SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
IMO INDUSTRIES INC.
(Exact name of registrant
as specified in its charter)
Delaware 21-0733751
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1009 Lenox Drive, Building Four West
Lawrenceville, New Jersey 08648
(Address of Principal Executive Offices) (Zip Code)
____________________
IMO INDUSTRIES INC.
1995 EQUITY INCENTIVE PLAN FOR OUTSIDE DIRECTORS
(Full title of plan)
____________________
Thomas J. Bird, Esquire
Executive Vice President, General Counsel and Secretary
1009 Lenox Drive, Building Four West
Lawrenceville, New Jersey 08648
(Name and address of agent for service)
(609) 896-7600
(Telephone number, including area code,
of agent for service)
____________________
Copy to:
Kathleen M. Shay, Esquire
Duane, Morris & Heckscher
One Liberty Place
Philadelphia, PA 19103-7396
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering aggregate registration
registered registered price per share offering price fee
__________ __________ _______________ ______________ ____________
Common Stock, 240,000 $8.83125(1) $2,119,500(1) $731
$1.00 par shares
value
(1) (a) with respect to the 24,000 shares for which options have
been granted as of the date hereof, computed on the basis of the
exercise price of $7.875 per share and (b) with respect to the 216,000
shares for which awards have not yet been made, computed on the basis of
$8.9375 per share, the average of the high and low sales prices of the
Common Stock of the Company on the New York Stock Exchange on June 19,
1995.
IMO INDUSTRIES INC.
Cross Reference Sheet
Pursuant to Item 501(b) of Regulation S-K
with respect to
Part I of Form S-8
Item Number and Caption Heading in Prospectus
II. Plan Information *
III. Registrant Information and Employee
Plan Annual Information *
_______________
* Omitted because the documents containing the information specified
in Part I of this Registration Statement, Information Required in
the Section 10(a) Prospectus, are not required to be filed
herewith. All information required in the Section 10(a)
Prospectus will be furnished to plan participants pursuant to a
memorandum, as supplemented or amended from time to time, and the
documents incorporated by reference therein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following material is incorporated herein by reference:
(a) The Company's annual report filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), for the fiscal year ended December 31, 1994.
(b) The Company's current report filed pursuant to Section 13 or
15(d) of the Exchange Act dated February 1, 1995.
(c) The Company's quarterly report filed pursuant to Section 13
or 15(d) of the Exchange Act for the quarterly period ended March 31,
1995.
(d) The Company's current report filed pursuant to Section 13 or
15(d) of the Exchange Act dated June 19, 1995.
(e) The description of the Company's Common Stock set forth in
the Company's Form 10 Registration Statement dated October 15, 1986, as
amended on December 5, 1986 and December 8, 1986.
All reports or other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment that indicates that
all securities offered have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of
filing of such reports and documents. Any statement contained in a
document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document, which also is or is deemed
to be incorporated herein by reference, 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.
No answer to this item is required because the class of securities
to be offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon plea of
nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
In the case of an action or suit by or in the right of the
corporation to procure a judgment in its favor, Section 145 empowers a
corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by reason of the fact that he is or was acting in any of
the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that indemnification is not
permitted in respect of any claim, issue or matter as to which such
person is adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought determines upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court deems proper.
Section 145 further provides: that a Delaware corporation is
required to indemnify a director, officer, employee or agent against
expenses (including attorney's fees) actually and reasonably incurred by
him in defense of any action, suit or proceeding referred to above or in
defense of any claim, issue or matter therein to the extent that such
person has been successful on the merits or otherwise; that the
indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be
entitled; that the indemnification provided for by Section 145 shall,
unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of such person's heirs, executors and
administrators; that expenses (including attorneys' fees) incurred by
an officer or director in defending any action, suit or proceeding
referred to above may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such officer or director to repay such
amount if it is ultimately determined that such person is not entitled
to be indemnified as authorized under Section 145; and that the
corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the corporation would have the power
to indemnify him against such liability under Section 145. A Delaware
corporation may provide indemnification only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct. Such determination is to be
made (i) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion or (iii) by the
stockholders.
Article XIII of the By-Laws of the Company provides that each
person who was or is made a party to, or is involved in, any action,
suit or proceeding by reason of the fact that such person is or was a
director, officer or employee of the Company (or was serving at the
request of the Company as a director, officer or employee for another
entity) while serving in such capacity shall be indemnified by the
Company, to the full extent authorized by Delaware law, against all
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection therewith. Article XIII of the By-Laws provides that rights
conferred thereby are contract rights and include the right to be paid
or reimbursed by the Company for expenses incurred in defending such
proceedings in advance of their final disposition upon receipt by the
Company from the indemnified party of an undertaking to repay all
amounts so advanced if it is ultimately determined that the person
receiving such payments is not entitled to be indemnified.
Article XIII of the By-Laws provides that the rights conferred
therein to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition are not
exclusive of any other right which any person may have or acquire under
any statute, provision of the Company's Restated Certificate of
Incorporation, contract, agreement or By-Laws, or otherwise. Finally,
Article XIII of the By-Laws provides that the Company may maintain
insurance, at its expense, to protect itself and any of its directors,
officers, employees or agents against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person
against such expense, liability or loss under Delaware law.
The Company's Restated Certificate of Incorporation, as permitted
by the General Corporation Law of the State of Delaware, provides that a
director of the Company shall not be personally liable to the Company or
to its stockholders for monetary damages for breach of fiduciary duty as
a director except (i) for any breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from which the
director derived an improper personal benefit.
The Company has purchased liability insurance under two policies
for directors and officers for certain losses up to an aggregate of $20
million arising from claims or charges made against them while acting in
their capacities as directors or officers of the Company and/or its
subsidiaries.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Imo Industries Inc. 1995 Equity Incentive Plan for Outside
Directors
5.1 Opinion of Duane, Morris & Heckscher
23.1 Consent of Duane, Morris & Heckscher (included in their
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
Item 9. Undertakings.
The registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(b) that for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(c) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 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 of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets 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 Lawrenceville, New Jersey on
June 21, 1995.
IMO INDUSTRIES INC.
By: /s/ DONALD K. FARRAR
Donald K. Farrar,
Chairman, President and
Chief Executive Officer
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Donald K. Farrar, David C.
Christensen and Thomas J. Bird, and each or any of them, as his true and
lawful attorneys-in-fact and agents, with full power of substitution,
for him, and in his name, place and stead, 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 all exhibits thereto
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or
any of them or their substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
Chairman, President, Chief
Executive Officer and Director
/s/ DONALD K. FARRAR (principal executive officer) June 21, 1995
Donald K. Farrar
Executive Vice President and
Chief Financial Officer
/s/ WILLIAM M. BROWN (principal financial officer) June 21, 1995
William M. Brown
Vice President and
Corporate Controller
/s/ ROBERT A. DERR II (principal accounting officer) June 21, 1995
Robert A. Derr II
/s/ JAMES B. EDWARDS Director June 21, 1995
James B. Edwards
/s/ J. SPENCER GOULD Director June 21, 1995
J. Spencer Gould
Director June 21, 1995
Richard J. Grosh
/s/ CARTER P. THACHER Director June 21, 1995
Carter P. Thacher
/s/ DONALD C. TRAUSCHT Director June 21, 1995
Donald C. Trauscht
/s/ARTHUR E. VAN LEUVEN Director June 21, 1995
Arthur E. Van Leuven
EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
Exhibit No. Exhibit
4.1 Imo Industries Inc. 1995 Equity Incentive
Plan for Outside Directors
5.1 Opinion of Duane, Morris & Heckscher
23.1 Consent of Duane, Morris & Heckscher
(included in their opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
IMO INDUSTRIES INC.
1995 EQUITY INCENTIVE PLAN
FOR OUTSIDE DIRECTORS
IMO INDUSTRIES INC., a corporation organized under the laws of the
State of Delaware, hereby sets forth the 1995 Equity Incentive Plan for
Outside Directors. The Plan provides for the grant of restricted stock
awards and nonqualified stock options to Outside Directors. The Plan
shall become effective upon the approval of the Plan by stockholders of
the Company in accordance with Section 6(d).
1. Definitions. Whenever the following terms are used in the Plan
they shall have the meanings specified below unless the context clearly
indicates to the contrary:
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean a change in the power to direct or
cause the direction of the management and policies of the Company arising
from (1) any "person" (including a "person" as defined in Sections
13(d)(3) and 14(d) of the Exchange Act) becoming the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 35% or more of the
combined voting power of the Company's then outstanding securities or (2)
more than 50% of the assets of the Company being disposed of by the
Company pursuant to a partial or complete liquidation of the Company, a
sale of assets (including stock of a subsidiary or subsidiaries) of the
Company or otherwise.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Reference to a specific section of the Code shall include such section,
any valid regulation promulgated thereunder and any comparable provision
of any future legislation amending, supplementing or superseding such
section.
"Common Stock" shall mean the Common Stock, $1.00 par value, of the
Company.
"Company" shall mean Imo Industries Inc., a Delaware corporation.
"Director" shall mean a member of the Board.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean the average between the highest and
lowest sale prices of the Company's Common Stock quoted in the New York
Stock Exchange Composite Transactions Index (the "Index") for the date in
question, as published in The Wall Street Journal. If no sale prices are
quoted in the Index for such date, the next preceding date for which such
sale prices are quoted shall be used.
"Grantee" shall mean an Outside Director to whom a Restricted Stock
Award is granted.
"Option" shall mean an option granted under the provisions of
Section 4 of the Plan to purchase Common Stock of the Company.
"Optionee" shall mean an Outside Director to whom an Option is
granted.
"Outside Director" shall mean a Director who, at the time he becomes
a Director, is not also an employee of the Company or any affiliate of
the Company.
"Plan" shall mean this 1995 Equity Incentive Plan for Outside
Directors.
"Restricted Stock Award" shall mean a restricted stock award granted
under the provisions of Section 5 of the Plan.
"Secretary" shall mean the Corporate Secretary or an Assistant
Secretary of the Company.
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain then owns stock
possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
"Termination of Service" shall mean a cessation of an Outside
Director's service as a member of the Board, whether as a result of
resignation, failure to be reelected, removal for cause, death or any
other reason.
"Total Disability" shall mean a permanent and total disability as
determined in accordance with Section 72(m)(7) of the Code.
2. Administration.
(a) Administration by the Board. The Plan shall be administered by
the Board.
(b) Duty and Power of Board Under the Plan. It shall be the duty
of the Board to conduct the general administration of the Plan in
accordance with its provisions. The Board shall have the power to
interpret the Plan, the Options and the Restricted Stock Awards and to
adopt rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any
such rules. The Board shall not have any discretion to determine who
will be granted Options or Restricted Stock Awards or to determine the
number of Options or Restricted Stock Awards to be granted to any Outside
Director, the timing of such grant or the exercise price of any Option.
(c) Board Actions. The Board may act either by vote of a majority
of its members present at a meeting of the Board at which a quorum is
present or by a memorandum or other written instrument signed by all
members of the Board.
(d) Compensation; Professional Assistance; Good Faith Actions.
Members of the Board shall not receive any compensation for their
services in administering the Plan, but all expenses and liabilities they
incur in connection with the administration of the Plan shall be borne by
the Company. The Board may employ attorneys, consultants, accountants or
other persons. The Board, the Company and the officers and directors of
the Company shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all
interpretations and determinations made by the Board in good faith shall
be final and binding upon all Optionees and Grantees, the Company and all
other interested persons. No member of the Board shall be personally
liable for any action, determination or interpretation made in good faith
with respect to the Plan, and all members of the Board shall be fully
protected and indemnified by the Company in respect to any such action,
determination or interpretation.
3. Shares Subject to the Plan.
(a) Limitations. The shares of stock issuable pursuant to Options
or Restricted Stock Awards shall be shares of the Company's Common Stock.
The total number of such shares that may be subject to Options or
Restricted Stock Awards granted under the Plan shall not exceed 240,000
in the aggregate.
(b) Effect of Unexercised or Cancelled Options. If an Option
expires or is cancelled for any reason without having been fully
exercised or vested, the number of shares subject to such Option which
were not purchased or did not vest prior to such expiration or
cancellation may again be made subject to an Option or Restricted Stock
Award granted hereunder.
(c) Changes in the Company's Shares. In the event that the
outstanding shares of Common Stock of the Company are hereafter increased
or decreased or changed into or exchanged for a different number or kind
of shares or other securities of the Company, or of another corporation,
by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend (either in shares of the
Company's Common Stock or of another class of the Company's stock), spin-
off or combination of shares, appropriate adjustments shall be made by
the Board in the aggregate number and kind of shares that may be issued
on exercise of Options or upon the grant of Restricted Stock Awards.
4. Stock Options.
(a) Granting of Options.
(i) Eligibility. Each Outside Director shall be eligible to
be granted Options.
(ii) Granting of Options. Each Outside Director on the first
business day following the election of directors at each annual meeting
of stockholders of the Company shall, on such date, be granted an Option
for the purchase of 4,000 shares of Common Stock. Each person appointed
or elected an Outside Director after the first business day following the
election of directors at each annual meeting of stockholders of the
Company but on or before December 31 of such year shall, on the business
day following the date of appointment or election to the Board, be
granted an Option for the purchase of 4,000 shares of Common Stock.
(iii) Form of Option. All Options granted under this Plan shall
be non-statutory options not intended to qualify under Section 422 of the
Code.
(b) Terms of Options.
(i) Option Agreement. Each Option shall be evidenced by a
written stock option agreement that shall be executed by the Optionee and
the Company and that shall contain such terms and conditions as the Board
determines are required by the Plan.
(ii) Option Price. The exercise price of the shares subject to
each Option shall be 100% of the Fair Market Value for such shares on the
date the Option is granted.
(iii) Date of Grant. The date on which an Option shall be
granted shall be the date determined under Section 4(a)(ii).
(iv) Commencement of Exercisability.
(A) No Option may be exercised in whole or in part during
the first year after such Option has been granted. Thereafter, except as
otherwise provided in Section 4(b)(iv)(B) or 4(b)(vii), the Option shall
become exercisable in four equal cumulative annual installments of 1,000
shares each, commencing on the first anniversary of the grant date and
continuing on each of the next three anniversaries of the grant date.
(B) No portion of an Option that is unexercisable at the
time of the Optionee's Termination of Service shall thereafter become
exercisable; provided, however, in the event that an Optionee's
Termination of Service is due to the Optionee's retirement from the Board
after reaching the age of 72 years in accordance with the By-Laws of the
Company, all Options held by such Optionee shall become exercisable, if
not otherwise exercisable, on the date of such Termination of Service.
(v) Expiration of Options.
(A) Each Option shall terminate on the expiration of
ten years from the date the Option was granted.
(B) Each Option, or portion thereof, which has become
exercisable may be exercised until the earlier to occur of: (1) the
expiration of such Option pursuant to Section 4(b)(v)(A), or (2) the
expiration of three years from the date of the Optionee's Termination of
Service, except that, in the event of an Optionee's removal for cause,
all Options shall terminate immediately upon such Optionee's Termination
of Service.
(vi) Adjustment in Outstanding Options. In the event that the
outstanding shares of the Common Stock of the Company are increased or
decreased or changed into or exchanged for a different number or kind of
shares of the Company, or other securities of the Company, or of another
corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, stock dividend
(either in shares of the Company's Common Stock or of another class of
the Company's stock), spin-off or combination of shares, the Board shall
make an appropriate and equitable adjustment in the number and kind of
shares as to which all outstanding Options, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the
Optionee's proportionate interest shall be maintained as before the
occurrence of such event. Such adjustment in an outstanding Option shall
be made without change in the total price applicable to the Option or the
unexercised portion of the Option (except for any change in the aggregate
price resulting from rounding-off of share quantities or prices) and with
any necessary corresponding adjustment in Option price per share. Any
such adjustment made by the Board shall be final and binding upon all
Optionees, the Company and all other interested persons.
(vii) Change in Control. In the event of a Change in Control
each outstanding Option shall become immediately exercisable, regardless
of whether the Option had otherwise become exercisable pursuant to
Section 4(b)(iv).
(c) Exercise of Options.
(i) Person Eligible to Exercise. During the lifetime of the
Optionee, only he or she may exercise an Option granted to him or her or
any portion thereof. After the death of the Optionee, any exercisable
portion of an Option may be exercised by his or her personal
representative or by any person empowered to do so under the deceased
Optionee's will or under the then applicable laws of descent and
distribution. The Company may require appropriate proof from any such
other person of his or her right or power to exercise the Option or any
portion thereof.
(ii) Fractional Shares. The Company shall not be required to
issue fractional shares on exercise of an Option.
(iii) Manner of Exercise. An exercisable Option, or any
exercisable portion thereof, may be exercised solely by delivery to the
Secretary or his or her office of all of the following:
(A) Notice in writing signed by the Optionee or other
person then entitled to exercise such Option or portion thereof, stating
that such Option or portion is exercised, such notice complying with all
applicable rules established by the Board;
(B) Full cash payment for the shares with respect to
which such Option or portion is thereby exercised and which are to be
delivered to him or her pursuant to such exercise; provided, at the
discretion of the Committee, payment may be made in whole or in part in
shares of Common Stock of the Company which Common Stock will be valued
at its then Fair Market Value or in whole or in part pursuant to such
other arrangement, including simultaneous exercise and sale arrangement,
as the Committee, in its absolute discretion, determines; and
(C) Such representations and documents as the Board, in
its absolute discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Securities Act of 1933,
as amended, and any other federal or state securities laws or
regulations. The Board may, in its absolute discretion, also take
whatever additional actions it deems appropriate to effect such
compliance including, without limitation, placing legends on share
certificates and issuing stop-transfer orders to transfer agents and
registrars.
(iv) Conditions to Issuance of Stock Certificates. The shares
of Common Stock deliverable upon exercise of an Option, or any part
thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. In
addition to the satisfaction of the other applicable provisions of the
Plan, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock purchased upon the
exercise of any Option or portion thereof prior to fulfillment of all of
the following conditions:
(A) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed;
(B) The completion of any registration or other
qualification of such shares under any state or federal law or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body which the Company shall, in its
absolute discretion, deem necessary or advisable;
(C) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Company shall, in its
absolute discretion, determine to be necessary or advisable;
(D) The provision for any income tax withholding which
the Company shall, in its absolute discretion, determine to be necessary
or advisable; and
(E) The lapse of such reasonable period of time following
the exercise of the Option as the Company may determine, in its absolute
discretion, from time to time to be necessary or advisable for reasons of
administrative convenience.
(v) Rights of Stockholders. An Optionee shall not be, nor
have any of the rights of, a stockholder of the Company in respect to any
shares that may be purchased upon the exercise of any Option or portion
thereof unless and until certificates representing such shares have been
issued by the Company to such Optionee.
5. Restricted Stock Awards.
(a) Granting of Awards.
(i) Eligibility. Each Outside Director shall be eligible to
be granted Restricted Stock Awards.
(ii) Granting of Awards. Each Outside Director shall be
granted annual Restricted Stock Awards for 1,000 shares of Common Stock,
such Restricted Stock Awards to be made in four installments of 250
shares each on the first business day of each calendar quarter,
commencing July 1, 1995, provided that the Outside Director served as a
member of the Board during any portion of the preceding calendar quarter.
(b) Terms of Restricted Stock Awards.
(i) Restricted Stock Agreement. Each Restricted Stock Award
shall be evidenced by a written Restricted Stock Agreement that shall be
executed by the Grantee and the Company and that shall contain such
restrictions, terms and conditions as are required by the Plan.
(ii) Restrictions on Transfer. The shares of Common Stock
comprising the Restricted Stock Awards may not be sold or otherwise
transferred by the Grantee until the Grantee's Termination of Service.
Although the shares of Common Stock comprising each Restricted Stock
Award shall be registered in the name of the Grantee, physical possession
and custody of the stock certificate representing such shares shall be
retained by the Company until the Termination of Service of the Grantee,
and the Company reserves the right to place a restricted legend on the
stock certificate. Upon the Termination of Service of the Grantee,
certificates representing the shares of Common Stock issued pursuant to
all Restricted Stock Awards made to the Grantee hereunder shall be
delivered to the Grantee. None of such shares of Common Stock shall be
subject to forfeiture.
(iii) Rights as Stockholder.
(A) Subject to the restrictions on transfer set forth in
Section 5(b)(ii) hereof, a Grantee shall have all the rights of a
stockholder with respect to the shares of Common Stock issued pursuant to
Restricted Stock Awards made hereunder, including the right to vote the
shares and receive all dividends and other distributions paid or made
with respect to the shares.
(B) In the event of changes in the capital stock of the
Company by reason of stock dividends, split-ups or combinations of
shares, reclassifications, mergers, consolidations, reorganizations or
liquidations while the shares comprising a Restricted Stock Award shall
be subject to restrictions on transfer, any and all new, substituted or
additional securities to which the Grantee shall be entitled by reason of
the ownership of a Restricted Stock Award shall be subject immediately to
the terms, conditions and restrictions of the Plan.
(C) If a Grantee receives rights or warrants with respect
to any shares comprising a Restricted Stock Award, such rights or
warrants or any shares or other securities acquired by the exercise of
such rights or warrants may be held, exercised, sold or otherwise
disposed of by the Grantee free and clear of the restrictions and
obligations set forth in the Plan.
(iv) Conditions to Issuance of Stock Certificates. The shares
of Common Stock comprising a Restricted Stock Award, or any part thereof,
may be either previously authorized but unissued shares or issued shares
which have then been reacquired by the Company. In addition to the
satisfaction of the other applicable provisions of the Plan, the Company
shall not be required to issue or deliver any certificate or certificates
for shares of Common Stock comprising a Restricted Stock Award or portion
thereof prior to fulfillment of all of the following conditions:
(A) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed;
(B) The completion of any registration or other
qualification of such shares under any state or federal law or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body which the Company shall, in its
absolute discretion, deem necessary or advisable;
(C) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Company shall, in its
absolute discretion, determine to be necessary or advisable;
(D) The provision for any income tax withholding which
the Company shall, in its absolute discretion, determine to be necessary
or advisable; and
(E) The lapse of such reasonable period of time following
the grant of the Restricted Stock Award as the Company may determine, in
its absolute discretion, from time to time to be necessary or advisable
for reasons of administrative convenience.
6. Miscellaneous Provisions.
(a) No Assignment or Transfer. No Option or Restricted Stock
Award, or interest or right therein or part thereof, shall be liable for
the debts, contracts, or engagements of the Optionee or Grantee or his or
her successors in interest nor shall they be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or
any other means, whether such disposition is voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or any
other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect;
provided, however, that nothing in this Section 6(a) shall prevent
transfers by will or by the applicable laws of descent and distribution.
(b) Amendment, Suspension or Termination of the Plan. The Plan may
be wholly or partially amended or otherwise modified, suspended or
terminated at any time or from time to time by the Board. However,
without approval of the Company's stockholders given within 12 months
before or after the action by the Board, no action of the Board may,
except as provided in Section 4(b)(vi), materially modify the
requirements as to eligibility to participate in the Plan, increase the
limits imposed in Section 3(a) on the maximum number of shares that may
be the subject of Options and Restricted Stock Awards granted under the
Plan, amend Section 4(b)(v)(A) or (B) to extend the period during which
an Option may be exercised or otherwise materially increase the benefits
accruing to Outside Directors under the Plan. The provisions of the Plan
relating to the amount, price and timing of the grants of Options and
Restricted Stock Awards shall not be amended more than once in any six-
month period, other than to comport with changes in the Code. Neither
the amendment, suspension nor termination of the Plan shall, without the
consent of the Optionee or Grantee, alter or impair any rights or
obligations under any outstanding Option or Restricted Stock Award. No
Option or Restricted Stock Award may be granted during any period of
suspension nor after termination of the Plan.
(c) Compliance with Rule 16b-3. To the extent that Rule 16b-3
under the Exchange Act applies to Options or Awards granted under the
Plan, it is the intent of the Company that the Plan comply in all
respects with the requirements of Rule 16b-3, that any ambiguities or
inconsistencies in construction of the Plan be interpreted to give effect
to such intention and that if the Plan shall not so comply, whether on
the date of adoption or by reason of any later amendment to or
interpretation of Rule 16b-3, the provisions of the Plan shall be deemed
to be automatically amended so as to bring them into full compliance with
such rule.
(d) Stockholder Approval. Notwithstanding anything to the contrary
set forth herein, no Option may be exercised and no Restricted Stock
Award may be granted until the Plan shall have been approved by the
affirmative vote of the holders of a majority of the shares of the
Company's outstanding Common Stock present or represented and entitled to
vote at a duly convened meeting of stockholders.
(e) Titles. Titles are provided herein for convenience only and
are not to serve as a basis for interpretation or construction of the
Plan.
Adopted by the Board of Directors on March 23, 1995.
Approved by the Stockholders on May 18, 1995.
Duane, Morris & Heckscher
Attorneys at Law
One Liberty Place
Philadelphia, PA 19103-7396
June 23, 1995
The Board of Directors of
Imo Industries Inc.
1009 Lenox Drive
Building Four West
P.O. Box 6550
Lawrenceville, NJ 08648-0550
Gentlemen:
We have acted as counsel to Imo Industries Inc. (the "Company")
in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
registration statement on Form S-8 (the "Registration Statement")
relating to the offer and sale by the Company of up to 240,000 shares
(the "Shares") of Common Stock, $1.00 par value, of the Company,
pursuant to the Company's 1995 Equity Incentive Plan for Outside
Directors (the "Plan").
As counsel to the Company, we have supervised all corporate
proceedings in connection with the preparation and filing of the
Registration Statement. We have also examined the Company's Certificate
of Incorporation and By-laws, as amended to date, the corporate minutes
and other proceedings and the records relating to the authorization,
sale and issuance of the Shares, and such other documents and matters of
law as we have deemed necessary or appropriate in order to render this
opinion.
Based upon the foregoing, it is our opinion that each of the
Shares, when issued in accordance with the terms and conditions of the
Plan and any option, right or award granted
thereunder, will be duly authorized, legally and validly issued and
outstanding, fully paid and nonassessable.
We hereby consent to the use of this opinion in the Registration
Statement.
Sincerely,
/s/DUANE, MORRIS & HECKSCHER
Duane, Morris & Heckscher
Duane, Morris & Heckscher
Attorneys at Law
One Liberty Place
Philadelphia, PA 19103-7396
June 23, 1995
The Board of Directors of
Imo Industries Inc.
1009 Lenox Drive
Building Four West
P.O. Box 6550
Lawrenceville, NJ 08648-0550
Gentlemen:
We have acted as counsel to Imo Industries Inc. (the "Company")
in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
registration statement on Form S-8 (the "Registration Statement")
relating to the offer and sale by the Company of up to 240,000 shares
(the "Shares") of Common Stock, $1.00 par value, of the Company,
pursuant to the Company's 1995 Equity Incentive Plan for Outside
Directors (the "Plan").
As counsel to the Company, we have supervised all corporate
proceedings in connection with the preparation and filing of the
Registration Statement. We have also examined the Company's Certificate
of Incorporation and By-laws, as amended to date, the corporate minutes
and other proceedings and the records relating to the authorization,
sale and issuance of the Shares, and such other documents and matters of
law as we have deemed necessary or appropriate in order to render this
opinion.
Based upon the foregoing, it is our opinion that each of the
Shares, when issued in accordance with the terms and conditions of the
Plan and any option, right or award granted
thereunder, will be duly authorized, legally and validly issued and
outstanding, fully paid and nonassessable.
We hereby consent to the use of this opinion in the Registration
Statement.
Sincerely,
/s/DUANE, MORRIS & HECKSCHER
Duane, Morris & Heckscher
EXHIBIT 23.2 -- CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 dated June 23, 1995) pertaining to the Imo Industries
Inc. 1995 Equity Incentive Plan for Outside Directors of our report dated
February 15, 1995, with respect to the consolidated financial statements
and schedules of Imo Industries Inc. included in the Annual Report (Form
10-K) for the year ended December 31, 1994.
ERNST & YOUNG LLP
Princeton, New Jersey
June 21, 1995
