's or Key Employee's
death, and in no event shall it be effective as of a date prior to such receipt.
Any such designation, or revocation or change of such designation, shall be in
such form and manner as the Committee shall determine.
(b) If no such Beneficiary designation is in effect at the time of an
Eligible Participant's or Key Employee's death, or if no designated Beneficiary
survives the Eligible Participant or Key Employee or if such Beneficiary is not
located by the Committee within one year of the death of the Eligible
Participant or Key Employee or if such designation conflicts with law, such
person's estate shall be entitled to receive the Award, if any, payable under
the Plan upon his or her death. If the Committee
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is in doubt as to the right of any person to receive such Award, the Company may
retain such Award, without liability for any interest thereon, until the
Committee determines the rights thereto, or the Company may pay such Award into
any court of appropriate jurisdiction and such payment shall be a complete
discharge of the liability of the Company therefor.
(c) Wherever in this Plan the Committee is directed or authorized to
pay an Award to an estate of a deceased participant, the Committee shall pay
such Award to the personal representative of such estate, if any has qualified
within 12 months of death, and if not, then to the persons who would be entitled
to receive the Award under the laws of descent and distribution of the State of
Georgia in effect at the date of death of the participant if he or she had died
intestate owning such property in fee simple. The determination by the Committee
shall be final and the Committee shall be fully protected in paying the Award to
the person or persons determined by the Committee in good faith to be entitled
thereto irrespective of whether such payments are made to the person or persons
who are in fact entitled to receive such Award.
12. Administration of the Plan
(a) The Plan shall be administered by a Committee composed of two or
more persons, as appointed by the Board and serving at the Board's pleasure, but
unless and until the Committee is actually appointed by the Board, the Board
shall function as and in place of the Committee. Each member of the Committee
shall be a "Non-Employee Director" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 or successor rule or regulation.
(b) All decisions, determinations or actions of the Committee made or
taken pursuant to grants of authority under the Plan shall be made or taken in
the sole discretion of the Committee and shall be final, conclusive and binding
on all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe, act and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall be
final, conclusive and binding on all persons for all purposes.
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(d) The Committee's decisions and determinations under the Plan need
not be uniform and may be made selectively among participants in the Plan,
whether or not such participants are similarly situated.
(e) The Committee shall keep minutes of its actions under the Plan.
The act of a majority of the members present at a meeting duly called and held
shall be the act of the Committee. Any decision or determination reduced to
writing and signed by all members of the Committee shall be fully as effective
as if made by unanimous vote at a meeting duly called and held.
(f) The Committee may employ such legal counsel, including, without
limitation, independent legal counsel and counsel regularly employed by the
Company, consultants and agents as the Committee may deem appropriate for the
administration of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computations received from any such consultant or
agent. All expenses incurred by the Committee in interpreting and administering
the Plan, including, without limitation, meeting fees and expenses and
professional fees, shall be paid by the Company.
(g) No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect to the
Plan or any Award granted under it. Each member or former member of the
Committee or the Board shall be indemnified and held harmless by the Company
against all costs or expenses (including counsel fees) or liabilities (including
any sum paid in settlement of a claim with the approval of the Board) arising
out of any act or omission to act in connection with the Plan unless arising out
of such member's own fraud or bad faith. Such indemnification shall be in
addition to any rights of indemnification the members or former members may have
as Directors or under the Bylaws of the Company.
13. Amendment or Discontinuance
The Board may at any time amend or terminate the Plan. The Plan may
also be amended by the Committee, provided that all such amendments shall be
reported to the Board. No amendment shall, without approval by a majority of the
Company's stockholders, (i) alter the group of persons eligible for
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qualified incentive stock options under the Plan, or (ii) increase the maximum
number of shares of Stock which are available for Awards under the Plan. No
amendment or termination shall retroactively impair the rights of any person
with respect to an Award. On or after the occurrence of a Change in Control, the
Plan may not be amended or terminated until all payments required by Section 15
are made.
14. Adjustments in Event of Change in Common Stock
In the event of any recapitalization, reclassification, split-up or
consolidation of shares of Stock, merger or consolidation of the Company or sale
by the Company of all or a substantial portion of its assets, or other event
which could distort the implementation of the Plan or the realization of its
objectives, the Committee may make such appropriate adjustments in the Stock
subject to Awards, including Stock subject to purchase by an Option, or the
terms, conditions or restrictions on Stock or Awards as the Committee deems
equitable; provided, however, that no such adjustments shall be made on or after
the occurrence of a Change in Control without the affected participant's
consent.
15. Change in Control
Notwithstanding anything else herein to the contrary, as soon as
practicable after the occurrence of a Change in Control, if any, the following
shall occur:
(a) All participants in the Plan may, regardless of whether still an
employee of any Participating Company or a director of the Company, elect to
cancel all or any portion of any Option no later than 90 days after the Change
in Control, in which event the Company shall pay to such electing participant,
an amount in cash equal to the excess, if any, of the Current Market Value (as
defined below) of the shares of Stock, including Restricted Stock or Deferred
Stock, subject to the Option or the portion thereof so canceled over the option
or purchase price for such shares; provided, however, that, if the participant
is no longer an employee or in the service of any Participating Company, the
Option is exercisable at the time of the Change in Control.
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(b) All Performance Periods shall end and the Company shall pay each
participant an amount in cash equal to the value of such participant's
Performance Units, if any, based upon the Stock's Current Market Value, in full
settlement of such Performance Units.
(c) All Restriction Periods shall end and the Company shall pay each
participant an amount in cash equal to the Current Market Value of the
Restricted Stock held by, or on behalf of, each participant in exchange for such
Restricted Stock.
(d) All Deferral Periods shall end and the Company shall pay to each
participant an amount in cash equal to the Current Market Value of the number of
shares of Deferred Stock credited to such participant in full settlement of such
Deferred Stock.
(e) The Company shall pay to each participant the full amount, if any,
deferred by such participant under the Plan which is not Performance Units,
Restricted Stock or Deferred Stock.
(f) The Company may reduce the amount due any participant under this
Section by the unpaid balance, if any, of the principal and accrued and unpaid
interest of any loans to such participant under Section 10.
(g) For purposes of this Section 15, "Current Market Value" means the
highest Closing Price (defined below) during the period (the "Reference Period')
commencing 30 days prior to the Change in Control and ending 30 days after the
Change in Control; provided, that if the Change in Control occurs as a result of
a tender offer or exchange offer, or a merger, purchase of assets or stock or
other transaction approved by stockholders of the Company, Current Market Value
shall mean the higher of (i) the highest Closing Price during the Reference
Period or (ii) the highest price paid per share pursuant to such tender offer,
exchange offer or transaction. The "Closing Price" on any day during the
Reference Price means the closing price per share of Stock based upon sales
transactions on the national stock exchange or other nationally recognized
quotation service (including the NASDAQ Stock Market) that day.
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16. Options to Non-Employee Directors
(a) On the last day of each December (after the effective date of this
Plan) on which regular trading occurs on the NASDAQ Stock Market during which
the Plan is in force and effect, each Non- Employee Director who shall have
served as a director of the Company, without resignation, leave, removal or
other interruption, since the last annual shareholders meeting, shall be
granted, without the necessity of action by the Committee or the Board, an
Option hereunder to purchase 2,000 shares of Stock at an exercise price equal to
the Fair Market Value of the Stock on such grant date.
(b) Such Options granted under this Section 16 shall be exercisable
commencing on the date of grant and thereafter until the date which is ten years
and one day from the date of grant.
(c) In all other respects, options granted to Non-Employee Directors
hereunder shall conform to the terms of this Plan.
(d) Upon the exercise of all or a portion of any of the Options
provided for in this Section 16, the Company shall pay a supplemental cash
amount equal to the greater of (i) the Company's minimum federal and state tax
withholding obligation with respect to such exercise by the Non-Employee
Director and such supplemental payment, or (ii) an amount sufficient to defray
the federal and state tax consequences to the Non-Employee Director attributable
to such exercise by the Non-Employee Director and such supplemental payment, as
determined by the Committee on each date of such exercise, and based upon such
information and calculations as the Committee in its sole discretion shall deem
appropriate.
17. Miscellaneous
(a) Nothing in this Plan or any Award granted hereunder shall confer
upon any employee any right to continue in the employ of any Participating
Company or interfere in any way with the right of any Participating Company to
terminate his or her employment at any time.
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(b) No Award payable under the Plan shall be deemed salary or
compensation for the purpose of computing benefits under any employee benefit
plan or other arrangement of any Participating Company for the benefit of its
employees unless the Company shall determine otherwise.
(c) No participant shall have any claim to an Award until it is
actually granted under the Plan. To the extent that any person acquires a right
to receive payments from the Company under this Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company. All
payments of awards provided for under the Plan shall be paid in cash from the
general funds of the Company; provided, however, that such payments shall be
reduced by the amount of any payments made to the participant or his or her
dependents, beneficiaries or estate from any trust or special or separate fund
established by the Company to assure such payments. The Company shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if the Company shall make any investments to aid
it in meeting its obligations hereunder, the participant shall have no right,
title or interest whatever in or to any such investments except as may otherwise
be expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind between
the Company and any participant. To the extent that any participant acquires a
right to receive payments from the Company hereunder, such right shall be no
greater than the right of an unsecured creditor of the Company.
(d) Absence on leave approved by a duly constituted officer of the
Company shall not be considered interruption or termination of employment for
any purposes of the Plan; provided, however, that no Award may be granted to an
employee while he or she is absent on leave.
(e) If the Committee shall find that any person to whom any Award, or
portion thereof, is payable under the Plan is unable to care for his or her
affairs because of illness or accident, or is a minor, then any payment due him
or her (unless a prior claim therefor has been made by a duly appointed legal
representative) may, if the Committee so directs the Company, be paid to his or
her
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spouse, a child, a relative, an institution maintaining or having custody of
such person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment. Any such
payment shall be a complete discharge of the liability of the Company therefor.
(f) The right of any person to any Award payable under the Plan may
not be assigned, transferred, pledged or encumbered, either voluntarily or by
operation of law, except as provided in Section 11 with respect to the
designation of a Beneficiary or as may otherwise be required by law. If, by
reason of any attempted assignment, transfer, pledge or encumbrance or any
bankruptcy or other event happening at any time, any amount payable under the
Plan would be made subject to the debts or liabilities of the participant or his
or her Beneficiary or would otherwise devolve upon anyone else and not be
enjoyed by the participant or his or her Beneficiary, then the Committee may
terminate such person's interest in any such payment and direct that the same be
held and applied to or for the benefit of the participant, his or her
Beneficiary or any other persons deemed to be the natural objects of his or her
bounty, taking into account the expressed wishes of the participant (or, in the
event of his or her death, those of his or her Beneficiary) in such manner as
the Committee may deem proper.
(g) Copies of the Plan and all amendments, administrative rules and
procedures and interpretations shall be made available to all participants at
all reasonable times at the Company's headquarters.
(h) The Committee may cause to be made, as a condition precedent to
the payment of any Award, or otherwise, appropriate arrangements with the
participant or his or her Beneficiary, for the withholding of any federal,
state, local or foreign taxes.
(i) The Plan and the grant of Awards shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required.
(j) All elections, designations, requests, notices, instructions and
other communications from an Eligible Participant or Key Employee, Beneficiary
or other person to the Committee, required or permitted under the Plan, shall be
in such form as is prescribed from time to time by the Committee and shall be
mailed by first class mail or delivered to such location as shall be specified
by the Committee.
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(k) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(l) Captions preceding the sections hereof are inserted solely as a
matter of convenience and in no way define or limit the scope or intent of any
provision hereof.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Wegener Corporation
Duluth, Georgia
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated November
14, 1997, relating to the consolidated financial statements and schedule of
Wegener Corporation appearing in the Company's Annual Report on Form 10-K for
the year ended August 29, 1997.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
BDO SEIDMAN, LLP
Atlanta, Georgia
April 28, 1998
26
