SECURITIES AND EXCHANGE COMMISSION
Wasington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AULT INCORPORATED
(Exact name of registrant as specified in its charter)
Minnesota 41-0842932
Sate or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization
7300 Boone Avenue North
Minneapolis, Minnesota 55428-1028
(Address of Principal Executive Offices and zip code)
AULT INCORPORATED
1996 EMPLOYEE STOCK PURCHASE SAVINGS PLAN
(Full title of the Plan)
Carlos S. Montague
7300 Boone Avenue North
Minneapolis, MN 55428-1028
(612) 493-1900
(Name, address, including zip
code and telephone number
of agent for service)
Copy to:
Richard A. Primuth
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612) 371-3211
Total Pages - - - 19
Exhibits Index on Page - - - 4
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION> Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Price Per Offering Fee
Registered Share Price
<S> <C> <C> <C> <C>
Common 100,000 $10.00(1) $1,000,000(1) $344.83
Stock, no shares
par value
<FN>
(1) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(c) and (h) and based
upon the average of the high and low transaction prices of
the Company's Common Stock on the Nasdaq Small Cap Market on
May 20, 1996.
</TABLE>
PART I
Pursuant to Part 1 of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as part of this
Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission are hereby incorporated by reference:
a) The Annual Report of the Company on Form 10-K for the fiscal
period ended May 28, 1995.
b) The Quarterly Reports of the Company on Form 10-Q for the
quarters ended August 27, 1995, November 26, 1995 and February
25, 1996.
c) The Definitive Proxy Statement dated August 25, 1995 for the
Meeting of Shareholders held on September 26, 1995.
d) The description of the Company's Common Stock as set forth
under "Description of Common Shares" in the Company's
Registration Statement on Form S-1 as filed with the Securities
and Exchange Commission on July 18, 1983 (Registration No. 2-
85224), including any amendment or report filed for the purpose
of updating such description.
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 prior to the completion or termination of this
offering of shares of Common Stock shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article XI of the Registrant's Bylaws provides that the
Registrant shall indemnify any person who at any time shall serve
or shall have served as a director, officer or employee of the
Corporation, or of any other enterprise at the request of the
Corporation, and the heirs, executors and administrators of such
person in accordance with, and to the fullest extent permitted by
the provisions of the Minnesota Business Corporation Act,
Minnesota Statutes, Chapter 302A, as it may be amended from time
to time.
Section 302A.521 of the Minnesota Business Corporation Act
provides that a corporation shall indemnify any person made or
threatened to be made a party to a proceeding by reason of acts
or omissions performed in their official capacity as an officer,
director, employee or agent of the corporation against judgments,
penalties, fines, including without limitation, excise taxes
assessed against such person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys'
fees and disbursements, incurred by such person in connection
with the proceeding if, with respect to the acts or omissions of
such person complained of in the proceeding, such person (i) has
not been indemnified by another organization or employee benefit
plan for the same expenses with respect to the same acts or
omissions; (ii) acted in good faith; (iii) received no improper
personal benefit and Minnesota Statutes, Section 302A.255
(regarding conflicts of interest), if applicable, has been
satisfied; (iv) in the case of a criminal proceeding, has no
reasonable cause to believe the conduct was unlawful; and (v) in
the case of acts or omissions by persons in their official
capacity for the corporation, reasonably believed that the
conduct was in the best interests of the corporation, or in the
case of acts or omissions by persons in their capacity for other
organization, reasonably believed that the conduct was not
opposed to the best interest of the corporation. In addition,
Section 302A.521, subd. 3, of the Minnesota Statutes requires
payment or reimbursement by the corporation, upon written
request, of reasonable expenses (including attorneys' fees)
incurred by a person in advance of the final disposition of a
proceeding in certain instances if a decision as to required
indemnification is made by a disinterested majority of the Board
of Directors present at a meeting at which a disinterested quorum
is present, or by a designated committee by the Board, by special
legal counsel, by the shareholders or by a court.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibits Title of Document Page
<S> <C> <C>
4.1 1996 Employee Stock Purchase Savings 8
Plan
5.1 Opinion of Lindquist & Vennum P.L.L.P. 18
23.1 Consent of Lindquist & Vennum P.L.L.P.
included in Exhibit 5.1)
23.2 Consent of McGladrey & Pullen, L.L.P. 19
24.1 Power of Attorney (included on signature 6
page)
</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:
i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement, (or the
most recent post-effective amendment thereof) which, individually
or in aggregate, represents a fundamental change in information
set forth in the registration statement;
iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the 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 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 (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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 connected 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets 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, the City of
Minneapolis and the State of Minnesota on the 23rd day of May,
1996.
AULT INCORPORATED
By /s/ Frederick M. Green
Frederick M. Green, President,
Chief Executive Officer and
Chairman
POWER OF ATTORNEY
The undersigned officers and directors of Ault Incorporated
hereby constitute and appoint Frederick M. Green and Carlos S.
Montague, or either of them, with power to act one without the
other, our true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for us and in our
stead, in any and all capacities to sign thereto, and to file the
same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and
thing necessary or advisable to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/Frederick M. President, April 30, 1996
Green Chief Executive Officer
Frederick M. Green and Chairman of the Board
(Principal Executive
Officer)
/s/ Carlos S. Vice President, April 30, 1996
Montague Chief Financial Officer
Carlos S. Montague and Controller (Principal
Financial Officer and
Principal Accounting
Officer)
/s/James M. Director May 2, 1996
Duddleston
James M. Duddleston
/s/Delbert W. Director May 1, 1996
Johnson
Delbert W. Johnson
/s/John G. Director May 2, 1996
Kassakian
John G. Kassakian
Eric G. Mitchell, Director
Jr.
/s/ Edward C. Lund Director May 2, 1996
Edward C. Lund
Matthew A. Sutton Director
</TABLE>
10
AULT INCORPORATED
1996 Employee Stock Purchase Savings Plan
Article I
Purpose
The purpose of the 1996 Employee Stock Purchase Savings Plan
is to provide a greater community of interest between Ault
Incorporated shareholders and its employees, and to encourage and
facilitate purchases of shares of common stock in the Company by
its employees. It is believed the Plan will encourage employees
to remain in the employ of the Company and will provide them with
further incentive to improve operations, increase profits and
contribute more significantly to the Company's success and will
also permit the Company to compete with other corporations
offering similar plans in obtaining and retaining the services of
competent employees. It is intended that options issued pursuant
to this Plan shall constitute options issued pursuant to an
"Employee Stock Purchase Plan" within the meaning of Section 423
of the Internal Revenue Code of 1986, as amended.
Article II
Definitions
A. "Plan" means the 1996 Ault Incorporated Employee Stock
Purchase Savings Plan.
B. "Board of Directors" means the Board of Directors of
Ault Incorporated.
C. "Code" means the Internal Revenue Code of 1986, as
amended.
D. "Company" means Ault Incorporated, and any of its
subsidiaries (as that term is defined by Section 424(f) of the
Code) to which Ault Incorporated and such respective
subsidiaries, by action of their boards of directors, shall make
this Plan applicable.
E. "Employee" means any person, including an officer, who
is customarily employed or is expected to be customarily employed
twenty (20) hours or more per week by the Company.
F. "Eligible Employee" means an Employee of the Company
who is eligible for participation in the Plan in accordance with
Article IV.
G. "Participant" means an Eligible Employee who has
elected to participate in the Plan in accordance with Article V.
H. "Committee" means the committee provided for in Article
XI.
I. The "Effective Date" of the Plan means March 10, 1996
or a date established by the Committee not to exceed fourteen
days following registration of the options and shares reserved
pursuant to the Plan with the United States Securities and
Exchange Commission.
J. The "Commencement Date" of a Phase (as defined herein)
shall be determined and defined as provided in Article III,
Section B herein.
K. "Base Pay" means regular straight time earnings
annualized as of the date of Commencement Date of a Phase,
excluding payments, if any, for overtime, incentive compensation,
commissions, disability payments, bonuses and any other similar,
special remuneration.
L. "Termination Date" shall mean a date set by the
Committee which is at least 358 days after but no more than 365
days after the Commencement Date of a particular Phase of the
Plan provided that the Committee may elect to accelerate the
Termination Date of any Phase effective on the date specified by
the Committee in the event of (i) any consolidation or merger in
which Ault Incorporated is not the surviving corporation or
pursuant to which shares of Ault Incorporated would be converted
into cash, securities or other property; (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets
of the Company; (iii) any plan of liquidation or dissolution of
Ault Incorporated; (iv) any event or transaction which would
cause Ault Incorporated shares to cease to be quoted on the
NASDAQ Automated Quotation System.
M. "Shares" shall mean common shares of Ault Incorporated
of no par value, subject to adjustments which may be made in
accordance with Articles XVI and XVII.
Article III
Term and Phases of the Plan
A. The Plan will commence on the Effective Date and will
terminate ten (10) years and six months thereafter, except that
any Phase (as hereinafter defined) commenced prior to such
termination shall, if necessary, be allowed to continue beyond
such termination until completion. Notwithstanding the
foregoing, this Plan shall be considered of no force or effect
and any options granted shall be null and void unless the holders
of a majority of shares of the common stock of the Company,
represented at a meeting in person or by proxy, approve the Plan
within twelve (12) months before or after the date of its
adoption by the Board of Directors.
B. The Plan shall be carried out in one or more phases
(each herein a "Phase"), each Phase being for a period of one
year. No Phase shall run concurrently with any other phase, but
a Phase may commence immediately after the termination of the
preceding Phase. The commencement of each Phase (the
"Commencement Date") shall be determined by the Committee,
provided that the Commencement Date of the first Phase shall be
within twelve (12) months before or after the date of approval of
the Plan by the shareholders of the Company. In the event all of
the stock reserved for grant of options hereunder is issued
pursuant to the terms hereof prior to the Commencement Date of
one or more Phases scheduled by the Committee or the number of
shares remaining is so small, in the opinion of the Committee, as
to render administration of any succeeding Phase impracticable,
such Phase or Phases shall be canceled. Phases shall be numbered
successively as Phase 1, Phase 2, Phase 3, etc.
Article IV
Eligibility
A. Any Employee of the Company who has completed at least
one month of continuous service on or prior to the Commencement
Date of a Phase of the Plan shall be eligible to participate in
the Plan, subject to the limitations imposed by Section 423 of
the Code.
B. Any Employee who is a member of the Board of Directors
of the Company shall be eligible to participate in the Plan.
C. Notwithstanding any provision of the Plan to the
contrary, no Employee shall be granted an option:
1. if such Employee, immediately after the option is
granted, owns shares possessing five percent (5%) or more of
the total combined voting power or value of all classes of
shares of the Company or a parent or a subsidiary of the
Company. For purposes of determining share ownership, the
rules of Section 424(d) of the Code shall apply, and shares
which the Employee may purchase under outstanding options
shall be treated as shares owned by the Employee;
2. which permits the Employee to purchase shares
under such plans of the Company or a subsidiary of the
Company to accrue at a rate which exceeds $25,000 of the
fair market value of such shares (determined at the time
such option is granted) for each calendar year in which such
option is outstanding at any time. The term "accrue" shall
be interpreted as in Section 423(b)(8) of the Code;
3. which can be exercised after the expiration of
twenty-seven months from the date the option is granted.
Article V
Participation
A. An Eligible Employee may elect to enroll as, and become
a Participant in, any Phase of the Plan by completing a payroll
deduction authorization on the form provided by the Company and
filing it with the personnel office prior to or on the date the
phase commences.
B. Payroll deductions for a Participant shall commence on
the first payday after the Commencement Date of the Phase for
which the Eligible Employee has enrolled and shall end on the
last payday immediately prior to or coinciding with the
Termination Date of the particular Phase, unless sooner
terminated by the Participant as provided in Article IX or as
otherwise provided herein.
C. A Participant who ceases to be an Eligible Employee,
although still employed by the Company, thereupon shall be deemed
to discontinue his or her participation in the Plan, and he or
she shall have the rights provided in Article IX.
D. Participation in the Plan shall be voluntary.
Article VI
Payroll Deductions
A. Upon enrollment, a Participant shall elect to make
contributions to the Plan by payroll deductions (in full dollar
amounts calculated to be as uniform as practicable throughout the
period of the Phase), in the aggregate amount not in excess of
the sum of 10% of such Participant's Base Pay for the term of the
Phase, as determined on the basis of his or her annual or
annualized Base Pay at the Commencement Date of the Phase. The
minimum authorized payroll deduction must aggregate to not less
than $10 per month.
B. All payroll deductions made for Participants shall be
credited to their accounts under the Plan. The Participant may
not make any separate cash payments into such account.
C. A Participant may discontinue his or her participation
in the Phase and terminate his or her payroll deduction
authorized at any time as provided in Article IX.
D. A Participant may reduce the amount of his or her
payroll deduction by completing an amended payroll deduction
authorization on the form provided and filing it with his or her
personnel office, but no change can be made during a Phase of the
Plan which would either change the time or increase the rate of
his or her payroll deductions.
E. In the event that the Participant's compensation for
any pay period is terminated or reduced from the compensation
rate for such a period as of the Commencement Date of the Phase
for any reason so that the amount actually withheld on behalf of
the Participant as of the termination date of the Phase is less
than the amount anticipated to be withheld over the Phase year as
determined on the Commencement Date of the Phase, then the extent
to which the Participant may exercise his option shall be based
on the amount actually withheld on his behalf. In the event of a
change in the pay period of any Participant, such as from bi-
weekly to monthly, an appropriate adjustment shall be made to the
deduction in each new pay period so as to ensure the deduction of
the proper amount authorized by the Participant.
Article VII
Terms and Conditions of Options
A. Stock options granted pursuant to the Plan may be
evidenced by agreements in such form as the Committee shall
approve, provided that all Employees shall have the same rights
and privileges and provided further that such options shall
comply with and be subject to the following terms and conditions.
The Committee may conclude that agreements are not necessary.
B. As of the Commencement Date of a Phase when a
Participant's payroll deduction authorization becomes effective,
the Participant shall be granted an option for as many full
shares as he or she will be able to purchase with the payroll
deductions credited to his or her account during his or her
participation in the Phase, subject to the limitations of Article
X. The maximum number of shares subject to purchase by a
Participant shall equal the total amount credited to the
Participant's account under Section VI hereof divided by the
option price set forth in Section VII, Paragraph C.1 hereof.
C. The option price of shares purchased with payroll
deductions for an Employee who becomes a Participant as of the
Commencement Date of a Phase shall be the lower of:
1. 85% of the fair market value of the shares on the
date the Phase commences; or,
2. 85% of the fair market value of the shares on the
Termination Date of the Phase.
D. The fair market value of the shares shall be determined
by the Committee for each valuation date in a manner consistent
with Section 423 of the Code.
Article VIII
Exercise of Option
A. Unless a Participant gives written notice to the
Company as provided in Article IX, his or her option for the
purchase of shares will be exercised automatically for him or her
as of the Termination Date of the Phase for the purchase of the
number of full shares which the accumulated payroll deductions in
his or her account at that time will purchase at the applicable
option price; but in no event shall the number of full shares be
greater than the number of full shares to which the Participant
would have been eligible to receive when he or she first became a
Participant under the Phase if he or she had elected a payroll
deduction rate of 10% of his or her then annual or annualized
Base Pay and as if the option price were solely based under
Paragraph C.1 of Article VII.
B. By written notice to the Company within the period
commencing three (3) months prior to and ending on the business
day immediately preceding the Termination Date of the Phase and
after delivery to the Participant of a prospectus covering the
shares to be issued under the Plan, a Participant may elect,
effective as of the Termination Date, to:
1. withdraw all the accumulated payroll deductions in
his or her account at the time, with interest; or, after
receipt of a prospectus as set forth above,
2. exercise his or her option for a specified number
of full shares less than the number of full shares which the
accumulated payroll deductions in his or her account will
purchase at the applicable option price and withdraw the
balance in his or her account without interest; but in no
event shall the number of full shares be greater than the
number of full shares to which a Participant would have been
eligible to receive when he or she first became a
Participant under the Phase if he or she had elected a
payroll deduction rate of 10% of his or her then annual or
annualized Base Pay and as if the option price were solely
based under Paragraph C.1 of Article VII.
C. Notwithstanding the provisions of Paragraphs A and B
above, if a Participant files reports pursuant to Section 16 of
the Securities Exchange Act of 1934 (at the Commencement Date of
a Phase or becomes obligated to file such reports during a Phase)
then such a Participant shall not have the right to withdraw all
or a portion of the accumulated payroll deductions except in
accordance with Article IX, Paragraphs A and B.
Article IX
Death, Withdrawal or Termination
A. In the event of death of a Participant, the person or
persons specified in Article XVIII may give notice to the Company
within sixty (60) days of the death of the Participant electing
to purchase the number of full shares which the accumulated
payroll deductions in the account of such deceased Participant
will purchase under the option at the applicable option price
specified in Paragraph C of Article VII and have the balance in
the account distributed in cash without interest. If no such
notice is received by the Company within said sixty (60) days,
the accumulated payroll deductions will be distributed in cash
plus interest.
B. Upon termination of the Participant's employment for
any reason other than the death of the Participant, the payroll
deductions credited to his or her account, plus interest, shall
be returned to him or her.
C. Except for a Participant governed by Paragraph C of
Article VIII, a Participant may withdraw payroll deductions
credited to his or her account under the Plan at any time by
giving written notice to the Company. All of the Participant's
payroll deductions credited to his or her account, plus interest,
shall be paid to him or her promptly after receipt of his or her
notice of withdrawal and no further payroll deductions shall be
made from his or her compensation.
Article X
Shares Under Option
A. The shares to be sold to a Participant under the Plan
shall be authorized, but unissued shares. The maximum number of
shares which shall be made available for purchase under the Plan
shall be 100,000 shares, subject to adjustment upon changes in
capitalization of the Company as provided in Articles XVI and
XVII. Shares subject to the unexercised portion of any lapsed or
expired option may again be subject to option under the plan. If
the total number of shares for which options are to be granted on
any date in accordance with Article VII exceeds the number of
shares then available under the Plan (after deduction of all
shares for which options have been exercised or are then
outstanding), the Committee shall make a pro rata allocation of
the shares remaining available in as nearly a uniform manner as
shall be practicable and as it shall determine to be equitable.
In such event, payroll deductions to be made shall be reduced
accordingly and the Committee shall give written notice of such
reduction to each Participant affected thereby.
B. As promptly as practicable after the Termination Date
of a Phase, the Company shall deliver to each Participant the
full shares purchased under exercise of his or her option,
together with a cash payment equal to the balance (without
interest) of any payroll deductions credited to his or her
account which were not used for the purchase of shares.
C. The Participant will have no interest in shares covered
by his or her option until such option has been exercised.
Article XI
Administration
A. The Plan shall be administered by a Committee
consisting of not less than two (2) members who shall be
appointed by the Board of Directors of the Company. If the Board
of Directors has established a Compensation Committee, such
Compensation Committee shall be the "Committee" hereunder. Each
member of such Committee shall be either a director, an officer
or an employee of the Company.
B. The Committee shall be vested with full authority to
make, administer, and interpret such rules and regulations as it
deems necessary to administer the Plan, and any such determina
tion, decision or action of such Committee with respect to any
action in connection with the construction, interpretation,
administration or application of the Plan shall be final,
conclusive and binding on the Company and on all Participants and
any and all other persons claiming under or through any
Participant, unless otherwise determined by the Board of
Directors. All determinations of the Committee shall be made by
a majority of its members. Any decision which is made in writing
and signed by a majority of the members of the Committee shall be
effective as fully as though made by a majority vote at a meeting
duly called and held.
C. The determinations of the Committee shall be made in
accordance with its judgment as to the best interests of the
Company, its employees and its shareholders and in accordance
with the purposes of the Plan; provided, however, that the
provisions of the Plan shall at all times be construed in a
manner consistent with the requirements of Section 423 of the
Internal Revenue Code, as amended.
D. The Company shall pay all expenses of administering the
Plan. No member of the Board of Directors or the Committee shall
be personally liable for any action or determination made in good
faith with respect to the Plan or any option granted under it.
Article XII
Amendment of the Plan
The Board of Directors of the Company may at any time amend
the Plan, except that no amendment may make any change in any
option theretofore granted which would adversely affect the
rights of any Participant, and no amendment shall be made without
prior approval of the shareholders of the Company if such
amendment would require sale of more shares than are authorized
under Article X of the Plan.
Article XIII
Non-transferability
Neither payroll deductions credited to a Participant's
account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way by the Participant
and any such attempted assignment, transfer, pledge or other
disposition shall be null and void and without effect, but the
Company may treat such act as an election to withdraw funds in
accordance with Article IX.
Article XIV
Use of Funds
All payroll deductions received or held by the Company under
this Plan may be used by the Company for any corporate purposes
and the Company shall not be obligated to segregate such payroll
deductions.
Article XV
Interest
In any situation where the Plan provides for the payment of
interest on a Participant's payroll deductions, such interest
shall be determined by averaging the balance in the Participant's
account for the period of his or her participation and computing
interest thereon at the rate of 5% per annum (simple interest).
The Committee may change the rate of interest for a particular
Phase, provided such change is made prior to the Commencement
Date of the Phase.
Article XVI
Changes in Capitalization, Merger, etc.
A. Subject to any required action by the shareholders, the
number of shares covered by each outstanding option, the price
per share thereof in each such option, and the maximum number of
shares available for purchase pursuant to options issued under
the Plan shall be deemed proportionately adjusted for any
increase or decrease in the number of issued shares of the
Company resulting from a subdivision or consolidation of shares
or the payment of a share dividend (but only on the shares) or
any other increase or decrease in the number of such shares
effected without receipt of consideration by the Company.
B. If the Company shall be involved in any merger or
consolidation, whether or not it is the surviving corporation,
each outstanding option shall pertain to and apply to the
securities to which a holder of the number of shares subject to
the option would have been entitled. A dissolution or liquida
tion of the Company shall cause each outstanding option to
terminate, provided in such event that, immediately prior to such
dissolution or liquidation, each Participant shall be repaid the
payroll deductions credited to his or her account, plus interest.
C. In the event of a change in the shares of the Company
as presently constituted, which is limited to a change of all its
authorized shares with no par value into the same number of
shares with a stated par value, the shares resulting from any
such change shall be deemed to be the shares within the meaning
of this Plan.
Article XVII
Adjustments to Shares
A. To the extent that the foregoing adjustments relate to
shares or securities of the Company, such adjustments shall be
made by the Committee, and its determination in that respect
shall be final, binding and conclusive, provided that each option
granted pursuant to this Plan shall not be adjusted in a manner
that causes the option to fail to continue to qualify as an
option issued pursuant to an "employee stock purchase plan"
within the meaning of Section 423 of the Code.
B. Except as hereinbefore expressly provided in Articles
XVI and XVII, the optionee shall have no right by reason of any
subdivision or consolidation of shares of any class or the
payment of any stock dividend or any other increase or decrease
in the number of shares of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spin-off of
assets or stock of another corporation, and any issue by the
Company of shares of any class, or securities convertible into
shares of any class, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or price
of shares subject to the option.
C. The grant of an option pursuant to this Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its
business or assets.
Article XVIII
Beneficiary Designation
A Participant may file a written designation of a
beneficiary who may elect to purchase shares or receive cash to
the Participant's credit under the Plan in the event of such
Participant's death prior to delivery to him or her of such
shares and cash. Such designation of beneficiary may be changed
by the Participant at any time by written notice. Upon the death
of a Participant and upon receipt by the Company of proof deemed
adequate by it of the identity and existence at the Participant's
death of a beneficiary validly designated by him or her under the
Plan, the Company shall deliver such shares and cash to such
beneficiary in accordance with Section A of Article IX. If, upon
the death of a Participant, there is no surviving beneficiary
duly designated as above provided, the Company shall deliver
accumulated payroll deductions to the executor or administrator
of the estate of the Participant or, if no such executor or
administrator has been appointed (to the knowledge of the
Company) within sixty (60) days following the Participant's
death, the Company shall deliver such accumulated payroll
deductions to the surviving spouse (or if no surviving spouse, to
a surviving child or surviving children), if any, as though named
as the designated beneficiary hereunder or, if there is no such
surviving spouse or child, then to such relatives of the
Participant as would be entitled to such cash under the laws of
intestacy in the deceased Participant's domicile as though named
as the designated beneficiary hereunder. The Company shall not
be liable for any distribution made of shares or cash pursuant to
any will or other testamentary disposition made by such
Participant, or because of the provisions of law concerning
intestacy, or otherwise. No designated beneficiary shall, prior
to the death of the Participant by whom he or she has been
designated, acquire any interest in the shares or cash credited
to the Participant under the Plan.
Article XIX
Registration and Qualification of Shares
The offering of the shares hereunder shall be subject to the
effecting by the Company of any registration or qualification of
the shares under any federal or state law or the obtaining of the
consent or approval of any governmental regulatory body which the
Company shall determine, in its sole discretion, is necessary or
desirable as a condition to or in connection with the offering or
the issue or purchase of the shares covered thereby. The Company
shall make every reasonable effort to effect such registration or
qualification or to obtain such consent or approval.
Article XX
Plan Preconditions
The Plan is expressly made subject to approval of share
holders of the Company. If the Plan is not so approved by the
shareholders on or before one year after adoption by the Board of
Directors, this Plan shall not come into effect. In such case,
the accumulated payroll deductions credited to the account of
each Participant shall forthwith be repaid to him or her with
interest.
ADOPTED BY BOARD OF DIRECTORS: February 13, 1996
APPROVED BY SHAREHOLDERS: ______________, 1996
Exhibit 5.1
May 24, 1996
Ault Incorporated
7300 Boone Avenue North
Minneapolis, MN 55428-1028
Re: Opinion of Counsel as to Legality of 100,000 Common
Shares to be
Registered under the Securities Act of 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration
under the Securities Act of 1933 on Form S-8 of 100,000 Common
Shares, no par value, of Ault Incorporated (the "Company")
offered to employees of the Company pursuant to the Ault
Incorporated 1996 Employee Stock Purchase Savings Plan (the
"Plan").
As general counsel for the Company, we advise you that it is our
opinion, based on our familiarity with the affairs of the Company
and upon our examination of pertinent documents, that the 100,000
Common Shares to be offered to employees by the Company under the
Plan will, when paid for and issued, be validly issued and
lawfully outstanding, fully paid and nonassessable shares of
Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with
the Securities and Exchange Commission as an Exhibit to the
Registration Statement with respect to said Common Shares under
the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
/s/Lindquist & Vennum P.L.L.P.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement
on Form S-8 of our report, dated July 17, 1995, relating to the
consolidated financial statements of Ault Incorporated and
Subsidiary, which appears on page 14 of the annual report on Form
10-K for the year ended May 28, 1995.
McGladrey & Pullen, LLP
/s/McGladrey & Pullen, LLP
Minneapolis, Minnesota
May 24, 1996
