<PAGE>
As filed with the Securities and Exchange Commission on January 13, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MINNTECH CORPORATION
(Exact name of Registrant as specified in its charter)
MINNESOTA 41-1229121
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14605 - 28TH AVENUE NORTH 55447
MINNEAPOLIS, MINNESOTA (Zip Code)
(Address of principal executive offices)
MINNTECH CORPORATION
1998 STOCK OPTION PLAN
(Full title of the plan)
Barbara A. Wrigley
Vice President, General Counsel and Secretary
14605 - 28th Avenue North
Minneapolis, Minnesota 55447
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 553-3300
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered (1) per share (1) (2) price (1) (2) fee
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000
$.05 par value shares $14.82 $14,820,000 $4,120
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
</TABLE>
(1) The Registration Statement relates to 1,000,000 shares of Common Stock to
be offered pursuant to the 1998 Stock Option Plan.
(2) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h)(1) based on the average of the high and low sales prices per
share of the Registrant's Common Stock on January 11, 1999 as reported on
the Nasdaq National Market.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
MINNTECH CORPORATION
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Minntech Corporation (the "Company") filed
with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File
No. 0-11278), are, as of their respective dates, incorporated by reference
and made a part hereof:
(1) The Annual Report on Form 10-K of the Company for the fiscal
year ended March 31, 1998 filed pursuant to Section 15(d) of the
Exchange Act (File No. 0-11278).
(2) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (1) above (File No. 0-11278).
(3) The description of the Company's Common Stock which is
contained in the Registration Statement on Form 8-A (Registration No.
0-11278) filed November 1, 1983, (and declared effective January 1,
1984) under the Exchange Act and all amendments and reports filed for
the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares of Common
Stock offered have been sold or which deregisters all shares of the Common
Stock then remaining unsold shall be deemed to be incorporated by reference
in and a part of this Registration Statement from the date of filing of such
documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or incorporated herein by reference or in any
other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 7.01 of the Company's By-Laws, the Company indemnifies its
directors and officers and advances litigation expenses to the fullest extent
required or permitted by Minnesota Statutes Section 302A.521. Section
302A.521 requires the Company to indemnify a person made or threatened to be
made a party to a proceeding, by reason of the former or present official
capacity of the person with respect to the Company, against judgments,
penalties, fines, including without limitation, excise taxes assessed against
the person with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and disbursements, if, with
respect to the acts or omissions of the person complained of in the
proceeding, such person (1) has not been indemnified by another organization
or employee benefit plan for the same judgments, penalties, fines, including
without limitation, excise taxes assessed against the person with respect to
an employee benefit plan, settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by the person in
II-1
<PAGE>
connection with the proceeding with respect to the same acts or omissions;
(2) acted in good faith; (3) received no improper personal benefit, and
statutory procedure has been followed in the case of any conflict of interest
by a director; (4) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (5) in the case of acts or
omissions occurring in the person's performance in the official capacity of
director or, for a person not a director, in the official capacity of
officer, committee member, employee or agent, reasonably believed that the
conduct was in the best interests of the Company, or in the case of
performance by a director, officer, employee or agent of the Company as a
director, officer, partner, trustee, employee or agent of another
organization or employee benefit plan, reasonably believed that the conduct
was not opposed to the best interests of the Company. In addition, Section
302A.521, subd. 3, requires payment by the Company upon written request, of
reasonable expenses in advance of final disposition in certain instances. A
decision as to required indemnification is made by a majority of the
disinterested Board of Directors present at a meeting at which a
disinterested quorum is present, or by a designated committee of
disinterested directors, by special legal counsel, by the disinterested
shareholders, or by a court.
The Company also maintains a director and officer insurance policy to
cover the Company, its directors and its officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Articles of Incorporation, as amended(1)
4.2 Restated By-Laws(2)
4.3 Amendment of By-Laws in November 1998
4.4 Form of Specimen of Common Stock Certificate(3)
5 Opinion of Faegre & Benson LLP
10 Minntech Corporation Amended 1998 Stock Option Plan
23.1 Consent of Faegre & Benson LLP (contained in Exhibit 5 to this
Registration Statement)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney
</TABLE>
- ------------------------
(1) Incorporated by reference to the specified exhibit filed as part of the
Company's Annual Report on Form 10-K for the year ended March 31, 1988,
File No. 0-11278.
(2) Incorporated by reference to the specified exhibit filed as part of the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995, File No. 0-11278.
(3) Incorporated by reference to the specified exhibit filed as part of the
Company's Annual Report on Form 10-K for the year ended March 31, 1993,
File No. 0-11278.
II-2
<PAGE>
ITEM 9. UNDERTAKINGS.
A. The Company 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 the aggregate, represent a fundamental change in
the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no
more than a twenty percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(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 with or furnished to the Securities and
Exchange Commission by the Company 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 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 an 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 herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Minneapolis, State of Minnesota, on
January 13, 1999.
MINNTECH CORPORATION
By /s/ Thomas J. McGoldrick
------------------------------------------
Thomas J. McGoldrick
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 13, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Thomas J. McGoldrick
- ------------------------------ President and Chief Executive Officer
Thomas J. McGoldrick (Principal Executive Officer)
/s/ Jules L. Fisher
- ------------------------------ Vice President and Chief Financial Officer
Jules L. Fisher (Principal Financial and Accounting Officer)
Norman Dann* Director
George Heenan* Director
Amos Heilicher* Director
William Hope* Director
Thomas J. McGoldrick* Director
Fred L. Shapiro, M.D.* Director
Donald H. Soukup* Director
</TABLE>
* Barbara A. Wrigley, by signing her name hereto, does hereby sign this
document on behalf of each of the above named directors of the Registrant
pursuant to powers of attorney duly executed by each person.
By /s/ Barbara A. Wrigley
------------------------------------------
Barbara A. Wrigley, Attorney in Fact
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
- ------- ----------- ---------
<S> <C> <C>
Incorporated by
4.1 Articles of Incorporation, as amended(1).................. Reference
Incorporated by
4.2 Restated By-Laws(2)....................................... Reference
4.3 Amendment of By-Laws in November 1998..................... Filed Electronically
Incorporated by
4.4 Form of Specimen of Common Stock Certificate(3)........... Reference
5 Opinion of Faegre & Benson LLP............................ Filed Electronically
10 Minntech Corporation Amended 1998 Stock Option Plan....... Filed Electronically
23.1 Consent of Faegre & Benson LLP
(contained in its opinion filed as Exhibit 5 to this
Registration Statement)
23.2 Consent of PricewaterhouseCoopers LLP..................... Filed Electronically
24 Powers of Attorney........................................ Filed Electronically
</TABLE>
- ------------------------
(1) Incorporated by reference to the specified exhibit filed as part of the
Company's Annual Report on Form 10-K for the year ended March 31, 1988,
File No. 0-11278.
(2) Incorporated by reference to the specified exhibit filed as a part of the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995, File No. 0-11278.
(3) Incorporated by reference to the specified exhibit filed as part of the
Company's Annual Report on Form 10-K for the year ended March 31, 1993,
File No. 0-11278.
II-5
<PAGE>
EXHIBIT 4.3
MINNTECH CORPORATION
Director Resolutions Adopting
By-Law Amendment Regarding
Advance-Notice Requirements
----------------------
Resolved that Sections 2.07 and 3.03 of the By-Laws of the corporation
are hereby amended in their entirety to read as follows:
Section 2.07. ADVANCE NOTICE OF BUSINESS TO BE CONDUCTED. At any
regular or special meeting of shareholders of the corporation, only such
business (other than the nomination and election of directors, which shall be
subject to Section 3.03 of the By-Laws) may be conducted as shall be
appropriate for consideration at the meeting of shareholders and as shall
have been brought before the meeting (i) by or at the direction of the Board
of Directors, or (ii) by any shareholder of the corporation entitled to vote
at the meeting who complies with the notice procedures set forth in this
Section 2.07.
(a) TIMING OF NOTICE. For such business to be properly brought
before any regular or special meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice of any such business
to be conducted at an annual meeting must be delivered to the Secretary
of the corporation, or mailed and received at the principal executive
office of the corporation, not less than 90 days before the first
anniversary of the date of the preceding year's annual meeting of
shareholders. If, however, the date of the annual meeting of
shareholders is more than 30 days before or after such anniversary date,
notice by a shareholder shall be timely only if so delivered or so
mailed and received not less than 90 days before such annual meeting or,
if later, within 10 days after the first public announcement of the date
of such annual meeting. If a special meeting of shareholders of the
corporation is called in accordance with Section 2.03 for any purpose
other than electing directors to the Board of Directors or if a regular
meeting other than an annual meeting is held, for a shareholder's notice
of any such business to be timely it must be delivered to the Secretary
of the corporation, or mailed and received at the principal executive
office of the corporation, not less than 90 days before such special
meeting or such regular meeting or, if later, within 10 days after the
first public announcement of the date of such special meeting or such
regular meeting. Except to the extent otherwise required by law, the
adjournment of a regular or special meeting of shareholders shall not
commence a new time period for the giving of a shareholder's notice as
required above.
(b) CONTENT OF NOTICE. A shareholder's notice to the corporation
shall set forth as to each matter the shareholder proposes to bring
before the regular or special meeting (w) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (x) the name and address, as
they appear on the corporation's books, of the shareholder proposing
such business, (y) the class or series (if any) and number of shares of
the corporation that are beneficially owned by the shareholder, and (z)
any material interest of the shareholder in such business.
(c) CONSEQUENCES OF FAILURE TO GIVE TIMELY NOTICE.
Notwithstanding anything in these By-Laws to the contrary, no business
(other than the nomination and election of directors) shall be conducted
at any regular or special meeting except in accordance with the
procedures set forth in this Section and, as an additional limitation,
the business transacted at any special meeting shall be limited to the
purposes stated in the notice of the special meeting pursuant to
Sections 2.03 and 2.04 of the Bylaws. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with
the provisions of this Section 2.07 and, if the Chairman should so
determine, the Chairman shall so declare to the meeting, and any such
business not
<PAGE>
properly brought before the meeting shall not be transacted. Nothing in
this Section 2.07 shall be deemed to preclude discussion by any
shareholder of any business properly brought before the meeting in
accordance with these Bylaws.
(d) PUBLIC ANNOUNCEMENT. For purposes of this Section 2.07 and
Section 3.03 of the By-Laws, "public announcement" means disclosure (i)
when made in a press release reported by the Dow Jones News Service,
Associated Press, or comparable national news service, (ii) when filed
in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14, or 15(d) of the
Securities Exchange Act of 1934, as amended, or (iii) when mailed as the
notice of the meeting pursuant to Sections 2.03 and 2.04 of the By-Laws.
Section 3.03 NOTICE OF NOMINATIONS OF THE DIRECTORS. Only persons who
are nominated in accordance with the procedures set forth in this Section
3.03 shall be eligible for election as directors at shareholder meetings.
Nominations of persons for election to the Board of Directors may be made at
a meeting of shareholders (i) by or at the direction of the Board of
Directors or (ii) by any shareholder of the corporation entitled to vote for
the election of directors at the meeting who complies with the notice
procedures set forth in this Section 3.03.
(a) TIMING OF NOTICE. Nominations by shareholders shall be made
pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a shareholder's notice of nominations to be
made at an annual meeting of shareholders must be delivered to the
Secretary of the corporation, or mailed and received at the principal
executive office of the corporation, not less than 90 days before the
first anniversary of the date of the preceding year's annual meeting of
shareholders. If, however, the date of the annual meeting of
shareholders is more than 30 days before or after such anniversary date,
notice by a shareholder shall be timely only if so delivered or so
mailed and received not less than 90 days before such annual meeting or,
if later, within 10 days after the first public announcement of the date
of such annual meeting. If a special meeting of shareholders of the
corporation is called in accordance with Section 2.03 for the purpose of
electing one or more directors to the Board of Directors or if a regular
meeting other than an annual meeting is held, for a shareholder's notice
of nominations to be timely it must be delivered to the Secretary of the
corporation, or mailed and received at the principal executive office of
the corporation, not less than 90 days before such special meeting or
such regular meeting or, if later, within 10 days after the first public
announcement of the date of such special meeting or such regular
meeting. Except to the extent otherwise required by law, the
adjournment of a regular or special meeting of shareholders shall not
commence a new time period for the giving of a shareholder's notice as
described above.
(b) CONTENT OF NOTICE. A shareholder's notice of nomination for a
regular or special meeting of shareholders shall set forth (x) as to
each person whom the shareholder proposes to nominate for election or
re-election as a director: (i) such person's name, (ii) all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election
contest, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, including Rule 14a-11
thereof, and (iii) such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected;
and (y) as to the shareholder giving the notice: (i) the name and
address, as they appear on the corporation's books, of such shareholder,
(ii) the class or series (if any) and number of shares of the
corporation that are beneficially owned by such shareholder and (iii) a
representation that the shareholder is a holder of record of shares of
the corporation entitled to vote for the election of directors and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice. At the request of the Board
of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the
<PAGE>
corporation the information required to be set forth in a shareholder's
notice of nomination that pertains to a nominee.
(c) CONSEQUENCES OF FAILURE TO GIVE TIMELY NOTICE.
Notwithstanding anything in these By-Laws to the contrary, no person
shall be eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section
3.03. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed in this Section 3.03 and, if
the Chairman should so determine, the Chairman shall so declare to the
meeting, and the defective nomination shall be disregarded.
<PAGE>
EXHIBIT 5
FAEGRE & BENSON LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
612-336-3000
January 13, 1999
Board of Directors
Minntech Corporation
14605 - 28th Avenue North
Minneapolis, Minnesota 55447
In connection with the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating
to the offering of up to 1,000,000 shares of Common Stock, par value $.05 per
share (the "Shares"), of Minntech Corporation, a Minnesota corporation (the
"Company"), pursuant to the 1998 Stock Option Plan, we have examined such
corporate records and other documents, including the Registration Statement,
and have reviewed such matters of law as we have deemed relevant hereto, and,
based upon such examination and review, it is our opinion that all necessary
corporate action on the part of the Company has been taken to authorize the
issuance and sale of the Shares and that, when issued and sold as
contemplated in the Registration Statement, the Shares will be legally and
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 10
MINNTECH CORPORATION
1998 STOCK OPTION PLAN
EFFECTIVE AS OF MARCH 24, 1998
INCLUDING SEPTEMBER 30, 1998 AMENDMENTS
1. PURPOSE. The purpose of this 1998 Stock Option Plan (the
"Plan") is to promote the interests of Minntech Corporation, a Minnesota
corporation (the "Company"), and its shareholders by providing personnel of
the Company and any subsidiaries thereof with an opportunity to acquire a
proprietary interest in the Company and thereby develop a stronger incentive
to put forth maximum effort for the continued success and growth of the
Company. In addition, the opportunity to acquire a proprietary interest in
the Company will aid in attracting and retaining personnel of outstanding
ability.
2. ADMINISTRATION.
(a) GENERAL. This Plan shall be administered by a committee of
two or more directors of the Company (the "Committee") appointed by the
Company's Board of Directors (the "Board"). If the Board has not
appointed a committee to administer this Plan, then the Board shall
constitute the Committee. The Committee shall have the power, subject
to the limitations contained in this Plan, to fix any terms and
conditions for the grant or exercise of any option under this Plan. No
director shall serve as a member of the Committee unless such director
shall be (i) a "non-employee director" as that term is defined in Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or any successor statute or regulation
comprehending the same subject matter and (ii) an "outside director"
under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations issued thereunder. A majority of the
members of the Committee shall constitute a quorum for any meeting of
the Committee, and the acts of a majority of the members present at any
meeting at which a quorum is present or the acts unanimously approved in
writing by all members of the Committee shall be the acts of the
Committee. Subject to the provisions of this Plan, the Committee may
from time to time adopt such rules for the administration of this Plan
as it deems appropriate. The decision of the Committee on any matter
affecting this Plan or the rights and obligations arising under this
Plan or any option granted hereunder, shall be final, conclusive and
binding upon all persons, including without limitation the Company,
shareholders and optionees.
(b) INDEMNIFICATION. To the full extent permitted by law, (i) no
member of the Committee or person to whom authority under this Plan is
delegated shall be liable for any action or determination taken or made
in good faith with respect to this Plan or any option granted hereunder
and (ii) the members of the Committee and each person to whom authority
under this Plan is delegated shall be entitled to indemnification by the
Company against and from any loss incurred by such member or person by
reason of any such actions and determinations.
<PAGE>
(c) DELEGATION OF AUTHORITY. The Committee may delegate all or
any part of its authority under this Plan to the Chief Executive Officer
of the Company for purposes of granting and administering options
granted to persons other than persons who are then subject to the
reporting requirements of Section 16 of the Exchange Act ("Section 16
Individuals"). The Chief Executive Officer of the Company may, in turn,
delegate such authority to such other officer of the Company as the
Chief Executive Officer may determine.
(d) ACTION BY BOARD. Notwithstanding paragraph 2(a), above, any
grant of options hereunder to any director of the Company who is not an
employee of the Company, and any action taken by the Company with
respect to any such option, including any amendment thereto, and any
acceleration of the vesting of any option granted to or held by a
director who is not an employee of the Company, any extension of the
time within which any such option may be exercised, any determination
pursuant to paragraph 9 relating to the payment of the purchase price of
Shares (as defined in paragraph 3 below) subject to any such option, or
any action pursuant to paragraph 10 relating to the payment of
withholding taxes, if any, through the use of Shares with respect to any
such option shall be subject to prior approval by the Board.
3. SHARES. The shares that may be made subject to options
granted under this Plan shall be authorized and unissued shares of Common
Stock of the Company, par value $.05 per share ("Shares," and each
individually a "Share"), and they shall not exceed 1,000,000 Shares in the
aggregate, subject to adjustment as provided in paragraph 14, below, except
that, if any option lapses or terminates for any reason before such option
has been completely exercised, the Shares covered by the unexercised portion
of such option may again be made subject to options granted under this Plan.
Commencing April 1, 1998, no option may be granted under this Plan in any
fiscal year of the Company if following such grant the number of Shares
purchasable pursuant to options granted under this Plan in such fiscal year
of the Company (excluding any such options that have terminated or lapsed)
would exceed 3% of the total number of outstanding Shares of the Company as
of the date of such grant.
4. ELIGIBLE PARTICIPANTS. Stock options may be granted under this
Plan to any part-time or full-time employee of the Company, or any parent or
subsidiary thereof, including any such person who is also an officer or
director of the Company or any parent or subsidiary thereof. Non-statutory
stock options (as defined in paragraph 5(a) below) also may be granted to (i)
any director of the Company who is not an employee of the Company or any
parent or subsidiary thereof, (ii) other individuals or entities who are not
employees but who provide services to the Company or a parent or subsidiary
thereof in the capacity of an advisor or consultant, and (iii) any individual
or entity that the Company desires to induce to become an employee, advisor
or consultant, but any such grant shall be contingent upon such individual or
entity becoming employed by the Company or a parent or subsidiary thereof.
References herein to "employment" and similar terms (except "employee") shall
include the providing of services in the capacity of an advisor or consultant
or as a director. The employees and other individuals and entities to whom
options may be granted pursuant to this paragraph 4 are referred to herein as
"Eligible Participants."
<PAGE>
5. TERMS AND CONDITIONS OF OPTIONS.
(a) GENERAL. Subject to the terms and conditions of this Plan,
the Committee may, from time to time during the term of this Plan, grant
to such Eligible Participants as the Committee may determine options to
purchase such number of Shares of the Company on such terms and
conditions as the Committee may determine. In determining the Eligible
Participants to whom options shall be granted and the number of Shares
to be covered by each option, the Committee may take into account the
nature of the services rendered by the respective Eligible Participants,
their present and potential contributions to the success of the Company,
and such other factors as the Committee in its sole discretion may deem
relevant. The date and time of approval by the Committee of the
granting of an option shall be considered the date and the time of the
grant of such option. The Committee in its sole discretion may
designate whether an option granted to an employee is to be considered
an "incentive stock option" (as that term is defined in Section 422 of
the Code, or any amendment thereto) or a non-statutory stock option (an
option granted under this Plan that is not intended to be an "incentive
stock option"). The Committee may grant both incentive stock options
and non-statutory stock options to the same employee. However, if an
incentive stock option and a non-statutory stock option are awarded
simultaneously, such options shall be deemed to have been awarded in
separate grants, shall be clearly identified, and in no event shall the
exercise of one such option affect the right to exercise the other. To
the extent that the aggregate Fair Market Value (as defined in paragraph
8 below) of Shares with respect to which incentive stock options are
exercisable for the first time by any employee during any calendar year
(under all plans of the Company and its parent and subsidiary
corporations) exceeds $100,000, such options shall be treated as
non-statutory stock options. The maximum number of Shares subject to
options that may be granted to any one Eligible Participant under the
Plan in any fiscal year of the Company may not exceed 200,000 Shares
(subject to adjustment pursuant to paragraph 14 hereof).
(b) PURCHASE PRICE. The purchase price of each Share subject to
an option granted pursuant to this paragraph 5 shall be not less than
100% of the Fair Market Value of a Share on the date of grant; provided
that if an incentive stock option is granted to an employee who owns, or
is deemed under Section 424(d) of the Code to own, at the time such
option is granted, stock of the Company (or of any parent or subsidiary
of the Company) possessing more than 10% of the total combined voting
power of all classes of stock therein (a "10% Shareholder"), such
purchase price shall be no less than 110% of the Fair Market Value of a
Share on the date of grant.
(c) VESTING. Each option agreement provided for in paragraph 7
shall specify when each option granted under this Plan shall become
exercisable with respect to the Shares covered by the option.
Notwithstanding the provisions of any option agreement provided for in
paragraph 7, the Committee may at any time, in its sole discretion,
declare that any option granted under this Plan shall be immediately
exercisable in whole or in part.
<PAGE>
(d) TERMINATION. Each option granted pursuant to this paragraph 5
shall expire, and all rights to purchase Shares thereunder shall
terminate, on the earliest of:
(i) ten years after the date such option is granted (or in
the case of an incentive stock option granted to a 10% Shareholder,
five years after the date such option is granted) or on such date
prior thereto as may be fixed by the Committee on or before the
date such option is granted;
(ii) the expiration of the period after the termination of
the optionee's employment within which the option is exercisable as
specified in paragraph 11(b) (provided that the Committee may, in
any option agreement provided for in paragraph 7 or by Committee
action with respect to any outstanding option, extend the periods
specified in paragraph 11(b)); or
(iii) the date, if any, fixed for cancellation pursuant to
paragraph 12(c) or 13 below.
(e) REPRICING. No option shall be granted under this Plan in
complete or partial replacement of or substitution for an outstanding
option (an option that has not expired in accordance with its terms)
that was granted under this Plan or any other plan of the Company if the
exercise price of such replacing or substitution new option is less than
the exercise price of the option being replaced or for which such new
option is being substituted. No option that is outstanding under this
Plan shall be amended so as to reduce the exercise price of such option.
6. AUTOMATIC GRANTS TO NON-EMPLOYEE DIRECTORS. Each director of
the Company who is not and has never been an employee of the Company and who
(i) is serving an unexpired term as a director of the Company as of the date
of the last regularly scheduled meeting of the Board during any fiscal year
of the Company and (ii) at the time of such meeting has served as a director
for at least six months of the twelve month period preceding the date of such
meeting, shall as of the date of such meeting automatically be granted an
option to purchase 7,030 Shares at an option price per share equal to 100% of
the Fair Market Value of a Share on such date. All such options shall be
non-statutory stock options and shall be subject to the same terms and
conditions as are then in effect with respect to non-statutory stock options
granted to officers and employees of the Company, except that (x) the term of
each such option shall be ten years, (y) each such option shall remain in
effect for its full ten year term and shall not terminate or expire following
the death, disability or retirement of the non-employee director and (z) each
such option shall become exercisable as to all or any part of the Shares
subject thereto six months after the date the option is granted. Subject to
the foregoing, all provisions of this Plan not inconsistent with the
foregoing shall apply to options granted to non-employee directors pursuant
to this paragraph 6. The maximum number of Shares as to which options may be
granted to any non-employee director under this paragraph 6 shall be 140,600
Shares.
<PAGE>
7. OPTION AGREEMENTS. All options granted under this Plan shall
be evidenced by a written agreement in such form or forms as the Committee
may from time to time determine, which agreement shall, among other things,
designate whether the options being granted thereunder are non-statutory
stock options or incentive stock options.
8. FAIR MARKET VALUE. For purposes of this Plan, the "Fair
Market Value" of a Share at a specified date shall, unless otherwise
expressly provided in this Plan, mean the closing sale price of a Share on
the date immediately preceding such date or, if no sale of Shares shall have
occurred on that date, on the next preceding day on which a sale of Shares
occurred, on the Composite Tape for New York Stock Exchange listed shares or,
if Shares are not quoted on the Composite Tape for New York Stock Exchange
listed shares, on the Nasdaq National Market or any similar system then in
use or, if Shares are not included in the Nasdaq National Market or any
similar system then in use, the mean between the closing "bid" and the
closing "asked" quotation of a Share on the date immediately preceding the
date as of which such Fair Market Value is being determined, or, if no
closing bid or asked quotation is made on that date, on the next preceding
day on which a quotation is made, on the Nasdaq SmallCap Market or any
similar system then in use, provided that if the Shares in question are not
quoted on any such system, Fair Market Value shall be what the Committee
determines in good faith to be 100% of the fair market value of a Share as of
the date in question. Notwithstanding anything stated in this paragraph 8,
if the applicable securities exchange or system has closed for the day by the
time the determination is being made, all references in this paragraph to the
date immediately preceding the date in question shall be deemed to be
references to the date in question.
9. MANNER OF EXERCISE OF OPTIONS. A person entitled to exercise
an option granted under this Plan may, subject to its terms and conditions
and the terms and conditions of this Plan, exercise it in whole at any time,
or in part from time to time, by delivery to the Company at its principal
executive office of written notice of exercise, specifying the number of
Shares with respect to which the option is being exercised. The purchase
price of the Shares with respect to which an option is being exercised shall
be payable in full at the time of exercise, provided that, to the extent
permitted by law, the holder of an option may simultaneously exercise an
option and sell all or a portion of the Shares thereby acquired pursuant to a
brokerage or similar relationship and use the proceeds from such sale to pay
the purchase price of such Shares. The purchase price of each Share on the
exercise of any option shall be paid in full in cash (including check, bank
draft or money order) or, at the discretion of the person exercising the
option, by tender or delivery to the Company of unencumbered Shares having an
aggregate Fair Market Value on the date of exercise equal to the amount of
the purchase price being paid through such tender or delivery of Shares, or
by a combination of cash and such Shares; provided, however, that no person
shall be permitted to pay any portion of the purchase price with Shares if
the Committee, in its sole discretion, determines that payment in such manner
is undesirable. The granting of an option to a person shall give such person
no rights as a shareholder except as to Shares issued to such person.
10. TAX WITHHOLDING. Delivery of Shares pursuant to a stock award
or upon exercise of any non-statutory stock option granted under this Plan
shall be subject to any required withholding taxes. A person receiving a
stock award or exercising a non-statutory stock option may, as a condition
<PAGE>
precedent to receiving the Shares, be required to pay the Company a cash
amount equal to the amount of any required withholdings. In lieu of all or
any part of such a cash payment, the Committee may, but shall not be required
to, provide in any option agreement provided for in paragraph 7 (or provide
by Committee action with respect to any outstanding option) that a person
exercising an option may cover all or any part of the required withholdings,
and any additional withholdings up to the amount needed to cover the
individual's full FICA and federal, state and local income tax liability with
respect to income arising from the exercise of the option, through the tender
or delivery to the Company of unencumbered Shares having an aggregate Fair
Market Value on the date of exercise equal to the amount of the withholding
taxes being paid through such delivery, reduction or subsequent return of
Share.
11. TRANSFERABILITY AND TERMINATION OF EMPLOYMENT.
(a) TRANSFERABILITY. During the lifetime of an optionee, only
such optionee or his or her guardian or legal representative may
exercise options granted under this Plan, and no option granted under
this Plan shall be assignable or transferable by the optionee otherwise
than by will or the laws of descent and distribution or pursuant to a
domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder;
provided, however, that any optionee may transfer a non-statutory stock
option granted under this Plan to a member or members of his or her
immediate family (i.e., his or her children, grandchildren and spouse)
or to one or more trusts for the benefit of such family members or
partnerships in which such family members are the only partners, if (i)
the option agreement with respect to such option expressly so provides
either at the time of initial grant or by amendment to an outstanding
option agreement and (ii) the optionee does not receive any
consideration for the transfer. Any options held by any such transferee
shall continue to be subject to the same terms and conditions that were
applicable to such options immediately prior to their transfer and may
be exercised by such transferee as and to the extent that such option
has become exercisable and has not terminated in accordance with the
provisions of the Plan and the applicable option agreement. For
purposes of any provision of this Plan relating to notice to an optionee
or to vesting or termination of an option upon the death, disability or
termination of employment of an optionee, the references to "optionee"
shall mean the original grantee of an option and not any transferee.
(b) TERMINATION OF EMPLOYMENT DURING LIFETIME. During the
lifetime of an optionee, an option granted to such optionee may be
exercised only while the optionee is employed by the Company or by a
parent or subsidiary thereof, and only if such optionee has been
continuously so employed since the date the option was granted, provided
that (except as may be otherwise provided in the applicable option
agreement at the time of grant or thereafter):
(i) if an optionee's employment is terminated for cause
(which for purposes hereof shall mean that the optionee was
convicted of a felony or the optionee failed to contest prosecution
for a felony or the optionee engaged in willful misconduct or
dishonesty, any of which is directly and materially harmful to the
business or reputation
<PAGE>
of the Company), then the option shall terminate immediately upon
such termination of employment;
(ii) if an optionee's employment is voluntarily terminated
by the optionee, otherwise than in connection with the optionee's
retirement (which for purposes hereof shall mean (a) retirement
from active employment with the Company or any subsidiary or parent
of the Company prior to age 60 with the consent of the Committee or
(b) retirement from active employment with the Company or any
subsidiary or parent of the Company on or after age 60) then the
option shall continue to be exercisable for ten days after the
termination of the optionee's employment but only to the extent
that the option was exercisable immediately prior to such
optionee's termination of employment;
(iii) if an optionee's employment is terminated by the
Company otherwise than for cause, then the option shall continue to
be exercisable for three months after termination of the optionee's
employment but only to the extent that the option was exercisable
immediately prior to such optionee's termination of employment;
(iv) if an optionee's employment is terminated by reason of
retirement, death or disability (which for purposes hereof shall
mean permanent and total disability as determined by the
Committee), then the option shall continue to be exercisable for
three years after termination of the optionee's employment but only
to the extent that the option was exercisable immediately prior to
such optionee's termination of employment; and
(v) as to any optionee whose termination of employment
occurs following a declaration pursuant to paragraph 13 below, an
option may be exercised at any time permitted by such declaration.
(c) TRANSFERS AND LEAVES OF ABSENCE. Neither the transfer of
employment of a person to whom an option is granted between any
combination of the Company, a parent corporation or a subsidiary
thereof, nor a leave of absence granted to such person and approved by
the Committee, shall be deemed a termination of employment for purposes
of this Plan. The terms "parent" or "parent corporation" and
"subsidiary" as used in this Plan shall have the meaning ascribed to
"parent corporation" and "subsidiary corporation", respectively, in
Sections 424(e) and (f) of the Code.
(d) RIGHT TO TERMINATE EMPLOYMENT. Nothing contained in this
Plan, or in any option granted pursuant to this Plan, shall confer upon
any optionee any right to continued employment by the Company or any
parent or subsidiary of the Company or limit in any way the right of the
Company or any such parent or subsidiary to terminate such optionee's
employment at any time.
<PAGE>
(e) EXPIRATION DATE. In no event shall any option be exercisable
at any time after the time it shall have expired in accordance with
paragraph 5(d) of this Plan. When an option is no longer exercisable,
it shall be deemed to have lapsed or terminated and will no longer be
outstanding.
12. CHANGE IN CONTROL.
(a) For purposes of this Plan, a "Change in Control" of the
Company shall be deemed to occur if any of the following occur:
(1) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) acquires or becomes a "beneficial owner"
(as defined in Rule 13d-3 or any successor rule under the Exchange
Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the
Company's then outstanding securities entitled to vote generally in
the election of directors ("Voting Securities"), provided, however,
that the following shall not constitute a Change in Control
pursuant to this paragraph (a)(1):
(A) any acquisition or beneficial ownership by the Company or
a subsidiary;
(B) any acquisition or beneficial ownership by any employee
benefit plan (or related trust) sponsored or maintained
by the Company or one or more of its subsidiaries;
(C) any acquisition or beneficial ownership by any
corporation with respect to which, immediately following
such acquisition, more than 70% of both the combined
voting power of the Company's then outstanding Voting
Securities and the Shares of the Company is then
beneficially owned, directly or indirectly, by all or
substantially all of the persons who beneficially owned
Voting Securities and Shares of the Company immediately
prior to such acquisition in substantially the same
proportions as their ownership of such Voting Securities
and Shares, as the case may be, immediately prior to such
acquisition;
(2) A majority of the members of the Board of Directors of
the Company shall not be Continuing Directors. "Continuing
Directors" shall mean: (A) individuals who, on the date hereof,
are directors of the Company, (B) individuals elected as directors
of the Company subsequent to the date hereof for whose election
proxies shall have been solicited by the Board of Directors of the
Company or (C) any individual elected or appointed by the Board of
Directors of the Company to fill vacancies on the Board of
Directors of the Company caused by death or resignation (but not by
removal) or to fill newly-created directorships;
<PAGE>
(3) Approval by the shareholders of the Company of a
reorganization, merger or consolidation of the Company or a
statutory exchange of outstanding Voting Securities of the Company,
unless immediately following such reorganization, merger,
consolidation or exchange, all or substantially all of the persons
who were the beneficial owners, respectively, of Voting Securities
and Shares of the Company immediately prior to such reorganization,
merger, consolidation or exchange beneficially own, directly or
indirectly, more than 70% of, respectively, the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors and the then outstanding
shares of common stock, as the case may be, of the corporation
resulting from such reorganization, merger, consolidation or
exchange in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger, consolidation or
exchange, of the Voting Securities and Stock of the Company, as the
case may be; or
(4) Approval by the shareholders of the Company of (x) a
complete liquidation or dissolution of the Company or (y) the sale
or other disposition of all or substantially all of the assets of
the Company (in one or a series of transactions), other than to a
corporation with respect to which, immediately following such sale
or other disposition, more than 70% of, respectively, the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors
and the then outstanding shares of common stock of such corporation
is then beneficially owned, directly or indirectly, by all or
substantially all of the persons who were the beneficial owners,
respectively, of the Voting Securities and Shares of the Company
immediately prior to such sale or other disposition in
substantially the same proportions as their ownership, immediately
prior to such sale or other disposition, of the Voting Securities
and Shares of the Company, as the case may be.
(b) ACCELERATION OF VESTING. Notwithstanding anything in
paragraph 5(c) above to the contrary, if a Change of Control of the
Company shall occur, then, without any action by the Committee or the
Board, each option granted under this Plan and not already exercised in
full or otherwise terminated, expired or canceled shall become
immediately exercisable in full.
(c) CASH PAYMENT. If a Change in Control of the Company shall
occur, then, so long as a majority of the members of the Board are
Continuing Directors, the Committee, in its sole discretion, and without
the consent of the holder of any option affected thereby, may determine
that some or all outstanding options shall be cancelled as of the
effective date of any such Change in Control and that the holder or
holders of such cancelled options shall receive, with respect to some or
all of the Common Shares subject to such options, as of the date of such
cancellation, cash in an amount, for each Share subject to an option,
equal to the excess of the per Share Fair Market Value of such Shares
immediately prior to such Change in Control of the Company over the
exercise price per Share of such options.
<PAGE>
(d) LIMITATION ON CHANGE IN CONTROL PAYMENTS. Notwithstanding
anything in paragraph 12(b) or 12(c) above or paragraph 13 below to the
contrary, if, with respect to an optionee, the acceleration of the
exercisability of an option or the payment of cash in exchange for all
or part of an option as provided in paragraph 12(b) or 12(c) above or
paragraph 13 (which acceleration or payment could be deemed a "payment"
within the meaning of Section 280G(b)(2) of the Code), together with any
other payments which such optionee has the right to receive from the
Company or any corporation which is a member of an "affiliated group"
(as defined in Section 1504(a) of the Code without regard to Section
1504(b) of the Code) of which the Company is a member, would constitute
a "parachute payment" (as defined in Section 280G(b)(2) of the Code),
then such acceleration of exercisability and payments pursuant to
paragraph 12(b) or 12(c) above or paragraph 13 shall be reduced to the
largest amount as, in the sole judgment of the Committee, will result in
no portion of such payments being subject to the excise tax imposed by
Section 4999 of the Code.
13. DISSOLUTION, LIQUIDATION, MERGER. In the event of (a) the
proposed dissolution or liquidation of the Company, (b) a proposed sale of
substantially all of the assets of the Company or (c) a proposed merger,
consolidation of the Company with or into any other entity, regardless of
whether the Company is the surviving corporation, or a proposed statutory
share exchange with any other entity (the actual effective date of the
dissolution, liquidation, sale, merger, consolidation or exchange being
herein called an "Event"), the Committee may, but shall not be obligated to,
either (i) if the Event is a merger, consolidation or statutory share
exchange, make appropriate provision for the protection of outstanding
options granted under this Plan by the substitution, in lieu of such options,
of options to purchase appropriate voting common stock (the "Survivor's
Stock") of the corporation surviving any such merger or consolidation or, if
appropriate, the parent corporation of the Company or such surviving
corporation, or, alternatively, by the delivery of a number of shares of the
Survivor's Stock which has a Fair Market Value as of the effective date of
such merger, consolidation or statutory share exchange equal to the product
of (x) the excess of (A) the Event Proceeds per Share (as hereinafter
defined) covered by the option as of such effective date over (B) the
exercise price per Share of the Shares subject to such option, times (y) the
number of Shares covered by such option or (ii) declare, at least twenty days
prior to the Event, and provide written notice to each optionee of the
declaration, that each outstanding option, whether or not then exercisable,
shall be canceled at the time of, or immediately prior to the occurrence of,
the Event (unless it shall have been exercised prior to the occurrence of the
Event). In connection with any declaration pursuant to clause (ii) of the
preceding sentence, the Committee may, but shall not be obligated to, cause
payment to be made, within twenty days after the Event, in exchange for each
cancelled option to each holder of an option that is cancelled, of cash equal
to the amount (if any), for each Share covered by the canceled option, by
which the Event Proceeds per Share (as hereinafter defined) exceeds the
exercise price per Share covered by such option. At the time of any
declaration pursuant to clause (ii) of the first sentence of this paragraph
13, each option that has not previously expired pursuant to paragraph 5(d)(i)
or 5(d)(ii) of this Plan or been cancelled pursuant to paragraph 12(c) of
this Plan shall immediately become exercisable in full and each holder of an
option shall have the right, during the period preceding the time of
cancellation of the option, to exercise his or her option as to all or any
part of the Shares covered thereby. In the event of a declaration pursuant
to clause (ii) of the first sentence of this paragraph 13, each outstanding
option granted pursuant to this
<PAGE>
Plan that shall not have been exercised prior to the Event shall be canceled
at the time of, or immediately prior to, the Event, as provided in the
declaration, and this Plan shall terminate at the time of such cancellation,
subject to the payment obligations of the Company provided in this paragraph
13. Notwithstanding the foregoing, no person holding an option shall be
entitled to the payment provided in this paragraph 13 if such option shall
have expired pursuant to paragraph 5(d)(i) or 5(d)(ii) of this Plan or been
cancelled pursuant to paragraph 12(c) of this Plan. For purposes of this
paragraph 13, "Event Proceeds per Share" shall mean the cash plus the fair
market value, as determined in good faith by the Committee, of the non-cash
consideration to be received per Share by the shareholders of the Company
upon the occurrence of the Event.
14. ADJUSTMENTS. In the event of any reorganization, merger,
consolidation, recapitalization, liquidation, reclassification, stock
dividend, stock split, combination of shares, rights offering, or
extraordinary dividend or divestiture (including a spin-off), or any other
change in the corporate structure or Shares of the Company, the Committee (or
if the Company does not survive any such transaction, a comparable committee
of the Board of Directors of the surviving corporation) may, without the
consent of any holder of an option, make such adjustment as it determines in
its discretion to be appropriate as to the number and kind of securities
subject to and reserved under this Plan and, in order to prevent dilution or
enlargement of rights of participants in this Plan, the number and kind of
securities issuable upon exercise of outstanding options and the exercise
price thereof.
15. SUBSTITUTE OPTIONS. Options may be granted under this Plan
from time to time in substitution for stock options held by employees of
other corporations who are about to become employees of the Company, or any
parent or subsidiary thereof, or whose employer is about to become a
subsidiary of the Company, as the result of a merger or consolidation of the
Company or a subsidiary of the Company with another corporation, the
acquisition by the Company or a subsidiary of the Company of all or
substantially all the assets of another corporation or the acquisition by the
Company or a subsidiary of the Company of at least 50% of the issued and
outstanding stock of another corporation. The terms and conditions of the
substitute options so granted may vary from the terms and conditions set
forth in this Plan to such extent as the Board at the time of the grant may
deem appropriate to conform, in whole or in part, to the provisions of the
stock options in substitution for which they are granted, but with respect to
stock options which are incentive stock options, no such variation shall be
permitted which affects the status of any such substitute option as an
incentive stock option.
16. COMPLIANCE WITH LEGAL REQUIREMENTS.
(a) GENERAL. No certificate for Shares distributable under this
Plan shall be issued and delivered unless the issuance of such
certificate complies with all applicable legal requirements including,
without limitation, compliance with the provisions of applicable state
securities laws, the Securities Act of 1933, as amended, and the
Exchange Act.
(b) RULE 16b-3. With respect to Section 16 Individuals,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To
the extent any provision of this Plan or action by the Committee fails
to so
<PAGE>
comply, it shall be deemed null and void, to the extent permitted by law
and deemed advisable by the Committee.
17. GOVERNING LAW. To the extent that federal laws do not
otherwise control, this Plan and all determinations made and actions taken
under this Plan shall be governed by the laws of the State of Minnesota,
without regard to the conflicts of law provisions thereof, and construed
accordingly.
18. AMENDMENT AND DISCONTINUANCE OF PLAN. The Board may at any
time amend, suspend or discontinue this Plan; provided, however, that no
amendment to this Plan shall, without the consent of the holder of the
option, alter or impair any option previously granted under this Plan. To
the extent considered necessary to comply with applicable provisions of the
Code, any such amendments to this Plan may be made subject to approval by the
shareholders of the Company. Notwithstanding the foregoing, paragraph 5(e) of
this Plan may not be amended without the approval of the shareholders of the
Company.
19. TERM.
(a) EFFECTIVE DATE. This Plan shall be effective as of March 24,
1998.
(b) TERMINATION. This Plan shall remain in effect until all
Shares subject to it are distributed or this Plan is terminated under
paragraph 18 above. No award of an incentive stock option shall be made
under this Plan more than ten years after the effective date of this
Plan (or such other limit as may be required by the Code) if such
limitation is necessary to qualify the option as an incentive stock
option.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 8, 1998 appearing on page 32 of
Minntech Corporation's Annual Report on Form 10-K for the year ended
March 31, 1998.
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
January 11, 1999
<PAGE>
EXHIBIT 24
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 12th day of January, 1999.
/s/ Norman Dann
-------------------------------------
Norman Dann
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 12th day of January, 1999.
/s/ George Heenan
-------------------------------------
George Heenan
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of January, 1999.
/s/ Amos Heilicher
-------------------------------------
Amos Heilicher
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 12th day of January, 1999.
/s/ William Hope
-------------------------------------
William Hope
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 5th day of January, 1999.
/s/ Thomas J. McGoldrick
-------------------------------------
Thomas J. McGoldrick
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 5th day of January, 1999.
/s/ Fred L. Shapiro, M.D.
-------------------------------------
Fred L. Shapiro, M.D.
<PAGE>
MINNTECH CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Minntech Corporation, a
Minnesota corporation, does hereby make, constitute and appoint Thomas J.
McGoldrick and Barbara A. Wrigley, and any one of them, the undersigned's
true and lawful attorneys-in-fact, with power of substitution, for the
undersigned and in the undersigned's name, place and stead, to sign and affix
the undersigned's name as such director and/or officer of said Corporation to
a Registration Statement or Registration Statements, on Form S-8 or other
applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration under the
Securities Act of 1933, as amended, of shares of Common Stock of said
Corporation authorized for issuance under said Corporation's 1998 Stock
Option Plan, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and either of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 5th day of January, 1999.
/s/ Donald H. Soukup
-------------------------------------
Donald H. Soukup
