<PAGE> 1
As filed with the Securities and Exchange Commission on December 8, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ELTRAX SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT)
MINNESOTA 41-1484525
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
---------------
900 CIRCLE 75 PARKWAY
SUITE 1700
ATLANTA, GEORGIA 30339
(Address of Principal Executive Offices)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
WILLIAM P. O'REILLY
CHAIRMAN OF THE BOARD
ELTRAX SYSTEMS, INC.
900 CIRCLE 75 PARKWAY
SUITE 1700
ATLANTA, GEORGIA 30339
(770) 612-3500
(Name, Address, and Telephone Number, Including Area Code, of Agent for
Service)
Copies of all correspondence to:
JEFFREY M. WEISS, ESQ.
JAFFE, RAITT, HEUER & WEISS, P.C.
ONE WOODWARD AVENUE
SUITE 2400
DETROIT, MICHIGAN 48226
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
- ---------------- ---------- ---------------------------- ---------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 1,000,000 $7.34375 $7,343,750 $1,938.75
share
===================================================================================================================================
</TABLE>
(1) Computed in accordance with Rules 457(h) and 457(c) under the Securities
Act of 1933. There are no shares currently outstanding under the 1999
Employee Stock Purchase Plan and the estimated exercise price of $7.34375
per share was computed in accordance with Rule 457(c) based upon the
average of the high and low prices of the Registrant's common stock on
December 1, 1999 on the NASDAQ SmallCap Market.
<PAGE> 2
PART I
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
1. Eltrax's Annual Report on Form 10-K for the year ended December
31, 1998, filed with the Commission on March 27, 1999, as amended
by Form 10-K/A filed April 30, 1999.
2. The description of the Common Stock contained in Eltrax's
Registration Statement on Form 8-A (File No. 0-22190).
3. Eltrax's Current Report on Form 8-K dated March 25, 1999 and filed
with the Commission on March 30, 1999.
4. Eltrax's Current Report on Form 8-K dated March 31, 1999 and filed
with the Commission on April 12, 1999.
5. Eltrax's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999 and filed with the Commission on May 14, 1999.
6. Eltrax's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999 and filed with the Commission on August 16, 1999.
7. Eltrax's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999 and filed with the Commission on November 15,
1999.
In addition, all documents filed by Eltrax pursuant to Sections 13(a),
13(c), 14 and 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 securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or 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 in any subsequently filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such statement. Except as so modified or superseded, such statement
shall not be deemed to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Eltrax common stock to be issued pursuant
to this registration statement will be passed upon by Jaffe, Raitt, Heuer &
Weiss, P.C. As of November 1, 1999, certain shareholders of Jaffe, Raitt, Heuer
& Weiss, P.C. beneficially owned 88,695 shares of Eltrax common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V of Eltrax's Amended and Restated Articles of Incorporation
limits the liability of its directors to the fullest extent permitted by the
Minnesota Business Corporation Act (the "MBCA"). Specifically, directors of
Eltrax will not be personally liable for monetary damages for breach of
fiduciary duty as directors, except liability for (1) any breach of the duty of
loyalty to Eltrax or its shareholders, (2) acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, (3)
dividends or other distributions of corporate assets that are in contravention
of certain statutory or contractual restrictions, (4) violations of certain
Minnesota securities laws, or (5) any transaction from which the director
derives an improper personal benefit.
Article IV of Eltrax's Amended and Restated Articles of Incorporation
gives Eltrax the power and authority to provide indemnification to officers,
directors, employees and agents of Eltrax to the fullest extent permissible
under the MBCA. Section 302A.521 of the MBCA requires that a company indemnify
any director, officer or employee made or threatened to be made a party to a
proceeding, by reason of the former or present official capacity of the person,
against judgments, penalties, fines, settlements and reasonable expenses
incurred in connection with the proceeding if certain statutory standards are
met. "Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including a derivative
action in the name of the company. Reference is made to the detailed terms of
Section 302A.531 of the MBCA for a complete statement of such indemnification
rights.
Article VII of Eltrax's Restated Bylaws provides that Eltrax shall
indemnify such persons, for such expenses and liabilities, in such manner, under
such circumstances, and to such extent, as permitted by the MBCA, as now enacted
or hereafter amended, provided that a determination is made in each case, in the
manner required by such statute, that the person seeking indemnification is
eligible therefor.
Eltrax maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of Eltrax.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the exhibit index filed as
part of this Registration Statement.
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;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value 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 Commission pursuant
to Rule 424(b) if, in the aggregate, the
-3-
<PAGE> 4
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table set forth in this
registration statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
Eltrax pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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, each filing of the
registrant's annual report pursuant to section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Atlanta, State of Georgia, on November 29, 1999.
ELTRAX SYSTEMS, INC., a Minnesota corporation
By: /s/ William P. O'Reilly
---------------------------------------------
William P. O'Reilly, Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints William P. O'Reilly, Don G.
Hallacy, and Clunet R. Lewis, or any of them, his attorneys-in-fact and agents,
with full power of substitution and resubstitution for him in any and all
capacities, to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith or in connection with the registration of the
Common Stock under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his substitute or substitutes may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ William P. O'Reilly Chairman of the Board of November 29,199
- ---------------------------------------------- Directors
William P. O'Reilly
/s/ Don G. Hallacy Chief Executive Officer, President December 1, 1999
- ---------------------------------------------- (principal executive officer), and
Don G. Hallacy Director
/s/ James C. Barnard Director November 29, 1999
- ----------------------------------------------
James C. Barnard
/s/ Patrick J. Dirk Director December 1, 1999
- ----------------------------------------------
Patrick J. Dirk
/s/ Penelope A. Sellers Director December 1, 1999
- ----------------------------------------------
Penelope A. Sellers
/s/ Stephen E. Raville Director November 30, 1999
- ----------------------------------------------
Stephen E. Raville
/s/ William G. Taylor Director November 29, 1999
- ----------------------------------------------
William G. Taylor
/s/ William A. Fielder Chief Financial Officer (principal December 2, 1999
- ---------------------------------------------- financial officer and principal
William A. Fielder accounting officer)
</TABLE>
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<PAGE> 6
ELTRAX SYSTEMS INC.
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
------ ----------- ----------------
<S> <C> <C>
4.1 Specimen Form of Eltrax's Common Stock Incorporated by reference to Exhibit 4.1 to
Certificate Eltrax's Registration Statement on Form S-18
(File No. 33-51456)
4.2 Amended and Restated Eltrax Articles of Incorporated by reference to Exhibit 3.1 to
Incorporation, as amended Eltrax's Registration Statement on Form S-18
(File No. 33-51456)
4.3 Eltrax Bylaws, as amended Incorporated by reference to Exhibit 3.2 to
Eltrax's Quarterly Report on Form 10-QSB for
the quarter ended September 30, 1996
5.1 Opinion of Jaffe, Raitt, Heuer & Weiss, P.C. Filed herewith.
with respect to the validity of the shares of
Common Stock being registered
10.1 Eltrax 1999 Employee Stock Purchase Plan Filed herewith.
23.1 Consent of Jaffe, Raitt, Heuer & Weiss, P.C. Filed herewith.
(included as part of Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Filed herewith.
independent accountants
23.3 Consent of Crowe, Chizek and Company LLP, Filed herewith.
independent accountants
24.1 Power of Attorney (included on the signature Filed herewith.
page of this Registration Statement)
</TABLE>
-6-
<PAGE> 1
EXHIBIT 5.1
[JAFFE RAITT LETTERHEAD]
December 2, 1999
Eltrax Systems, Inc.
900 Circle 75 Parkway, Suite 1700
Atlanta, Georgia 30339
Gentlemen:
We have acted as counsel to Eltrax Systems, Inc. (the "Company"), a
Minnesota corporation, in connection with the registration by the Company of
1,000,000 Shares (the "Shares") of Common Stock, $.01 par value per share
("Common Stock"), pursuant to a Registration Statement on Form S-8 to be filed
with the "Securities and Exchange Commission on or about December 2, 1999 (the
"Registration Statement"). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. 229.601(B)(5), in connection with the Registration
Statement.
We do not purport to be experts on or to express any opinion in this
letter concerning any law other than the laws of the State of Michigan and the
Minnesota Business Corporation Act, and this opinion is qualified accordingly.
This opinion is limited to the matters expressly set forth in this letter, and
no opinion is to be inferred or may be implied beyond the matters expressly so
stated. In rendering the opinion contained in this letter, we have assumed
without investigation that the information supplied to us by the Company is
accurate and complete.
For purposes of this opinion letter, we have examined copies of the
following documents:
A. An executed copy of the Registration Statement;
B. A copy of the Eltrax Systems, Inc. 1999 Stock Purchase Plan
(the "1999 ESPP");
<PAGE> 2
December 2, 1999
Page 2
C. Form of Enrollment Agreement for stock to be issued pursuant
to the 1999 ESPP;
D. The Company's Amended and Restated Articles of Incorporation;
E. The Bylaws of the Company;
F. The Company's corporate minute book; and
G. An Officer's Certificate (the "Certificate"), a copy of which
is attached to this letter as Exhibit A.
The documents listed in items A-G above are collectively referred to as
the "Documents".
In rendering our opinion, we have assumed, without independent
verification, that: (i) all signatures are genuine; (ii) all Documents submitted
to us as originals are authentic; (iii) all Documents submitted to us as copies
conform to the originals of such Documents; and (iv) the consideration received
by the Company in connection with each issuance of Shares will include an amount
in the form of cash that exceeds the aggregate par value of such Shares. Our
review has been limited to examining the Documents and applicable law.
To the extent that any opinion in this letter relates to or is
dependent upon factual information, we have relied exclusively upon the factual
representations and warranties set forth in the Certificate, and we have not
undertaken to independently verify any such facts or information.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof:
1. The Shares that may be issued in the future under, and in
accordance with, the 1999 ESPP have been duly authorized.
2. Upon issuance of the Shares in accordance with the 1999 ESPP
and the respective enrollment agreements, such Shares will be
validly issued, fully paid, and non-assessable.
<PAGE> 3
December 2, 1999
Page 3
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement, and to the use of the name of our
firm in the Resignation Statement.
Sincerely,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
/s/ Jaffe, Raitt, Heuer & Weiss
JHC/lk
<PAGE> 4
EXHIBIT "A"
OFFICER'S CERTIFICATE
The undersigned, the duly elected and acting Secretary of Eltrax
Systems, Inc., a Minnesota corporation ("Eltrax"), hereby represents and
warrants the following to Jaffe, Raitt, Heuer & Weiss, Professional Corporation
("JRH&W"):
1. Eltrax is a corporation formed under the laws of the State of
Minnesota.
2. The Amended and Restated Articles of Incorporation of Eltrax
have not been amended since July 23, 1996.
3. As of the date of this Officer's Certificate, no shares of
Eltrax common stock, $0.01 par value per share, have been
issued upon the exercise of awards granted pursuant to
Eltrax's 1999 Employee Stock Purchase Plan.
Clunet R. Lewis
---------------------------
Clunet R. Lewis, Secretary
Dated: 11/23/99
<PAGE> 1
EXHIBIT 10.1
ELTRAX SYSTEMS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE OF THE PLAN. This Eltrax Systems, Inc. 1999 Employee Stock
Purchase Plan adopted as of the 16th day of November, 1999, is intended to
encourage eligible employees of the Company and its Subsidiaries to acquire or
increase their ownership of common stock of the Company on reasonable terms. The
opportunity so provided is intended to foster in participants a strong incentive
to put forth maximum effort for the continued success and growth of the Company
and its Subsidiaries, to aid in retaining individuals who put forth such
efforts, and to assist in attracting the best available individuals to the
Company and its Subsidiaries in the future. It is the Company's intention that
this Employee Stock Purchase Plan qualify as an "employee stock purchase plan"
under Section 423 of the Code. Accordingly, the provisions of the Plan shall be
construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
2. DEFINITIONS. When used herein, the following terms shall have the
meanings set forth below:
2.2 "ACCOUNT" means the funds accumulated with respect to an
Employee as a result of deductions from his paycheck for the purpose of
purchasing Shares under the Plan. The funds allocated to an Employee's
Account shall remain the property of the employee at all times but may
be commingled with the general funds of the Company.
2.3 "BOARD" means the Board of Directors of Eltrax Systems, Inc.
2.4 "CHANGE IN CONTROL" will mean the following:
(a) the sale, lease, exchange or other transfer, directly or
indirectly, of substantially all of the assets of the Company (in
one transaction or in a series of related transactions) to a
person or entity that is not controlled by the Company,
(b) the approval by the shareholders of the Company of any
plan or proposal for the liquidation or dissolution of the
Company;
(c) any person becomes after the effective date of the Plan
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of (A) 20% or more, but
less than 50% of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at
elections of directors, unless the transaction resulting in such
ownership has been approved in advance by the Incumbent Directors,
or (B) 50% or more of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the
Incumbent Directors);
(d) a merger or consolidation to which the Company is a party
if the shareholders of the Company immediately prior to effective
date of such merger
<PAGE> 2
or consolidation have "beneficial ownership" (as defined in Rule
13d-3 under the Exchange Act), immediately following the effective
date of such merger or consolidation, of securities of the
surviving corporation representing (i) more than 50%, but less
than 80%, of the combined voting power of the surviving
corporation's then outstanding securities ordinarily having the
right to vote at elections of directors, unless such merger or
consolidation has been approved in advance by the Incumbent
Directors (as defined in Section 2.11 below), or (ii) 50% or less
of the combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the
Incumbent Directors); or
(e) the Incumbent Directors cease for any reason to
constitute at least a majority of the Board.
2.5 "CODE" means the Internal Revenue Code of 1986, as in effect
at the time of reference, or any successor revenue code which may
hereafter be adopted in lieu thereof, and reference to any specific
provisions of the Code shall refer to the corresponding provisions of
the Code as it may hereafter be amended or replaced.
2.6 "COMMITTEE" means the Committee of the Board or any other
committee appointed by the Board which is invested by the Board with
responsibility for the administration of the Plan and whose members
meet the requirements for eligibility to serve as set forth in the
Plan.
2.7 "COMPANY" means Eltrax Systems, Inc.
2.8 "ELIGIBLE COMPENSATION" means the regular compensation (i.e.,
straight time earnings), bonuses and commissions earned by an Employee
during a payroll period, before deductions or withholdings, but shall
exclude, unless the Committee determines otherwise, all other amounts,
including, but not limited to, (i) all amounts contributed by the
Company or any Subsidiary under any profit-sharing, pension,
retirement, group insurance or other employee welfare benefit plan or
trust whether now in existence or hereinafter adopted and (ii) any
income from stock option exercises or other equity based compensation.
2.9 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
in effect at the time of reference, or any successor law which may
hereafter be adopted in lieu thereof, and any reference to any specific
provisions of the Exchange Act as it may hereafter be amended or
replaced.
2.10 "EMPLOYEES" means persons employed by the Company or any of
its Subsidiaries set forth in Schedule A attached hereto (as may be
amended from time to time by the Board of Directors in its sole
discretion); provided, however, that no person shall be considered an
Employee unless he has been employed for at least fifteen (15)
consecutive days as of the Offering Commencement Date of any such
offering.
2.11 "FAIR MARKET VALUE" means, with respect to the Shares, as of
any date (or, if no shares were traded or quoted on such date, as of
the next preceding date on
<PAGE> 3
which there was such a trade or quote) (a) the average of the reported
high and low sale prices of the Shares if the common stock is listed,
admitted to unlisted trading privileges or reported on any national
securities exchange or on the Nasdaq National Market, the closing bid
price as reported by the Nasdaq SmallCap Market, OTC Bulletin Board or
the National Quotation Bureau, Inc. or other comparable service; or (c)
if the common stock is not so listed or reported, such price as the
Committee determines in good faith in the exercise of its reasonable
discretion. If determined by the Committee, such determination will be
final, conclusive and binding for all purposes and on all persons,
including, without limitation, the Company, the shareholders of the
Company, the Employees and their respective successors-in-interest. No
member of the Committee will be liable for any determination regarding
the fair market value of the Shares that is made in good faith.
2.12 "INCUMBENT DIRECTORS" means any individuals who are members
of the Board on the effective date of the Plan and any individual who
subsequently becomes a member of the Board whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the Incumbent Directors (either by
specific vote or by approval of the Company's proxy statement in which
such individual is named as a nominee for director without objection to
such nomination).
2.13 "OFFERING COMMENCEMENT DATE" means January 1 or July 1, as
the case may be, or any other date determined by the Committee, on
which a particular offering begins.
2.14 "OFFERING TERMINATION DATE" means the June 30 or December 31,
as the case may be, or any other date determined by the Committee, on
which a particular offering terminates.
2.15 "OPTION" means the right granted to an Employee to purchase
Shares pursuant to an offering made under the Plan and pursuant to such
Employee's election to purchase Shares in such offering, at a price,
and subject to such limitations and restrictions as the Plan and the
Committee may impose.
2.16 "PARENT" means any corporation, other than the employer
corporation, in an unbroken chain of corporations ending with the
employer corporation if each of the corporations other than the
employer corporation owns stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
2.17 "PLAN" means the Eltrax Systems, Inc. 1999 Employee Stock
Purchase Plan.
2.18 "PURCHASE PERIOD" means the period commencing on the Offering
Commencement Date and ending on the Offering Termination Date during
which installment payments for Shares purchased pursuant to Options
granted pursuant to an offering made under the Plan shall be made.
<PAGE> 4
2.19 "SHARES" means shares of the Company's no par value common
stock or, if by reason of the adjustment provisions contained herein,
any rights under the Plan pertaining to any other security, such other
security.
2.20 "SUBSIDIARY" or "SUBSIDIARIES" means any corporation or
corporations other than the employer corporation in an unbroken chain
of corporations beginning with the employer corporation if each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
2.21 "SUCCESSOR" means the legal representative of the estate of a
deceased Employee or the person or persons who shall acquire the right
to exercise or receive an Option by bequest or inheritance or by reason
of the death of the Employee.
3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon
the exercise of Options to be granted from time to time pursuant to offerings
made under the Plan, an aggregate of 1,000,000 Shares, which Shares may be, in
whole or in part, as the Board shall from time to time determine, authorized but
unissued Shares, or issued Shares which shall have been reacquired by the
Company. The number of Shares reserved under the Plan may be issued pursuant to
the exercise of Options granted pursuant to one or more offerings made under the
Plan. Any Shares subject to issuance upon exercise of Options but which are not
issued because of a surrender, lapse, expiration or termination of any such
Option prior to issuance of the Shares shall once again be available for
issuance in satisfaction of Options.
4. ADMINISTRATION OF THE PLAN. The Board shall appoint the Committee
to administer the Plan. Subject to the provisions of the Plan, the Committee
shall have full authority, in its discretion, to determine when offerings will
be made under the Plan, the number of Shares available for purchase in any such
offering, and the terms and conditions of any such offering; to amend or cancel
Options (subject to Section 23 of the Plan); to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan; and
generally to interpret and determine any and all matters whatsoever relating to
the administration of the Plan, including the designation of individuals
responsible for the day-to-day operation of the Plan. All decisions,
determinations and interpretations made by the Committee shall be binding and
conclusive on all participants in the Plan and on their legal representatives,
heirs and beneficiaries. The Board may from time to time appoint members to the
Committee in substitution for or in addition to members previously appointed and
may fill vacancies, however caused, in the Committee. No Member of the Committee
shall be liable, in the absence of bad faith, for any act or omission with
respect to his service on the Committee.
5. OFFERINGS. Unless the Committee, in its discretion, determines
otherwise, the Plan will be implemented by up to twenty (20) consecutive six (6)
month offerings. The first offering under the Plan shall commence on January 1,
2000 and terminate on June 30, 2000. Thereafter, offerings shall commence on
each subsequent July 1 and January 1 and terminate on the following December 31
and June 30, respectively, of such year until the Plan is terminated or no
additional Shares are available for purchase under the Plan.
<PAGE> 5
6. ELIGIBILITY TO PARTICIPATE IN OFFERINGS. All Employees shall be
eligible to participate in the Plan.
7. PARTICIPATION. An eligible Employee may become a participant in
the Plan by completing, signing and submitting an enrollment form ("Enrollment
Form") which shall designate a whole percentage of his Eligible Compensation,
not to exceed ten percent (10%), to be withheld during the Purchase Period of
any offering in which he participates, and any other necessary papers,
including, but not limited to, any forms required to establish a brokerage
account at a brokerage firm designated by the Committee in the Employee's name
for the purpose of holding any Shares purchased pursuant to the Plan, with such
person as the Committee may designate at least ten (10) days prior to the
Offering Commencement Date of the first offering in which he wishes to
participate. After completing, signing and submitting an Enrollment Form and any
other necessary papers in accordance with the preceding sentence, an Employee
shall be deemed to have become a participant in the Plan for each subsequent
offering until the Employee withdraws from the Plan in accordance with Section
14 hereof, is deemed to have withdrawn from the Plan in accordance with Section
17 hereof, or otherwise gives written notice of his intent to withdraw to such
person as the Committee may designate. Except as otherwise provided in Section
14, if an Employee who withdraws from the Plan desires to re-enter the Plan, he
must submit a new Enrollment Form in accordance with this Section 7 at least ten
(10) days prior to the Offering Commencement Date of the particular offering to
which such re-entry is intended to apply, or by such other time as the Committee
determines in its sole discretion. An Employee's re-entry into the Plan cannot
become effective before the beginning of the next offering following his
withdrawal. Participation in one offering under the Plan shall neither limit nor
require participation in any other offering.
8. GRANT OF OPTIONS. Subject to the limitations set forth in Sections
6 and 9 of the Plan, on the Offering Commencement Date of each offering made
under the Plan, each Employee who has previously elected to participate in the
Plan shall automatically be granted an Option for as many full Shares as he will
be able to purchase with the payroll deductions credited to his Account during
the Purchase Period of that offering. In the event the total maximum number of
Shares resulting from all elections to purchase under any offering of Shares
made under the Plan exceeds the number of Shares offered, the Company reserves
the right to reduce the maximum number of Shares which Employees may purchase
pursuant to their elections to purchase, to allot the Shares available in such
manner as it shall determine (subject to the requirements of Section 423 of the
Code), but generally pro rata to subscriptions received, and to grant Options to
purchase only for such reduced number of Shares. Notice of any such reduction
shall be given to each participating Employee, in a uniform and
nondiscriminatory manner determined by the Committee in its sole discretion. In
the event an Employee's election to purchase Shares pursuant to an offering made
under the Plan is canceled pursuant to Section 9 of the Plan, the Option granted
to such Employee shall automatically terminate and the balance in his Account
shall be returned to the Employee.
9. LIMITATIONS OF NUMBER OF SHARES WHICH MAY BE PURCHASED. The
following limitations shall apply with respect to the number of Shares which may
be purchased by each Employee who elects to participate in an offering made
under the Plan:
<PAGE> 6
(a) No Employee may purchase, or elect to purchase Shares
during any one offering pursuant to the Plan for an aggregate
purchase price in excess of ten percent (10%) of his Eligible
Compensation during the Purchase Period applicable to such
offering.
(b) No Employee shall be granted an Option to purchase Shares
under the Plan if such Employee immediately after such Option is
granted, owns stock (within the meaning of Section 424(d) of the
Code, and including stock subject to purchase under any
outstanding options) possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of
the Company or, if applicable, any Subsidiary or, if applicable, a
Parent.
(c) No Employee shall be granted an Option to purchase Shares
which permits his right to purchase stock under the Plan and all
other employee stock purchase plans of the Company and, if
applicable, a Subsidiary, and, if applicable, a Parent, to accrue
(as determined under Section 423(b)(8) of the Code) at a rate
which exceeds ($25,000) of fair market value of such stock
(determined on the date the Option to purchase is granted) for
each calendar year in which such Option is outstanding at any
time.
10. EXERCISE PRICE. Unless the Committee, in its discretion,
determines to set a higher per Share exercise price, the per Share exercise
price for Shares subject to purchase under Options granted pursuant to an
offering made under the Plan shall be an amount equal to the lesser of (a)
eighty-five percent (85%) of the Fair Market Value of Shares on the Offering
Commencement Date, or (b) eighty-five percent (85%) of the Fair Market Value of
the Shares on the Offering Termination Date.
11. PAYROLL DEDUCTIONS. Payment of the exercise price of any Option
granted pursuant to the Plan shall be made in installments through payroll
deductions, with no right of prepayment. Each Employee electing to participate
in an offering of Shares made under the Plan shall authorize the Company
pursuant to Section 7 of the Plan to withhold a designated amount from his
regular weekly, bi-weekly, semimonthly or monthly pay for each payroll period
during the Purchase Period, which amount, expressed as a percentage, may not
exceed ten percent (10%) of his Eligible Compensation (or such other percentage
as determined by the Committee in its sole discretion). All such payroll
deductions made for an Employee shall be credited to his Account. An Employee
may not make any separate cash payments into his Account nor may payment for
Shares be made other than by payroll deduction. No interest shall accrue on the
amounts credited to an Employee's Account pursuant to this Section 11.
12. EXERCISE OF OPTIONS. As of the close of business on the Offering
Termination Date of any offering of Shares made under the Plan, each outstanding
Option shall automatically be exercised. Subject to the limitations in Sections
6, 8 and 9 of the Plan upon the exercise of an Option, the aggregate amount of
the payroll deductions credited to the Account of each Employee as of that date
will automatically be applied to the exercise price for the purchase of that
number of Shares, rounded to the nearest whole share, equal to the Account
balance divided by the exercise price. Promptly following the end of each
Offering Termination Date, the number of Shares purchased by each Employee shall
be deposited into an account established in
<PAGE> 7
the Employee's name at a stock brokerage or other financial services firm
designated by the Company. Unless an Employee notifies the Company in writing
not to carry over the balance of his Account (representing fractional Shares) to
the next offering and to have the balance of his Account returned to him, the
Company shall carry over the balance of his Account to the next offering. Upon
termination of the Plan, the balance of each Employee's Account shall be
returned to him.
13. RIGHTS OF A SHAREHOLDER. An Employee will become a shareholder of
the Company with respect to Shares for which payment has been received at the
close of business on the Offering Termination Date. An Employee will have no
rights as a shareholder with respect to Shares under an election to purchase
Shares until he has become a shareholder as provided above.
14. CANCELLATION OF ELECTION TO PURCHASE. An Employee who has elected
to purchase Shares pursuant to any offering made under the Plan may cancel his
election in its entirety. Any such cancellation shall be effective upon the
delivery by the Employee of written notice of cancellation to such person as the
Committee may designate. Such notice of cancellation must be so delivered before
the close of business on the third to last business day of the Purchase Period.
The amount credited to an Employee's Account at the time the cancellation
becomes effective may be, at the Employee's option, (i) applied to the purchase
of the number of Shares such amount will then purchase or (ii) returned to the
Employee. If the Employee elects to purchase Shares with the amount credited to
his Account at the time of cancellation, such purchase will become effective at
the close of business on the Offering Termination Date. Upon cancellation, the
Employee shall be deemed to have withdrawn from the Plan. To re-enter the Plan,
the Employee must submit a new Enrollment Form in accordance with Section 7.
15. LEAVE OF ABSENCE OR LAYOFF. An Employee purchasing Shares under
the Plan who is granted a leave of absence (including a military leave) or is
laid off during the Purchase Period may at that time elect to suspend payments
during such leave of absence or period of layoff. Any such suspension shall be
treated as a partial cancellation of his election to purchase Shares. If the
Employee does not return to active service within ninety (90) days from the date
of his leave of absence or layoff, unless his rehire is guaranteed, his election
to purchase shall be deemed to have been canceled at that time, and the
Employees only right will be to receive in cash the amount credited to his
Account.
16. EFFECT OF FAILURE TO MAKE PAYMENTS WHEN DUE. If in any payroll
period an Employee who has filed an election to purchase Shares under the Plan
has no pay or his pay is insufficient (after other authorized deductions) in any
payroll period to permit deduction of his installment payment, the amount of
such deficiency shall be treated as a partial cancellation of his election to
purchase Shares.
17. TERMINATION OF EMPLOYMENT. If an Employee's employment is
terminated for any reason, excluding death, prior to the end of the Purchase
Period of any offering, the Employee's rights under the Plan will terminate at
such time. A notice to withdraw from the Plan will be considered as having been
received from the Employee on the day his employment ceases, and the only right
of the Employee will be to receive the cash then credited to his Account. If an
Employee dies prior to the end of the Purchase Period of any offering, the
<PAGE> 8
amount credited to such Employee's Account at the time of his death may, at the
option of the Employee's estate, heirs, beneficiaries or other authorized
person, be (i) applied to the purchase of the number of Shares such amount will
then purchase or (ii) paid to the estate, heirs, beneficiaries or other
authorized person. If the Employee's estate, heirs, beneficiaries or other
authorized person elects to purchase Shares with the amount credited to the
Employee's Account at the time of death, such purchase will become effective at
the close of business on the Offering Termination Date.
18. NONTRANSFERABILITY OF OPTIONS. An Option, or an Employee's right
to any amounts held for his Account under the Plan, shall not be transferable,
other than (a) by will or the laws of descent and distribution, and an Option
may be exercised, during the lifetime of the holder of the Option, only by the
holder or in the event of death, the holder's Successor or (b) if permitted
pursuant to the Code and the Regulations thereunder without affecting the
Options qualification under Section 423 of the Code, pursuant to a qualified
domestic relations order.
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
changes in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations, or exchanges
of shares, separations, reorganizations or liquidations, or similar events, or
in the event of extraordinary cash or non-cash dividends being declared with
respect to the Shares, or similar transactions or events, the number and class
of Shares available under the Plan in the aggregate, the number and class of
Shares subject to Options theretofore granted, applicable purchase prices and
all other applicable provisions, shall, subject to the provisions of the Plan,
be equitably adjusted by the Committee, taking into account Section 424(a) of
the Code. The foregoing adjustment and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional Share which might otherwise become subject to an Option.
20. CHANGE IN CONTROL. Notwithstanding anything to the contrary
herein, in the case of a Change in Control of the Company, the Board may, in its
sole discretion, elect to terminate the Purchase Period of any offering then in
effect as of the date of such Change of Control (or such other date in the
discretion of the Committee), with the effect that such day will be the Offering
Termination Date of such offering.
21. TAXES. The Employee, or his Successor, shall promptly notify the
Company of any disposition of Shares acquired pursuant to the exercise of an
Option under the Plan and the Company shall have the right to deduct any taxes
required by law to be withheld as a result of such disposition from any amounts
otherwise payable then or at any time thereafter to the Employee. The Company
shall also have the right to require a person entitled to receive Shares
pursuant to the exercise of an Option to Pay the Company the amount of any taxes
which the Company is or will be required to withhold with respect to the Shares
before the certificate for such Shares is delivered pursuant to the Option.
22. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years
from the date the Plan becomes effective, and an Option shall not be granted
under the Plan after that date although the terms of any Options may be amended
at any date prior to the end of its term in accordance with the Plan. Any
Options outstanding at the time of termination of the Plan shall
<PAGE> 9
continue in full force and effect according to the terms and conditions of the
Option and this Plan.
23. AMENDMENT OF THE PLAN. The Plan may be amended at any time and
from time to time by the Board, but no amendment without the approval of the
shareholders of the Company shall be made if shareholder approval under Section
423 of the Code would be required. Notwithstanding the discretionary authority
granted to the Committee in Section 4 of the Plan, no amendment of the Plan or
any Option granted under the Plan shall impair any of the rights of any holder,
without the holder's consent, under any Option theretofore granted under the
Plan.
24. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
with respect to an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
25. FEES AND COSTS. The Company shall pay all fees and expenses
necessarily incurred by the Company in connection with operation of the Plan.
26. NO CONTRACT OF EMPLOYMENT. Neither the adoption of this Plan nor
the grant of any Option shall be deemed to obligate the Company or any
Subsidiary to continue the employment of any Employee.
27. EFFECTIVENESS OF THE PLAN. The Plan shall become effective on
November 16, 1999. Notwithstanding the foregoing, unless the Plan is approved by
the Company's shareholders at a meeting duly held in accordance with Minnesota
law within twelve (12) months after being adopted by the Board, the Plan and all
Options made under it shall be void and of no force and effect.
28. OTHER PROVISIONS. As used in the Plan, and in other documents
prepared in implementation of the Plan, references to the masculine pronoun
shall be deemed to refer to the masculine, feminine or neuter, and references in
the singular or the plural shall refer to the plural or the singular, as the
identity of the person or persons or entity or entities being referred to may
require. The captions used in the Plan and in such other documents prepared in
implementation of the Plan are for convenience only and shall not affect the
meaning of any provision hereof or thereof.
<PAGE> 10
SCHEDULE A
The Eltrax Systems, Inc. 1999 Employee Stock Purchase Plan applies to these
companies:
- - Eltrax Systems, Inc.
- - Sulcus Hospitality Technologies, Inc.
- - Encore Systems, Inc.
- - Five Star Systems, Inc.
- - GSSS, Inc.
- - Nordata, Inc.
- - Windward Technology, Inc.
- - Sulcus Investment Corp.
- - Sulcus Hospitality Group, Inc.
- - Radix Systems, Inc.
- - Lodgistix, Inc.
- - Squirrel Companies, Inc.
- - Squirrel Systems of Canada, Ltd.
- - NRG Management Systems, Inc.
- - Senercomm, Inc.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 12, 1999, except for the
information in Notes 9 and 13 to which the date is March 26, 1999, relating to
the financial statements and financial statement schedule, which appears in
Eltrax Systems, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1998.
/s/ PricewaterhouseCooper, LLP
Detroit, Michigan
December 3, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
We consent to the incorporation by reference in this Registration Statement of
Eltrax Systems, Inc. (Eltrax) on Form S-8 of our report dated March 26, 1999
appearing in Eltrax's Current Report on Form 8-K dated March 26, 1999 on our
audits on the consolidated financial statements of Sulcus Hospitality
Technologies, Corp. as of December 31, 1998 and 1997 and for each year in the
three year period ended December 31, 1998.
/s/ Crowe, Chizek and Company LLP
Crowe, Chizek and Company LLP
Columbus, Ohio
December 3, 1999
