Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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C&D TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware 13-3314599
(State of Incorporation) (I.R.S. Employer
Identification No.)
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
(215) 619-2700
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
C&D TECHNOLOGIES, INC. 1998 STOCK OPTION PLAN
(Full title of the plan)
Mr. Alfred Weber
Chairman of the Board, CEO, and President
C&D TECHNOLOGIES, INC.
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
(215) 619-2700
(Name, address, and telephone number of agent for service)
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Copy to:
Steven L. Kirshenbaum, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
(212) 969-3000
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Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement has become effective.
If the only securities being registered on this Form are
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being offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plan, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Securities Amount To Be Offering Price
To Be Registered Registered Per Share (1)
Common Stock
$.01 par value 300,000 shares $56.625
Proposed Maximum
Aggregate Offering Amount of
Price Registration Fee
$16,987,500 $5,011.31
(1) The price stated is estimated, based on the average of the high and low
prices of common stock on the New York Stock Exchange on July 8, 1998, solely
for the purpose of calculating the registration fee, pursuant to Rule 457 under
the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference into this Prospectus:
(a) The annual report of C&D TECHNOLOGIES, INC. (the "Company") on Form
10-K for the fiscal year ended January 31, 1998;
(b) The Company's quarterly report on Form 10-Q for the period ended April
30, 1998;
(c) The Company's Current Report on Form 8-K, dated June 30, 1998; and
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(d) The description of the Company's Common Stock contained in the
Company's Registration statement filed on Form 8-A (No. 1-9389) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
All annual reports on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K, definitive information or proxy statements and other
reports filed with the Securities and Exchange Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act, subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which indicates
that all the securities offered by this Prospectus have been sold or which
deregisters all the securities remaining unsold shall be deemed to be
incorporated by reference into this Prospectus to be part hereof from the date
of filing of such documents. These documents are or will be available for
inspection and copying at the locations identified above. Any statement
contained in a document incorporated or deemed to be incorporated by reference
shall be deemed to be modified or superseded for purposes of the Registration
Statement or the Prospectus to the extent that a statement contained in the
Prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by reference modifies or replaces such statement.
The Company's annual report on Form 10-K contains consolidated balance
sheets of the Company and its subsidiaries as of January 31, 1998 and 1997, and
the related consolidated statements of income, shareholders' equity and cash
flows for each of the three years ended January 31, 1998. Said financial
statements, which have been incorporated by reference in this Prospectus, have
been audited by Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that Firm as experts in accounting and auditing.
The Company undertakes to provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy of
any and all information that has been incorporated by reference in the
registration statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that the registration statement incorporates).
Such request should be directed to the Vice President-Finance of the Company,
Stephen E. Markert, Jr., 1400 Union Meeting Road, Blue Bell, Pennsylvania 19422,
telephone number (215) 619-2700.
The Company's principal executive office is located at 1400 Union Meeting
Road, Blue Bell, Pennsylvania 19422. Its telephone number is (215) 619-2700.
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Item 4. Description of Securities
The description of the shares of Common Stock contained in the Company's
Registration Statement on Form 8-A (Registration No. 1-9389) is hereby
incorporated by reference.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock offered hereby has been passed
upon by Proskauer Rose LLP, 1585 Broadway, New York, New York 10036. Glenn M.
Feit, a partner of Proskauer Rose LLP, is a member of the Board of Directors and
is secretary of the Company.
Item 6. Indemnification of Directors and Officers
Under section 145 of the Delaware General Corporation Law, a corporation
may indemnify its directors, officers, employees and agents against judgments,
fines, amounts paid in settlement, and reasonable costs, expenses and counsel
fees paid or incurred in connection with any proceeding, other than an action by
or in the right of the corporation, to which such director, officer, employee or
agent or his legal representative may be a party, provided such director,
officer, employee or agent shall have acted in good faith and shall have
reasonably believed (a) in the case of a civil proceeding, that his conduct was
in or not opposed to the best interests of the corporation, and (b) in the case
of a criminal proceeding, that he had no reasonable cause to believe his conduct
was unlawful. In connection with an action by or in the right of the corporation
against a director, officer, employee or agent, the corporation has the power to
indemnify such director, officer, employee or agent for reasonable expenses
incurred in connection with such suit (a) if such person acted in good faith and
in a manner he reasonably believed was not opposed to the best interest of the
corporation and (b) if found liable to the corporation, only if ordered by a
court of law. Section 145 also provides that such section is not exclusive of
any other indemnification rights granted by the corporation to directors,
officers, employees or agents. The Company's Restated Certificate of
Incorporation provides that the Company shall, to the fullest extent permitted
by law, indemnify all persons who it may indemnify pursuant thereto.
In addition, the Company's Restated Certificate of Incorporation contains a
provision eliminating the liability of a director to the Company or its
stockholders for breach of fiduciary duty as a director, other than liability
(i) for 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 of a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, (iv) for any transaction from which the
director derived an improper personal benefit or (v) for any act or omission
occurring prior to December 29, 1986.
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The Company's Bylaws provide that the Company shall, to the fullest extent
permitted by law, indemnify any person, the heirs, executors or administrators
of such 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 (brought by or in the
right of the Company or otherwise), whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against all expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by such person or such heirs, executors or
administrators in connection with such action, suit or proceeding. In addition,
the Company may, in the discretion of the Board of Directors, pay expenses
incurred in defending any action, suit or proceeding in advance of the final
disposition of such action, suit, or proceeding. The Company may also purchase
or maintain insurance on behalf of any person described in the foregoing section
of the Bylaws against any liability asserted against him, whether or not the
Company would have the power to indemnify him against such liability by law.
Furthermore, the Bylaws provide that the indemnification provided for therein
shall not be deemed exclusive of any other rights to indemnification to which
those seeking indemnification may be entitled under any By-law, agreement, vote
of stockholders or disinterested directors, or otherwise.
The Company maintains directors and officers liability insurance policies,
insuring, with certain exceptions and conditions, the Company's directors and
officers in their capacity as such against liability with respect to certain
specified proceedings. In addition to covering directors and officers of the
Company, the policies also insure the Company against amounts paid by it to
indemnify directors and officers.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
EXHIBIT
NUMBER DESCRIPTION LOCATION
4.1 Restated Certificate Incorporated by reference to
of Incorporation Exhibit 3.2 to the Company's
Current Report on Form 8-K
dated June 30, 1998
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4.2 Bylaws of the Incorporated by reference to
Company Exhibit 3.2 to the Company's
Annual Report on Form 10-K for
the fiscal year ended January
31, 1996
5.1 Opinion of Proskauer Filed herewith
Rose LLP
10.1 C&D TECHNOLOGIES, INC.
1998 Stock Option Plan Filed herewith
15 Letter re unaudited Filed herewith
interim financial
information
23.1 Consent of Pricewater- Filed herewith
houseCoopers LLP
23.2 Consent of Proskauer Contained in Exhibit 5.1
Rose LLP
24 Powers of attorney to Appear on the signature pages
sign amendment to this
Registration Statement
Item 9. Undertakings
A. To Update Annually
C&D TECHNOLOGIES, INC., the undersigned registrant (the "Registrant"),
hereby undertakes that, for purposes of determining any liability under the 1933
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the 1934 Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
B. Indemnification
Insofar as indemnification for liabilities arising under the 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 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,
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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 1933 Act
and will be governed by the final adjudication of such issue.
C. To File Post-Effective Amendments, As May Be Required
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 1933 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the 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 in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the 1934 Act that are incorporated
by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the 1933 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.
D. Incorporated Annual and Quarterly Reports
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information to be presented by Article 3 of
Regulation S-X are to set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, C&D TECHNOLOGIES, INC., the
Registrant, certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Blue Bell, State of Pennsylvania, on the 15th
day of July, 1998.
C&D TECHNOLOGIES, INC.
By: /s/ ALFRED WEBER
Alfred Weber,
Chairman of the Board,
Chief Executive Officer
and President
Pursuant to the requirements of the 1933 Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby authorizes and
appoints Alfred Weber and Stephen E. Markert, Jr., or either of them, as his or
her attorney-in-fact to sign and file on his or her behalf individually and in
each capacity stated below any and all amendments and post-effective amendments
to this Registration Statement.
Signature Title Date
/s/ALFRED WEBER Director, Chairman of July 15, 1998
Alfred Weber the Board, Chief
Executive Officer,
Chief Operating Officer
and President (Principal
Executive Officer)
/s/STEPHEN E. MARKERT, JR. Vice President-Finance July 15, 1998
Stephen E. Markert, Jr. (Principal Financial
Officer and Principal
Accounting Officer)
/s/KEVIN P. DOWD Director July 15, 1998
Kevin P. Dowd
/s/GLENN M. FEIT Director July 15, 1998
Glenn M. Feit
/s/WILLIAM HARRAL III Director July 15, 1998
William Harral III
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/s/PAMELA S. LEWIS Director July 15, 1998
Pamela S. Lewis
/s/ALAN G. LUTZ Director July 15, 1998
Alan G. Lutz
/s/JOHN A. H. SHOBER Director July 15, 1998
John A. H. Shober
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Index to Exhibits
Exhibit
Number Description Page No.
4.1 Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.2
to the Company's Current Report on Form
8-K, dated June 30, 1998)
4.2 Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the fiscal
year ended January 31, 1996)
5.1 Opinion of Proskauer Rose LLP
10.1 C&D TECHNOLOGIES, INC. 1998
Stock Option Plan
15 Letter re unaudited interim financial
information
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Proskauer Rose LLP (Contained
in Exhibit 5.1)
24 Powers of attorney to sign amendments to
this Registration Statement (Contained in
signature page)
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EXHIBIT 5.1
July 15, 1998
The Board of Directors
C&D Technologies, Inc.
1400 Union Meeting Road
Blue Bell, Pennsylvania 19422
Ladies and Gentlemen:
We have acted as counsel to C&D TECHNOLOGIES, INC. (the "Company") in
connection with the Registration Statement on Form S-8 (together with the
exhibits thereto, the "Registration Statement") filed by the Company under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, relating to the registration of 300,000 shares (the "Shares") of
common stock, par value $.01 per share, of the Company. The Shares to be issued
and sold pursuant to the Registration Statement are issuable under the C&D
TECHNOLOGIES, INC. 1998 Stock Option Plan (the "Plan").
As such counsel, we have reviewed the corporate proceedings in connection
with the adoption of the Plan. We have also examined and relied upon originals
or copies, certified or otherwise identified to our satisfaction, of all such
corporate records, documents, agreements and instruments relating to the
Company, and certificates of public officials and of representatives of the
Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper or necessary as a basis for rendering this opinion. We
have also assumed without investigation the authenticity of any document
submitted to us as a copy, the authenticity of the originals of such documents,
the genuineness of all signatures and the legal capacity of natural persons who
signed such documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued pursuant to the Plan or upon
the valid exercise of options granted under the Plan, will be legally issued,
fully paid and non-assessable.
Glenn M. Feit, a member of this firm, is a director and the Secretary of
the Company.
The foregoing opinion relates only to matters of the internal law of the
State of New York and to the General Corporation Law of the State of Delaware
and to matters of federal law and does not purport to express any opinion on the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
EXHIBIT 10.1
C&D TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
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TABLE OF CONTENTS
PAGE
ARTICLE I. PURPOSE............................................A-1
ARTICLE II. DEFINITIONS........................................A-1
ARTICLE III. ADMINISTRATION.....................................A-3
ARTICLE IV. SHARE AND OTHER LIMITATIONS........................A-5
ARTICLE V. STOCK OPTIONS......................................A-6
ARTICLE VI. NON-EMPLOYEE DIRECTOR STOCK OPTIONS................A-8
ARTICLE VII. GRANT OF SHARES OF COMMON STOCK
TO NON-EMPLOYEE DIRECTORS..........................A-9
ARTICLE VIII. NON-TRANSFERABILITY AND TERMINATION OF
EMPLOYMENT/CONSULTANCY PROVISIONS.................A-10
ARTICLE IX. TERMINATION OR AMENDMENT OF PLAN..................A-11
ARTICLE X. UNFUNDED PLAN.....................................A-12
ARTICLE XI. GENERAL PROVISIONS................................A-12
ARTICLE XII. EFFECTIVE DATE OF PLAN............................A-13
ARTICLE XIII. TERM OF PLAN......................................A-14
ARTICLE XIV. NAME OF PLAN......................................A-14
(i)
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C&D TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
ARTICLE I.
PURPOSE
The purpose of the C&D TECHNOLOGIES, INC. 1998 Stock Option Plan (the
"PLAN") is to enhance the profitability and value of C&D TECHNOLOGIES, INC. (the
"COMPANY") and its Affiliates for the benefit of the Company's stockholders by
enabling the Company to offer Eligible Employees and Consultants of the Company
and its Affiliates, as well as Non-Employee Directors of the Company, Stock
Options in the Company, and to offer Non-Employee Directors shares of Common
Stock. The intent of such offering is to raise the level of stock ownership by
Eligible Employees, Consultants and Non-Employee Directors in order to attract,
retain and reward such individuals and strengthen the mutuality of interests
between them and the Company's stockholders.
ARTICLE II.
DEFINITIONS
For purposes of this Plan, the following terms shall have the following
meanings:
"AFFILIATE" shall mean (i) any Subsidiary; or (ii) any corporation, trade
or business (including, without limitation, a partnership or limited
liability company) which is controlled 50% or more (whether by ownership of
stock, assets or an equivalent ownership interest or voting interest) by
the Company or one of its Affiliates.
"BOARD" shall mean the Board of Directors of the Company.
"CAUSE" shall mean (i) if the Participant is a party to an employment
agreement with the Company or an Affiliate, the grounds for termination for
cause thereunder and (ii) in all other cases, whatever a court of competent
jurisdiction would consider grounds for termination for cause under the
circumstances.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, including
the rules and regulations thereunder. Any reference to any section of the
Code shall also be a reference to any successor provision.
"COMMITTEE" shall mean a committee or subcommittee of the Board appointed
from time to time by the Board, which committee or subcommittee shall
consist of two or more non-employee directors, each of whom is intended to
be, to the extent required by Rule 16b-3 and Section 162(m) of the Code, a
"non-employee director" as defined in Rule 16b-3 and an "outside director"
as defined under Section 162(m) of the Code. To the extent that no
Committee exists which has the authority to administer this
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Plan, the functions of the Committee shall be exercised by the Board and
the term "Committee" as used in this Plan shall refer to the Board. If for
any reason the appointed Committee does not meet the requirements of Rule
16b-3 or Section 162(m) of the Code, such noncompliance with the
requirements of Rule 16b-3 and Section 162(m) of the Code shall not affect
the validity of awards, grants, interpretations or other actions of the
Committee.
"COMMON STOCK" shall mean the common stock, $.01 par value, of the Company.
"COMPANY" shall mean C&D TECHNOLOGIES, INC., a Delaware corporation.
"CONSULTANT" shall mean any natural person who is an adviser or consultant
to the Company or its Affiliates.
"DISABILITY" shall mean total and permanent disability, as defined in
Section 22(e)(3) of the Code.
"EFFECTIVE DATE" shall mean the effective date of this Plan as defined in
ARTICLE XII.
"ELIGIBLE EMPLOYEE" shall mean any employee of the Company or its
Affiliates. Notwithstanding the foregoing, with respect to the grant of
Incentive Stock Options, Eligible Employee shall mean any employee of the
Company or any Subsidiary.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXTRAORDINARY TRANSACTION" shall have the meaning set forth in SECTION
4.2(d).
"FAIR MARKET VALUE", unless otherwise required by any applicable provision
of the Code or any regulations issued thereunder, shall mean, as of any
date, the last sales price reported for the Common Stock on the applicable
date: (i) as reported on the principal national securities exchange on
which it is then traded or the Nasdaq Stock Market, Inc. or (ii) if not
traded on any such national securities exchange or the Nasdaq Stock Market,
Inc., as quoted on an automated quotation system sponsored by the National
Association of Securities Dealers. If the Common Stock is not readily
tradable on a national securities exchange, the Nasdaq Stock Market, Inc.,
or any automated quotation system sponsored by the National Association of
Securities Dealers, its Fair Market Value shall be set in good faith by the
Committee.
"INCENTIVE STOCK OPTION" shall mean any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422
of the Code.
"NON-EMPLOYEE DIRECTOR" shall mean any director of the Company who is not
an employee of the Company or any Affiliate.
"NON-QUALIFIED STOCK OPTION" shall mean any Stock Option that is not an
Incentive Stock Option.
"PARTICIPANT" shall mean any Eligible Employee, Consultant or Non-Employee
Director to whom a Stock Option has been granted.
"RULE 16b-3" shall mean Rule 16b-3 under Section 16(b) of the Exchange Act
as then in effect or any successor provisions.
A-2
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"SECTION 162(m) OF THE CODE" shall mean the exception for performance-based
compensation under Section 162(m) of the Code.
"STOCK OPTION" shall mean any option to purchase shares of Common Stock
granted to Eligible Employees or Consultants pursuant to ARTICLE V or
granted to Non-Employee Directors pursuant to ARTICLE VI.
"SUBSIDIARY" shall mean any subsidiary corporation of the Company within
the meaning of Section 424(f) of the Code.
"TEN PERCENT STOCKHOLDER" shall mean a person owning stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any parent corporation, as defined in Section
424(e) of the Code.
"TERMINATION OF CONSULTANCY" shall mean, with respect to a Consultant, that
the Consultant is no longer acting as a Consultant to the Company and its
Affiliates. In the event an entity shall cease to be an Affiliate, there
shall be deemed a Termination of Consultancy of any individual who is a
consultant of that entity and is not otherwise a Consultant of the Company
or another Affiliate at the time the entity ceases to be an Affiliate.
"TERMINATION OF DIRECTORSHIP" shall mean, with respect to a Non-Employee
Director, that the Non-Employee Director has ceased to be a director of the
Company.
"TERMINATION OF EMPLOYMENT" shall mean: (i) a termination of service of a
Participant from the Company and its Affiliates; or (ii) when an entity
which is employing a Participant ceases to be an Affiliate, unless the
Participant thereupon becomes employed by the Company or another Affiliate.
"TRANSFER" OR "TRANSFERRED" shall mean anticipate, alienate, attach, sell,
assign, pledge, encumber, charge or otherwise transfer.
ARTICLE III.
ADMINISTRATION
3.1. THE COMMITTEE. This Plan shall be administered and interpreted by the
Committee. Subject to the other provisions of this Plan, the Committee shall
have the authority to adopt, alter and repeal such administrative rules
governing this Plan and perform all acts, including the delegation of its
administrative responsibilities, as it shall, from time to time, deem advisable;
to construe and interpret this Plan and any Stock Option granted hereunder (and
any agreements relating thereto). The Committee may correct any defect, supply
any omission or reconcile any inconsistency in this Plan or in any agreement
relating thereto in the manner and to the extent it shall deem necessary to
carry this Plan into effect, but only to the extent any such action would be
permitted under the applicable provisions of both Rule 16b-3 and Section 162(m)
of the Code. The Committee may adopt rules for persons who are residing in, or
subject to, the taxes of, countries other than the United States to comply with
applicable tax and securities laws. To the extent applicable, this Plan is
intended to comply with the applicable requirements of Rule 16b-3 and Section
162(m) of the Code and shall be limited, construed and interpreted in a manner
so as to comply therewith. The Board, its directors, the Committee, its members
and any person to whom authority is delegated
A-3
<PAGE>
pursuant to this SECTION 3.1 shall not be liable for any action or determination
made in good faith with respect to this Plan.
3.2. AWARDS. The Committee shall have full authority to grant Stock Options
to Eligible Employees and Consultants and to otherwise administer this Plan. In
particular, the Committee shall have the authority:
(a) to select Eligible Employees and Consultants to whom Stock
Options may from time to time be granted hereunder;
(b) to determine the number of shares of Common Stock to be
covered by each Stock Option granted to an Eligible Employee or
Consultant, and the terms and conditions of the Stock Option
(including, but not limited to, the exercise or purchase price (if
any), any restriction or limitation, any vesting schedule or
acceleration thereof or any forfeiture restrictions or waiver thereof,
regarding any Stock Option, and the shares of Common Stock relating
thereto, based on such factors, if any, as the Committee shall
determine in its sole discretion);
(c) to modify or extend a Stock Option, subject to SECTION 9.1
herein; and
(d) to offer to buy out a Stock Option previously granted, based
on such terms and conditions as the Committee shall establish and
communicate to the Participant at the time such offer is made.
3.3. DECISIONS FINAL. Any decision, interpretation or other action made or
taken in good faith by or at the direction of the Company, the Board or the
Committee (or any of its members) arising out of or in connection with this Plan
shall be within the absolute discretion of the Company, the Board or the
Committee, as the case may be, and shall be final, binding and conclusive on the
Company and its Affiliates and all employees and Participants and their
respective heirs, executors, administrators, successors and assigns.
3.4. RELIANCE ON COUNSEL. The Company, the Board or the Committee may
consult with legal counsel, who may be counsel for the Company or other counsel,
with respect to its obligations or duties hereunder, or with respect to any
action or proceeding or any question of law, and shall not be liable with
respect to any action taken or omitted by it in good faith pursuant to the
advice of such counsel. The Company, the Board or the Committee may also engage
consultants or agents with regard to the plan. Expenses incurred in the
engagement of any such counsel, consultant or agent shall be paid by the
Company.
3.5. PROCEDURES. If the Committee is appointed, the Board shall designate
one of the members of the Committee as chairman and the Committee shall hold
meetings, subject to the By-Laws of the Company, at such times and places as the
Committee shall deem advisable. A majority of the Committee members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. Any decision or determination reduced to writing and
signed by all the Committee members in accordance with the By-Laws of the
Company shall be fully as effective as if it had been made by a vote at a
meeting duly called and held.
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ARTICLE IV.
SHARE AND OTHER LIMITATIONS
4.1. SHARES.
(a) The aggregate number of shares of Common Stock which may be issued
and with respect to which Stock Options may be granted under this Plan
shall not exceed 300,000 shares (subject to any increase or decrease
pursuant to SECTION 4.2) which may be either authorized and unissued Common
Stock or Common Stock held in or acquired for the treasury of the Company.
If any Stock Option expires, terminates or is canceled for any reason
without having been exercised in full, the number of shares of Common Stock
underlying any unexercised Stock Option shall again be available under this
Plan. In addition, in determining the number of shares of Common Stock
available under the Plan other than for the granting of Incentive Stock
Options, if Common Stock has been exchanged by a Participant as full or
partial payment to the Company in connection with the exercise of a Stock
Option, the number of shares of Common Stock exchanged as payment in
connection with the exercise shall again be available under this Plan.
(b) The maximum number of shares of Common Stock with respect to which
Stock Options may be granted under this Plan during any calendar year of
the Company to each Eligible Employee shall be 100,000 shares (subject to
any increase or decrease pursuant to this SECTION 4.2). To the extent that
shares of Common Stock for which Stock Options are permitted to be granted
to a Participant pursuant to SECTION 4.1(b) during a calendar year of the
Company are not covered by a grant of a Stock Option in the Company's
calendar year, such shares of Common Stock shall be available for grant or
issuance to the Participant in any subsequent calendar year during the term
of this Plan.
4.2. CHANGES.
(a) The existence of this Plan and the shares of Common Stock and Stock
Options granted hereunder shall not affect in any way the right or power of
the Board or the stockholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the
Company's capital structure or its business, any merger or consolidation of
the Company or Affiliates, any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting Common Stock, the
authorization or issuance of additional shares of Common Stock, the
dissolution or liquidation of the Company or Affiliates, any sale or
transfer of all or part of its assets or business or any other corporate
act or proceeding.
(b) In the event of any change in the capital structure or business of
the Company by reason of any stock dividend, stock split or reverse stock
split, recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of shares, distribution with respect to its
outstanding Common Stock or capital stock other than Common Stock,
reclassification of its capital stock, any sale or transfer of all or part
of the Company's assets or business, or any similar change affecting the
Company's capital structure or business, and if the Committee determines an
adjustment is appropriate under this Plan, then the aggregate number and
kind of shares which thereafter may be issued under this Plan, the number
and kind of shares or other property (including cash) to be issued upon
exercise of an outstanding Stock Option granted under this Plan and the
purchase or exercise price thereof shall be appropriately adjusted. Any
such adjustment shall be consistent with such change and be made in a
manner that the Committee deems equitable to prevent substantial dilution
or enlargement of the rights
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granted to, or available for, Participants under this Plan or as otherwise
necessary to reflect the change. Any such adjustment determined by the
Committee in good faith shall be binding and conclusive on the Company and
all Participants and employees and their respective heirs, executors,
administrators, successors and assigns.
(c) Fractional shares of Common Stock resulting from any adjustment in
Stock Options pursuant to SECTION 4.2(a) or (b) shall be aggregated until,
and eliminated at, the time of exercise by rounding-down for fractions less
than one-half and rounding-up for fractions equal to or greater than
one-half. No cash settlements shall be made with respect to fractional
shares eliminated by rounding. Notice of any adjustment shall be given by
the Committee to each Participant whose Stock Option has been adjusted and
such adjustment (whether or not such notice is given) shall be effective
and binding for all purposes of this Plan.
(d) In the event of (i) a merger or consolidation in which the Company
is not the surviving entity or in which the Company is the surviving entity
but the holders of the Common Stock outstanding immediately prior to the
consummation of the transaction are not the holders of a majority of the
Common Stock outstanding immediately subsequent to the transaction, or (ii)
in the event of any transaction that results in the acquisition of all or
substantially all of the Company's outstanding Common Stock by a single
person or entity or by a group of persons and/or entities acting in
concert, or in the event of the sale or transfer of all or substantially
all of the Company's assets (all of the foregoing being referred to as
"EXTRAORDINARY TRANSACTIONS"), then in any such event the Committee may, in
its sole discretion, terminate all outstanding Stock Options, effective as
of the date of the Extraordinary Transaction by delivering notice of
termination to each such Participant at least 30 days prior to the date of
consummation of the Extraordinary Transaction; PROVIDED, that during the
period from the date on which such notice of termination is delivered to
the consummation of the Extraordinary Transaction, each such Participant
shall have the right to exercise in full all of his or her Stock Options
that are then outstanding (whether vested or not vested) but contingent on
the occurrence of the Extraordinary Transaction; PROVIDED, FURTHER, that,
if the Extraordinary Transaction does not take place within a specified
period after giving such notice for any reason whatsoever, the notice and
exercise shall be null and void. If an Extraordinary Transaction occurs, to
the extent the Committee does not terminate the outstanding Stock Options
pursuant to this SECTION 4.2(d), then the provisions of SECTION 4.2(b)
shall apply.
ARTICLE V.
STOCK OPTIONS
5.1. STOCK OPTIONS. Each Stock Option granted hereunder shall be one of two
types: (i) an Incentive Stock Option intended to satisfy the requirements of
Section 422 of the Code, or (ii) a Non-Qualified Stock Option.
5.2. GRANTS. The Committee shall have the authority to grant to any
Eligible Employee one or more Incentive Stock Options, Non-Qualified Stock
Options, or both types of Stock Options. To the extent that any Stock Option
does not qualify as an Incentive Stock Option (whether because of its provisions
or the time or manner of its exercise or otherwise), such Stock Option or the
portion thereof which does not so qualify shall constitute a separate
Non-Qualified Stock Option. The Committee shall have the authority to grant to
any Consultant one or more Non-Qualified Stock Options. Notwithstanding any
other provision of this Plan to the contrary or any provision in an agreement
evidencing the grant of a Stock Option to the
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contrary, any Stock Option granted to an Employee of an Affiliate (other than a
Subsidiary), a Non-Employee Director or a Consultant shall be a Non-Qualified
Stock Option.
5.3. TERMS OF STOCK OPTIONS. Stock Options shall be subject to the
following terms and conditions, and shall be in such form and contain such
additional terms and conditions, not inconsistent with the terms of this Plan,
as the Committee shall deem desirable:
(a) The exercise price per share of Common Stock subject to a Stock
Option granted under this ARTICLE V shall be determined by the Committee at
the time of grant but shall not be less than 100% of the Fair Market Value
of a share of Common Stock at the time of grant; provided, however, that if
an Incentive Stock Option is granted to a Ten Percent Stockholder, the
exercise price per share shall be no less than 110% of the Fair Market
Value of the Common Stock.
(b) The term of each Stock Option shall be fixed by the Committee but
no Stock Option shall be exercisable more than 10 years after the date the
Stock Option is granted; PROVIDED, HOWEVER, the term of an Incentive Stock
Option granted to a Ten Percent Stockholder may not exceed five years.
(c) Stock Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the
Committee at the time of grant. If the Committee provides, in its
discretion, that any Stock Option is exercisable subject to certain
limitations (including, without limitation, that it is exercisable only in
installments or within certain time periods), the Committee may waive such
limitations on the exercisability at any time at or after the time of grant
in whole or in part, based on such factors, if any, as the Committee shall
determine in its sole discretion.
(d) Subject to whatever installment exercise and waiting period
provisions apply under SECTION 5.3(c), Stock Options may be exercised in
whole or in part at any time during the Stock Option term, by giving
written notice of exercise to the Company specifying the number of shares
to be purchased. Common Stock purchased pursuant to the exercise of a Stock
Option shall be paid for at the time of exercise as follows: (i) in cash or
by check, bank draft or money order payable to the order of Company; (ii)
if the Common Stock is traded on a national securities exchange, the Nasdaq
Stock Market, Inc. or quoted on a national quotation system sponsored by
the National Association of Securities Dealers, through the delivery of
irrevocable instructions to a broker to deliver promptly to the Company an
amount equal to the purchase price; or (iii) on such other terms and
conditions as may be acceptable to the Committee or the Board, as
applicable (which may include payment in full or part in the form of Common
Stock owned by the Participant (and for which the Participant has good
title free and clear of any liens and encumbrances) based on the Fair
Market Value of the Common Stock on the payment date as determined by the
Committee or the Board or the surrender of vested Stock Options owned by
the Participant). No shares of Common Stock shall be issued until payment
therefor, as provided herein, has been made or provided for.
(e) To the extent that the aggregate Fair Market Value (determined as
of the time of grant) of the Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by an Eligible Employee
during any calendar year under this Plan and/or any other stock option plan
of the Company, any Subsidiary or any parent corporation (within the
meaning of Section 424(e) of the Code) exceeds $100,000, such Stock Options
shall be treated as Non-Qualified Stock Options. In addition, if an
Eligible Employee's employment by the Company, a Subsidiary or a parent
corporation (within the meaning of Section 424(e) of the Code) terminates
more than three months prior to the date of exercise (or such other period
as required by applicable law), such Stock Option shall be treated as a
Non-Qualified Stock Option. Should the foregoing provision not be necessary
in order for the Stock
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Options to qualify as Incentive Stock Options, or should any additional
provisions be required, the Committee may amend this Plan accordingly,
without the necessity of obtaining the approval of the stockholders of the
Company.
(f) Subject to the terms and conditions of this Plan, a Stock Option
shall be evidenced by such form of agreement or grant as is approved by the
Committee and the Committee may modify, extend or renew outstanding Stock
Options granted under this Plan (provided that the rights of a Participant
are not reduced without his consent), or accept the surrender of
outstanding Stock Options (up to the extent not theretofore exercised) and
authorize the granting of new Stock Options in substitution therefor (to
the extent not theretofore exercised).
(g) Stock Options may contain such other provisions, which shall not be
inconsistent with any of the foregoing terms of this Plan, as the Committee
shall deem appropriate including, without limitation, permitting "reloads"
such that the same number of Stock Options are granted as the number of
Stock Options exercised, shares used to pay for the exercise price of Stock
Options or shares used to pay withholding taxes ("RELOADS"). With respect
to Reloads, the exercise price of the new Stock Option shall be the Fair
Market Value on the date of the "reload" and the term of the Stock Option
shall be the same as the remaining term of the Stock Options that are
exercised, if applicable, or such other exercise price and term as
determined by the Committee.
ARTICLE VI.
NON-EMPLOYEE DIRECTOR STOCK OPTIONS
6.1. STOCK OPTIONS. The terms of this ARTICLE VI shall apply only to Stock
Options granted to Non-Employee Directors.
6.2. GRANTS. On the date of the Annual Meeting of Stockholders of the
Company held in 1998, and on the date of the Annual Meeting of Stockholders of
the Company in each year thereafter while shares of Common Stock remain
available for the grant of Stock Options hereunder, each Non-Employee Director
shall be automatically granted Stock Options to purchase 1,000 shares of Common
Stock. A Non-Employee Director who is first elected or appointed to the Board
after the Annual Meeting of Stockholders in any year shall upon such election or
appointment automatically be granted a PRO RATA portion of the Stock Options
referred to in the preceding sentence, based upon the portion of the period
between Annual Meetings of Stockholders that such Non-Employee Director is
expected to serve in such capacity.
6.3. NON-QUALIFIED STOCK OPTIONS. Stock Options granted under this ARTICLE
VI shall be Non-Qualified Stock Options.
6.4. TERMS OF OPTIONS. Stock Options granted under this ARTICLE VI shall be
subject to the following terms and conditions and shall be in such form and
contain such additional terms and conditions, not inconsistent with terms of
this Plan, as the Committee shall deem desirable:
(a) The exercise price per share of Common Stock subject to a Stock
Option granted pursuant to SECTION 6.2 shall be equal to 100% of the Fair
Market Value of Common Stock at the time of grant.
(b) Stock Options granted under this ARTICLE VI shall be exercisable
immediately upon grant.
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(c) A Non-Employee Director electing to exercise one or more Stock
Options shall give written notice of exercise to the Company specifying the
number of shares to be purchased. Common Stock purchased pursuant to the
exercise of a Stock Option shall be paid for as provided in SECTION 5.3(d).
No shares of Common Stock shall be issued until payment therefore, as
provided herein, has been made or provided for.
(d) Except as otherwise provided herein, if not previously exercised
each Stock Option shall expire upon the tenth anniversary of the date of
the grant thereof.
(e) Stock Options granted to a Non-Employee Director under this ARTICLE
VI shall be subject to SECTION 4.2.
6.5. TERMINATION OF DIRECTORSHIP. The following rules apply with regard to
Stock Options granted under this ARTICLE VI upon a Termination of Directorship:
(a) Except as otherwise provided herein, upon a Termination of
Directorship on account of death or Disability, all then outstanding Stock
Options shall remain exercisable by the Participant or, in the case of
death, by the Participant's estate or by the person given authority to
exercise such Stock Options by his or her will or by operation of law, at
any time within a period of one year from the date of such Termination of
Directorship, but in no event beyond the expiration of the stated term of
such Stock Option.
(b) Except as otherwise provided herein, upon a Termination of
Directorship on account of retirement, resignation, failure to stand for
reelection or failure to be reelected or otherwise other than as set forth
in (c) below, all then outstanding Stock Options shall remain exercisable
at any time within a period of one year from the date of such Termination
of Directorship, but in no event beyond the expiration of the stated term
of such Stock Option; PROVIDED, HOWEVER, that, if the Participant dies
within such exercise period, any unexercised Stock Option held by such
Participant shall thereafter be exercisable by the Participant's estate or
by the person given authority to exercise such Stock Options by his or her
will or by operation of law, to the extent to which it was exercisable at
the time of death, for a period of one year (or such other period as the
Committee may specify at grant or, if no rights of the Participant's estate
are reduced, thereafter) from the date of such death, but in no event
beyond the expiration of the stated term of such Stock Option.
(c) Upon removal, failure to stand for reelection or failure to be
renominated for any reason that would constitute grounds for removal of a
director for cause under Delaware law, or if the Company obtains or
discovers information after Termination of Directorship that such
Participant had engaged in conduct that would have justified removal for
cause during his or her directorship, all outstanding Stock Options of such
Participant shall immediately terminate and shall be null and void.
ARTICLE VII.
GRANT OF SHARES OF COMMON STOCK
TO NON-EMPLOYEE DIRECTORS
7.1. On the date of the Annual Meeting of Stockholders of the Company held
in 1998, and on the date of the Annual Meeting of Stockholders of the Company
held in each year thereafter in which shares of
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Common Stock remain available for grant hereunder, each Non-Employee Director
shall be automatically granted shares of Common Stock having a Fair Market Value
on such date of $12,000. Alternatively, at the election of an Eligible Director
made in writing to the Chief Financial Officer of the Company within 30 days
prior to the date of grant, the Eligible Director may choose to receive a
combination of (i) a number of shares of Common Stock having a Fair Market Value
equal to the excess of $12,000 over the amount of cash referred to in CLAUSE
(ii) of this sentence, and (ii) an amount of cash sufficient for such
Non-Employee Director to pay the federal, state and local income taxes he or she
may reasonably be expected to owe as a result of the receipt of such shares of
Common Stock (as determined by the Committee). Any Eligible Director who is
first elected or appointed to the Board after the grant of shares of Common
Stock hereunder in any year, shall upon such election or appointment be
automatically granted a PRO RATA portion of the shares of Common Stock or cash
referred to in the preceding sentence, based upon the portion of the period
between Annual Meetings of Stockholders that such Non-Employee Director is
expected to serve in such capacity. The Committee hereby approves each election
to receive cash or stock hereunder.
7.2. Shares of Common Stock granted hereunder shall not be subject to any
restrictions under this Plan except as provided in ARTICLE XI.
ARTICLE VIII.
NON-TRANSFERABILITY AND TERMINATION OF
EMPLOYMENT/CONSULTANCY PROVISIONS
8.1. Except as otherwise provided in this SECTION 8.1, no Stock Option
shall be Transferred by the Participant otherwise than by will or by the laws of
descent and distribution. All Stock Options shall be exercisable, during the
Participant's lifetime, only by the Participant. Any attempt to Transfer any
Stock Option shall be void, and no such Stock Option shall in any manner be used
for the payment of, subject to, or otherwise encumbered by or hypothecated for
the debts, contracts, liabilities, engagements or torts of any person who shall
be entitled to such Stock Option, nor shall it be subject to attachment or legal
process for or against such person. Notwithstanding the foregoing, the Committee
may determine at the time of grant that a Non-Qualified Stock Option granted
pursuant to ARTICLE V or ARTICLE VI that is otherwise not transferable pursuant
to this ARTICLE VIII is transferable in whole or part and in such circumstances,
and under such conditions, as specified by the Committee.
8.2. TERMINATION OF EMPLOYMENT OR TERMINATION OF CONSULTANCY. The following
rules apply with regard to Stock Options upon the Termination of Employment or
Termination of Consultancy of a Participant, unless otherwise determined by the
Committee at grant or, if no rights of the Participant (or his estate in the
event of death) are reduced, thereafter:
(a) If a Participant's Termination of Employment or Termination of
Consultancy is by reason of his death, any Stock Option held by such
Participant may be exercised, to the extent exercisable at the
Participant's Termination of Employment or Termination of Consultancy, by
the Participant's estate or by the person given authority to exercise such
Stock Options by his or her will or by operation of law, at any time within
a period of one year from the date of such death, but in no event beyond
the expiration of the stated term of such Stock Option.
(b) If a Participant's Termination of Employment or Termination of
Consultancy is by reason of his Disability or retirement, any Stock Option
held by such Participant may be exercised, to the extent exercisable at the
Participant's Termination of Employment or Termination of Consultancy, by
the
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Participant, at any time within a period of one year from the date of such
Termination of Employment or Termination of Consultancy, but in no event
beyond the expiration of the stated term of such Stock Option; PROVIDED,
HOWEVER, that, if the Participant dies within such exercise period, any
unexercised Stock Option held by such Participant shall thereafter be
exercisable by the Participant's estate or by the person given authority to
exercise such Stock Options by his or her will or by operation of law, to
the extent to which it was exercisable at the time of death, for a period
of one year (or such other period as the Committee may specify at grant or,
if no rights of the Participant's estate are reduced, thereafter) from the
date of such death, but in no event beyond the expiration of the stated
term of such Stock Option.
(c) If a Participant's Termination of Employment or Termination of
Consultancy is by the Company without cause, any Stock Option held by such
Participant may be exercised, to the extent exercisable at termination, by
the Participant at any time within a period of 90 days from the date of
such termination, but in no event beyond the expiration of the stated term
of such Stock Option.
(d) If a Participant's Termination of Employment or Termination of
Consultancy is a voluntary termination by the Participant and occurs prior
to, or more than 90 days after, the occurrence of an event which would be
grounds for Termination of Employment or Termination of Consultancy for
cause (without regard to any notice or cure period requirements), any Stock
Option held by such Participant may be exercised, to the extent exercisable
at termination, by the Participant at any time within a period of 30 days
from the date of such termination, but in no event beyond the expiration of
the stated term of such Stock Option.
(e) If a Participant's Termination of Employment or Termination of
Consultancy is (i) for cause, or (ii) a voluntary termination (as provided
in SUBSECTION(d) above) within 90 days after an event which would be
grounds for a Termination of Employment or Termination of Consultancy for
cause, any Stock Option held by such Participant shall thereupon terminate
and expire as of the date of termination.
ARTICLE IX.
TERMINATION OR AMENDMENT OF PLAN
9.1. TERMINATION OR AMENDMENT. Notwithstanding any other provision of this
Plan, the Board or the Committee may at any time, and from time to time, amend,
in whole or in part, any or all of the provisions of this Plan (including any
amendment deemed necessary to ensure that the Company may comply with any
regulatory requirement referred to in this ARTICLE IX), or suspend or terminate
it entirely, retroactively or otherwise; PROVIDED, that, unless otherwise
required by law or specifically provided herein, the rights of a Participant
with respect to Stock Options granted prior to such amendment, suspension or
termination, may not be impaired without the consent of such Participant; and
PROVIDED FURTHER, that without the approval of the stockholders of the Company
in accordance with the laws of the State of Delaware, to the extent required by
the applicable provisions of Rule 16b-3, Section 162(m) of the Code or (with
respect to Incentive Stock Options) Section 422 of the Code, no amendment may be
made which would: (a) increase the aggregate number of shares of Common Stock
that may be issued under this Plan; (b) increase the maximum individual
Participant limitations for a fiscal year under SECTION 4.1(b); (c) change the
classification of employees and Consultants eligible to receive Awards under
this Plan; (d) decrease the minimum exercise price of any Stock Option; or (e)
extend the maximum option term under SECTION 5.3(b).
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The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, but, subject to ARTICLE IV or as otherwise
specifically provided herein, no such amendment or other action by the Committee
shall impair the rights of any Participant without the Participant's consent.
ARTICLE X.
UNFUNDED PLAN
10.1. UNFUNDED STATUS OF PLAN. This Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments as to which a Participant has a fixed and vested interest but which are
not yet made to a Participant by the Company, nothing contained herein shall
give any such Participant any rights that are greater than those of a general
creditor of the Company.
ARTICLE XI.
GENERAL PROVISIONS
11.1. LEGEND. All certificates for shares of Common Stock delivered under
this Plan shall be subject to such stock transfer orders and other restrictions
as the Committee or the Board, as applicable, may deem advisable under the
rules, regulations and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Common Stock is then listed or any
national securities association system upon whose system the Common Stock is
then quoted, any applicable Federal or state securities law, and any applicable
corporate law, and the Committee or the Board, as applicable, may cause a legend
or legends to be put on any such certificates to make appropriate reference to
such restrictions.
11.2. OTHER PLANS. Nothing contained in this Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
11.3. NO RIGHT TO EMPLOYMENT/CONSULTANCY/DIRECTORSHIP. Neither this Plan
nor the grant of any Stock Options hereunder shall give any Participant or other
employee or Consultant any right with respect to continuance of employment or
consultancy by the Company or any Affiliate, nor shall they be a limitation in
any way on the right of the Company or any Affiliate by which an employee is
employed or consultant retained to terminate his employment or consultancy, as
applicable, at any time. Neither this Plan nor the grant of any Stock Options or
shares of Common Stock hereunder shall impose any obligations on the Company to
retain any Participant as a director nor shall it impose on the part of any
Participant any obligation to remain as a director of the Company.
11.4. WITHHOLDING OF TAXES. The Company shall deduct from any payment to be
made to a Participant, or shall otherwise require, prior to the issuance or
delivery of any shares of Common Stock or the payment of any cash hereunder,
payment by the Participant of any Federal, state or local taxes required by law
to be withheld; and such withholding is hereby approved by the Committee.
11.5. GOVERNING LAW. This Plan shall be governed and construed in
accordance with the laws of the State of Delaware (regardless of the law that
might otherwise govern under applicable Delaware principles of conflict of
laws).
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11.6. CONSTRUCTION. Wherever any words are used in this Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply. To the
extent applicable, this Plan shall be limited, construed and interpreted in a
manner so as to comply with Section 162(m) of the Code and the applicable
requirements of Rule 16b-3; PROVIDED, HOWEVER, that noncompliance with Section
162(m) of the Code and Rule 16b-3 shall have no impact on the effectiveness of a
Stock Option under this Plan.
11.7. OTHER BENEFITS. No Stock Option under this Plan shall be deemed
compensation for purposes of computing benefits under any retirement plan of the
Company or its subsidiaries or affiliates nor affect any benefits under any
other benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation.
11.8. COSTS. The Company shall bear all expenses included in administering
this Plan, including expenses of issuing shares of Common Stock pursuant to this
Plan or any Stock Options granted hereunder.
11.9. NO RIGHT TO SAME BENEFITS. The provisions of Stock Options need not
be the same with respect to each Participant, and such Stock Options to
individual Participants need not be the same in subsequent years.
11.10. DEATH/DISABILITY. The Committee may in its discretion require the
transferee of a Participant's Stock Option to supply the Company with written
notice of the Participant's death or Disability and to supply the Company with a
copy of the will (in the case of the Participant's death) or such other evidence
as the Committee deems necessary to establish the validity of the Transfer of a
Stock Option. The Committee may also require that the transferee agree in
writing to be bound by all of the terms and conditions of this Plan.
11.11. SEVERABILITY OF PROVISIONS. If any provision of this Plan shall be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provisions had not been included.
11.12. HEADINGS AND CAPTIONS. The headings and captions herein are provided
for reference and convenience only, shall not be considered part of this Plan,
and shall not be employed in the construction of this Plan.
ARTICLE XII.
EFFECTIVE DATE OF PLAN
This Plan has been adopted by the Board effective as of June 30, 1998 (the
"EFFECTIVE DATE"), subject to and conditioned upon the approval of this Plan by
the stockholders of the Company in accordance with the requirements of the laws
of the State of Delaware and any applicable exchange requirements.
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ARTICLE XIII.
TERM OF PLAN
No Stock Option shall be granted pursuant to this Plan on or after the
tenth anniversary of the Effective Date, but Stock Options granted prior to such
tenth anniversary may extend beyond that date.
ARTICLE XIV.
NAME OF PLAN
This Plan shall be known as the C&D TECHNOLOGIES, INC. 1998 Stock Option
Plan.
A-14
<PAGE>
Exhibit 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: C&D TECHNOLOGIES, INC.
Form S-8 (File No. - )
We are aware that our report dated May 28, 1998 on our review of interim
financial information of C&D TECHNOLOGIES, INC. (the "Company") for the period
ended April 30, 1998 and included in the Company's quarterly report of Form 10-Q
for the quarter then ended are incorporated by reference in this registration
statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this report
should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that Act.
PricewaterhouseCoopers LLP
2400 Eleven Penn Center
Philadelphia, Pennsylvania
July 15, 1998
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
C&D TECHNOLOGIES, INC. (the "Company") on Form S-8 (File No. - ) of our report,
dated March 10, 1998, on our audit of the consolidated financial statements and
financial statement schedules of the Company as of January 31, 1998 and 1997,
and for each of the three years in the period ended January 31, 1998, which
report is included in the Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Information Required in the
Registration Statement."
PricewaterhouseCoopers LLP
2400 Eleven Penn Center
Philadelphia, Pennsylvania
July 15, 1998
