<PAGE>
As filed with the Securities and Exchange Commission on September 1, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POLYVISION CORPORATION
(Exact name of issuer as specified in its charter)
New York 13-3482597
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
29 Laing Avenue
Dixonville, PA 15734
(Address of Principal Executive Offices) (Zip Code)
1995 Directors Stock Grant Plan
(Full title of the plan)
Joseph A. Menniti
President and Chief Executive Officer
PolyVision Corporation
29 Laing Avenue
Dixonville, PA 15734
(Name and address of agent for service)
(724) 254-4321
(Telephone number, including area code, of agent for service)
Copies of communications to:
Spencer G. Feldman, Esq.
Greenberg Traurig
200 Park Avenue
New York, New York 10166
Tel: (212) 801-9200
Fax: (212) 801-6400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------- -------------------- ------------------ --------------------- -----------------
- ----------------------------------------- -------------------- ------------------ --------------------- -----------------
Title of Amount Proposed Proposed Amount of
securities to be registered to be maximum maximum registration
registered offering price aggregate fee
per share(1) offering price(1)
- ----------------------------------------- -------------------- ------------------ --------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 43,333 shares $1.32 $57,200 $17.00
- ----------------------------------------- -------------------- ------------------ --------------------- -----------------
- ----------------------------------------- -------------------- ------------------ --------------------- -----------------
</TABLE>
(1) Pursuant to Rule 457(c), the offering price and amount of registration fee
have been calculated based on the average of the reported high ($1.38) and low
($1.25) sale prices of the issuer's Common Stock on the American Stock Exchange
on August 26, 1998.
Page 1 of 19 Pages
Exhibit Index Appears on Page II-7
<PAGE>
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
PolyVision Corporation (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents
(Commission File No. 1-10555):
(a) the Registrant's Annual Report on Form 10-K for the period
ended April 30, 1998;
(b) the Registrant's Proxy Statement for the Annual Meeting of
Shareholders, dated February 23, 1998; and
(c) the Registrant's Registration Statement on Form 8-A, dated
June 13, 1990.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 722 of the Business Corporation Law of New York (the
"New York Law") provides that a corporation may indemnify any person made or
threatened to be made a party to a civil or criminal action or proceeding, other
than one by or in the right of the corporation to procure a judgment in its
favor, by reason of the fact that such person, or such person's testator or
intestate, was a director or officer of the corporation, or in such capacity
served another corporation or other enterprise in any capacity at the request of
the corporation, against judgments, fines, amounts paid in settlement, and
reasonable expenses, including attorneys' fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein, if the director
or officer acted in good faith for a purpose which he or she reasonably believed
to be in (or, in the case of service to another corporation or other enterprise
at the request of the corporation, not opposed to) the best interests of the
corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe his or her
II-1
<PAGE>
conduct to be unlawful. Section 722 of the New York Law also permits
indemnification by a corporation of any such person made or threatened to be
made a party to an action by or in the right of the corporation to procure a
judgment in its favor, against amounts paid in settlement and reasonable
expense, including attorneys' fees, actually and necessarily incurred by him or
her in connection with the defense or settlement of such an action, or in
connection with an appeal therein, if the director or officer acted in good
faith for a purpose which he or she reasonably believed to be in (or, in the
case of service as a director or officer to another corporation or other
enterprise at the request of the corporation, not opposed to) the best interests
of the corporation, provided that no such indemnification is available in
respect of (i) a threatened action, or a pending action which is settled or
otherwise disposed of, or (ii) 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 in which the action was brought or, if no action
was brought, any court of competent jurisdiction determines upon application
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnification for such portion of the settlement amount
and expenses as the court deems proper.
Section 721 of the New York Law states that the provisions of
the New York Law concerning indemnification and advancement of expenses are not
exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled and allows a
corporation to grant additional rights of indemnification and advancement of
expenses to its directors and officers pursuant to its certificate of
incorporation or by-laws or, when authorized by the certificate of incorporation
or by-laws, by (a) a resolution of shareholders, (b) a resolution of directors,
or (c) an agreement providing for such indemnification, provided that no
judgment or other final adjudication adverse to a director or officer seeking
indemnification establishes that (i) his or her acts were committed in bad faith
or were the result of active and deliberate dishonesty and were material to the
claim so adjudicated or (ii) he or she personally gained a financial profit or
other advantage to which he or she was not legally entitled.
Article SEVENTH of the Certificate of Incorporation of
the Registrant provides in part as follows:
"The Corporation may, to the fullest extent permitted by
Sections 721 through 726 of the Business Corporation Law of New York, indemnify
any and all directors and officers whom it shall have power to indemnify under
the said sections from and against any and all of the expenses, liabilities or
other matters referred to in or covered by such section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
the persons so indemnified may be entitled under any By-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to acting in his
official capacity and as to action in another capacity by holding such office,
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefits of the heirs, executors and administrators of such a
person."
The Registrant's officers and directors are each covered under
a directors' and officers' liability insurance policy and an indemnification
agreement with the Registrant.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See "EXHIBIT INDEX" on page II-7 below.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and 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 change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each 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.
II-3
<PAGE>
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 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 Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
I-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on August 26, 1998.
POLYVISION CORPORATION
By: /s/ Joseph A. Menniti
-------------------------------
Joseph A. Menniti
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Steven S. Elbaum, Joseph A. Menniti and Bragi F.
Schut his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, and in any and all capacities, to sign
all amendments (including post-effective amendments) to the Registration
Statement to which this power relates and all exhibits thereto and other
documents to be filed in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
--------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
/s/ Steven S. Elbaum Chairman of the Board and Director August 26, 1998
- ---------------------------------
Steven S. Elbaum
/s/ Joseph A. Menniti President, Chief Executive Officer August 26, 1998
- --------------------------------- and Director (principal executive officer)
Joseph A. Menniti
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Ivan Berkowitz Director August 27, 1998
- ----------------------------------
Ivan Berkowitz
/s/ Lawrence W. Hay Vice President of Finance August 27, 1998
- --------------------------------- (principal financial
Lawrence W. Hay and accounting officer)
/s/ Lyman C. Hamilton, Jr. Director August 26, 1998
- --------------------------
Lyman C. Hamilton, Jr.
/s/ Stephen C. Knup Director August 16, 1998
- ---------------------------------
Stephen C. Knup
/s/ Bragi F. Schut Director August 27, 1998
- ---------------------------------
Bragi F. Schut
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page No.
<S> <C> <C>
4.5* Specimen form of Common Stock Certificate of PolyVision
Corporation.
5.1 Opinion of Greenberg Traurig. 9
10.20 PolyVision Corporation 1995 Directors Stock Grant Plan. 10
23.1 Consent of Arthur Andersen LLP, independent public 19
accountants.
23.2 Consent of Greenberg Traurig (included as Exhibit 5.1).
25.1 Power of Attorney (contained on signature page).
</TABLE>
- ------------------------------
* Incorporated herein by reference to Registration Statement on Form S-2,
effective June 9, 1995 (No. 33-93010).
II-7
<PAGE>
EXHIBIT 5.1
GREENBERG TRAURIG
MetLife Building
200 Park Avenue
New York, New York 10166
August 31, 1998
PolyVision Corporation
29 Laing Avenue
Dixonville, PA 15734-0335
Gentlemen:
We have acted as counsel to PolyVision Corporation, a New York
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-8 covering 43,333 shares of the Company's authorized but
unissued Common Stock, par value $.001 per share (the "Common Stock"), issuable
pursuant to the 1995 Directors Stock Grant Plan (the "Plan"). It is our opinion
that the shares of Common Stock, when granted under the terms of the Plan, will
be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the above-referenced
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Greenberg Traurig
---------------------------
GREENBERG TRAURIG
<PAGE>
EXHIBIT 10.20
POLYVISION CORPORATION
-----------------------------
1995 DIRECTORS STOCK GRANT PLAN
------------------------------
1 1. Purpose. This Plan is intended to provide incentive to
directors of the Corporation, to encourage proprietary interest in the
Corporation, and to attract new directors with outstanding qualifications.
2 2. Definitions. Whenever the following terms are used in this
Plan, they shall have the meaning specified below unless the context indicates
otherwise:
(a) "Act" shall mean the Securities Act of 1933, as
amended.
(b) "Administrator" shall mean the Board or the
Committee, whichever shall be administering the Plan from time to time in the
discretion of the Board, as described in Section 4(a) of the Plan.
(c) "Annual Meeting Date" shall have the meaning assigned
to it in Section 6(e) hereof.
(d) "Board" shall mean the Board of Directors of the
Corporation.
(e) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(f) "Committee" shall mean the committee appointed by
the Board in accordance with Section 4(a) of the Plan.
(g) "Common Stock" shall mean the Common Stock, par
value $.001 per share, of the Corporation.
(h) "Corporation" shall mean PolyVision Corporation, a New
York corporation.
(i) "Directors" shall mean, collectively, all directors,
duly elected to the Board by the Corporation's shareholders or otherwise in
accordance with the Corporation's By-laws, and all directors appointed to fill a
vacancy or a newly-created directorship position of the Board.
1
<PAGE>
(j) "Disability" shall mean the condition of a Director who
is unable to substantially fulfill his responsibilities as a member of the Board
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve (12) months.
(k) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(l) "Fair Market Value" shall mean the value of one (1)
Share of Common Stock, determined as follows, without regard to any restriction
other than a restriction which, by its terms, will never lapse:
(i) If the Shares are traded on the New York or
American Stock Exchange (or other exchange) or the National
Market System (the "NMS") of the National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ"), the last sale price as reported for composite
transactions on the date of valuation or, if no sales occurred
on that date, then the average of the highest bid and lowest
asked prices on such exchange or the NMS at the end of the day
on such date;
(ii) If the Shares are not traded on the New York
or American Stock Exchange (or other exchange) or the NMS but
are otherwise traded over-the-counter, the average of the
highest bid and lowest asked prices quoted in the NASDAQ
system as of the close of business on the date of valuation,
or, if on such day such security is not quoted in the NASDAQ
system, the average of the representative bid and asked prices
on such date in the domestic over-the-counter market as
reported by the National Quotation Bureau, Inc., or any
similar successor organization; and
(iii) If neither (i) nor (ii) applies, the fair
market value as determined by the Administrator in good faith.
Such determination shall be conclusive and binding on all
persons.
(m) "Grant" shall mean any stock award granted pursuant to
the Plan.
(n) "Grantee" shall mean a Director who has received a
Grant pursuant to Section 4(b) hereof.
(o) "Plan" shall mean this PolyVision Corporation 1995
Directors Stock Grant Plan, as it may be amended from time to time.
(p) "Share" shall mean one (1) share of Common Stock,
adjusted in accordance with Section 8 of the Plan (if applicable).
2
<PAGE>
(q) "Term of Directorship" shall have the meaning assigned
to it in Section 6(b) hereof.
(r) "Transition Grants" shall have the meaning assigned to
it in Section 6(c) hereof.
(s) "Valuation Date" shall have the meaning assigned to it
in Section 6(c) hereof.
(t) "Vested Shares" and "Non-Vested Shares" shall have the
meanings assigned to such terms
in Section 6(e) hereof.
3. Effective Date. This Plan was adopted by the Board effective
October 2, 1995, subject to the approval of the Corporation's shareholders
pursuant to Section 12 hereof.
4. Administration and Eligibility.
(a) Administrator. The Plan shall be administered, in the
discretion of the Board from time to time, by the Board or by the Committee. The
Committee shall be appointed by the Board and shall consist of not less than two
(2) members of the Board. The Board may from time to time remove members from,
or add members to, the Committee. Vacancies on the Committee, however caused,
shall be filled by the Board. The Board shall appoint one of the members of the
Committee as Chairman. The Administrator shall hold meetings at such times and
places as it may determine. Acts of a majority of the Administrator at a meeting
at which a quorum is present, or acts reduced to or approved in writing by
unanimous consent of the members of the Administrator, shall be the valid acts
of the Administrator.
(b) The Administrator shall maintain a list of the Directors
who have been awarded Grants, and determine the number of Shares granted to each
Director in accordance with Section 6(b) hereof. Subject to the express
provisions of the Plan, the Administrator shall have the authority to construe
and interpret the Plan and to define the terms used in the Plan, to prescribe,
amend and rescind rules and regulations relating to the administration of the
Plan and to make all other determinations necessary or advisable for the
administration of the Plan. The interpretation and construction by the
Administrator of any provisions of the Plan or of any Grant awarded thereunder
shall be final. No member of the Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or any Grant awarded
thereunder.
(c) Participation. The Grantees shall consist exclusively of
Directors of the Corporation; provided, however, that no Director shall be
eligible to be a Grantee if and to the extent that such Director is prohibited
from personally accepting or benefiting from a Grant hereunder due to such
Director's affiliation with a business organization; provided, further, that if
at any time a Director who has not been eligible under the Plan due to the
immediately preceding proviso becomes eligible to participate, such Director
shall be treated as having been elected to a term of less than three years at
the time such Director becomes so eligible, and at
3
<PAGE>
such time shall receive a Grant as though such Director had been elected at
such time, pursuant to Section 6(b) of the Plan.
5. Stock. The stock subject to Grants awarded under the Plan shall be
Shares of the Corporation's authorized but unissued or reacquired Common Stock.
The aggregate number of Shares which may be issued upon exercise of Grants under
the Plan shall not exceed Two Hundred Thousand (200,000), subject to the
occurrence of any of the events specified in Section 8 hereof. The number of
Shares subject to additional Grants at any time shall not exceed the number of
Shares remaining available for issuance under the Plan. In the event that any
Shares subject to any outstanding grants for any reason are forfeited and
returned to the Corporation in accordance with Section 6(f) of the Plan, the
Shares so forfeited may again be subject to Grants.
6. Terms and Conditions of Grants.
(a) Stock Grant Agreements. Grants shall be evidenced
by written stock grant agreements in such form as the Administrator shall
from time to time determine. Such agreements need not be identical but
shall comply with and be subject to the terms and conditions set forth below.
(b) Award of Grants. A Grant shall be awarded to each
Director as of the day that such Director takes office following the election of
such Director by the shareholders or by the Board, as permitted in the
Corporation's By-laws, in partial consideration for the fulfillment by such
Director of such Director's duties as a director of the Corporation. Subject to
the availability of Shares as specified in Section 5 of the Plan, each Grant
shall be for 10,000 Shares.
(c) Grants upon Adoption of Plan. Notwithstanding any
provision to the contrary herein, upon the final ratification of the Plan by the
Board, and subject to the approval by shareholders as contemplated by Section 12
of the Plan, each person who was a Director upon the adoption by the Board of
the Plan (October 2, 1995) will receive a Grant (collectively, the "Transition
Grants") effective upon May 24, 1995, the date of the Corporation's 1995 Annual
Meeting of Shareholders.
(d) Number of Shares. Each Grant shall state the number
of Shares to which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 8 hereof.
(e) Vesting. Shares included in Grants shall be subject to
the vesting provisions herein set forth. Shares which have vested according to
the schedule set forth below shall be considered "Vested Shares" and Shares
which have not so vested shall be considered "Non-Vested Shares." The Shares
included in each Grant shall vest ratably on the date of each of the three
successive Annual Meetings of Shareholders of the Corporation (each, an "Annual
Meeting Date") following the effective date of the Grant. The number of Shares
subject to a Grant which shall become Vested Shares as of each Annual Meeting
Date shall be one-third of the total number of Shares included in the Grant
(e.g., 3,333 Shares in the first year, 3,333 Shares in the second year and 3,334
Shares in the third year); provided, however, in the case of
4
<PAGE>
Transition Grants, Directors shall be deemed to have completed twelve (12)
months of service as a Director on the 1996 Annual Meeting Date. If no Annual
Meeting of Shareholders shall have occurred in any fiscal year on or before
October 31 of such fiscal year, then unless the Board shall have adopted a
resolution adopting an alternative date, October 31 shall be considered to be
the Annual Meeting Date.
(f) Restrictions on Non-Vested Shares. A Grantee may not
assign, sell, pledge, hypothecate or otherwise transfer any Grant or any
Non-Vested Shares. If a Grantee ceases to be a Director for any reason or no
reason, including upon death or Disability, removal (with or without cause) or
resignation, the Grant shall be automatically terminated immediately upon the
effective date of such cessation and all Shares included in Grants which are
Non-Vested Shares as of the effective date of such cessation, shall be forfeited
automatically and shall, effective immediately upon such cessation, be returned
to the status of authorized to be issued pursuant to Grants under the Plan. In
the discretion of the Administrator, the Corporation may devise any mechanism
reasonable for the purpose of enforcing the restrictions and limitations on
Non-Vested Shares. In the absence of any other such mechanism, the Corporation
may retain possession of any certificates representing Non-Vested Shares, but
shall cause certificates representing Shares which have become Vested Shares
registered in the name of the Grantee to be delivered to the Grantee entitled to
the same promptly following the time at which such Shares become Vested Shares
as herein described.
(g) Rights as a Shareholder. Except as provided in Section
6(f) of the Plan, a Grantee shall have and enjoy all rights as a shareholder
with respect to all Shares included in the Grant, regardless of whether the
Shares awarded are Vested or Non-Vested, including, without limitation, the
right to vote any such Shares, the right to receive all communications addressed
by the Corporation to its shareholders, and the right to receive dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions or other rights as provided in the Certificate of Incorporation or
By-laws of the Corporation. Notwithstanding any provision hereof, a Director may
not transfer any Shares received pursuant to a Grant for a period of six (6)
months immediately following the effective date of the Grant.
(h) Payment of Taxes; Related Matters. In the event the
Corporation determines it is required to withhold state, local or Federal income
tax as a result of the award of a Grant or the vesting of any Shares subject to
a Grant, the Corporation may require a Grantee to make arrangements satisfactory
to the Corporation to enable it to satisfy such withholding requirements.
Payment of such withholding requirements may be made, in the discretion of the
Administrator, (i) in cash, (ii) by delivery of Shares registered in the name of
the Grantee, or by the Corporation not issuing such number of Shares subject to
the Grant having a Fair Market Value at the effective date of the Grant or the
date of such vesting equal to the amount to be withheld, or (iii) any
combination of (i) and (ii) above. An election under the preceding sentence may
only be made during the period beginning on the third business day following the
date of release of quarterly and annual summary statements of sales and earnings
as provided by Rule 16b-3(e)(3)(iii) (or Rule 16b-3(e)(3) following the
scheduled amendment of Rule 16b-3) of the Securities and Exchange Commission and
ending on the twelfth business day following such date and only if such period
occurs before the date the Corporation requires payment of the
5
<PAGE>
withholding tax. The election need not be made during the ten-day window if
(a) it is made at least six (6) months prior to the date of the Grant or (b)
counsel to the Corporation determines that compliance with such requirement is
unnecessary.
THE STOCK GRANT AGREEMENT SHALL APPRISE THE GRANTEE OF THE TAX
CONSEQUENCES TO THE GRANTEE OF SECTION 83 OF THE CODE (INCLUDING THE TAX
CONSEQUENCES TO THE GRANTEE OF FILING OF AN ELECTION PURSUANT TO SECTION 83(b)
OF THE CODE), AND SHALL ALLOCATE THE RESPONSIBILITY FOR RECEIVING APPROPRIATE
ADVICE WITH RESPECT THERETO TO THE GRANTEE.
(i) Other Provisions. The stock grant agreements
authorized under the Plan may contain such other provisions
not inconsistent with the terms of the Plan (including,
without limitation, restrictions upon the transfer of Shares
of stock following the award of the Grant) as the
Administrator shall deem advisable.
7. Term of Plan. Grants may be awarded pursuant to the Plan
until the expiration of the Plan on October 2, 2005.
8. Recapitalizations and Other Transactions. Subject to any
required action by shareholders, the aggregate number of Shares covered by
the Plan as provided in Section 5 hereof and the number of Shares covered by
each Grant shall be proportionately adjusted for any increase or decrease in
the number of issued Shares resulting from a stock split, stock dividend (but
only of Common Stock), combination of shares or any other change, by
reclassification, reorganization, redesignation, recapitalization or
otherwise, or any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Corporation. If any such
adjustment results in a fractional share, such fraction shall be disregarded.
Subject to any required action by shareholders, if the
Corporation shall merge with another corporation and the Corporation is the
surviving corporation in such merger and under the terms of such merger the
shares of Common Stock outstanding immediately prior to the merger remain
outstanding and unchanged, each outstanding Grant shall continue to apply to the
Shares subject thereto, and any Shares awarded pursuant to a Grant prior to a
merger, which have yet to fully vest in accordance with the schedule set forth
in Section 6(e) of the Plan, shall continue to be subject to the same vesting
schedule. In addition, in the event of a merger where the Corporation is the
surviving corporation, each outstanding Grant shall also pertain and apply to
any additional securities and other property, if any, to which a holder of the
number of Shares subject to the Grant would have been entitled as a result of
the merger. If the Corporation or The Alpine Group, Inc. ("Alpine") sells all,
or substantially all, of its assets, or the Corporation or Alpine merges (other
than a merger of the type described in the immediately preceding sentence) or
consolidates with another corporation, this Plan shall terminate and each
Non-Vested Share awarded hereunder pursuant to a Grant shall be Vested. A
dissolution or liquidation of the Corporation or Alpine, other than a
dissolution or liquidation immediately following a sale of all or substantially
all of the assets of the Corporation or Alpine, which shall be governed by the
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immediately preceding sentence, shall cause this Plan to terminate and each
Non-Vested Share under any Grant to be Vested.
To the extent that the foregoing adjustments relate to
securities of the Corporation, such adjustments shall be made by the
Administrator, whose determination shall be conclusive and binding on all
persons.
Except as expressly provided in this Section 8, the Grantee
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class, the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger or consolidation or spin-off of assets or stock
of another corporation, and any issue by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number of Shares subject to a Grant.
The award of a Grant pursuant to the Plan shall not affect in
any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
9. Securities Law Requirements.
(a) Legality of Issuance. No Shares shall be issued upon
the award of any Grant unless and until the Corporation has determined that:
(i) it and the Grantee have taken all actions
required to register the award of the Shares under the Act,
or to perfect an exemption from the registration requirements
thereof;
(ii) any applicable listing requirement of any
stock exchange on which the Common Stock is listed has been
satisfied; and
(iii) any other applicable provision of state or
Federal law has been satisfied.
(b) Restrictions on Transfer; Representations of Grantee; Legends.
Regardless if whether the award of Shares under the Plan has been registered
under the Act or has been registered or qualified under the securities laws of
any state, the Corporation may impose restrictions upon the sale, pledge or
other transfer of such Shares (including the placement of appropriate legends on
stock certificates) if, in the judgment of the Corporation and its counsel, such
restrictions are necessary or desirable in order to achieve compliance with the
provisions of the Act, the securities laws of any state or any other law. In the
event that the award of Shares under the Plan is not registered under the Act
but an exemption is available which requires an investment representation or
other representation, each Grantee shall be required to represent that such
Shares are being acquired for investment, and not with a view to the sale or
distribution
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thereof, and to make such other representations as are deemed necessary or
appropriate by the Corporation and its counsel. Stock certificates evidencing
Shares acquired under the Plan pursuant to an unregistered transaction shall
bear the following restrictive legend (or similar legend in the discretion of
the Administrator) and such other restrictive legends as are required or deemed
advisable under the provisions of any applicable law:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY IN FORM AND CONTENT TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT."
Any determination by the Corporation and its counsel in
connection with any of the matters set forth in this Section 9 shall be
conclusive and binding on all persons.
(c) Registration or Qualification of Securities. The
Corporation may, but shall not be obligated to, register or qualify the award of
Shares pursuant to the Plan under the Act or any other applicable law. The
Corporation shall not be obligated to take any affirmative action in order to
cause the award of Shares under the Plan to comply with any law.
(d) Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock certificate
representing Shares awarded under the Plan is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Shares but without such legend.
10. Information to Grantees. The Corporation shall provide each
Grantee on an annual or other periodic basis financial and other information
regarding the Corporation. The Corporation may provide this information to each
Grantee in any manner reasonably calculated to ensure receipt of the information
by each Grantee.
11. Amendment of the Plan. The Board may, from time to time, with
respect to any Shares at the time not subject to Grants suspend or discontinue
the Plan or revise or amend it in any respect whatsoever, provided that the
Board shall not revise or amend the Plan more than once every six (6) months
(other than to comport with changes in the Code or the Employee Retirement
Income Security Act, or the rules or regulations thereunder), and provided,
further, that no amendment or revision shall adversely affect, without the
affected Grantee's written consent, the rights of an Grantee to whom the Shares
have been issued pursuant to the Plan. In addition, without the approval of the
Corporation's shareholders, no such revision or amendment shall:
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(a) materially increase the benefits accruing to the
Grantees under the Plan;
(b) increase the number of Shares which may be issued under
the Plan;
(c) change the designation in Section 4 hereof with
respect to the classes of persons eligible to receive Grants;
(d) modify the Plan such that it fails to meet the
requirement of Rule 16b-3 of the Securities and Exchange Commission for the
exemption of the acquisition, cancellation, expiration or surrender of Grants
from the operation of Section 16(b) of the Exchange Act; or
(e) amend this Section 11 to defeat its purpose.
12. Approval of Shareholders. The Plan shall be subject to approval
by the affirmative vote of the holders of a majority of the outstanding shares
present or represented and entitled to vote at the first annual meeting of
shareholders of the Corporation following the adoption of the Plan, and in no
event later than October 31, 1996. Following the adoption of the Plan by the
Board on October 2, 1995, but prior to shareholder approval, Grants may be
awarded to Directors duly elected or appointed to serve on the Board of the
Corporation, pending shareholder approval, and upon such approval by the
shareholders, the actions of the Administrator by which the Grants were awarded
shall be ratified. Any amendment described in Section 11 shall also be subject
to approval by the Corporation's shareholders.
13. Execution. To record the adoption of the Plan by the Board on
October 2, 1995, the Corporation has caused its authorized officer to affix its
corporate name and seal hereto.
POLYVISION CORPORATION
By: /s/ Steven S. Elbaum
-----------------------------------
Steven S. Elbaum, Chairman
of the Board of Directors
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated July 20, 1998 included in PolyVision Corporation's Form 10-K for
the year ended April 30, 1998.
ARTHUR ANDERSEN LLP
Pittsburgh, Pennsylvania
August 31, 1998
