As filed with the Securities and Exchange Commission on April 12, 1999
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-1681234
(I.R.S. Employer Identification No.)
122 East 42nd Street
New York, New York 10168
(Address of Principal Executive Offices) (Zip Code)
1990 STOCK OPTION AND INCENTIVE PLAN OF
REFAC TECHNOLOGY DEVELOPMENT CORPORATION, AS AMENDED,
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
-and-
STOCK OPTION AGREEMENTS BETWEEN REFAC TECHNOLOGY DEVELOPMENT
CORPORATION AND EACH OF NEIL R. AUSTRIAN, ROBIN L. FARKAS, MARK N. KAPLAN,
HERBERT W. LEONARD, IRA T. WENDER, CAROL BREWER, CHRISTOPHER J. BROOKS,
BERT D. HEINZELMAN, KARL D. KIRK III, PAUL LACOTTA, DONALD R. LAMOND,
JOHN MOLDAUER, PAUL J. MULHAUSER, ARLENE SCANLAN,
DAVID SCHIFF AND DOUGLAS M. SPRANGER
(Full Title of the Plan)
David A. Lang,
Vice President
122 East 42nd Street
New York, New York 10168
(Name and Address of Agent For Service)
(212) 687-4741
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Stephen M Banker, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------
Title Of Proposed Maximum Proposed Maximum Amount Of
Securities To Amount To Be Offering Price Aggregate Offering Registration
Be Registered Registered Per Share Price Fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.10
per share 50,000 $5.87 $ 293,500.00 $ 81.59
10,000 6.37 63,700.00 17.71
72,000 6.87 494,640.00 137.51
5,000 7.62 38,100.00 10.59
50,000 8.00 400,000.00 111.20
25,000 8.75 218,750.00 60.81
100,000 9.25 925,000.00 257.15
65,000 9.50 617,500.00 171.66
50,000 10.00 500,000.00 139.00
2,500 10.25 25,625.00 7.12
17,000 12.00 204,000.00 56.71
144,500 6.21(1) 897,345.00 249.46
50,000 5.81(2) 290,500.00 80.76
138,750 9.50(2) 1,318,125.00 366.44
50,000 10.63(2) 531,500.00 147.76
------------- ---------
Total 829,750(3) $6,818,285.00 $1,895.48(4)
</TABLE>
(1) Estimated pursuant to Rules 457(c) and (h)(1) under the Securities Act
of 1933, as amended (the "Securities Act"), on the basis of the
average of the high and low sale prices for a share of Common Stock on
the American Stock Exchange on April 8, 1999.
(2) Computed pursuant to Rule 457(h)(1) under the Securities Act.
(3) Plus such additional number of shares of Common Stock as may be
issuable pursuant to the antidilution provisions of the
above-referenced plans.
(4) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: .000278 of $6,818,285.00, the Proposed
Maximum Aggregate Offering Price of the shares registered hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section
10(a) Prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the Introductory Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, REFAC Technology
Development Corporation, a Delaware corporation (the "Company"), pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated by reference in this Registration Statement.
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(2) The description of the common stock, par value $.01 per share,
of the Company (the "Common Stock") contained in the Company's Registration
Statement on Form 8-A, filed pursuant to Section 12(b) of the Exchange Act
on January 27, 1994 (File No.1-12776), including any amendment or report
filed for the purpose of updating such information.
All 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 which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the shares
of Common Stock registered hereby have been passed upon by Skadden, Arps,
Slate, Meagher & Flom LLP ("Skadden, Arps"). Mark N. Kaplan, a director and
stockholder of the Company, is of counsel to Skadden, Arps.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") 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, 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 or 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.
Section 145 also 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 or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
such person acted 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 under similar standards, except that no indemnification may be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless, and only to the
extent that, the Court of Chancery or the court in which such action was
brought shall determine that despite the adjudication of liability such
person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; that indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of a director or officer of the corporation 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 liabilities under Section 145.
The Company's Restated Certificate of Incorporation, as amended
(the "Charter"), provides that the Company shall indemnify its directors
and officers to the fullest extent authorized or permitted by the DGCL, as
the same exists or may hereafter be amended, and such right to
indemnification shall continue as to a person who has ceased to be a
director of officer of the Company and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except
for proceedings to enforce rights to indemnification, the Company shall not
be obligated to indemnify any director or officer (or his or her heirs,
executors or personal or legal representative) in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in the Charter
shall include the right to be paid by the Company the expenses incurred in
defending or otherwise participating in any proceeding in advance of its
final disposition.
The Charter provides that the Company may, to the extent
authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents
of the Company who are not directors or officers similar to those conferred
in the Charter to directors and officers of the Corporation.
As permitted under Section 102(b)(7) of the DGCL, the Company's
Charter also provides that no director shall be personally liable to the
Company or any of its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (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) pursuant to Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper
personal benefit. The Company's Charter further provides that any repeal or
modification of this provision by the stockholders of the Company shall not
adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
The By-Laws of the Company provide that the Company shall, to the
fullest extent permitted by the DGCL, indemnify members of the Board and
may, if authorized by the Board, indemnify its officers and any and all
persons whom it shall have power to indemnify against any and all expenses,
liabilities or other matters.
In addition, the Company maintains liability insurance coverage
for directors and officers, including, without limitation, coverage
applicable in certain situations where the Company cannot pursuant to the
DGCL directly indemnify such directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company
has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
The exhibits accompanying this Registration Statement are listed
on the accompanying Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) RULE 415 OFFERING.
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities 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
20 percent 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;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person 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 Act and
will be governed by the final adjudication of such issue.
(c) UNDERTAKING: The Company hereby undertakes that it will submit
or has submitted the plans described herein and any amendment thereto to
the Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify such plans in
accordance with applicable law.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on
this 25th day of March, 1999.
REFAC TECHNOLOGY
DEVELOPMENT CORPORATION
By: /s/ Robert L. Tuchman
----------------------------------
Robert L. Tuchman
President, Chief Executive Officer
and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Raymond A. Cardonne, Jr.
his or her attorneys-in-fact, each with the power of substitution, for him
or her in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file
the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that each of said attorneys-in-fact, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ Robert L. Tuchman
- ------------------------- Chairman of the Board, March 25, 1999
Robert L. Tuchman President, Chief Executive
Officer & General Counsel
(Principal Executive Officer)
/s/ Raymond A. Cardonne, Jr.
- ------------------------ Vice President and Secretary March 25, 1999
Raymond A. Cardonne, Jr.
/s/ Elliott s. Greller
- ------------------------ Vice President, Chief March 25, 1999
Elliott S. Greller Financial Officer and
Treasurer
(Principal Financial
Officer & Controller)
/s/ Neil R. Austrian
- ------------------------ Director March 25, 1999
Neil R. Austrian
/s/ Robin L. Farkas
- ------------------------ Director March 25, 1999
Robin L. Farkas
/s/ Mark N. Kaplan
- ------------------------ Director March 25, 1999
Mark N. Kaplan
/s/ Herbert W. Leonard
- ------------------------ Director March 25, 1999
Herbert W. Leonard
/s/ Douglas M. Spranger
- ------------------------ Director March 25, 1999
Douglas M. Spranger
/s/ Ira T. Wender
- ------------------------ Director March 25, 1999
Ira T. Wender
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page No.
- ----------- ---------------------- --------
4.1 Restated Certificate of Incorporation of the
Company (filed as Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter
ended June 30, 1988 and incorporated herein by
reference).
4.2 Certificate of Amendment of the Restated
Certificate of Incorporation of the Company
(filed as Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June
30, 1988 and incorporated herein by reference). --
4.3 By-Laws of the Company (filed as Exhibit 3 to
the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and
incorporated herein by reference). --
5(a) Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP regarding the legality of the securities
being registered. 13
5(b) Undertaking of the Company (included as Section
(c) in Item 9 above). --
23.1 Consent of Grant Thornton LLP relating to the
audited financial statements of the Company. 15
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
LLP (included in their opinion filed as Exhibit
5(a)). --
25 Power of Attorney (included on the signature
page of this Registration Statement). --
99.1 1990 Stock Option and Incentive Plan (filed as
an exhibit to the Company's Proxy Statement for
its Annual Meeting of Shareholders held on May
16, 1990 and incorporated herein by reference). --
99.2 Form of Stock Option Agreement relating to
options granted under the 1990 Stock Option and
Incentive Plan. 16
99.3 1998 Stock Option and Incentive Plan (filed as
an exhibit to the Company's Proxy Statement for
its Annual Meeting of Stockholders held on May
11, 1998 and incorporated herein by reference). --
99.4 Form of Stock Option Agreement relating to
incentive stock options granted under the 1998
Stock Option and Incentive Plan. 22
99.5 Form of Stock Option Agreement relating to
nonqualified stock options granted under the
1998 Stock Option and Incentive Plan. 29
99.6 Form of Stock Option Agreement between the
Company and each of Neil R. Austrian, Robin L.
Farkas, Mark N. Kaplan, Herbert W. Leonard and
Ira T. Wender, each dated as of February 7,
1996. 36
99.7 Form of Stock Option Agreement between the
Company and each of Carol Brewer, Christopher J.
Brooks, Bert D. Heinzelman, Karl D. Kirk III,
Paul Lacotta, Don R. Lamond, John Moldauer,
Paul J. Mulhauser, David Schiff and Douglas M.
Spranger, each dated as of November 25, 1997
and amended as of March 18, 1998. 41
99.8 Form of Stock Option Agreement between the
Company and Arlene Scanlan dated as of January
21, 1998. 48
Exhibit 5
April 12, 1999
Board of Directors
REFAC Technology Development Corporation
122 East 42nd Street
New York, New York 10168
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to REFAC Technology
Development Corporation, a Delaware corporation (the "Company"), in
connection with the preparation of a registration statement on Form S-8
(the "Registration Statement"), relating to the issuance and sale of up to
829,750 shares (the "Shares") of the common stock of the Company, par value
$0.10 per share (the "Common Stock"). The Shares consist of 591,000 shares
of Common Stock which have been reserved for issuance upon exercise of
stock options (the "Stock Option Plans Shares") that have been or may be
granted under the Company's 1990 Stock Option and Incentive Plan, as
amended (the "1990 Plan"), and 1998 Stock Option and Incentive Plan (the
"1998 Plan" and, together, with the 1990 Plan, the "Stock Option Plans")
and 238,750 shares of Common Stock which have been reserved for issuance
upon exercise of outstanding stock options granted other than under the
Stock Option Plans pursuant to separate stock option agreements (the "Other
Option Shares" and, collectively, with the Stock Option Plans Shares, the
"Option Shares").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933 (the "Act").
We have examined originals or copies, certified or otherwise
identi fied to our satisfaction, of (i) the Registration Statement on Form
S-8 to be filed with the Securities and Exchange Commission (the
"Commission") relating to the Option Shares, (ii) the Stock Option Plans,
(iii) a specimen certificate evidencing the Common Stock, (iv) the Restated
Certificate of Incorporation of the Company, as amended and as presently in
effect, (v) the By-Laws of the Company, as presently in effect, (vi)
certain resolutions of the Board of Directors of the Company relating to,
among other things, the Stock Option Plans and the Other Option Shares
(collec tively, the "Board Resolutions"), (vii) the stock option agreements
relating to the Option Shares (the "Stock Option Agreements) and (viii)
such other documents as we have deemed necessary or appropriate as a basis
for the opinion set forth below.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submit ted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties other
than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof on such parties. As
to any facts material to the opinions expressed herein which we did not
independently establish or verify, we have relied upon certificates,
statements or representations of officers of the Company and public
officials. In rendering the opinion set forth below, we have assumed that
(i) the certificates representing the Option Shares will be manually signed
by one of the authorized officers of the transfer agent for the Common
Stock and registered by such transfer agent and will conform to the
specimen thereof examined by us, and (ii) prior to the issuance of any
Option Shares, the Company and the relevant optionee will have duly entered
into Stock Option Agreements in accordance with the Stock Option Plans and
the Board Resolutions.
Members of our firm are admitted to the Bar of the State of
Dela ware, and we do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that the Option Shares have been duly and validly authorized for issuance
and, when delivered and paid for in accordance with the terms of the Stock
Option Agree ments, will be validly issued, fully paid and nonassessable.
Mark N. Kaplan is a director, stockholder and optionholder of
the Company.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the rules or
regulations of the Commission thereunder.
Very truly yours,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 18, 1999 accompanying the
consolidated financial statements of Refac Technology Development
Corporation, appearing in the 1998 Annual Report on Form 10-K for the year
ended December 31, 1998 which is incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
GRANT THORNTON LLP
New York, New York
April 7, 1999
Exhibit 99.2
------------
1990 STOCK OPTION AND INCENTIVE PLAN
OF REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is between REFAC
TECHNOLOGY DEVELOPMENT CORPORATION, a Delaware corporation (the
"Employer"), and the employee whose name appears on the Schedule attached
to this Agreement (the "Grantee"), under the 1990 Stock Option and
Incentive Plan of the Employer (the "Plan").
Because of exceptional services provided by the Grantee to the
Employer, and/or in order to provide an incentive to the Grantee to exert
his utmost efforts on behalf of the Employer, the Grantee has been awarded
one or more Options on the terms and conditions set forth in the Plan, the
Agreement and the Schedule.
Terms which are defined in the Plan will have the meanings set forth
therein and the following terms will have the following meanings when used
in this Agreement:
"Expiration Date" is the earliest of (1) the last date on which any
Options can be exercised as set forth in the Schedule, (2) 90 days after
the date of termination of the Grantee other than for cause or by reason of
death, disability or retirement, (3) one year after the death, disability
or retirement of the Grantee, (4) the date of termination for any other
reason or (5) the date 10 years after the date of grant.
"Schedule" means the schedule attached to the end of this Agreement
listing information about the Options being granted to the Grantee.
Section 1. Options. To the extent indicated in the Schedule, the
Grantee is hereby granted one or more Options to purchase shares of Common
Stock, par value of $0.10, of the Employer.
Section 2. Exercise of Rights.
2.1 Times when Common Stock can be Purchased. Subject to the
provisions of the Plan and except as noted on the Schedule, Options will
become exercisable immediately on the date of grant.
2.2 Notice. If the holder of an Option wishes to exercise any of the
holder's rights, the holder must give notice of exercise to the Employer at
the Employer's principal office. The holder must give the notice in writing
in form satisfactory to the Committee. The holder must include with the
notice full payment for any Common Stock being purchased under any Option
(unless, in accordance with the Plan, the Committee shall have provided
otherwise), and any taxes due under Section 2.3 hereof.
2.3 Payment.
2.3.1 Payment of the Option Price for any Common Stock being
purchased under an Option must be made in cash, by certified or bank check
or by delivering to the Employer stock of the Employer which the Grantee
already owns. If the Grantee pays by delivering stock of the Employer, the
holder must include with the notice of exercise the certificates for the
stock duly endorsed for transfer. The Employer will value the stock
delivered by the Grantee at its Fair Market Value on the date of receipt as
set forth in the Plan and, if the value of the stock delivered by the
Grantee exceeds the amount required under this Section 2.3.1, will return
to the Grantee cash in an amount equal to the value, so determined, of any
fractional portion of a share of stock exceeding the amount required and
will issue a certificate for any whole share of stock exceeding the amount
required.
2.3.2 The holder cannot buy any Common Stock under an Option unless,
at the time the holder gives notice of exercise to the Employer, the holder
includes with such notice payment in cash or by certified or bank check of
all local, state or federal withholding taxes due, if any, on account of
buying Common Stock under the Option or gives other assurance to the
Employer satisfactory to the Committee of the payment of those withholding
taxes.
2.4 Transfer.
2.4.1 The Employer shall deliver certificates for Common Stock
bought under an Option as soon as practicable after receiving payment for
the Common Stock and for any taxes under Section 2.3 hereof, and all
documents required under the Plan and the Agreement. The certificates will
be made out in the name of the holder and shall be legended as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be
sold, transferred, pledged, hypothecated or offered for sale
in the absence of an effective registration statement
relating to such shares under such Act or a written opinion
of counsel to REFAC Technology Development Corporation that
such registration is not required."
2.4.2 If the Plan or any law, regulation or interpretation requires
the Employer to take any action regarding the Common Stock, before the
Employer issues certificates for the Common Stock being purchased, the
Employer may delay delivering the certificates for the Common Stock for the
period necessary to take that action.
Section 3. Termination. In the event that the employment of a Grantee
shall terminate (other than for cause or by reason of death, disability or
retirement), all Options then outstanding (and not earlier terminated in
accordance with their terms), may be exercised by such Grantee within
ninety (90) days after the date of such termination. If a Grantee dies (a)
while employed by the Company or a subsidiary thereof or (b) within ninety
(90) days after the date of such Grantee's termination (other than for
cause), or, if the Grantee's employment is terminated by reason of
disability or retirement, all Options then outstanding (and not earlier
terminated in accordance with their terms), may be exercised by such
Grantee (or his legal representative) within one year after the date of
death, disability or retirement. In the case of the termination of a
Grantee for any other reason no Common Stock may be purchased by or on
behalf of the holder under any Option.
Section 4. Cancellation of Rights and Limited Rights. Pursuant to the
provisions of the Plan, upon the exercise of a Right or Limited Right
granted in tandem with an Option, the Related SAR Option or Related LSAR
Option shall cease to be exercisable to the extent of the shares of Common
Stock with respect to which such Right or Limited Right is exercised. Upon
the exercise or termination of a Related SAR Option or Related LSAR Option,
the Right or Limited Right with respect to such Related SAR Option or
Related LSAR Option shall terminate to the extent of the shares of Common
Stock with respect to which the Related SAR Option or Related LSAR Option
was exercised or terminated.
Section 5. Governing Provisions. The Agreement is made under and
subject to the provisions of the Plan, and all of the provisions of the
Plan are also provisions of the Agreement. If there is a difference or
conflict between the provisions of the Agreement and the provisions of the
Plan, the provisions of the Plan will govern. By signing the Agreement, the
Grantee confirms that he has received a copy of the Plan.
5.1 Entire Agreement. This Agreement, the Plan and the Schedule
contain all of the understandings between the Employer and Grantee
concerning all Options granted under the Plan, and includes all earlier
negotiations and understandings. The Employer and Grantee have made no
promises, agreements, conditions or understandings, either orally or in
writing, that are not included in the Agreement, the Plan or the Schedule.
5.2 Employment. By establishing the Plan, granting rights under the
Plan and entering into the Agreement, the Employer does not give Grantee
any right to continue to be employed by the Employer or to be entitled to
any remuneration or benefits not set forth in the Agreement, the Plan or
the Schedule. None of the provisions of the Agreement, the Plan or the
Schedule will interfere with or limit the right of the Employer to end
Grantee's employment at any time.
5.3 Captions. The captions and section numbers appearing in the
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of the
Agreement.
5.4 Counterparts. The Agreement may be executed in counterparts,
each of which when signed by the Employer and Grantee will be deemed an
original and all of which together will be deemed the same Agreement.
5.5 Notice. Any notice or communication having to do with the
Agreement must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to the Employer or the Committee, to the
principal office of the Employer and, if to Grantee, to Grantee's last
known address on the personnel records of the Employer.
5.6 Amendment. The Agreement may be amended by the Employer as
provided by the Plan. However, unless Grantee consents, the Employer cannot
amend the Agreement if the amendment will materially change or impair the
holder's rights under the Agreement and such change is not to the holder's
benefit.
5.7 Succession and Transfer. Each and all of the provisions of the
Agreement are binding upon and inure to the benefit of the Employer and
Grantee and their heirs, successors and assigns. However, the holder may
not sell, give, transfer, encumber or assign, or use as collateral, any of
the holder's rights under the Agreement or the Plan.
5.8 Governing Law. The Agreement shall be governed and construed
exclusively in accordance with the law of the State of New York applicable
to agreements to be performed in the State of New York to the extent it may
apply.
The Employer and Grantee have caused Agreement to be signed and
delivered as of the date set forth on the Schedule.
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
By:____________________________________
Robert L. Tuchman, President & CEO
Read and Agreed to:
By:________________
1990 STOCK OPTION AND INCENTIVE PLAN OF
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT SCHEDULE
Identification:
1. Name of Grantee: ______________________________
2. Address of Grantee: ______________________________
______________________________
3, Social Security Number of Grantee: ______________________________
4. Date of Option Agreement: ______________________________
Terms of Grant.
1. INCENTIVE STOCK OPTIONS
a. Dates of grant ______________________________
b. Number of shares granted ______________________________
c. Option prices ______________________________
d. Expiration dates ______________________________
e. Times at which options ______________________________
become exercisable
Exhibit 99.4
------------
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") entered into as
of _______, _____, pursuant to the REFAC Technology Development Corporation
1998 Stock Option and Incentive Plan (the "Plan"), by and between REFAC
TECHNOLOGY DEVELOPMENT CORPORATION, a Delaware corporation ("REFAC"), and
_____________ (the "Optionee"). Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Plan.
WHEREAS, REFAC desires, by affording the Optionee an opportunity to
purchase shares of its Stock as hereinafter provided and subject to the
terms and conditions hereof, to carry out the purpose of the Plan;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
parties hereto have agreed and do hereby agree as follows:
1. Number of Shares. REFAC hereby grants to the Optionee an
option (the "Option") to purchase an aggregate of [ ] shares of
Stock, subject to adjustment as provided in Section 2 hereof, on the terms
and conditions herein set forth. The Option is intended to be an
"incentive stock option" within the meaning of Section 422 of the Code.
2. Adjustments. In the event that the Board shall determine
that any dividend or other distribution (whether in the form of cash, Stock
or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, spin-off, combination, repurchase,
or share exchange, or other similar corporate transaction or event, affects
the Stock such that an adjustment is appropriate in order to prevent
dilution or enlargement of the rights of the Optionee hereunder, then the
Board shall make such equitable changes or adjustments as it deems
necessary or appropriate to any or all of (i) the number and kind of shares
of Stock which may thereafter be issued in connection with the Option, (ii)
the number and kind of shares of Stock issued or issuable in respect of the
Option, and (iii) the Exercise Price (as defined below) of the Option.
3. Option Price. The purchase price of the Stock subject to
the Option shall be $____ per share, subject to adjustment as provided in
Section 2 hereof.(1)
4. Term and Exercisability of Option.
(a) Unless the Option is previously cancelled pursuant to this
Agreement, the Option Term shall commence on the date hereof (the "Date of
Grant") and terminate on the tenth anniversary of the Date of Grant.(2) Upon
the termination of the Option, all rights of the Optionee hereunder shall
cease.
---------------------------
1 Option Price must be no less than 110% of fair market value on date of
grant if ISO is granted to an employee owning more than 10% of REFAC's
voting securities.
2 Term must be no longer than 5 years if ISO is granted to an employee
owning more than 10% of REFAC's voting securities.
(b) Exercisability of Option. [TO COME]
5. Payment. Upon the exercise of all or any portion of the
Option, the exercise price of the shares being purchased (the "Exercise
Price") shall be paid in full either (a) in cash or by check, (b) by
tendering previously acquired shares of Stock having an aggregate fair
market value at the time of exercise equal to the total Exercise Price, (c)
by a combination of (a) and (b), or (d) through a broker cashless exercise
procedure, if such procedure has been established by the Company at the
time of exercise.
6. Termination of Employment.
(a) Except as provided in this Section 6, the Option may not be
exercised after the Optionee has ceased to be employed by the Company.
(b) If the Optionee's employment with the Company is terminated
by the Company for "Cause" (as defined below), the Option shall be
cancelled as of the date of such termination.
For purposes of this Agreement, "Cause" shall mean the occurrence
of any of the following, as reasonably determined by the Company:
(i) the willful and continued failure, in the reasonable
judgment of the Board, by the Optionee to perform substantially his
duties with the Company (other than any such failure resulting from his
death or Disability) after a written demand for substantial performance
is delivered to the Optionee by the Board which specifically identifies
the manner in which it is believed that the Optionee has not
substantially performed his duties;
(ii) the willful engaging by the Optionee in conduct which
in the reasonable opinion of the Board is materially and demonstrably
injurious to the Company or any of its parents, subsidiaries or
affiliates; or
(iii) the conviction of the Optionee (or the entering by
the Optionee of a plea of guilty or nolo contendere) for any felony or
any lesser crime which involved the Company or its property, or any of
the Company's parents, subsidiaries or affiliates or any such entity's
property.
Notwithstanding the foregoing, the Optionee will not be deemed to have been
terminated for Cause within the meaning of clause (i) or (ii) without (x)
reasonable notice to the Optionee setting forth the reasons for the
Company's intention to terminate for Cause, (y) an opportunity for the
Optionee, together with his counsel, to be heard before the Board, and (z)
delivery to the Optionee of a notice of termination from the Board finding
that, in the good faith opinion of the Board, clause (i) or (ii) hereof may
be invoked, and specifying the particulars thereof in detail.
(c) If the Optionee's employment with the Company is terminated
for any reason other than for Cause, the Optionee (or his beneficiary or
representative, as applicable) shall have the right to exercise the Option,
to the extent exercisable as of the date of such termination of employment
(i) in the case of a termination of employment because of the Optionee's
death or Disability (as defined below), for a period of one (1) year
following the date of such termination, and (ii) in the case of any other
termination of employment other than for Cause or as provided in clause
(i), for a period of thirty (30) days following the date of such
termination. For purposes of this Agreement, "Disability" shall be deemed
the reason for such termination if, as a result of the Optionee's
incapacity due to physical or mental illness, the Optionee shall have been
absent from the full-time performance of the Optionee's duties with the
Company for a period of one hundred twenty (120) consecutive days during
the Term, or a period or periods aggregating more than one hundred twenty
(120) days in any six (6) consecutive month period during the Term. The
Optionee agrees to submit to such medical examinations as may be necessary
to determine whether a Disability exists, pursuant to reasonable requests
which may be made by the Company from time to time.
(d) Notwithstanding anything to the contrary in this Section 6,
the Option shall not be exercisable later than the date of its termination
as set forth in Section 4(a) hereof.
(e) For purposes of this Section 6, the transfer of employment
of an Optionee between the Company and any one of its subsidiaries (or
between subsidiaries) shall not be deemed a termination of employment.
7. Rights of Optionee.
(a) The Optionee shall have none of the rights of a stockholder
with respect to the shares covered by the Option until the shares are
issued or transferred to such Optionee upon exercise of the Option.
(b) The Option shall not interfere with or limit in any way the
right of the Company to terminate any Optionee's employment at any time,
nor confer upon any Optionee any right to continue in the employ of the
Company or any subsidiary.
8. Nontransferability of Option. The Option shall not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution and shall be
exercisable during the Optionee's lifetime only by the Optionee.
9. Notification.
(a) The Option shall be exercised by written notification of
exercise substantially in the form of Exhibit A hereto and delivered to the
Secretary of REFAC in accordance with subsection (b) of this Section 9.
Such notification shall specify the number of shares of Stock to be
purchased and the manner in which payment is to be made.
(b) Any notification required or permitted hereunder shall be
addressed to REFAC, to the attention of the Secretary, 122 East 42nd
Street, New York, New York 10168 or to the Optionee at the address set
forth below, as the case may be, and deposited, postage prepaid, in the
United States mail; provided, however, that a notification of exercise
pursuant to subsection (a) of this Section 9 shall be effective only upon
receipt by the Secretary of REFAC of such notification and all necessary
documentation, including full payment for the shares. Either party may, by
notification to the other given in the manner aforesaid, change the address
for future notices.
10. Tax Withholding.
(a) If the Optionee fails to comply with the requirements of
Section 422(a) of the Code (as from time to time redesignated or amended),
subsection (a)(1) of which currently requires that any shares of Stock
acquired upon exercise of the Option not be disposed of within two (2)
years of the Date of Grant and one (1) year from the date on which such
shares are acquired, Optionee understands that the tax treatment otherwise
applicable to the Option shall not be available.
(b) The Company shall have the power and the right to require an
Optionee to remit to the Company an amount sufficient to satisfy any
Federal, state, local, employment and other taxes required by law to be
withheld as a result of any taxable event arising in connection with the
Option (including, but not limited to, a disqualifying disposition within
the meaning of sections 421 and 422 of the Code) in accordance with the
terms of the Plan.
(c) The Optionee agrees to notify the Company in writing
immediately after the Optionee makes a disqualifying disposition (within
the meaning of sections 421 and 422 of the Code) of any Stock acquired
pursuant to the exercise of the Option.
11. Conditions to Issuance. The Option and exercise of the
Option, and the other obligations of the Company under the Plan and the
Option shall be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any regulatory or governmental agency
as may be required. REFAC, in its discretion, may postpone the issuance or
delivery of Stock under the Option as REFAC may consider appropriate and
may require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance
or delivery of Stock in compliance with applicable laws, rules and
regulations.
12. Potential Change in Control. Notwithstanding any other
provision of this Agreement, upon the occurrence of a Potential Change in
Control, the Option, to the extent outstanding at the time of such
Potential Change in Control, shall become immediately exercisable in full.
13. Incorporation of Plan; Governing Law; Interpretation.
(a) The Plan is hereby incorporated by reference and made a part
hereof, and the Option and this Agreement are subject to all terms and
conditions of the Plan. To the extent that any provision in this Agreement
is inconsistent with the Plan, the provisions of the Plan shall control.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(c) The Board shall have final authority to interpret and
construe the Plan and this Agreement and to make any and all determinations
under them, and its determination and decisions shall be final, conclusive
and binding upon the Optionee and his legal representative in respect of
any questions arising under the Plan or this Agreement.
14. Miscellaneous.
(a) This Agreement shall bind and inure to the benefit of the
Company, its successors and assigns, and the Optionee and his personal
representatives and assigns.
(b) The failure of the Company to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of
such provision or of any other provision hereof.
15. Amendment. This Agreement may be amended or modified at any
time by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
duly executed by its officer thereunder duly authorized and the Optionee
has hereunto set his hand, all as of the day and year set forth above.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By ________________________________
Name:
Title:
ACCEPTED:
________________________
Optionee Date
________________________
________________________
Address
Exhibit 99.5
------------
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT (this "Agreement") entered into
as of _______, _____, pursuant to the REFAC Technology Development
Corporation 1998 Stock Option and Incentive Plan (the "Plan"), by and
between REFAC TECHNOLOGY DEVELOPMENT CORPORATION, a Delaware corporation,
("REFAC")and _____________ (the "Optionee"). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Plan.
WHEREAS, REFAC desires, by affording the Optionee an opportunity to
purchase shares of its Stock as hereinafter provided and subject to the
terms and conditions hereof, to carry out the purpose of the Plan;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
parties hereto have agreed and do hereby agree as follows:
1. Number of Shares. REFAC hereby grants to the Optionee an
option (the "Option") to purchase an aggregate of [ ] shares of
Stock, subject to adjustment as provided in Section 2 hereof, on the terms
and conditions herein set forth.
2. Adjustments. In the event that the Board shall determine
that any dividend or other distribution (whether in the form of cash, Stock
or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, spin-off, combination, repurchase,
or share exchange, or other similar corporate transaction or event, affects
the Stock such that an adjustment is appropriate in order to prevent
dilution or enlargement of the rights of the Optionee hereunder, then the
Committee shall make such equitable changes or adjustments as it deems
necessary or appropriate to any or all of (i) the number and kind of shares
of Stock which may thereafter be issued in connection with the Option, (ii)
the number and kind of shares of Stock issued or issuable in respect of the
Option, and (iii) the Exercise Price (as defined below) of the Option.
3. Option Price. The purchase price of the Stock subject to
the Option shall be $____ per share, subject to adjustment as provided in
Section 2 hereof.
4. Term and Exercisability of Option.
(a) Unless the Option is previously cancelled pursuant to this
Agreement, the Option Term shall commence on the date hereof (the "Date of
Grant") and terminate on the tenth anniversary of the Date of Grant. Upon
the termination of the Option, all rights of the Optionee hereunder shall
cease.
(b) Exercisability of Option. [TO COME]
5. Payment. Upon the exercise of all or any portion of the
Option, the exercise price of the shares being purchased (the "Exercise
Price") shall be paid in full either (a) in cash or by check, (b) by
tendering previously acquired shares of Stock having an aggregate fair
market value at the time of exercise equal to the total Exercise Price, (c)
by a combination of (a) and (b), or (d) through a broker cashless exercise
procedure, if such procedure has been established by the Company at the
time of exercise.
6. Termination of Employment.
(a) Except as provided in this Section 6, the Option may not be
exercised after the Optionee has ceased to be employed by the Company.
(b) If the Optionee's employment with the Company is terminated
by the Company for "Cause" (as defined below), the Option shall be
cancelled as of the date of such termination.
For purposes of this Agreement, "Cause" shall mean the occurrence
of any of the following, as reasonably determined by the Company:
(i) the willful and continued failure, in the reasonable
judgment of the Board, by the Optionee to perform substantially his
duties with the Company (other than any such failure resulting from his
death or Disability) after a written demand for substantial performance
is delivered to the Optionee by the Board which specifically identifies
the manner in which it is believed that the Optionee has not
substantially performed his duties;
(ii) the willful engaging by the Optionee in conduct which
in the reasonable opinion of the Board is materially and demonstrably
injurious to the Company or any of its parents, subsidiaries or
affiliates; or
(iii) the conviction of the Optionee (or the entering by
the Optionee of a plea of guilty or nolo contendere) for any felony or
any lesser crime which involved the Company or its property, or any of
the Company's parents, subsidiaries or affiliates or any such entity's
property.
Notwithstanding the foregoing, the Optionee will not be deemed to have been
terminated for Cause within the meaning of clause (i) or (ii) without (x)
reasonable notice to the Optionee setting forth the reasons for the
Company's intention to terminate for Cause, (y) an opportunity for the
Optionee, together with his counsel, to be heard before the Board, and (z)
delivery to the Optionee of a notice of termination from the Board finding
that, in the good faith opinion of the Board, clause (i) or (ii) hereof may
be invoked, and specifying the particulars thereof in detail.
(c) If the Optionee's employment with the Company is terminated
for any reason other than for Cause, the Optionee (or his beneficiary or
representative, as applicable) shall have the right to exercise the Option,
to the extent exercisable as of the date of such termination of employment
(i) in the case of a termination of employment because of the Optionee's
death or Disability (as defined below), for a period of one (1) year
following the date of such termination, and (ii) in the case of any other
termination of employment other than for Cause or as provided in clause
(i), for a period of thirty (30) days following the date of such
termination. For purposes of this Agreement, "Disability" shall be deemed
the reason for such termination if, as a result of the Optionee's
incapacity due to physical or mental illness, the Optionee shall have been
absent from the full-time performance of the Optionee's duties with the
Company for a period of one hundred twenty (120) consecutive days during
the Term, or a period or periods aggregating more than one hundred twenty
(120) days in any six (6) consecutive month period during the Term. The
Optionee agrees to submit to such medical examinations as may be necessary
to determine whether a Disability exists, pursuant to reasonable requests
which may be made by the Company from time to time.
(d) Notwithstanding anything to the contrary in this Section 6,
the Option shall not be exercisable later than the date of its termination
as set forth in Section 4(a) hereof.
(e) For purposes of this Section 6, the transfer of employment
of an Optionee between the Company and any one of its subsidiaries (or
between subsidiaries) shall not be deemed a termination of employment.
7. Rights of Optionee.
(a) The Optionee shall have none of the rights of a stockholder
with respect to the shares covered by the Option until the shares are
issued or transferred to such Optionee upon exercise of the Option.
(b) The Option shall not interfere with or limit in any way the
right of the Company to terminate any Optionee's employment at any time,
nor confer upon any Optionee any right to continue in the employ of the
Company or any subsidiary.
8. Nontransferability of Option. The Option shall not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than (a) by will or by the laws of descent and distribution,
(b) through a gratuitous transfer by the Optionee to a member of his
immediate family or to a trust for the benefit of any such immediate family
member or members or (c) if then permitted by Rule 16b-3 under the Exchange
Act, pursuant to a Qualified Domestic Relations Order (as defined under the
Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended).
9. Notification.
(a) The Option shall be exercised by written notification of
exercise substantially in the form of Exhibit A hereto and delivered to the
Secretary of REFAC in accordance with subsection (b) of this Section 9.
Such notification shall specify the number of shares of Stock to be
purchased and the manner in which payment is to be made.
(b) Any notification required or permitted hereunder shall be
addressed to REFAC, to the attention of the Secretary, 122 East 42nd
Street, New York, New York 10168 or to the Optionee at the address set
forth below, as the case may be, and deposited, postage prepaid, in the
United States mail; provided, however, that a notification of exercise
pursuant to subsection (a) of this Section 9 shall be effective only upon
receipt by the Secretary of REFAC of such notification and all necessary
documentation, including full payment for the shares. Either party may, by
notification to the other given in the manner aforesaid, change the address
for future notices.
10. Tax Withholding. The Company shall have the power and the
right to require an Optionee to remit to the Company an amount sufficient
to satisfy any Federal, state, local, employment and other taxes required
by law to be withheld as a result of any taxable event arising in
connection with the Option, in accordance with the terms of the Plan. The
Optionee may satisfy such withholding obligation by any of the following
methods, or by a combination of such methods: (a) tendering a cash
payment; (b) authorizing the Company to withhold from the shares of Stock
otherwise payable to the Optionee one or more of such shares having an
aggregate Fair Market Value, determined as of the date the withholding tax
obligation arises, less than or equal to the amount of the total
withholding tax obligation; or (c) delivering to the Company previously
acquired shares of Stock (none of which shares may be subject to any claim,
lien, security interest, community property right or other right of spouses
or present or former family members, pledge, option, voting agreement or
other restriction or encumbrance of any nature whatsoever) having an
aggregate Fair Market Value, determined as of the date the withholding tax
obligation arises, less than or equal to the amount of the total
withholding tax obligation.
11. Conditions to Issuance. The Option and exercise of the
Option, and the other obligations of the Company under the Plan and the
Option shall be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any regulatory or governmental agency
as may be required. REFAC, in its discretion, may postpone the issuance or
delivery of Stock under the Option as REFAC may consider appropriate and
may require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance
or delivery of Stock in compliance with applicable laws, rules and
regulations.
12. Potential Change in Control. Notwithstanding any other
provision of this Agreement, upon the occurrence of a Potential Change in
Control, the Option, to the extent outstanding at the time of such
Potential Change in Control, shall become immediately exercisable in full.
13. Incorporation of Plan; Governing Law; Interpretation.
(a) The Plan is hereby incorporated by reference and made a part
hereof, and the Option and this Agreement are subject to all terms and
conditions of the Plan. To the extent that any provision in this Agreement
is inconsistent with the Plan, the provisions of the Plan shall control.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(c) The Board shall have final authority to interpret and
construe the Plan and this Agreement and to make any and all determinations
under them, and its determination and decisions shall be final, conclusive
and binding upon the Optionee and his legal representative in respect of
any questions arising under the Plan or this Agreement.
14. Miscellaneous.
(a) This Agreement shall bind and inure to the benefit of the
Company, its successors and assigns, and the Optionee and his personal
representatives and assigns.
(b) The failure of the Company to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of
such provision or of any other provision hereof.
15. Amendment. This Agreement may be amended or modified at any
time by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
duly executed by its duly authorized officer and the Optionee has hereunto
set his hand, all as of the day and year set forth above.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By _____________________________
Name:
Title:
ACCEPTED:
_________________________
Optionee Date
_________________________
_________________________
Address
Exhibit 99.6
------------
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is between REFAC
TECHNOLOGY DEVELOPMENT CORPORATION, a Delaware corporation ("REFAC"), and
the Grantee whose name appears on the Schedule attached to this Agreement
(the "Grantee").
Because of exceptional services provided as a Director of REFAC by the
Grantee, the Grantee has been granted an option on the terms and conditions
set forth in this Agreement and the Schedule.
Terms which are defined in the Stock Purchase Agreement will have the
meanings set forth therein and the following terms will have the following
meanings when used in this Agreement:
"Expiration Date" is the earliest of (1) the last date on which any
Options can be exercised as set forth in the Schedule, (2) the date 5 years
after the date of grant.
"Schedule" means the schedule attached to the end of this Agreement
listing information about the Options being granted to the Grantee.
Section 1. OPTIONS. To the extent indicated in the Schedule, the
Grantee is hereby granted an option to purchase shares of Common Stock, par
value of $0. 10, of REFAC (an 'Option'), at a price per share equal to the
Option Price set forth on the attached schedule.
Section 2. EXERCISE OF RIGHTS.
2.1 TIMES WHEN COMMON STOCK CAN HE PURCHASED. Except as noted on the
Schedule, Options will become exercisable immediately on the date of grant.
2.2 NOTICE. If the holder of an Option wishes to exercise any of the
holder's rights, the holder must give notice of exercise to REFAC at
REFAC's principal office. The holder must give the notice in writing in
form satisfactory to the REFAC. The holder must include with the notice
full payment for any Common Stock being purchased under any Option (unless,
REFAC shall have provided otherwise), and a fully executed Stock Purchase
Agreement in the form attached hereto.
2.3 PAYMENT.
2.3.1. Payment of the Option Price for any Common Stock being
purchased under an Option must be made in cash, by certified or bank check
or by delivering to REFAC stock of REFAC which the Grantee already owns.
If the Grantee pays by delivering stock of REFAC, the holder must include
with the notice of exercise the certificates for the stock duly endorsed
for transfer. REFAC will value the stock delivered by the Grantee at its
fair market value on the date of receipt and, if the value of the stock
delivered by the Grantee exceeds the amount required under this Section
2.3.1., will return to the Grantee cash in an amount equal to the value,
so determined, of any fractional portion of a share of stock exceeding the
amount required and will issue a certificate for any whole share of stock
exceeding the amount required.
2.3.2. The holder cannot buy any Common Stock under an Option unless,
at the time the holder gives notice of exercise to REFAC, the holder
includes with such notice payment in cash or by certified or bank check of
all local, state or federal withholding taxes due, if any, on account of
buying Common Stock under the Option or gives other assurance to REFAC of
the payment of those withholding taxes.
2.4 TRANSFER. REFAC shall deliver certificates for Common Stock
bought under an Option as soon as practicable after receiving payment for
the Common Stock and for any taxes under Section 2.3, and all documents
required under the Stock Purchase Agreement and the Agreement. The
certificates will be made out in the name of the holder and shall be
legended as set forth in the Stock Purchase Agreement. If any law,
regulation or interpretation requires REFAC to take any action regarding
the Common Stock, before REFAC issues certificates for the Common Stock
being purchased, REFAC may delay delivering the certificates for the Common
Stock for the period necessary to take that action.
Section 3. TERMINATION. In the event that the services of Grantee
shall terminate (other than for reason of death), all Options then
outstanding (and not earlier terminated in accordance with their terms),
may be exercised by such Grantee within ninety (90) days after the date of
such termination. If Grantee dies while a Director of REFAC, all Options
then outstanding (and not earlier terminated in accordance with their
terms), may be exercised by the heirs, distributees, or legal
representatives of the Grantee within one year after the date of death.
Section 4. GOVERNING PROVISIONS. The Agreement is subject to the
Stock Purchase Agreement and all of the provisions of the Stock Purchase
Agreement are also provisions of this Agreement. If there is a difference
or conflict between the provisions of the Agreement and/or the provisions
of the Stock Purchase Agreement, the provisions of the Stock Purchase
Agreement will govern as to the limitations on the resale of Common Stock
purchased. By signing the Agreement, the Grantee confirms that he has
received a copy of the Stock Purchase Agreement attached to this Agreement.
Section 5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT. This Agreement and the Stock Purchase
Agreement contain all of the understandings between REFAC and Grantee
concerning all Options granted, and includes all earlier negotiations and
understandings. REFAC and Grantee have made no promises, agreements,
conditions or understandings, either orally or in writing, that are not
included in the Agreement, the Stock Purchase Agreement.
5.2 TERM OF SERVICES. By entering into this Agreement, REFAC does
not give Grantee any right to continue to be a Director of REFAC or to be
entitled to any remuneration or benefits not set forth in the Agreement or
the Stock Purchase Agreement. None of the provisions of this Agreement or
the Stock Purchase Agreement will interfere with or limit the right of
REFAC to end Grantee's services at any time.
5.3 CAPTIONS. The captions and section numbers appearing in the
Agreement are inserted only as a matter of convenience. They do not
define, limit, construe or describe the scope or intent of the provisions
of the Agreement.
5.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when signed by REFAC and Grantee will be deemed an original
and all of which together will be deemed the same Agreement.
5.5 NOTICE. Any notice or communication having to do with this
Agreement must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to REFAC, at the principal office of REFAC
and, if to Grantee, to Grantee's last known address on the personnel
records of REFAC.
5.6 SUCCESSION AND TRANSFER. Options are not transferable other than
by will or by the laws of descent and distribution, and Options may be
exercised during the lifetime of the Grantee only by the Grantee. In the
event of the Grantee's death, Options may be exercised by heirs,
distributees or legal representatives of the Grantee, but only with respect
to such number of shares which could have been acquired by the Grantee at
the time of the Grantee's death.
5.7 GOVERNING LAW. The Agreement shall be governed and construed
exclusively in accordance with the law of the State of New York applicable
to agreements to be performed in the State of New York to the extent it may
apply.
REFAC and Grantee have caused Agreement to be signed and
delivered as of the date set forth on the Schedule.
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
By:______________________________________
_______________________________________
Title
_______________________________________
(Grantee)
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT SCHEDULE
IDENTIFICATION.
1. Name of Grantee: *
2. Address of Grantee:
3. Social Security Number of Grantee:
4. Date of Option Agreement: February 7, 1996
TERMS OF GRANT.
1. Stock Options.
a. Number of Common Stock: 10,000
(1) Incentive Stock Option:
---------
(2) Nonincentive Stock Option: 10,000
----------
b. Fair Market Value per share as of date of grant: $ 5.81
-----------
c. Option Price:
(1) Incentive Stock Option: $
------------
(2) Nonincentive Stock Option: $ 5.81
------------
d. Date of grant:
(1) Incentive Stock Option:
(2) Nonincentive Stock Option: February 7, 1996
e. Expiration Date:
(1) Incentive Stock Option:
(2) Nonincentive Stock Option: February 7, 2001
f. Time(s) at which Options become(s)
exercisable: 2,000 Immediately
and 2,000 per year
commencing on the
first anniversary
-----------------
* Same schedule provided for each of Neil R. Austrian, Robin L. Farkas,
Mark N. Kaplan, Herbert W. Leonard and Ira T. Wender.
Exhibit 99.7
------------
FORM OF STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, entered into as of November 25, 1997 and
amended on March 18, 1998, between REFAC Technology Development
Corporation, a Delaware Corporation ("REFAC"), and ___________(1) (the
"Optionee"), an employee of Human Factors Industrial Design, Inc. ("HFID").
WHEREAS, REFAC and HFID have entered into that certain Agreement
and Plan of Merger (the "Merger Agreement"), dated as of November 25, 1997,
by and among REFAC, HFID Acquisition Corporation ("New HFID"), HFID and the
Principal Stockholders (as defined in the Merger Agreement) of HFID,
pursuant to which New HFID will be merged with and into HFID (the
"Merger"), and, as a result of which Merger, HFID shall operate as a
subsidiary of REFAC;
WHEREAS, in connection with the Merger, the Optionee has entered
into that certain Employment Agreement, dated as of November 25, 1997 (the
"Employment Agreement"), pursuant to which the Optionee is entitled to
receive the stock option evidenced hereby;
WHEREAS, the Board of Directors of REFAC has determined that it
is in its and its stockholders' best interests to grant to the Optionee an
option to purchase shares of REFAC's common stock, par value $.10 per share
("Stock") in the amount and on the terms and conditions set forth herein;
and
WHEREAS, the Board of Directors of REFAC has determined that it
is in its and its stockholders' best interests that the Option granted
hereby shall not be subject to the terms and provisions of REFAC's 1990
Stock Option and Incentive Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
parties hereto have agreed and do hereby agree as follows:
Section 1. GRANT OF OPTION. The Optionee is hereby granted an
option (the "Option") to purchase an aggregate of ______1 shares of Stock,
subject to adjustment as provided in Section 3 hereof, on the terms and
conditions herein set forth.
- -------------
(1) Same agreement entered into with Paul J. Mulhauser, Christopher I.
Brooks, Karl D. Kirk III, Bert D. Heinzelman, Douglas M. Spranger,
Donald R. Lamond, Carol Brewer, John Moldauer, Paul Lacotta and
Dave Schiff for 30,000, 7,500, 7,500, 30,000, 45,000, 3,750, 3,750,
3,750, 3,750 and 3,750 shares of common stock, respectively.
Section 2. EXERCISE PRICE. The exercise price per share of the
Stock subject to the Option shall be equal to $9.50.
Section 3. EFFECT OF CERTAIN CHANGES. If there is any change in
the Stock through the declaration of extraordinary dividends, stock
dividends, recapitalization, stock splits, or combinations or exchanges of
such shares, or other similar transactions, the number of shares of Stock
subject to the Option and the exercise price per share of the Option shall
be proportionately adjusted by the committee (the "Committee") established
by the Board of Directors of REFAC to administer REFAC's executive
incentive programs to reflect such change in the issued shares of Stock.
Section 4. TERM AND EXERCISABILITY OF OPTION.
(a) Term of Option. Unless the Option is previously cancelled
pursuant to this Agreement, the term of the Option and of this Agreement
shall commence March 18, 1998 (the "Date of Grant") and terminate on the
tenth anniversary of the Date of Grant (such tenth anniversary, the
"Expiration Date"). Upon the termination of the Option, all rights of the
Optionee hereunder shall cease.
(b) Exercisability of Option. The Option shall be exercisable
as to twenty percent (20%) of the aggregate number of shares covered hereby
on the Date of Grant. Subject to Section 7 hereof, the Option will become
exercisable as to sixteen percent (16%) of the aggregate number of shares
of Stock covered hereby on each of the first five (5) anniversaries of the
Date of Grant. Subject to Section 7 hereof, the right of the Optionee to
purchase shares with respect to which this Option has become exercisable as
herein provided may be exercised in whole or in part at any time or from
time to time, prior to the tenth anniversary of the Date of Grant.
Section 5. PAYMENT OF PURCHASE PRICE; WITHHOLDING TAXES.
(a) Payment of Purchase Price. Payment of the exercise price
for any shares of Stock being purchased hereunder (the "Purchase Price")
must be made in cash, by certified or bank check or by delivering to REFAC
previously acquired shares of Stock (none of which shares may be subject to
any claim, lien, security interest, community property right or other right
of spouses or present or former family members, pledge, option, voting
agreement or other restriction or encumbrance of any natures whatsoever).
If the Optionee pays by delivering shares of Stock, the Optionee must
include with the notice of exercise the certificates for such shares, duly
endorsed for transfer. REFAC will value the shares of Stock delivered by
the Optionee at their Fair Market Value (as defined below) on the date of
receipt and, if the value of such shares exceeds the Purchase Price, will
return to the Optionee cash in an amount equal to the value, so determined,
of any fractional portion of a share of Stock exceeding the Purchase Price
and will issue a certificate for any whole shares of Stock exceeding the
Purchase Price.
(b) Withholding Taxes. At the time the Optionee gives notice of
exercise of the Option, the Optionee shall include with such notice payment
in cash or by certified or bank check in an amount equal to all Federal,
state, local, employment or other withholding taxes due, if any, at the
time of exercise of the Option or shall give other assurance to REFAC
satisfactory to the Committee of the payment of such withholding taxes.
(c) Fair Market Value. For purposes of this Agreement, the
"Fair Market Value" of the Stock as of a particular date shall be (i) the
closing sales price of the Stock on a national securities exchange for the
last preceding date on which there was a sale of such Stock on such
exchange, or (ii) if the Stock is then traded on an over-the-counter
market, the average of the closing bid and asked prices for the Stock in
such over-the-counter market for the last preceding date on which there was
a sale of such Stock in such market, or (iii) if the Stock is not then
listed on a national securities exchange or traded in an over-the-counter
market, such value as the Committee in its discretion may determine.
Section 6. TRANSFER OF SHARES.
(a) REFAC shall deliver certificates for the shares of Stock
purchased hereunder as soon as practicable after receiving the payments
required under Section 5 hereof and all other documents as may be required
by law or the terms hereof.
(b) The sale and delivery of any shares purchased hereunder are
subject to approval of any governmental agency which may, in the opinion of
counsel to REFAC, be required in connection with the authorization,
issuance or sale of Stock. REFAC shall use its best efforts to obtain any
such approval. No shares of Stock shall be issued under the Option prior
to compliance with such requirements and with REFAC's listing agreement
with the American Stock Exchange (or other exchange upon which the Stock
may then be listed). The Committee may impose such restrictions on any
shares of Stock acquired pursuant to the exercise of the Option as is
required by applicable Federal securities laws, under the requirements of
any stock exchange or market upon which such shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to such
shares.
Section 7. TERMINATION OF EMPLOYMENT.
(a) Except as provided in this Section 7, the Option may not be
exercised after the Optionee has ceased to be employed by HFID.
(b) If the Optionee's employment with HFID is terminated by HFID
for Cause (as defined in the Employment Agreement), the Option shall be
cancelled as of the date of such termination of employment.
(c) If the Optionee's employment with HFID is terminated (i) by
reason of the Optionee's death (A) during the term of the Employment
Agreement or (B) within ninety (90) days following the effective date of
termination of the Optionee's employment with HFID for any reason other
than for Cause or (ii) by reason of the Optionee's Disability (as defined
in the Employment Agreement) or retirement, the Option shall be exercisable
by the Optionee (or his beneficiary, if appropriate), to the extent
exercisable on the effective date of such termination of employment for a
period of one (1) year following the effective date of such termination of
employment.
(d) If the Optionee's employment with HFID is terminated for any
reason other than for Cause (as defined in the Employment Agreement) or by
reason of the optionee's death, Disability (as defined in the Employment
Agreement) or retirement, the Optionee shall have the right to exercise the
Option, to the extent exercisable on the effective date of such termination
of employment, for a period of ninety (90) days following the effective
date of such termination of employment.
(e) Notwithstanding anything to the contrary in this Section 7,
the Option shall not be exercisable later than the Expiration Date.
Section 8. RIGHTS OF OPTIONEE.
(a) The Optionee shall have none of the rights of a stockholder
with respect to the shares covered by the Option until the shares are
issued or transferred to such Optionee pursuant to Section 6 hereof.
(b) The Option shall not interfere with or limit in any way the
right of HFID to terminate the Optionee's employment at any time, nor
confer upon the Optionee any right to continue in the employ of HFID.
Section 9. NONTRANSFERABILITY OF OPTION. The Option shall not
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution, and shall be exercisable during the Optionee's lifetime only
by him or his legal representative.
Section 10. NOTIFICATION.
(a) The Option shall be exercised by written notification of
exercise substantially in the form of Exhibit A hereto and delivered to the
Secretary of REFAC in accordance with subsection (b) of this Section 10.
Such notification shall specify the number of shares of Stock to be
purchased and the manner in which payment is to be made.
(b) Any notification required or permitted hereunder shall be in
writing and must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to REFAC or the Committee, to REFAC, at
122 East 42nd Street, New York, New York 10168, or to the Optionee at the
address set forth below, as the case may be, and deposited, postage
prepaid, in the United States mail; provided, however, that a notification
of exercise pursuant to subsection (a) of this Section 10 shall be
effective only upon receipt by REFAC of such notification and all necessary
documentation, including full payment for the Shares. Either party may, by
notification to the other given in the manner aforesaid, change the address
for future notices.
Section 11. CANCELLATION AND REISSUANCE. The Committee shall
have the authority to provide for the cancellation of the Option and the
reissuance of a replacement Option upon such terms as the Committee, in its
sole discretion, deems appropriate, provided that such terms shall not
adversely affect the Optionee in any material way.
Section 12. RESERVATION OF SHARES. REFAC agrees that, until
the exercise or expiration of the Option, at all times there shall be
reserved for issuance and/or delivery upon exercise of this Option such
number of shares of Stock as shall be required for issuance and delivery
upon exercise of the Option.
Section 13. GOVERNING LAW; INTERPRETATION.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
its conflicts of law principles.
(b) The Committee shall have final authority to interpret and
construe this Agreement and to make any and all determinations under them,
and its determination and decisions shall be final, conclusive and binding
upon the Optionee and his legal representative in respect of any questions
arising under this Agreement.
Section 14. MISCELLANEOUS.
(a) This Agreement shall bind and inure to the benefit of REFAC,
its successors and assigns, and the Optionee and his personal
representatives and assigns.
(b) The failure of REFAC to enforce at any time any provision of
this Agreement shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
(c) Amendment. This Agreement may be amended or modified at any
time by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, REFAC has caused this Agreement to be duly
executed by its officer thereunder duly authorized and the Optionee has
hereunto set his hand, all as of the day and year set forth above.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By _______________________________
Name:
Title:
ACCEPTED:
______________________________
Optionee Date
Address:
______________________________
______________________________
______________________________
Exhibit 99.8
------------
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, entered into as of January 21, 1998, by
and between REFAC Technology Development Corporation, a Delaware
corporation ("REFAC");, and Arlene Scanlan (the "Optionee"), an employee of
REFAC Licensing Corporation, a Connecticut corporation ("RLC").
W I T N E S S E T H:
WHEREAS, the Optionee has entered into that certain Employment
Agreement, dated as of January 21, 1998 (the "Employment Agreement"),
pursuant to which the Optionee is entitled to receive the stock option
evidenced hereby;
WHEREAS, the Board of Directors of REFAC has determined that it
is in its and its stockholders' best interests to grant to the Optionee an
option to purchase shares of REFAC's common stock, par value $.10 per share
("Stock") in the amount and on the terms and conditions set forth herein;
and
WHEREAS, the Board of Directors of REFAC has determined that it
is in its and its stockholders' best interests that the Option granted
hereby shall not be subject to the terms and provisions of REFAC's 1990
Stock Option and Incentive Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
parties hereto have agreed and do hereby agree as follows:
Section 1. Grant of Option. The Optionee is hereby granted an
option (the "Option") to purchase an aggregate of 50,000 shares of Stock,
subject to adjustment as provided in Section 3 hereof, on the terms and
conditions herein set forth.
Section 2. Exercise Price. The exercise price per share of the
Stock subject to the Option shall be equal to 100 percent (100%) of the
Fair Market Value of such stock on the date of grant, as determined
pursuant to Section 5(c).
Section 3. Effect of Certain Changes. If there is any change in
the Stock through the declaration of extraordinary dividends, stock
dividends, recapitalization, stock splits, or combinations or exchanges of
such shares, or other similar transactions, the number of shares of Stock
subject to the Option and the exercise price per share of the Option shall
be proportionately adjusted by the committee (the "Committee") established
by the Board of Directors of REFAC to administer REFAC's executive
incentive programs to reflect such change in the issued shares of Stock.
Section 4. Term and exercisability of Option.
(a) Term of Option. Unless the Option is previously
cancelled pursuant to this Agreement, the term of the Option and of this
Agreement shall commence on the date hereof (the "Date of Grant") and
terminate on the tenth anniversary of the Date of Grant (such tenth
anniversary, the "Expiration Date"). Upon the termination of the Option,
all rights of the Optionee hereunder shall cease.
(b) Exercisability of Option. The Option shall be
exercisable as to twenty percent (20%) of the aggregate number of shares
covered hereby on the Date of Grant. Subject to Section 7 hereof, the
Option will become exercisable in cumulative fashion as to an additioinal
twenty percent (20%) of the aggregate number of shares of Stock covered
hereby on each of the first four (4) anniversaries of the Date of Grant.
Subject to Section 7 hereof, the right of the Optionee to purchase shares
with respect to which this Option has become exercisable as herein provided
may be exercised in whole or in part at any time from time to time, prior
to the tenth anniversary of the Date of Grant.
Section 5. Payment of Purchaser Price; Withholding Taxes.
(a) Payment of Purchase Price. Payment of the exercise
price for any shares of Stock being purchased hereunder (the "Purchase
Price") must be made in cash, by certified or bank check or by delivering
to REFAC previously acquired shares of Stock (none of which shares may be
subject to any claim, lien, security interest, community property right or
other right of spouses or present or former family members, pledge, option,
voting agreement or other restriction or encumbrance of any nature
whatsoever). If the Optionee pays by delivering shares of Stock, the
Optionee must include with the notice of exercise the certificates for such
shares, duly endorsed for transfer. REFAC will value the shares of Stock
delivered by the Optionee at their Fair Market Value (as defined below) on
the date of receipt and, if the value of such shares exceeds the Purchase
Price, will return to the Optionee cash in an amount equal to the value, so
determined, of any fractional portion of a share of Stock exceeding the
Purchase Price and will issue a certificate for any whole shares of Stock
exceeding the Purchase Price.
(b) Withholding Taxes. At the time the Optionee gives
notice of exercise of the Option, the Optionee shall include with such
notice payment in cash or by certified or bank check in an amount equal to
all Federal, state, local, employment or other withholding taxes due, if
any, at the time of exercise of the Option or shall give other assurance to
REFAC satisfactory to the Committee of the payment of such withholding
taxes.
(c) Fair Market Value. For purposes of this Agreement, the
"Fair Market Value" of the stock as of a particular date shall be (i) the
closing sales price of the Stock on a national securities exchange for the
last preceding date on which there was a sale of such Stock on such
exchange, or (ii) if the Stock is then traded on an over-the-counter
market, the average of the closing bid and asked prices for the Stock in
such over-the-counter market for the last preceding date on which there was
a sale of such Stock in such market, or (iii) if the Stock is not then
listed on a national securities exchange or traded in an over-the-counter
market, such value as the Committee in its discretion may determine.
Section 6. Transfer of Shares.
(a) REFAC shall deliver certificates for the shares of
Stock purchased hereunder as soon as practicable after receiving the
payments required under Section 5 hereof and all other documents as may be
required by law or the terms hereof.
(b) The sale and delivery of any shares purchased hereunder
are subject to approval of any governmental agency which may, in the option
of counsel to REFAC, be required in connection with the authorization,
issuance or sale of Stock. REFAC shall use its best efforts to obtain any
such approval. No shares of Stock shall be issued under the Option prior
to compliance with such requirements and with REFAC's listing agreement
with the American Stock Exchange (or other exchange upon which the Stock
may then be listed). The Committee may impose such restrictions on any
shares of Stock acquired pursuant to the exercise of the Option as is
required by applicable Federal securities laws, under the requirements of
any stock exchange or market upon which such shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to such
shares.
Section 7. Termination of Employment.
(a) Except as provided in this Section 7, the Option may
not be exercised after the Optionee has ceased to be employed by RLC.
(b) If the Optionee's employment with RLC is terminated by
RLC for Cause (as defined in the Employment Agreement), the Option shall be
cancelled as of the date of such termination of employment.
(c) If the Optionee's employment with RLC is terminated (i)
by reason of the Optionee's death (A) during the term of the Employment
Agreement or (B) within ninety (90) days following the effective date of
termination of the Optionee's employment with RLC for any reason other than
for Cause or (ii) by reason of the Optionee's Disability (as defined in the
Employment Agreement ) or retirement, the Option shall be exercisable by
the Optionee (or her beneficiary, if appropriate), to the extent
exercisable on the effective date of such termination of employment for a
period of one (1) year following the effective date of such termination of
employment.
(d) If the Optionee's employment with RLC is terminated for
any reason other than for Cause (as defined in the Employment Agreement) or
by reason of the Optionee's death, Disability (as defined in the Employment
Agreement) or retirement, the Option shall become fully exercisable and the
Optionee shall have the right to exercise the Option for a period of ninety
(90) days following the effective date of such termination of employment.
(e) Notwithstanding anything to the contrary in this
Section 7, the Option shall not be exercisable later than the Expiration
Date.
Section 8. Rights of Optionee.
(a) The Optionee shall have none of the rights of a
stockholder with respect to the shares covered by the Option until the
shares are issued or transferred to such Optionee pursuant to Section 6
hereof.
(b) The Option shall not interfere with or limit in any way
the right of RLC to terminate the Optionee's employment at any time, nor
confer upon the Optionee any right to continue in the employ of RLC.
Section 9. Nontransferability of Option. The Option shall not
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution, and shall be exercisable during the Optionee's lifetime only
by him or his legal representative.
Section 10. Notification.
(a) The Option shall be exercised by written notification
of exercise substantially in the form of Exhibit A hereto and delivered to
the Secretary of REFAC in accordance with subjection (b) of this
Section 10. Such notification shall specify the number of shares of Stock
to be purchased and the manner in which payment is to be made.
(b) Any notification required or permitted hereunder shall
be in writing and must be given by personal delivery or by certified mail,
return receipt requested, addressed, if to REFAC or the Committee, to
REFAC, at 122 East 42nd Street, New York, New York 10168, or to the
Optionee at the address set forth below, as the case may be, and deposited,
postage prepaid, in the United States mail; provided, however, that a
notification of exercise pursuant to subsection (a) of this Section 10
shall be effective only upon receipt by REFAC of such notification and all
necessary documentation, including full payment for the Shares. Either
party may, by notification to the other given in the manner aforesaid,
change the address for future notices.
Section 11. Cancellation and Reissuance. The Committee shall
have the authority to provide for the cancellation of the Option and the
reissuance of a replacement Option upon such terms as the Committee, in its
sole discretion, deems appropriate, provided that such terms shall not
adversely affect the Optionee in any material way.
Section 12. Reservation of Shares. REFAC agrees that, until the
exercise or expiration of the Option, at all times there shall be reserved
for issuance and/or delivery upon exercise of this Option such number of
shares of Stock as shall be required for issuance and delivery upon
exercise of the Option.
Section 13. Governing Law; Interpretation.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
its conflicts of law principles.
(b) The Committee shall have final authority to interpret
and construe this Agreement and to make any and all determinations under
them, and its determinations and decisions shall be final, conclusive and
binding upon the Optionee and his legal representative in respect of any
questions arising under this Agreement.
Section 14. Miscellaneous.
(a) This Agreement shall bind and inure to the benefit of
REFAC, its successors and assigns, and the Optionee and his personal
representatives and assigns.
(b) The failure of REFAC to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of
such provision or of any other provision hereof.
(c) Amendment. This Agreement may be amended or modified
at any time by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, REFAC has caused this Agreement to be duly
executed by its officer thereunder duly authorized and the Optionee has
hereunto set her hand, all as of the day and year set forth above.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By: /s/ Robert L. Tuchman
---------------------------------
Robert L. Tuchman, President
Date: January 21, 1998
ACCEPTED:
/s/ Arlene Scanlan
-------------------------
Arlene Scanlan (Optionee)
Date: January 21, 1998
Address:
P.O. Box 1059
Green Farms, Connecticut 06430
Social Security No.: ###-##-####
