<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)
1994 STOCK OPTION 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 400,000 shares $1.32 $528,000 $155.76
</TABLE>
(1) Pursuant to Rule 457(h), 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 20 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 conduct to be unlawful. Section 722 of
the New York Law also permits indemnification by a
II - 1
<PAGE>
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.
II - 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.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Steven S. Elbaum Chairman of the Board and
- -------------------------- Director August 26, 1998
Steven S. Elbaum
/s/ Joseph A. Menniti President, Chief Executive
- -------------------------- Officer and Director (principal
Joseph A. Menniti executive officer) August 26, 1998
II - 5
<PAGE>
/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
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
10.15 PolyVision Corporation 1994 Stock Option Plan. 10
23.1 Consent of Arthur Andersen LLP, independent 20
public 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 400,000 shares of the Company's authorized but unissued Common
Stock, par value $.001 per share (the "Common Stock"), issuable pursuant to the
1994 Stock Option 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 10.15
ADOPTED BY SHAREHOLDERS - MAY 24, 1995
POLYVISION CORPORATION
------------------------------
1994 STOCK OPTION PLAN
------------------------------
1. PURPOSE. The purpose of this Plan is to advance the interests of
PolyVision Corporation, a New York corporation (the "Company"), and its
Subsidiaries (as defined below) by providing an additional incentive to attract
and retain qualified and competent persons who provide management and other
services and upon whose efforts and judgment the success of the Company and its
Subsidiaries is largely dependent, through the encouragement of stock ownership
in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the stock option committee appointed by
the Board pursuant to Section 13 hereof or, if not appointed, the Board.
(c) "Common Stock" shall mean the Company's Common Stock, par value
$.001 per share.
(d) "Director" shall mean a member of the Board.
(e) "Disinterested Person" shall mean a Director who is not, during
the one year prior to his or her service as an administrator of this Plan, or
during such service, granted or awarded equity securities pursuant to this Plan
or any other plan of the Company or any of its affiliates, except that:
(i) participation in a formula plan meeting the conditions in
paragraph (c)(2)(ii) of Rule 16b-3 promulgated under the Securities Exchange Act
shall not disqualify a Director from being a Disinterested Person;
(ii) participation in an ongoing securities acquisition plan
meeting the conditions in paragraph (d)(2)(i) of Rule 16b-3 promulgated under
the Securities Exchange Act shall not disqualify a Director from being a
Disinterested Person; and
1
<PAGE>
(iii) an election to receive an annual retainer fee in either
cash or an equivalent amount of securities, or partly in cash and partly in
securities, shall not disqualify a Director from being a Disinterested Person.
(f) "Fair Market Value" of a Share on any date of reference shall be
the "Closing Price" (as defined below) of the Common Stock on the business day
immediately preceding such date, unless the Committee in its sole discretion
shall determine otherwise in a fair and uniform manner. For the purpose of
determining Fair Market Value, the "Closing Price" of the Common Stock on any
business day shall be (i) if the Common Stock is listed or admitted for trading
on any United States national securities exchange (e.g., the American Stock
Exchange), or if actual transactions are otherwise reported on a consolidated
transaction reporting system, the last reported sale price of Common Stock on
such exchange or reporting system, as reported in any newspaper of general
circulation, (ii) if the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ"), or any similar system
of automated dissemination of quotations of securities prices in common use, the
mean between the closing high bid and low asked quotations for such day of
Common Stock on such system, or (iii) if neither clause (i) nor (ii) is
applicable, the mean between the high bid and low asked quotations for the
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and asked quotations for
Common Stock on at least five of the ten preceding days.
(g) "Incentive Stock Option" shall mean an incentive stock option as
defined in Section 422 of the Internal Revenue Code.
(h) "Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(i) "Non-Statutory Stock Option" shall mean an Option which is not an
Incentive Stock Option.
(j) "Officer" shall mean the Company's Chairman of the Board,
President, Chief Executive Officer, principal financial officer, principal
accounting officer (or, if there is no such accounting officer, the controller),
any vice president of the Company in charge of a principal business unit,
division or function (such as sales, administration or finance), any other
officer who performs a policy-making function, or any other person who performs
similar policy-making functions for the Company. Officers of Subsidiaries shall
be deemed Officers of the Company if they perform such policy-making functions
for the Company. As used in this paragraph, the phrase "policy-making function
does not include policy-making functions that are not significant. If, pursuant
to Item 401(b) of Regulation S-K (17 C.F.R. ' 229.401(b)), the Company
identifies a person as an "executive officer," the person so identified shall be
deemed an "Officer" even though such person may not otherwise be an "Officer"
pursuant to the foregoing provisions of this paragraph.
(k) "Option" (when capitalized) shall mean any stock option granted
under this Plan.
2
<PAGE>
(l) "Optionee" shall mean a person to whom a stock option is granted
under this Plan or any person who succeeds to the rights of such person under
this Plan by reason of the death of such person.
(m) "Plan" shall mean this 1994 Stock Option Plan of the Company.
(n) "Securities Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(o) "Share(s)" shall mean a share or shares of the Common Stock.
(p) "Subsidiary" shall mean any corporation (other than the Company)
in any unbroken chain of corporations beginning with the Company if, at the time
of the granting of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50 percent or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
3. SHARES AND OPTIONS. The Company may grant to Optionees from time to
time Options to purchase an aggregate of up to Four Hundred Thousand (400,000)
Shares from Shares held in the Company's treasury or from authorized and
unissued Shares. If any Option granted under the Plan shall terminate, expire,
or be canceled or surrendered as to any Shares, new Options may thereafter be
granted covering such Shares. An Option granted hereunder shall be either an
Incentive Stock Option or a Non-Statutory Stock Option as determined by the
Committee at the time of grant of such Option and shall clearly state whether it
is an Incentive Stock Option or Non-Statutory Stock Option.
4. DOLLAR LIMITATION. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate fair market value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Internal Revenue Code Section 422(b) are exercisable for the first time by
any individual during any calendar year (under all plans of the Company and its
parent and subsidiary corporations), exceeds $100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement that may
contain any term deemed necessary or desirable by the Committee, provided such
terms are not inconsistent with this Plan or any applicable law. Optionees
shall be those persons selected by the Committee from the class of all regular
employees of the Company or its Subsidiaries, including Directors and Officers
who are regular employees. Any person who files with the Committee, in a form
satisfactory to the Committee, a written waiver of eligibility to receive any
Option under this Plan shall not be eligible to receive any Option under this
Plan for the duration of such waiver.
3
<PAGE>
(b) In granting Options, the Committee shall take into consideration
the contribution the person has made to the success of the Company or its
Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may from time to time
in granting Options under the Plan prescribe such other terms and conditions
concerning such Options as it deems appropriate, including without limitation,
(i) prescribing the date or dates on which the Option becomes exercisable, (ii)
providing that the Option rights accrue or become exercisable in installments
over a period of years, or upon the attainment of stated goals or both, (iii)
prescribing the number of shares to be covered by such Options, (iv) determining
whether the Options granted are intended to be Incentive Stock Options, or (v)
relating an Option to the continued employment of the Optionee for a specified
period of time, provided that such terms and conditions are not more favorable
to an Optionee than those expressly permitted herein.
(c) The Options granted to employees under this Plan shall be in
addition to regular salaries, pension, life insurance or other benefits related
to their employment with the Company or its Subsidiaries. Neither the Plan nor
any Option granted under the Plan shall confer upon any person any right to
employment or continuance of employment by the Company or its Subsidiaries.
(d) Notwithstanding any other provision of this Plan, and in addition
to any other requirements of this Plan, Options may not be granted to a Director
or Officer unless the grant of such Options is authorized by, and all of the
terms of such Options are determined by, a Committee appointed in accordance
with Section 13 of this Plan and all of whose members are Disinterested Persons.
6. OPTION PRICE. The option price per share of any Option shall be any
price determined by the Committee but shall not be less than the par value per
Share; provided, however, that in no event shall the option price per Share of
any Incentive Stock Option be less than the Fair Market Value of the Shares
underlying such Option on the date such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee in its sole discretion have been made for
the Optionee's payment to the Company of the amount that is necessary for the
Company or Subsidiary employing the Optionee to withhold in accordance with
applicable Federal or state tax withholding requirements. Unless further
limited by the Committee in any Option, the option price of any Shares purchased
shall be paid in cash, by certified or official bank check by money order, with
Shares or by a combination of the above; provided further, however, that the
Committee in its sole discretion may accept a personal check in full or partial
payment of any Shares. If the exercise price is paid in whole or in part with
Shares, the value of the Shares surrendered shall be their Fair Market Value on
the date the Option is exercised. The Company in its sole discretion may, on an
individual basis or pursuant to a general program
4
<PAGE>
established in connection with this Plan, lend money to an Optionee, guarantee a
loan to an Optionee, or otherwise assist an Optionee to obtain the cash
necessary to exercise all or a portion of an Option granted hereunder or to pay
any tax liability of the Optionee attributable to such exercise. If the
exercise price is paid in whole or part with Optionee's promissory note, such
note shall (i) provide for full recourse to the maker, (ii) be collateralized by
the pledge of the Shares that the Optionee purchases upon exercise of such
Option, (iii) bear interest at the rate of 10%, and (iv) contain such other
terms as the Board in its sole discretion shall reasonably require. No Optionee
shall be deemed to be a holder of any Shares subject to an Option unless and
until a stock certificate or certificates for such Shares are issued to such
person(s) under the terms of this Plan. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee shall
provide in such Option, except as otherwise provided in this Section 8.
(a) The expiration date of an Option shall be determined by the
Committee at the time of grant, but in no event shall an Option be exercisable
after the expiration of ten years from the date of grant of the Option.
(b) Unless otherwise provided in any Option, each outstanding Option
shall become immediately fully exercisable:
(i) if there occurs any transaction (which shall include a
series of transactions occurring within 60 days or occurring pursuant to a
plan), that has the result that stockholders of the Company immediately before
such transaction cease to own at least 51 percent of the voting stock of the
Company or of any entity that results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) if the shareholders of the Company shall approve a plan of
merger, consolidation, reorganization, liquidation or dissolution in which the
Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) if the shareholders of the Company shall approve a plan for
the sale, lease, exchange or other disposition of all or substantially all the
property and assets of the Company (unless such plan is subsequently abandoned).
(c) The Committee may in its sole discretion accelerate the date on
which any Option may be exercised and may accelerate the vesting of any Shares
subject to any Option or previously acquired by the exercise of any Option.
5
<PAGE>
9. TERMINATION OF OPTION PERIOD.
(a) The unexercised portion of any Option shall automatically and
without notice terminate and become null and void at the time of the earliest to
occur of the following:
(i) three months after the date on which the Optionee's
employment is terminated or, in the case of a Non-Statutory Stock Option, and
unless the Committee shall otherwise determine in writing in its sole
discretion, the date on which the Optionee's employment is terminated, in either
case for any reason other than by reason of (A) Cause, which, solely for
purposes of this Plan, shall mean the termination of the Optionee's employment
by reason of the Optionee's wilful misconduct or gross negligence (unless
otherwise defined in any Employment Agreement then in effect between the
Optionee and the Company), (B) a mental or physical disability as determined by
a medical doctor satisfactory to the Committee, or (C) death;
(ii) immediately upon the termination of the Optionee's
employment for Cause;
(iii) 12 months after the date on which the Optionee's employment
is terminated by reason of a mental or physical disability (within the meaning
of Internal Revenue Code Section 22(e)) as determined by a medical doctor
satisfactory to the Committee;
(iv) (A) 12 months after the date of termination of the
Optionee's employment by reason of death of the employee, or (B) three months
after the date on which the Optionee shall die if such death shall occur during
the 12-month period specified in Subsection 9(a)(iii) hereof.
(b) The Committee in its sole discretion may by giving written notice
("cancellation notice") cancel, effective upon the date of the consummation of
any corporate transaction described in Subsections 8(b)(ii) or (iii) hereof, any
Option that remains) unexercised on such date. Such cancellation notice shall be
given a reasonable period of time prior to the proposed date of such
cancellation and may be given either before or after approval of such corporate
transaction.
10. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised Options
are outstanding there shall be any increase or decrease in the number of issued
and outstanding Shares through the declaration of a stock dividend or through
any recapitalization resulting in a stock split, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number
of Shares available for grant under the Plan, so that the same percentage of the
Company's issued and outstanding Shares shall continue to be subject to being so
optioned; and
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(ii) appropriate adjustment shall be made in the number of
Shares and the exercise price per Share thereof then subject to any outstanding
Option, so that the same percentage of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate exercise price.
(b) Subject to the specific terms of any Option, the Committee may
change the terms of Options outstanding under this Plan, with respect to the
option price or the number of Shares subject to the Options, or both, when, in
the Committee's sole discretion, such adjustments become appropriate by reason
of a corporate transaction described in Subsections 8(b)(ii) or (iii) hereof.
(c) Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
direct sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of or exercise price of Shares
then subject to outstanding Options granted under the Plan.
(d) Without limiting the generality of the foregoing, the existence
of outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
11. TRANSFERABILITY OF OPTIONS AND SHARES.
(a) Each Option shall not be transferable by the Optionee otherwise
than by will or the laws of descent and distribution, and each Option shall be
exercisable during the Optionee's lifetime only by the Optionee.
(b) Any Shares acquired by an Officer or Director pursuant to the
exercise of an Option may not be sold, assigned, pledged or otherwise
transferred prior to the expiration of the six-month period following the date
on which the Option was granted.
12. ISSUANCE OF SHARES. As a condition of any sale or issuance of Shares
upon exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not limited to, the
following:
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(a) a representation and warranty by the Optionee to the Company, at
the time any Option is exercised, that he or she is acquiring the Shares to be
issued to him or her for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) a representation, warranty and/or agreement to be bound by any
legends that are, in the opinion of the Committee, necessary or appropriate to
comply with the provisions of any securities law deemed by the Committee to be
applicable to the issuance of the Shares and are endorsed upon the Share
certificates.
13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Committee, which shall
consist of not less than two Directors, each of which shall be Disinterested
Persons if so required by Section 5(d) hereof. The Committee shall have all of
the powers of the Board with respect to the Plan. Any member of the Committee
may be removed at any time, with or without cause, by resolution of the Board
and any vacancy occurring in the membership of the Committee may be filled by
appointment by the Board.
(b) The Committee, from time to time, may adopt rules and regulations
for carrying out the purposes of the Plan. The Committee's determinations and
its interpretation and construction of any provision of the Plan shall be final
and conclusive.
(c) Any and all decisions or determinations of the Committee shall be
made either (i) by a majority vote of the members of the Committee at a meeting
or (ii) without a meeting by the unanimous written approval of the members of
the Committee.
14. INCENTIVE OPTIONS FOR 10% SHAREHOLDERS. Notwithstanding any other
provisions of the Plan to the contrary, an Incentive Stock Option shall not be
granted to any person owning directly or indirectly (through attribution under
Section 424(d) of the Internal Revenue Code) at the date of grant, stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company (or of its parent or subsidiary (as defined in Section 424
of the Internal Revenue Code) at the date of grant) unless the option price of
such Option is at least 110% of the Fair Market Value of the Shares subject to
such Option on the date the Option is granted, and such Option by its terms is
not exercisable after the expiration of five years from the date such Option is
granted.
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15. INTERPRETATION.
(a) As it is the intent of the Company that the Plan comply in all
respects with Rule 16b-3 promulgated under the Securities Exchange Act ("Rule
16b-3"), any ambiguities or inconsistencies in construction of the Plan shall be
interpreted to give effect to such intention, and if any provision of the Plan
is found not to be in compliance with Rule 16b-3, such provision shall be deemed
null and void to the extent required to permit the Plan to comply with Rule
16b-3. The Committee may from time to time adopt rules and regulations under
and amend, the Plan in furtherance of the intent of the foregoing.
(b) The Plan shall be administered and interpreted so that all
Incentive Stock Options granted under the Plan will qualify as Incentive Stock
Options under Section 422 of the Internal Revenue Code. If any provision of the
Plan should be held invalid for the granting of Incentive Stock Options or
illegal for any reason, such determination shall not affect the remaining
provisions hereof, but instead the Plan shall be construed and enforced as if
such provision had never been included in the Plan.
(c) This Plan shall be governed by the laws of the State of New York.
(d) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine or neuter gender shall
be a reference to such other gender as is appropriate.
16. TERM OF PLAN; AMENDMENT AND TERMINATION OF THE PLAN.
(a) This Plan shall become effective upon its adoption by the Board,
and shall continue in effect until all Options granted hereunder have expired or
been exercised, unless sooner terminated under the provisions relating thereto.
No Option shall be granted after ten years from the date of adoption of the
Plan.
(b) The Plan shall be adopted by the Board and shall be presented to
the Company's shareholders for their approval by vote of a majority of such
shareholders present or represented at a meeting duly held, such approval to be
given within 12 months after the date of the Board's adoption. Options may be
granted prior to shareholder approval of the Plan, but such Options shall be
contingent upon such approval being obtained and may not be exercised prior to
such approval.
(c) Either the Board or the Committee may from time to time amend the
Plan or any Option; provided, however, that, except to the extent provided in
Section 10, no such amendment may (i) without approval by the Company's
shareholders, increase the number of Shares reserved for Options or change the
class of persons eligible to receive Options, or involve any other change or
modification requiring shareholder approval under Rule 16b-3, (ii) permit
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the granting of Options that expire beyond the maximum ten-year period described
in Subsection 8(a), or (iii) extend the termination date of the Plan as set
forth in Section 16(a); and, provided, further, that, except to the extent
specifically provided otherwise in Section 9, no amendment or suspension of the
Plan or any Option issued hereunder shall substantially impair any Option
previously granted to any Optionee without the consent of such Optionee.
(d) The Board, without further approval of the Company's
shareholders, may at any time terminate or suspend this Plan. Any such
termination or suspension of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if the plan had not
been terminated or suspended. No Option may be granted while the Plan is
suspended or after it is terminated. The rights and obligations under any
Option granted to any Optionee while the Plan is in effect shall not be altered
or impaired by the suspension or termination of the Plan without the consent of
such Optionee.
17. RESERVATION OF SHARES. The Company, during the term of the Plan, will
at all times reserve and keep available a number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
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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
