<PAGE> 1
As filed with the Securities and Exchange Commission on August 12, 1996. Subject
to amendment.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ISOMEDIX INC.
(Exact name of issuer as specified in its charter)
DELAWARE 22-1986189
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
11 Apollo Drive
Whippany, New Jersey 07981
(Address of principal executive offices)
ISOMEDIX INC.
1996 LONG TERM INCENTIVE PLAN
PETER MAYER
Chief Executive Officer
11 Apollo Drive
Whippany, New Jersey 07981
(201) 887-4700
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
THOMAS M. HAYTHE, Esq.
Haythe & Curley
237 Park Avenue
New York, New York 10017
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
---------- ---------- ---------- ------ ---
<S> <C> <C> <C> <C>
Common Stock 350,000 $14.0625 $4,921,875 $1,697.20
($.01 par shares
value)
</TABLE>
================================================================================
*Estimated solely for purposes of calculating the registration fee on the basis
of the average of the high and low sales prices of the Common Stock on August 8,
1996, as reported on the New York Stock Exchange.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby states that (i) the documents listed in (a)
through (c) below are incorporated by reference in this Registration Statement
and (ii) all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
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 a part hereof from the date of filing of such
documents.
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8- A (number 113622), filed on
February 7, 1995.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Thomas M. Haythe, a partner in the law firm of Haythe &
Curley, the Company's counsel in connection with the offering, is a director,
officer and stockholder of this Company.
Item 6. Indemnification of Directors and Officers.
Under the provisions of Article SEVENTH of the Certificate of
Incorporation of the Company, as permitted by Section 145 of the General
Corporation Law of the State of Delaware, the Company is required to indemnify a
director or officer of the Company for expenses arising out of legal proceedings
in which the director or officer becomes involved by reason of his position as a
director or officer of the Company, if he acted in good faith and in a manner he
II-1
<PAGE> 3
reasonable believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal proceedings, if he had no reasonable cause to
believe his conduct was unlawful. Expenses against which a director or officer
of the Company may be indemnified include amounts paid in satisfaction of
settlements, judgments, fines and other expenses (including attorneys' fees)
incurred in connection with such proceedings. In a proceeding to procure a
judgment in the Company's favor, a director or officer may be indemnified for
expenses incurred by him in connection with the defense or settlement of the
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, except that no
indemnification shall be permitted without a court order in respect of any
claim, issue, or matter as to which such director or officer shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Company. Indemnification of a director or officer as provided above,
unless court-ordered, shall be made by the Company only upon a determination
that indemnification is proper in a specific case. Such determination shall be
made (i) by a vote of the majority of directors who were not parties to the
proceeding involved, (ii) by independent legal counsel in a written opinion or
(iii) by the stockholders of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes, except as
otherwise specifically provided in the rules of the Securities and Exchange
Commission promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
II-2
<PAGE> 4
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this 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; and
(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.
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 this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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
II-3
<PAGE> 5
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-4
<PAGE> 6
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoints Peter Mayer and Thomas J. DeAngelo as attorneys-in-fact with
full power of substitution, severally, to execute in the name and on behalf of
the Registrant and each such person, individually and in each capacity stated
below, one or more amendments (including post-effective amendments) to this
Registration Statement as the attorney-in-fact acting in the premises deems
appropriate and to file any such amendment to this Registration Statement with
the Securities and Exchange Commission.
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 Whippany and State of New Jersey on the 8th day
of August, 1996.
ISOMEDIX INC.
By: /s/ Peter Mayer
-----------------------
Peter Mayer
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Peter Mayer President, Chief August 8, 1996
- ---------------------- Executive Officer
Peter Mayer and Director
/s/ John Masefield Chairman of the August 8, 1996
- ---------------------- Board and Director
John Masefield
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas J. DeAngelo Vice President August 8, 1996
- ---------------------- Finance and
Thomas J. DeAngelo Administration,
Secretary, Treasurer,
Principal Financial
Officer and Principal
Accounting Officer,
and Director
/s/ H. Stuart Campbell Director August 8, 1996
- ----------------------
H. Stuart Campbell
/s/ Thomas M. Haythe Director August 8, 1996
- ----------------------
Thomas M. Haythe
/s/ David M. Lank Director August 8, 1996
- ----------------------
David M. Lank
Director August __, 1996
- ----------------------
Elmer A. Sticco
</TABLE>
II-6
<PAGE> 8
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion
filed as Exhibit 5 to this Registration Statement.
II-7
<PAGE> 9
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Isomedix Inc. on Form S-8 of our report dated February 16, 1996, on our audits
of the consolidated financial statements and financial statement schedules of
Isomedix Inc. and Subsidiaries as of December 31, 1995 and 1994, and for the
years ended December 31, 1995, 1994, and 1993, which report is included in the
Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Parsippany, New Jersey
August 12, 1996
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
------ ---------------------- ----
<S> <C> <C>
4(i) - Isomedix Inc. 1996 Long Term
Incentive Plan
5 - Opinion of Haythe & Curley
23(i) - Consent of Coopers & Lybrand --
L.L.P., Independent Accountants
(See "Consent of Independent
Accountants" in the Registration
Statement)
23(ii) - Consent of Haythe & Curley --
(contained in Exhibit 5)
24 - Power of Attorney (See "Power of --
Attorney" in the Registration
Statement)
</TABLE>
<PAGE> 1
EXHIBIT 4(i)
ISOMEDIX INC.
1996 LONG TERM INCENTIVE PLAN
SECTION 1. Purpose. The purposes of this Isomedix Inc. 1996
Long Term Incentive Plan (the "Plan") are to encourage selected employees,
officers, directors and consultants of, and other individuals providing services
to, Isomedix Inc. (together with any successor thereto, the "Company") and its
Affiliates (as defined below) to acquire a proprietary interest in the growth
and performance of the Company, to generate an increased incentive to contribute
to the Company's future success and prosperity thus enhancing the value of the
Company for the benefit of its shareholders, and to enhance the ability of the
Company and its Affiliates to attract and retain exceptionally qualified
individuals upon whom, in large measure, the sustained progress, growth and
profitability of the Company depend.
SECTION 2. Definitions. As used in the Plan, the following
terms shall have the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or
through one or more intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest, as determined by
the Committee.
"Award" shall mean any Option, Stock Appreciation Right,
Restricted Security, Performance Award, or Other Stock-Based Award granted under
the Plan.
"Award Agreement" shall mean any written agreement, contract
or other instrument or document evidencing any Award granted under the Plan.
"Board" shall mean the Board of Directors of the Company.
"Cause", as used in connection with the termination of a
Participant's employment, shall mean (i) with respect to any Participant
employed under a written employment agreement with the Company or an Affiliate
of the Company which agreement includes a definition of "cause," "cause" as
defined in such agreement or, if such agreement contains no such definition, a
material breach by the Participant of such agreement, or (ii) with respect to
any other Participant, the failure to perform adequately in carrying out such
Participant's employment responsibilities, including any directives from the
Board, or engaging in such behavior in his personal or business life as to lead
the Committee in its reasonable judgment to determine that it is in the best
interests of the Company to terminate his employment.
"Common Stock" shall mean the common stock of the Company,
without par value.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated thereunder.
"Committee" shall mean the Stock Option Committee or any other
committee of the Board designated by the Board to administer the Plan and
composed of not less than three outside directors, as described in Section
162(m) of the Code, each of whom, to the extent necessary to comply with Rule
16b-3 only, is a "disinterested person" within the meaning of Rule 16b-3 as in
effect at April 30, 1991.
"Common Shares" shall mean any or all, as applicable, of the
Common Stock and such other securities or property as may become the subject of
Awards, or become subject to Awards,
<PAGE> 2
A-3
pursuant to an adjustment made under Section 4(b) of the Plan and any other
securities of the Company or any Affiliate or any successor that may be so
designated by the Committee.
"Employee" shall mean any employee of the Company or of any
Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" shall mean (A) with respect to any
property other than the Common Shares, the fair market value of such property
determined by such methods or procedures as shall be established from time to
time by the Committee; and (B) with respect to the Common Shares, the last sale
price regular way on the date of reference, or, in case no sale takes place on
such date, the average of the high bid and low asked prices, in either case on
the principal national securities exchange on which the Common Shares are listed
or admitted to trading, or if the Common Shares are not listed or admitted to
trading on any national securities exchange, the last sale price reported on the
National Market System of the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") on such date, or the average of the
closing high bid and low asked prices in the over-the-counter market reported on
NASDAQ on such date, whichever is applicable, or if there are no such prices
reported on NASDAQ on such date, as furnished to the Committee by any New York
Stock Exchange member selected from time to time by the Committee for such
purpose. If there is no bid or asked price reported on any such date, the Fair
Market Value shall be determined by the Committee in accordance with the
regulations promulgated under Section 2031 of the Code, or by any other
appropriate method selected by the Committee.
"Good Reason", as used in connection with the termination of a
Participant's employment, shall mean (i) with respect to any Participant
employed under a written employment agreement with the Company or an Affiliate
of the Company, "good reason" as defined in such written agreement or, if such
agreement contains no such definition, a material breach by the Company of such
agreement, or (ii) with respect to any other Participant, a failure by the
Company to pay such Participant any amount otherwise vested and due and a
continuation of such failure for 30 business days following notice to the
Company thereof.
"Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the requirements of Section
422 of the Code or any successor provision thereto.
"Non-Qualified Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an Incentive Stock
Option. Any stock option granted by the Committee which is not designated an
Incentive Stock Option shall be deemed a Non-Qualified Stock Option.
"Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option.
"Other Stock-Based Award" shall mean any right granted under
Section 6(e) of the Plan.
"Participant" shall mean any individual granted an Award under
the Plan.
"Performance Award" shall mean any right granted under Section
6(d) of the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
<PAGE> 3
A-4
"Released Securities" shall mean securities that were
Restricted Securities but with respect to which all applicable restrictions have
expired, lapsed or been waived in accordance with the terms of the Plan or the
applicable Award Agreement.
"Restricted Securities" shall mean any Common Shares granted
under Section 6(c) of the Plan, any right granted under Section 6(c) of the Plan
that is denominated in Common Shares or any other Award under which issued and
outstanding Common Shares are held subject to certain restrictions.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Exchange Act, or any successor rule
or regulation thereto as in effect from time to time.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock Appreciation Right" shall mean any right granted under
Section 6(b) of the Plan.
SECTION 3. Administration. The Plan shall be administered by
the Committee. Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to an
eligible Employee or other individual under the Plan; (iii) determine the number
and classification of Common Shares to be covered by (or with respect to which
payments, rights or other matters are to be calculated in connection with)
Awards; (iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Common Shares, other securities, other Awards or other
property, or canceled, forfeited or suspended, and the method or methods by
which Awards may be settled, exercised, canceled, forfeited or suspended; (vi)
determine requirements for the vesting of Awards or performance criteria to be
achieved in order for Awards to vest; (vii) determine whether, to what extent
and under what circumstances cash, Common Shares, other securities, other
Awards, other property and other amounts payable with respect to an Award under
the Plan shall be deferred either automatically or at the election of the holder
thereof or of the Committee; (viii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan; (ix)
establish, amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (x) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be
made at any time and shall be final, conclusive and binding upon all Persons,
including the Company, any Affiliate, any Participant, any holder or beneficiary
of any Award, any shareholder and any Employee. Notwithstanding the foregoing,
the maximum number of Awards which may be granted to any one Participant under
this Plan in any two-year period shall not exceed 200,000 Common Shares, subject
to the adjustments provided in Section 4(b) hereof and no Awards under this Plan
shall be granted after December 31, 2005.
<PAGE> 4
A-5
SECTION 4. Common Shares Available for Awards.
(a) Common Shares Available. Subject to adjustment as provided
in Section 4(b):
(i) Calculation of Number of Common Shares Available.
The number of Common Shares available for granting Awards under the
Plan shall be 350,000, any or all of which may be or may be based on
Common Stock, any other security which becomes the subject of Awards,
or any combination thereof. Initially 350,000 shares of Common Stock
shall be reserved for Awards hereunder. Further, if, after the
effective date of the Plan, any Common Shares covered by an Award
granted under the Plan or to which such an Award relates, are
forfeited, or if an Award otherwise terminates or is canceled without
the delivery of Shares or of other consideration, then the Common
Shares covered by such Award or to which such Award relates, or the
number of Common Shares otherwise counted against the aggregate number
of Common Shares available under the Plan with respect to such Award,
to the extent of any such forfeiture, termination or cancellation,
shall again be, or shall become, available for granting Awards under
the Plan.
(ii) Accounting for Awards. For purposes of this Section 4,
(A) if an Award is denominated in or based upon
Common Shares, the number of Common Shares covered by such
Award or to which such Award relates shall be counted on the
date of grant of such Award against the aggregate number of
Common Shares available for granting Awards under the Plan and
against the maximum number of Awards available to any
Participant; and
(B) Awards not denominated in Common Shares may be
counted against the aggregate number of Common Shares
available for granting Awards under the Plan and against the
maximum number of Awards available to any participant in such
amount and at such time as the Committee shall determine under
procedures adopted by the Committee consistent with the
purposes of the Plan;
provided, however, that Awards that operate in tandem with (whether
granted simultaneously with or at a different time from), or that are
substituted for, other Awards may be counted or not counted under
procedures adopted by the Committee in order to avoid double counting.
Any Common Shares that are delivered by the Company, and any Awards
that are granted by, or become obligations of, the Company, through the
assumption by the Company or an Affiliate of, or in substitution for,
outstanding awards previously granted by an acquired company shall, in
the case of Awards granted to Participants who are officers or
directors of the Company for purposes of Section 16 of the Exchange
Act, be counted against the Common Shares available for granting Awards
under the Plan.
(iii) Sources of Common Shares Deliverable Under Awards.
Any Common Shares delivered pursuant to an Award may consist, in whole
or in part, of authorized and unissued Common Shares or of treasury
Common Shares.
(b) Adjustments. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Common Shares, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase or exchange of Common Shares or other
securities of the
<PAGE> 5
A-6
Company, issuance of warrants or other rights to purchase Common Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Common Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and kind of Common Shares (or other securities or property) which
thereafter may be made the subject of Awards, (ii) the number and kind of Common
Shares (or other securities or property) subject to outstanding Awards, and
(iii) the grant or exercise price with respect to any Award or, if deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; provided, however, that the number of Common Shares subject to any Award
denominated in Common Shares shall always be a whole number.
In connection with any merger or consolidation in which the
Company is not the surviving corporation and which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Company of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then outstanding voting securities of the Company, all outstanding
Options under the Plan shall become exercisable in full, notwithstanding any
other provision of the Plan or of any outstanding Options granted thereunder, on
and after (i) the fifteenth day prior to the effective date of such merger,
consolidation, sale, transfer or acquisition or (ii) the date of commencement of
such tender offer or exchange offer, as the case may be. The provisions of the
foregoing sentence shall apply to any outstanding Options which are Incentive
Stock Options to the extent permitted by Section 422(d) of the Code and such
outstanding Options in excess thereof shall, immediately upon the occurrence of
the event described in clause (i) or (ii) of the foregoing sentence, be treated
for all purposes of the Plan as Non-Qualified Stock Options and shall be
immediately exercisable as such as provided in the foregoing sentence.
SECTION 5. Eligibility. Any Employee, including any officer or
employee-director of the Company or of any Affiliate, and any consultant of, or
other individual providing services to, the Company or any Affiliate shall be
eligible to be designated a Participant. A non-employee director shall be
eligible to receive Non-Qualified Stock Options under the Plan.
SECTION 6. Awards.
(a) Options. The Committee is hereby authorized to grant to
eligible individuals options to purchase Common Shares (each, an "Option") which
shall contain the following terms and conditions and with such additional terms
and conditions, in either case not inconsistent with the provisions of the Plan,
as the Committee shall determine:
(i) Exercise Price. The purchase price per Common Share
purchasable under an Option shall be determined by the Committee;
provided, however, that such purchase price shall not be less than one
hundred percent (100%) of the Fair Market Value of a Common Share on
the date of grant of such Option, or such other price as required under
Subsection 6(a)(iv) hereof.
(ii) Time and Method of Exercise. Subject to the terms
of Section 6(a)(iii), the Committee shall determine the time or times
at which an Option may be exercised in whole or in part, and the method
or methods by which, and the form or forms (including,
<PAGE> 6
A-7
without limitation, cash, Common Shares, outstanding Awards, or other
property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price) in which, payment
of the exercise price with respect thereto may be made or deemed to
have been made.
(iii) Exercisability Upon Death, Retirement and
Termination of Employment. Subject to the condition that no Option may
be exercised in whole or in part after the expiration of the Option
period specified in the applicable Award Agreement:
(A) Subject to the terms of paragraph (D) below, upon
the death of a Participant while employed or within 3 months
of retirement or disability as defined in paragraph (B) below,
the Person or Persons to whom such Participant's rights with
respect to any Option held by such Participant are transferred
by will or the laws of descent and distribution may, prior to
the expiration of the earlier of: (1) the outside exercise
date determined by the Committee at the time of granting the
Option, or (2) nine months after such Participant's death,
purchase any or all of the Common Shares with respect to which
such Participant was entitled to exercise such Option
immediately prior to such Participant's death, and any Options
not so exercisable will lapse on the date of such
Participant's death;
(B) Subject to the terms of paragraph (D) below, upon
termination of a Participant's employment with the Company (x)
as a result of retirement pursuant to a retirement plan of the
Company or an Affiliate or disability (as determined by the
Committee) of such Participant, (y) by the Company other than
for Cause, or (z) by the Participant with Good Reason, such
Participant may, prior to the expiration of the earlier of:
(1) the outside exercise date determined by the Committee at
the time of granting the Option, or (2) three months after the
date of such termination, purchase any or all of the Common
Shares with respect to which such Participant was entitled to
exercise any Options immediately prior to such termination,
and any Options not so exercisable will lapse on such date of
termination;
(C) Subject to the terms of paragraph (D) below, upon
termination of a Participant's employment with the Company
under any circumstances not described in paragraphs (A) or (B)
above, such Participant's Options shall be canceled to the
extent not theretofore exercised;
(D) Upon (i) the death of the Participant, or (ii)
termination of the Participant's employment with the Company
(x) by the Company other than for Cause (y) by the Participant
with Good Reason or (z) as a result of retirement or
disability as defined in paragraph (B) above, the Company
shall have the right to cancel all of the Options such
Participant was entitled to exercise at the time of such death
or termination (subject to the terms of paragraphs (A) or (B)
above) for a payment in cash equal to the excess, if any, of
the Fair Market Value of one Common Share on the date of death
or termination over the exercise price of such Option for one
Common Share times the number of Common Shares subject to the
Option and exercisable at the time of such death or
termination; and
(E) Upon expiration of the respective periods set
forth in each of paragraphs (A) through (C) above, the Options
of a Participant who has died or whose
<PAGE> 7
A-8
employment has been terminated shall be canceled to the extent not
theretofore canceled or exercised.
(F) For purposes of paragraphs (A) through (D) above,
the period of service of an individual as a director or
consultant of the Company or an Affiliate shall be deemed the
period of employment.
(iv) Incentive Stock Options. The following
provisions shall apply only to Incentive Stock Options granted under
the Plan:
(A) No Incentive Stock Option shall be granted to any
eligible Employee who, at the time such Option is granted,
owns securities possessing more than ten percent (10%) of the
total combined voting power of all classes of securities of
the Company or of any Affiliate, except that such an Option
may be granted to such an Employee if at the time the Option
is granted the option price is at least one hundred ten
percent (110%) of the Fair Market Value of the Common Shares
(determined in accordance with Section 2) subject to the
Option, and the Option by its terms is not exercisable after
the expiration of five (5) years from the date the Option is
granted; and
(B) To the extent that the aggregate Fair Market
Value of the Common Shares with respect to which Incentive
Stock Options (without regard to this subsection) are
exercisable for the first time by any individual during any
calendar year (under all plans of the Company and its
Affiliates) exceeds $100,000, such Options shall be treated as
Non-Qualified Stock Options. This subsection shall be applied
by taking Options into account in the order in which they were
granted. If some but not all Options granted on any one day
are subject to this subsection, then such Options shall be
apportioned between Incentive Stock Option and Non-Qualified
Stock Option treatment in such manner as the Committee shall
determine. For purposes of this subsection, the Fair Market
Value of any Common Shares shall be determined, in accordance
with Section 2, as of the date the Option with respect to such
Common Shares is granted.
(v) Terms and Conditions of Options Granted to
Directors. Notwithstanding any provision contained in the Plan to the
contrary, during any period when any member of the Committee shall not
be a "disinterested person" as defined in Rule 16b-3, as such Rule was
in effect at April 30, 1991, then, the terms and conditions of Options
granted under the Plan to any director of the Company during such
period shall be as follows:
(A) The price at which each Common Share subject to
an option may be purchased shall, subject to any adjustments
which may be made pursuant to Section 4, in no event be less
than the Fair Market Value of a Common Share on the date of
grant, and provided further that in the event the option is
intended to be an Incentive Stock Option and the optionee owns
on the date of grant securities possessing more than ten
percent (10%) of the total combined voting power of all
classes of securities of the Company or of any Affiliate, the
price per share shall not be less than one hundred ten percent
(110%) of the Fair Market Value per Common Share on the date
of grant.
<PAGE> 8
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(B) The Option may be exercised to purchase Common
Shares covered by the Option not sooner than six (6) months
following the date of grant. The Option shall terminate and no
Common Shares may be purchased thereunder more than ten (10)
years after the date of grant, provided that if the Option is
intended to be an Incentive Stock Option and the Optionee owns
on the date of grant securities possessing more than ten
percent (10%) of the total combined voting power of all
classes of securities of the Company or of any Affiliate, the
Option shall terminate and no Common Shares may be purchased
thereunder more than five (5) years after the date of grant.
(C) The maximum number of Common Shares which may be
subject to options granted to all directors pursuant to this
Section 6(a)(v) shall be 300,000 shares in the aggregate. The
maximum number of Common Shares which may be subject to
options granted to any director of the Company shall be
100,000 shares.
(b) Stock Appreciation Rights. The Committee is hereby
authorized to grant to eligible Employees "Stock Appreciation Rights." Each
Stock Appreciation Right shall consist of a right to receive the excess of (i)
the Fair Market Value of one Common Share on the date of exercise or, if the
Committee shall so determine in the case of any such right other than one
related to any Incentive Stock Option, at any time during a specified period
before or after the date of exercise over (ii) the grant price of the right as
specified by the Committee, which shall not be less than one hundred percent
(100%) of the Fair Market Value of one Common Share on the date of grant of the
Stock Appreciation Right (or, if the Committee so determines, in the case of any
Stock Appreciation Right retroactively granted in tandem with or in substitution
for another Award, on the date of grant of such other Award). Subject to the
terms of the Plan and any applicable Award Agreement, the grant price, term,
methods of exercise, methods of settlement, and any other terms and conditions
of any Stock Appreciation Right granted under the Plan shall be as determined by
the Committee. The Committee may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it may deem appropriate.
(c) Restricted Securities.
(i) Issuance. The Committee is hereby authorized to
grant to eligible Employees "Restricted Securities" which shall consist
of the right to receive, by purchase or otherwise, Common Shares which
are subject to such restrictions as the Committee may impose
(including, without limitation, any limitation on the right to vote
such Common Shares or the right to receive any dividend or other right
or property), which restrictions may lapse separately or in combination
at such time or times, in such installments or otherwise, as the
Committee may deem appropriate.
(ii) Registration. Restricted Securities granted under
the Plan may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or
issuance of a stock certificates or certificates. In the event any
stock certificate is issued in respect of Restricted Securities granted
under the Plan, such certificate shall be registered in the name of the
Participant and shall bear an appropriate legend referring to the
terms, conditions and restrictions applicable to such Restricted
Securities.
(iii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of a Participant's employment for any
reason during the applicable restriction period, all of such
Participant's Restricted Securities which had not become Released
Securities
<PAGE> 9
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by the date of termination of employment shall be forfeited and
reacquired by the Company; provided, however, that the Committee may,
when it finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining restrictions
with respect to such Participant's Restricted Securities. Unrestricted
Common Shares, evidenced in such manner as the Committee shall deem
appropriate, shall be issued to the holder of Restricted Securities
promptly after such Restricted Securities become Released Securities.
(d) Performance Awards. The Committee is hereby authorized to
grant to eligible Employees "Performance Awards." Each Performance Award shall
consist of a right, (i) denominated or payable in cash, Common Shares, other
securities or other property (including, without limitation, Restricted
Securities), and (ii) which shall confer on the holder thereof rights valued as
determined by the Committee and payable to, or exercisable by, the holder of the
Performance Award, in whole or in part, upon the achievement of such performance
goals during such performance periods as the Committee shall establish. Subject
to the terms of the Plan and any applicable Award Agreement, the performance
goals to be achieved during any performance period, the length of any
performance period, the amount of any Performance Award granted, the termination
of a Participant's employment and the amount of any payment or transfer to be
made pursuant to any Performance Award shall be determined by the Committee and
by the other terms and conditions of any Performance Award. The Committee shall
issue performance goals prior to the commencement of the performance period to
which such performance goals pertain.
(e) Other Stock-Based Awards. The Committee is hereby
authorized to grant to eligible Employees "Other Stock-Based Awards." Each Other
Stock-Based Award shall consist of a right (i) which is other than an Award or
right described in Section 6(a), (b), (c) or (d) above and (ii) which is
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Common Shares (including, without limitation,
securities convertible into Common Shares) as are deemed by the Committee to be
consistent with the purposes of the Plan; provided, however, that such right
shall comply, to the extent deemed desirable by the Committee, with Rule 16b-3
and applicable law. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the terms and conditions of Other
Stock-Based Awards. Common Shares or other securities delivered pursuant to a
purchase right granted under this Section 6(e) shall be purchased for such
consideration, which may be paid by such method or methods and in such form or
forms, including, without limitation, cash, Common Shares, other securities,
other Awards, other property, or any combination thereof, as the Committee shall
determine.
(f) General.
(i) No Cash Consideration for Awards. Awards may be
granted for no cash consideration or for such minimal cash
consideration as may be required by applicable law.
(ii) Awards May Be Granted Separately or Together.
Awards may, in the discretion of the Committee, be granted either alone
or in addition to, in tandem with, or in substitution for any other
Award, except that in no event shall an Incentive Stock Option be
granted together with a Non-Qualified Stock Option in such a manner
that the exercise of one Option affects the right to exercise the
other. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the
grant of such other awards.
<PAGE> 10
A-11
(iii) Forms of Payment Under Awards. Subject to the terms
of the Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the grant,
exercise or payment of an Award may be made in such form or forms as
the Committee shall determine, including, without limitation, cash,
Common Shares, other securities, other Awards, or other property, or
any combination thereof, and may be made in a single payment or
transfer, in installments, or on a deferred basis, in each case in
accordance with rules and procedures established by the Committee. Such
rules and procedures may include, without limitation, provisions for
the payment or crediting of reasonable interest on installment or
deferred payments. In accordance with the above, the Committee may
elect (i) to pay a Participant (or such Participant's permitted
transferee) upon the exercise of an Option in whole or in part, in lieu
of the exercise thereof and the delivery of Common Shares thereunder,
an amount of cash equal to the excess, if any, of the Fair Market Value
of one Common Share on the date of such exercise over the exercise
price of such Option for one Common Share times the number of Common
Shares subject to the Option or portion thereof so exercised or (ii) to
settle other stock denominated Awards in cash.
(iv) Limits on Transfer of Awards.
(A) No award (other than Released Securities), and no
right under any such Award, may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered
by a Participant otherwise than by will or by the laws of
descent and distribution (or, in the case of Restricted
Securities, to the Company) and any such purported assignment,
alienation, pledge, attachment, sale or other transfer or
encumbrance shall be void and unenforceable against the
Company or any Affiliate.
(B) Each award, and each right under any Award, shall
be exercisable, during the Participant's lifetime only by the
Participant or if permissible under applicable law, by the
Participant's guardian or legal representative.
(v) Terms of Awards. The term of each Award shall be
for such period as may be determined by the Committee; provided,
however, that in no event shall the term of any Option exceed a period
of ten years from the date of its grant.
(vi) Rule 16b-3 Six-Month Limitations. To the extent
required in order to maintain the exemption provided under Rule 16b-3
only, any equity security offered pursuant to the Plan must be held for
at least six months after the date of grant, and with respect to any
derivative security issued pursuant to the Plan, at least six months
must elapse from the date of acquisition of such derivative security to
the date of disposition of the derivative security (other than upon
exercise or conversion) or its underlying equity security. Terms used
in the preceding sentence shall, for the purposes of such sentence
only, have the meanings, if any, assigned or attributed to them under
Rule 16b-3.
(vii) Common Share Certificates. All certificates for
Common Shares delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the Plan
or the rules, regulations, and other requirements of the Securities and
Exchange Commission, any stock exchange upon which such Common Shares
are then listed, and any applicable Federal or state securities laws,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
<PAGE> 11
A-12
(viii) Delivery of Common Shares or Other Securities and
Payment by Participant of Consideration. No Common Shares or other
securities shall be delivered pursuant to any Award until payment in
full of any amount required to be paid pursuant to the Plan or the
applicable Award Agreement is received by the Company. Such payment may
be made by such method or methods and in such form or forms as the
Committee shall determine, including, without limitation, cash, Common
Shares, other securities, other Awards or other property, or any
combination thereof; provided that the combined value, as determined by
the Committee, of all cash and cash equivalents and the Fair Market
Value of any such Common Shares or other property so tendered to the
Company, as of the date of such tender, is at least equal to the full
amount required to be paid pursuant to the Plan or the applicable Award
Agreement to the Company.
SECTION 7. Amendments; Adjustments and Termination. Except to
the extent prohibited by applicable law and unless otherwise expressly provided
in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter,
suspend, discontinue, or terminate the Plan without the consent of any
shareholder, Participant, other holder or beneficiary of an Award, or other
Person; provided, however, that, subject to the Company's rights to adjust
Awards under Sections 7(c) and (d), any amendment, alteration, suspension,
discontinuation, or termination that would impair the rights of any Participant,
or any other holder or beneficiary of any Award theretofore granted, shall not
to that extent be effective without the consent of such Participant, other
holder or beneficiary of an Award, as the case may be; and provided further,
however, that notwithstanding any other provision of the Plan or any Award
Agreement, without the approval of the shareholders of the Company no such
amendment, alteration, suspension, discontinuation, or termination shall be made
that would:
(i) increase the total number of Common Shares
available for Awards under the Plan, except as provided in Section 4
hereof; or
(ii) otherwise cause the Plan to cease to comply with
any tax or regulatory requirement, including for these purposes any
approval or other requirement which is or would be a prerequisite for
exemptive relief from Section 16(b) of the Exchange Act.
(b) Amendments to Awards. The Committee may waive any
conditions or rights under, amend any terms of, or alter, suspend, discontinue,
cancel or terminate, any Award theretofore granted, prospectively or
retroactively; provided, however, that, subject to the Company's rights to
adjust Awards under Sections 7(c) and (d), any amendment, alteration,
suspension, discontinuation, cancellation or termination that would impair the
rights of any Participant or holder or beneficiary of any Award theretofore
granted, shall not to that extent be effective without the consent of such
Participant or holder or beneficiary of an Award, as the case may be.
(c) Adjustment of Awards Upon Certain Acquisitions. In the
event the Company or any Affiliate shall assume outstanding employee awards or
the right or obligation to make future such awards in connection with the
acquisition of another business or another corporation or business entity, the
Committee may make such adjustments, not inconsistent with the terms of the
Plan, in the terms of Awards as it shall deem appropriate in order to achieve
reasonable comparability or other equitable relationship between the assumed
awards and the Awards granted under the Plan as so adjusted.
<PAGE> 12
A-13
(d) Adjustments of Awards Upon the Occurrence of Certain
Unusual or Nonrecurring Events. The Committee is hereby authorized to make
adjustments in the terms and conditions of, and the criteria included in, Awards
in recognition of unusual or non-recurring events (including, without
limitation, the events described in Section 4(b) hereof) affecting the Company,
any Affiliate, or the financial statements of the Company or any Affiliate, or
of changes in applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
SECTION 8. General Provisions.
(a) No Right to Awards. No Employee or other Person shall have
any claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Employees, or holders or beneficiaries of Awards
under the Plan. The terms and conditions of Awards need not be the same with
respect to each recipient.
(b) Delegation. Subject to the terms of the Plan and
applicable law, the Committee may delegate to one or more officers or managers
of the Company or any Affiliate, or to a committee of such officers or managers,
the authority, subject to such terms and limitations as the Committee shall
determine, to grant Awards to, or to cancel, modify, waive rights with respect
to, alter, discontinue, suspend, or terminate Awards; provided, however, that,
no such delegation shall be permitted with respect to Awards held by Employees
who are officers or directors of the Company for purposes of Section 16 of the
Exchange Act, or any successor section thereto or who are otherwise subject to
such Section.
(c) Correction of Defects, Omissions, and Inconsistencies. The
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
(d) Withholding. The Company or any Affiliate shall be
authorized to withhold from any Award granted, from any payment due or transfer
made under any Award or under the Plan or from any compensation or other amount
owing to a Participant the amount (in cash, Common Shares, other securities,
other Awards, or other property) of withholding taxes due in respect of an
Award, its exercise, or any payment or transfer under such Award or under the
Plan and to take such other action as may be necessary in the opinion of the
Company or Affiliate to satisfy all obligations for the payment of such taxes.
(e) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from adopting
or continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
(f) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Affiliate. Further, the Company or an Affiliate may at any time
dismiss a Participant from employment, free from any liability, or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
<PAGE> 13
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(g) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be determined
in accordance with the laws of the State of New Jersey and applicable Federal
law.
(h) Severability. If any provision of the Plan or any Award is
or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or as to any Person or Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award, such provision shall be stricken as to such jurisdiction, Person or
Award and the remainder of the Plan and any such Award shall remain in full
force and effect.
(i) No Trust or Fund Created. Neither the Plan nor any Award
shall create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(j) No Fractional Common Shares. No fractional Common Shares
shall be issued or delivered pursuant to the Plan or any Award, and the
Committee shall determine whether cash, other securities, or other property
shall be paid or transferred in lieu of any fractional Common Shares or whether
such fractional Common Shares or any rights thereto shall be canceled,
terminated, or otherwise eliminated.
(k) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference. Such
headings shall not be deemed in any way material or relevant to the construction
or interpretation of the Plan or any provision thereof.
SECTION 9. Adoption, Approval and Effective Date of the Plan.
The Plan shall be considered adopted and shall become effective on the date the
Plan is approved by the Board; provided, however, that the Plan and any Awards
granted under the Plan shall be void, if the shareholders of the Company shall
not have approved the adoption of the Plan within twelve (12) months after the
effective date, by a majority of votes cast thereon at a meeting of shareholders
duly called and held for such purpose.
<PAGE> 1
Exhibit 5
August 12, 1996
Isomedix Inc.
11 Apollo Drive
Whippany, New Jersey 07981
Dear Sirs:
We have acted as counsel for Isomedix Inc., a Delaware
corporation (the "Company"), in connection with the registration statement on
Form S-8 being filed by the Company under the Securities Act of 1933, as
amended, with respect to 350,000 shares (the "Shares") of the Company's common
stock, $.01 par value, which have been or are to be offered by the Company to
employees, officers, directors and consultants of, and other individuals
providing services to, the Company and its Subsidiaries pursuant to the
Company's 1996 Long Term Incentive Plan (the "Plan").
In connection with such registration statement, we have
examined such records and documents and such questions of law as we have deemed
appropriate for purposes of this opinion. On the basis of such examination, we
advise you that, in our opinion, the Shares have been duly and validly
authorized and, when issued and paid for in accordance with the terms of the
Plan and stock options duly granted thereunder, will be validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the aforesaid registration statement.
Very truly yours,
HAYTHE & CURLEY
