<PAGE>
As filed with the Securities and Exchange Commission on August 3, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
ROBERTS PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
---------------------
New Jersey 22-2429994
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
(Address, including Zip Code, of registrant's Principal Executive Offices)
---------------------
ROBERTS PHARMACEUTICAL CORPORATION INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
---------------------
ROBERT A. VUKOVICH, Ph.D.
Chairman of the Board and President
Roberts Pharmaceutical Corporation
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
(908) 389-1182
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
Copies to:
JOHN A. AIELLO, ESQ.
Giordano, Halleran & Ciesla
A Professional Corporation
125 Half Mile Road
Middletown, New Jersey 07748
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount to be offering aggregate Amount of
securities to be registered registered (1) price per offering registration
share (2) price(2) fee
<S> <C> <C> <C> <C>
Options to Purchase Common
Stock 1,000,000 --- --- ---
Common Stock, $.01 par
value 1,000,000 $19.1875 $19,187,500 $6,616.38
</TABLE>
(1) This registration statement also covers such additional indeterminate number
of options to purchase shares of Common Stock and shares of Common Stock as
may become issuable pursuant to anti-dilution provisions of the Roberts
Pharmaceutical Corporation Incentive Stock Option Plan, including, without
limitation, by reason of a stock dividend, stock split, stock consolidation,
corporate separation, recapitalization, merger, consolidation, combination
or an exchange of shares.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for purposes of calculating the registration fee and
based upon the average of the high and low sales prices of the Common Stock
as reported on the Automated Quotation System of the National Association of
Securities Dealers, Inc., National Market System ("NASDAQ") on August 1,
1995.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E to Form S-8, this registration statement
(the "Registration Statement") is being filed by Roberts Pharmaceutical
Corporation (the "Registrant") solely to register an additional one million
(1,000,000) shares of the Registrant's Common Stock, $.01 par value per share
("Common Stock"), to be issued upon the exercise of options granted under the
Roberts Pharmaceutical Corporation Incentive Stock Option Plan (the "Incentive
Option Plan"). The contents of a registration statement on Form S-8
(Registration No. 33-51198), which is currently effective and which was filed by
the Registrant with the Securities and Exchange Commission (the "Commission") on
August 24, 1992, to register seven hundred, fifty thousand (750,000) shares of
the Registrant's Common Stock reserved for issuance under the Incentive Option
Plan, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing this Registration Statement with the Commission.
Any information that is required to be disclosed in this Registration Statement
is included in such earlier registration statement. On May 14, 1990, the
Registrant filed a registration statement on Form S-8 (Registration No. 33-
34767) with the Commission to register an aggregate of 629,275 shares of Common
Stock, including 389,275 shares of Common Stock reserved for issuance under the
Incentive Option Plan.
ITEM 8. EXHIBITS.
---------
Exhibit No. Description
- ----------- ---------------
5 Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23 Consent of Coopers & Lybrand L.L.P.
23.01 Consent of Giordano, Halleran & Ciesla, P.C.
(included in Exhibit 5)
24 Power of Attorney (filed with signature pages)
99 Roberts Pharmaceutical Corporation Incentive Stock Option Plan
-3-
<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 Borough of Eatontown, State of New Jersey, on the 17th day of
July, 1995.
ROBERTS PHARMACEUTICAL CORPORATION
(Registrant)
By: /s/ Robert A. Vukovich
-------------------------------
Robert A. Vukovich, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert A. Vukovich, Anthony P. Maris and Anthony
A. Rascio and each of them, his true and lawful attorneys-in-fact and agents for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as they might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated
Signature Title Date
/s/ Robert A. Vukovich Chairman of the Board, July 17, 1995
- ------------------------ President, Chief Executive
Robert A. Vukovich Officer & Director
(Principal Executive Officer)
/s/ Anthony P. Maris Vice President, Treasurer & July 17, 1995
- ------------------------ Director (Principal Financial
Anthony P. Maris and Accounting Officer)
/s/ Anthony A. Rascio Director July 17, 1995
- ------------------------
Anthony A. Rascio
-4-
<PAGE>
/s/ Robert W. Loy Director July 17, 1995
- ------------------------
Robert W. Loy
/s/ Takao Miyamoto Director July 17, 1995
- ------------------------
Takao Miyamoto
/s/ Akihiko Matsubara Director July 17, 1995
- ------------------------
Akihiko Matsubara
/s/ Yale Brozen Director July 17, 1995
- ------------------------
Yale Brozen
/s/ W. Robert Fowler Director July 17, 1995
- ------------------------
W. Robert Fowler
/s/ Digby W. Barrios Director July 17, 1995
- ------------------------
Digby W. Barrios
-5-
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Sequentially
Number Exhibit Numbered Page
- -------- ------- -------------
5 Opinion and Consent of Giordano,
Halleran & Ciesla, P.C.
23 Consent of Coopers & Lybrand L.L.P.
23.01 Consent of Giordano, Halleran &
Ciesla, P.C. (filed with Exhibit 5)
24 Power of Attorney (filed with signature pages)
99 Roberts Pharmaceutical Corporation
Incentive Stock Option Plan
-6-
<PAGE>
EXHIBIT 5
August 2, 1995
Roberts Pharmaceutical Corporation
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
Re: Registration Statement on Form S-8
relating to the Roberts Pharmaceutical
Corporation Incentive Stock Option Plan
Gentlemen:
We refer to the Registration Statement on Form S-8 under the Securities
Act of 1933, as amended (the "Registration Statement"), filed on this date by
Roberts Pharmaceutical Corporation (the "Company") with the Securities and
Exchange Commission (the "Commission"), to which this opinion letter is attached
as an exhibit, for the registration of an additional 1,000,000 shares of the
Company's Common Stock, $.01 par value per share ("Common Stock"), which have
been reserved for issuance under the Roberts Pharmaceutical Corporation
Incentive Stock Option Plan (the "Incentive Option Plan") and which may be
issued by the Company upon the exercise of options granted under the Incentive
Option Plan.
We have examined the original or a photostatic or certified copy of such
documents, records and other information as we deemed relevant and necessary as
the basis for the opinion set forth below. In such examination, we have assumed
the authenticity of each document submitted to us as an original, the conformity
to the original document of each document submitted to us as a certified or
photostatic copy, and the authenticity of the original of each such latter
document. In addition, we have assumed, in rendering the opinion set forth
below, that any stock certificate evidencing any shares of the Company's Common
Stock registered by this Registration Statement, when issued pursuant to the
exercise of an option granted under the Incentive Option
<PAGE>
Roberts Pharmaceutical Corporation
July 18, 1995
Page 2
Plan, will have been duly executed on behalf of the Company and will have been
countersigned by the Company's transfer agent and registered by the Company's
registrar prior to its issuance.
On the basis of our examination mentioned above, subject to the
assumptions stated and relying on statements of fact contained in the documents
that we have examined, we are of the opinion that the shares of Common Stock
registered pursuant to this Registration Statement have been duly and validly
authorized and reserved for issuance and that upon the issuance of such shares
against payment therefor in accordance with the provisions of the Incentive
Option Plan, the shares of Common Stock will be validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, or the General Rules and Regulations of the
Securities and Exchange Commission.
Very truly yours,
GIORDANO, HALLERAN & CIESLA
A Professional Corporation
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated March 30, 1995, on our audits of the
consolidated financial statements of Roberts Pharmaceutical Corporation and
Subsidiaries as of December 31, 1994, 1993 and 1992 and for each of the three
years in the period ended December 31, 1994, which report is included in Roberts
Pharmaceutical Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994.
COOPERS & LYBRAND L.L.P.
Princeton, New Jersey
August 2, 1995
<PAGE>
EXHIBIT 99
ROBERTS PHARMACEUTICAL CORPORATION
INCENTIVE STOCK OPTION PLAN
Section 1 - Purpose
The Roberts Pharmaceutical Corporation Incentive Stock Option Plan (the
"Plan") is intended to provide a method whereby key employees of Roberts
Pharmaceutical Corporation (the "Company"), who are contributing materially to
the Company's progress, and who are currently making and are expected to
continue making substantial contributions to the successful growth of the
Company, may be offered incentives in addition to those currently available and
may be stimulated by personal involvement in the fortunes of the Company to
continue in the service of the Company, thereby advancing the interest of the
Company and its shareholders. Accordingly, the Company may, from time to time,
grant to such key employees, as may be selected in the manner hereinafter
provided, options to purchase shares of Common Stock, $.01 par value, of the
Company (the "Common Stock") on the terms and conditions hereinafter
established. The Plan is intended to be an "incentive stock option plan" and to
comply with Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The term "Company" as used in this Plan means Roberts Pharmaceutical
Corporation and its subsidiaries (corporations in respect of which Roberts
Pharmaceutical Corporation, owns, directly or indirectly, at least fifty-one
(51%) percent of the total issued and outstanding voting capital stock) as may
be designated from time to time by its Board of Directors.
Section 2 - Administration of the Plan
The Plan shall be administered by the Board of Directors of the Company
or the Compensation Committee of the Board of Directors (the "Committee") whose
members will be appointed by the Board of Directors of the Company. The
Committee shall consist of not fewer than two members of the Company's Board of
Directors, who may also be employees of the Company. The Board of Directors may
from time to time remove members from or add members to the Committee. Vacancies
on the Committee, howsoever caused, shall be filled by the Board of Directors.
The Committee shall select one of its members as Chairman and shall hold
meetings at such times and places as it may determine. Acts by a majority of the
Committee shall be the valid acts of the Committee.
The interpretation and construction by the Committee of any provisions
of the Plan or of any agreement or other matter relating to the Plan shall be
final unless otherwise determined by the Board of Directors. The Committee may,
from time-to-time,
<PAGE>
adopt such rules and regulations for carrying out the Plan as it may deem
appropriate. Nothing herein contained shall be deemed to authorize the Committee
to administer the provisions of the plan in a manner inconsistent with the
provisions of Section 422 of the Code or the regulations promulgated thereunder.
No member of the Board of Directors shall be liable for any action or
determination made in good faith with respect to the Plan or any agreement or
other matter relating to the Plan.
Section 3 - Share Subject to the Plan
The shares to be issued under the Plan shall be made available either
from authorized but unissued shares of Common Stock of the Company or from
shares of Common Stock reacquired by the Company, including shares purchased on
the open market. Shares issued under the Plan shall be subject to the terms,
conditions and provisions specified in the Plan and to such other terms,
conditions and provisions as the Board of Directors or the Committee may
provide.
The aggregate number of shares which may be issued under the Plan shall
not exceed 2,139,275 shares of the Company's Common Stock. If prior to August
16, 1997, options granted expire, terminate or are surrendered without having
been exercised in full, or shares issued under the Plan are reacquired by the
Company, such reacquired shares and shares subject to options which have
expired, terminated or are surrendered shall again become available for issuance
under the Plan.
In the event of any change in the Common Stock of the Company by reason
of stock dividends, split-ups, corporate separations, recapitalizations,
mergers, consolidations, combinations, exchanges of shares and the like, the
aggregate number and class of shares available under this Plan and the number,
class and purchase price of shares under option but not yet issued under this
Plan shall be adjusted appropriately. Nothing herein contained shall be
construed to require an adjustment in the aggregate number or class of shares
available under the Plan or in the number, class or purchase price of shares
under the option but not yet issued if a merger, consolidation, combination or
similar transaction involves the issuance of securities of the Company and the
number or class of shares held by a holder of Common Stock of the Company prior
to the consummation of the merger, consolidation, combination or similar
transaction is not affected by such transaction. No adjustment shall be made
pursuant to this section of the Plan which would result in a fractional share
being subject to an option, and any option in respect of a fractional share
resulting from such adjustment shall be adjusted down to the nearest full share.
Further, no adjustment shall be made pursuant to this section of the Plan which
would result in a modification of the options granted hereunder in a manner
which would disqualify such
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<PAGE>
options as "incentive stock options" or disqualify this Plan as an "incentive
stock option plan" under the provisions of Section 422 of the Code and the
regulations thereunder.
In October 1989, the Company effected a recapitalization pursuant to
which each share of the Company's Common Stock reserved for issuance under the
Plan was exchanged for .5971 shares of Common Stock. Consequently, the number
of shares of the Company's Common Stock reserved for issuance under the Plan was
reduced from 250,000 to 149,275 shares.
On October 20, 1989, the Company's Board of Directors approved an
amendment of the Plan which increased the number of shares of Common Stock of
the Company reserved for issuance under the Plan from 149,275 to 389,275. On
October 24, 1989, the Company's shareholders approved the amendment previously
approved by the Board of Directors. As of October 31, 1989, options to purchase
149,275 shares of Common Stock were issued under the Plan. Consequently,
240,000 shares of Common Stock remained available for the grant of options under
the Plan as of October 31, 1989.
On March 12, 1992, the Company's Board of Directors approved an
amendment to the Plan to increase the number of shares of Common Stock reserved
for issuance under the Plan from 389,275 to 1,139,275, subject to shareholder
approval which was granted on June 30, 1992. As of June 30, 1992, options to
purchase 379,185 shares of Common Stock were granted under the Plan.
Accordingly, 760,090 shares of Common Stock remained available for the grant of
options under the Plan as of June 30, 1992.
On March 22, 1995, the Company's Board of Directors approved an
amendment to the Plan to increase the number of shares of Common Stock reserved
for issuance under the Plan from 1,139,275 to 2,139,275, subject to shareholder
approval which was granted on May 24, 1995. As of May 24, 1995, options to
purchase 1,086,261 shares of Common Stock were granted under the Plan.
Accordingly, 1,053,014 shares of Common Stock remained available for grant
pursuant to options under the Plan as of May 24, 1995.
Section 4 - Eligibility
Options may be granted under the Plan to employees of the Company who
have not attained the age of 65 on the date the options are granted to them. The
term "employees" shall include officers as well as other employees of the
Company. A director of the Company who is not also an employee of the Company
shall not be eligible to receive any option under this Plan. An employee
participating in the Plan is sometimes referred to herein as "optionee."
-3-
<PAGE>
No option may be granted under this Plan to any employee who,
immediately after such option is granted, owns, within the meaning of Section
422(b)(6) of the Code, stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company unless the option price is
at least 110% of the fair market value of the shares subject to the option on
the date that the option is granted and the option may not be exercised more
than five (5) years after the date of grant. Further, the aggregate fair market
value (determined as of the date the option is granted) of the shares for which
options are exercisable for the first time under this Plan and incentive stock
options, as defined under Section 422 of the Code, granted pursuant to all other
stock option plans of the Company or any parent or subsidiary of the Company by
any employee during any calendar year shall not exceed $100,000. To the extent
an employee elects during any calendar year not to exercise to the fullest
permissible extent options which are exercisable by him for the first time, said
unexercised options may be exercised in subsequent calendar years. If, after a
good faith attempt to comply with the limitation set for the in the preceding
sentences, the aggregate fair market value (determined as of the date the option
is granted) of the shares for which any employee is granted options in any
calendar year under the Plan and incentive stock options, as defined under
Section 422 of the Code, granted pursuant to all other stock option plans of the
Company or any parent or subsidiary of the Company exceeds $100,000 plus any
unused limit carryover allowed for such year, then, notwithstanding the failure
to comply with the limitation set forth in the preceding sentences, the options
covering shares having a fair market value in excess of such limitation shall be
valid unless the grant of such options shall disqualify this Plan as an
"incentive stock option plan" under the provisions of Section 422 of the Code
and the regulations thereunder, and the Federal income tax consequences relating
to such options shall be as prescribed by the Code, any regulations or rulings
promulgated thereunder or the Internal Revenue Service.
Subject to the provision of the Plan, the Committee shall have exclusive
authority to determine the date or dates upon which options shall be granted,
the employees who are to participate in the Plan, the consideration to be paid
for shares subject to options, the time or times when an option shall be
exercisable, the number of shares to be covered by each option, the terms and
provisions of option agreements executed and delivered under the Plan and the
form of legend, if any, which shall be affixed to the stock certificate(s)
evidencing shares issued under the Plan.
-4-
<PAGE>
Section 5 - Granting of Options; Term of Options
Upon selection of an employee to participate in the Plan, the Committee
shall notify said employee in writing of (i) his selection and (ii) the options
being granted to him and the consideration to be paid for the shares subject to
option upon the exercise thereof. Such notice shall be accompanied by an
agreement between the Company and the employee containing the terms, conditions
and provisions applicable to the exercise of the options granted. The Committee
may elect to incorporate the foregoing notice provisions into the option
agreement. Subject to the provisions of the Plan, options may be granted to the
same employee on more than on occasion.
The Committee shall determine the term of each option granted hereunder,
but the term of any such option shall not exceed ten (10) years (or five (5)
years in the case of an option granted to a 10% shareholder referred to in
Section 4 hereof) from the date upon which the option is granted, and shall be
subject to earlier termination as herein provided. An option shall be deemed to
be granted to an employee on the date on which the Board of Directors or the
Committee selects the optionee and determines the terms and conditions of the
grant, including option price, to him.
Section 6 - Option Price
The consideration to be paid for each share of Common Stock subject to
an option granted hereunder (the "option price") shall be determined by the
Committee, but the option price shall be not less than 100% (or 110% in the case
of an option granted to a 10% shareholder referred to in Section 4 hereof) of
the fair market value of the Common Stock on the date that the option is
granted. The term "fair market value" as used in this Plan shall mean the
average of the closing bid and asked prices of the Common Stock as furnished by
any recognized dealer in securities selected by the Committee for the purpose;
if the Common Stock is at the time listed on a stock exchange, fair market value
shall mean the last sale price regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices regular way, in
either case as officially quoted on such stock exchange; and if there is no
market for the shares and the shares are not so listed, then fair market value
shall mean the fair market value as determined by the Committee (whose
determination shall be conclusive) in accordance with the applicable provisions
of the Code and the regulations thereunder.
Section 7 - Exercise of Options; Issuance of Shares
The total number of shares subject to each option may be allocated so
that such shares are to be acquired in installments, as fixed by the Committee,
over a period of not more than ten
-5-
<PAGE>
(10) years (or five (5) years in the case of an option granted to a 10%
shareholder referred to in section 4 hereof) from the date of the grant of the
option. In the event that the Committee determines that an option is to be
exercisable in installments, the optionee must continue in the employ of the
Company during the whole of any period for which an installment of shares shall
have been allocated by the terms of his option before such installment of the
option becomes exercisable. To the extent that any installment of any option
becomes exercisable it may thereafter be exercised either in whole or in part at
any time prior to the expiration of the option or prior to its termination as
herein provided.
An employee electing to exercise an option under the Plan shall give
written notice to either the Treasurer or Secretary of the Company of such
election and of the number of shares the employee has elected to acquire. No
option granted hereunder may be exercised for less than a whole share of Common
Stock. An employee who has elected to exercise an option shall deliver to either
the Treasurer or Secretary of the Company at the time of exercise the full
consideration to be paid for the shares which are subject to the option(s) being
exercised in cash or by certified or cashier's check or by personal check if
acceptable to the Treasurer or Secretary of the Company.
Until the employee has been issued a certificate or certificates for the
shares acquired upon the exercise of options granted hereunder, the employee
shall possess no shareholder's rights with respect to any such shares.
In the event that any employee disposes of shares of Common Stock he
acquired pursuant to an option granted under the Plan within two (2) years of
the granting of the option or within one (1) year after exercise of the option
issued to such employee, the Company shall be required to withhold from the
employee's salary or wages additional income taxes in respect of that amount
which is considered compensation includable in the employee's gross income by
reason of the disposition. The amount of compensation includable in the
employee's gross income shall be determined by multiplying the number of shares
of Common Stock disposed of by the difference between the exercise price of
such shares and the amount realized upon the disposition.
Section 8 - Expiration and Termination of Options
Each option and all rights and obligations thereunder shall expire on a
date to be determined by the Committee, such date, however, in no event to be
later than ten (10) years (or five (5) years in the case of an option granted to
a 10% shareholder referred to in section 4 hereof) from the date on which the
option is granted. Subject to the provisions contained in the
-6-
<PAGE>
following paragraphs of this section 8 of the Plan, no optionee may exercise an
option granted hereunder unless he is an employee of the Company.
An optionee who is absent from work with the Company because of his
disability, or who is on leave of absence for the purpose of serving the United
States government in either a military or civilian capacity, or for such other
purpose or reason as the Committee may specifically approve, shall not during
the period of any such absence be deemed, by virtue of his absence alone, to
have terminated his employment with the Company, except as the Committee may
otherwise expressly provide and provided that the Code and the regulations
thereunder do not provide otherwise.
If an optionee's employment with the Company is terminated for any
reason except death, any option granted to him hereunder may be exercised to the
extent that the optionee could have exercised the option on the date of
termination of employment at any time within ninety (90) days after the date of
such termination, but in no event after the expiration of the term of the
option. Retirement of an optionee from employment with the Company shall be
deemed to be termination of employment subject to the provisions of this
paragraph of this Section 8 of the Plan.
If an optionee dies while in the employ of the Company prior to the
expiration of an option granted to him hereunder, his executor, personal
representative or beneficiary, as the case may be, shall be entitled to exercise
the option to the extent that the optionee could have exercised the option on
the date of his death, at any time within six (6) months from the date of his
death, but in no event after the expiration of the term of the option.
Section 9 - Rights Not Transferable
An employee's rights or options under this Plan are exercisable, during
his lifetime, only by him and such rights or options granted hereunder may not
be sold, pledged, assigned or transferred in any manner other than by will or
the laws of descent and distribution. Any attempt to sell, pledge, assign or
transfer such rights options shall be void, and shall automatically cause all
options granted hereunder and held by the employee to be terminated.
Section 10 - Merger, Consolidation, Reorganization, Liquidation and Dissolution
In the event that the Company shall be the surviving corporation in any
merger, consolidation or other reorganization of the Company, outstanding
options granted under the Plan shall apply to the securities to which a holder
of the number of shares
-7-
<PAGE>
of Common Stock of the Company subject to the options would have been entitled
by reason of the merger, consolidation or other reorganization and any other
changes in the number or character of the shares to which the option relates as
may be made by the Committee or the Board of Directors.
In the event of a merger, consolidation, sale of all or substantially
all of the Company's assets or other reorganization in which the Company is not
the surviving or acquiring corporation, or in which the Company is or becomes a
wholly owned subsidiary of another corporation after a reorganization, the Board
of Directors of the Company shall, in good faith, but in its sole and absolute
discretion, seek to arrange any such merger, consolidation, sale of assets or
other reorganization to specifically provide the corporation surviving the
merger, consolidation or other reorganization or acquiring the asset to either
(i) adopt this Plan so that the securities of such corporation are offered in
lieu of Common Stock of the Company; or (ii) to the extent that options granted
hereunder have not been exercised, settle the participating employees option
rights by payment of cash or other consideration for such rights on a basis
approved by the Board of Directors. In the event that the corporation surviving
the merger, consolidation or other reorganization or acquiring the assets is to
adopt this Plan, such arrangements shall include the adjustment of outstanding
options to provide that the securities of the corporation surviving the merger,
consolidation or other reorganization or acquiring the assets shall become
subject to such options in lieu of Common Stock of the Company on the basis
approved by the Board of Directors.
If provisions for the change, conversion or exchange of the shares
subject to outstanding and unexercised options for securities of another
corporation or the settlement of option rights cannot be arranged in a merger,
consolidation, sale of assets or other reorganization of the Company as
described in the preceding paragraph, then, in that event, outstanding options
granted under the Plan shall terminate as of a date fixed by the Committee;
provided, however, that not less than thirty (30) days written notice of the
date so fixed shall be given to each optionee and each such optionee shall have
the right during such period to exercise his option as to all or any part of the
shares covered thereby, including shares as to which such option would not
otherwise be exercisable by reason of an insufficient lapse of time.
In the event of the dissolution or liquidation of the Company, (except a
dissolution or liquidation relating to a sale of assets or other reorganization
of the Company referred to in the preceding paragraphs) then, in either event,
outstanding options granted under the Plan shall terminate as of a date fixed by
the Committee; provided, however, that not less than thirty
-8-
<PAGE>
(30) days written notice of the date so fixed shall be given to each optionee
and each such optionee shall have the right during such period to exercise his
option as to all or any part of the shares covered thereby, including shares as
to which such option would not otherwise be exercisable by reason of an
insufficient lapse of time.
Section 11 - Amendments to the Plan
The Board of Directors of the Company may at any time or from
time-to-time modify the Plan in such respects as the Board of Directors may deem
advisable in order that options granted thereunder shall conform to any change
in the law, or in any other respect which the Board may deem to be in the best
interest of the Company; provided, that no such modification without the
approval of the shareholders of the Company shall
(a) Increase the maximum number of shares which may be issued under the
Plan in the aggregate (except as permitted by the last two paragraphs of Section
3); or
(b) Materially increase the benefits accruing to employees
participating under the Plan; or
(c) Materially modify the requirements as to eligibility for
participation in the Plan; or
(d) Change the provisions of section 6 relating to the establishment of
the option price other than to change the manner of determining the fair
market value of the Company's Common Stock to conform with any then applicable
provisions of the Code or regulations thereunder; or
(e) Extend the period during which options may be granted under the
Plan.
Section 12 - Termination of the Plan
The Board of Directors of the Company may at any time suspend or
terminate the Plan. Unless the Plan shall theretofore have been terminated by
the Board of Directors of the Company, the Plan shall terminate ten (10) years
from the date of its adoption by the Board of Directors; provided, however, that
options granted on or before such date shall remain exercisable, in accordance
with their respective terms, after the termination of the Plan. In no event
shall any option granted be exercisable later than ten (10) years from the date
of the granting of the option nor shall any option be granted during any
suspension or after termination of the Plan.
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Section 13 - Compliance with Securities Laws
No options may be granted nor may Common Stock be purchased under this
Plan until the Company has taken all actions then required to comply with the
Securities Act of 1933, as amended, and any applicable state securities laws and
the rules and regulations of any exchange on which the Common Stock may be
listed.
Section 14 - Miscellaneous
(a) This Plan shall not become effective unless and until it has been
approved, in the manner prescribed by law, by the shareholders of the Company.
(b) This Plan shall not be deemed to constitute a contract of
employment between the Company and any employee, nor shall it interfere with the
right of the Company to terminate any employee and treat him without regard to
the effect which such treatment might have upon him under this Plan.
(c) Any and all funds received by the Company under this Plan may be
used for any corporate purpose.
(d) This Plan and any agreement entered into in connection therewith
shall be construed and its provisions enforced and administered in accordance
with the laws of the State of New Jersey. All disputes which may arise under the
Plan or any agreement entered into in connection therewith which involve
judicial adjudication shall be resolved in a court of competent jurisdiction of
the State of New Jersey or the United States District Court for the District of
New Jersey. Any employee of the Company who participates in the Plan consents
and agrees to submit to the personal jurisdiction of the aforesaid courts,
agrees to notify the Company of any change of his address within sixty (60)
days of the date of such change, and consents to service of any papers, notices
or process necessary or proper for any legal action in any manner permitted by
the New Jersey Court Rules as they exist or are thereafter amended, including,
without limitation, service by registered mail or certified mail, return
receipt requested, or, in the event the employee refuses to accept or claim
registered or certified mail, ordinary mail to his last known address. In the
event that a participating employee fails to notify the Company of a change of
address and service by registered or certified mail as aforesaid is not accepted
or claimed, such failure shall be deemed a refusal to accept or claim service of
process by registered or certified mail. Any employee of the Company who
participates in the Plan acknowledges the sufficiency of service as aforesaid
and waives any right that he may have to challenge the sufficiency of such
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service or to challenge in any manner the convenience of the location or the
venue of any legal action brought involving the Plan or any agreement entered
into in connection therewith.
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