As filed with the Securities and Exchange Commission on June 27, 1997
Registration No.333-17765
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
------------------------
ULTRAFEM, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0435037
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
805 Third Avenue, 17th Floor
New York, New York 10022
(Address of Principal Executive Offices) (Zip Code)
------------------------
1990 STOCK OPTION PLAN OF ULTRAFEM, INC.
ULTRAFEM, INC. 1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ULTRAFEM, INC. OPTIONS
(Full title of the plan)
------------------------
JOHN W. ANDERSEN GERALD ADLER, ESQ.
President and Chief Executive Officer Shereff, Friedman, Hoffman & Goodman, LLP
Ultrafem, Inc. 919 Third Avenue
805 Third Avenue, 17th Floor New York, New York 10022
New York, New York 10022 (212) 758-9500
(212) 446-1400
(Name, address and telephone number, including area code, of agents for service)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit Number. Description.
- --------------- ------------
4.2 Amended and Restated Ultrafem, Inc. 1995 Stock Plan for
Non-Employee Directors
II-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable groundsto believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Amendment No. 1 to
Registration Statement of Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York on this 27th day of June, 1997.
ULTRAFEM, INC.
By: /s/ John W. Andersen
------------------------------------
John W. Andersen
President, Chief Executive
Officer and Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement of Form S-8 has been signed below by the
following persons on behalf of the Registrant and in the capacities and on the
dates indicated.
Signature Titles Date
- --------- ------ ----
/s/ John W. Andersen President, Chief Executive Officer
- ------------------------ and Chairman of the Board of June 27, 1997
John W. Andersen Directors (Principal Executive
Officer)
/s/ Dori M. Reap Chief Financial Officer, Secretary,
- ------------------------ and Senior Vice President, Finance June 27, 1997
Dori M. Reap and Administration (Principal
Financial & Accounting Officer)
* Executive Vice President and Founder;
- ------------------------ Director
Audrey Contente
* Director
- ------------------------
Richard Cone
* Director
- ------------------------
Joy Vida Jones
* Director
- ------------------------
Martin Nussbaum
* Director
- ------------------------
Charles D. Peebler, Jr.
* Director
- ------------------------
Barrie R. Zesiger
By: /s/ John W. Andersen June 27, 1997
--------------------
John W. Andersen
Attorney-in-Fact
II-3
EXHIBIT 4.2
<PAGE>
AMENDED AND RESTATED ULTRAFEM, INC.
1995 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated on June 17, 1997
(Formerly known as the
Ultrafem, Inc. 1995 Stock Option Plan
for Non-Employee Directors)
PART A- INTRODUCTION
1. General. On September 28, 1995 the Board of Directors of Ultrafem, Inc.
adopted the "Ultrafem, Inc.1995 Stock Option Plan For Non-employee Directors"
which was approved by the stockholders of Ultrafem, Inc. on November 1, 1995. On
June 17, 1997 the Board of Directors approved the amendment and restatement of
the Plan, as the "Amended and Restated Ultrafem, Inc.1995 Stock Plan For
Non-employee Directors."
2. Definitions.
(a) "Annual Retainer" means the amount payable to a Non-Employee
Director for services rendered by him or her in such capacity during a fiscal
year, as more specifically set forth in Section 7.
(b) "Board" means the Board of Directors of the Company.
(c) "Change in Control" shall mean the occurrence of any of the
following: (a) any "person" (defined as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's outstanding securities then entitled to
vote for the election of directors; or (b) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof; or (c) the Board
shall approve the sale of all or substantially all of the assets of the Company
or any merger, consolidation, issuance of securities or purchase of assets, the
result of which would be the occurrence of any event described in clause (a) or
(b) above.
(d) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute.
(e) "Common Stock" means the Common Stock, par value $.001 per share,
of the Company or any security of the Company identified by the Board as having
been issued in substitution or exchange therefor or in lieu thereof.
(f) "Company" means Ultrafem, Inc., a Delaware corporation.
<PAGE>
(g) "Compensation" means, collectively, the Initial Retainer, the
Annual Retainer, and the Meeting Fee Compensation.
(h) "Director's Account" means a deferred compensation account to which
Compensation may be credited, and in which the grant and exercise NQSOs may be
recorded, in accordance with the Plan.
(i) "Effective Date" means November 1, 1995, which is the date on which
the Plan was approved by the requisite vote of the stockholders of the Company.
(j) "Employee" means an individual whose wages are subject to the
withholding of federal income tax under Section 3401 of the Code.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(l) "Fair Market Value" as of a specified date means, (i) if the Shares
are listed on a registered securities exchange or quoted on the National Market
System, the closing price per share of the Shares on such date (or, if there was
no trading reported on such date, on the next preceding day on which there was
trading reported); (ii) if the Shares are not listed on a registered securities
exchange and not quoted on the National Market System, but the bid and asked
prices per share for the Shares are provided by NASDAQ, the National Quotation
Bureau Incorporated or any similar organization, the average of the closing bid
and asked price per share of the Shares on such date (or, if there was no
trading in the Shares on such date, on the next preceding day on which there was
trading) as provided by such organization; and (iii) if the Shares are not
traded on a registered securities exchange and not quoted on the National Market
System and the bid and asked price per share of the Shares are not provided by
NASDAQ, the National Quotation Bureau Incorporated or any similar organization,
as determined by the Board or a committee designated by the Board, in good
faith.
(m) "Initial Retainer" means the shares of Common Stock due to a Non-
Employee Director for his or her initial retention as a Non-Employee Director,
as more specifically set forth in Section 7.
(n) "Meeting Fee Compensation" means the amount payable to a Non-
Employee Director for meetings attended in person or by telephonic conference
call by him or her during a fiscal year, as more specifically set forth in
Section 7.
(o) "Non-Employee Director" means a member of the Board who is not an
Employee of the Company.
(p) "NQSO" means an option that is not qualified under Section 422A of
the Code.
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<PAGE>
(q) "Officer" means an individual elected or appointed by the Board or
chosen in such other manner as may be prescribed by the by-laws of the Company,
as the case may be, to serve as such.
(r) "Option Agreement" means the written agreement between the Company
and the Participant that contains the terms and conditions pertaining to the
NQSO.
(s) "Outstanding Shares" means the number of outstanding shares of the
Common Stock .
(t) "Participant" means a Non-Employee Director who has been granted an
NQSO under the Plan or who has accrued Compensation under the Plan as a
Non-Employee Director.
(u) "Person" means any individual, corporation, partnership,
association, joint- stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(v) "Plan" means the "Amended and Restated Ultrafem, Inc.1995 Stock
Plan For Non-employee Directors."
(w) "Prior Amounts" means amounts credited to the Director's Account
prior to the effective date of a Participant's election to change the date of
distribution of the aggregate number of shares of Common Stock credited to the
Director's Account for services rendered as a director commencing with such
fiscal year.
(x) "Reorganization" means any capital reorganization, any
reclassification of the shares of Common Stock (other than a change in par value
or as a result of a stock dividend, subdivision, split up or combination of
shares of Common Stock), or a consolidation or merger of the Company with
another person where the Company is the surviving corporation.
(y) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or replacement rule
or regulation thereto. Accordingly, all references in the Plan to a specific
paragraph of Rule 16b-3 shall be deemed to be references to such paragraph or to
the applicable successor or replacement paragraph thereto.
(z) "Share" means one share of Common Stock, adjusted in accordance
with Section 13 hereof, as applicable.
3. Shares. The aggregate number of shares of Common Stock that may be
issued pursuant to the Plan shall not exceed 250,000, subject to adjustment upon
the occurrence of adjustments to the outstanding Common Stock described in
Section 13 hereof. If any NQSO
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<PAGE>
granted under the Plan expires or is terminated for any reason without having
been exercised in full, the shares of Common Stock allocable to the unexercised
portion of such NQSO shall again become available for grant pursuant to the
Plan. At all times during the term of the Plan, the Company shall reserve and
keep available for issuance such number of Shares as the Company is obligated to
issue pursuant to the Plan. Common Stock issued under the Plan may consist, in
whole or in part, of authorized and unissued Shares or treasury Shares, as
determined in the sole and absolute discretion of the Board. No fractional
Shares shall be issued under the Plan.
4. Purpose. The purpose of the Plan is to advance the interests of the
Company and its stockholders by compensating and providing incentives, which are
linked directly to increases in stockholder value, to Non-Employee Directors for
services rendered, time expended and for risks assumed and value added, in order
that they will be encouraged to serve on the Board and exert their best efforts
on behalf of the Company, thus enhancing the value of the Company for the
benefit of the Company's stockholders.
5. Administration.
(a) Generally. The Plan shall be administered, construed and
interpreted by the Board. Pursuant to such authorization, the Board shall have
the responsibility for carrying out the terms of the Plan. Subject to the terms
of the Plan and applicable law, all designations, determinations,
interpretations and other decisions under or with respect to the Plan, any NQSO
or any Compensation shall be within the sole and absolute discretion of the
Board, may be made at any time, and shall be final, conclusive and binding upon
the Company, any Participant, any holder or beneficiary of any NQSO or
Director's Account and any stockholder of the Company. To the extent permitted
under the securities laws applicable to compensation plans (including, without
limitation, the requirements of Section 16(b) of the Exchange Act or under the
Code), a duly authorized committee of the Board, may exercise the discretion
granted to the Board under the Plan, provided that the composition of such
committee shall satisfy the requirements of Rule 16b-3. The Board may also
designate a plan administrator to manage the record keeping and other routine
administrative duties under the Plan.
(b) Reliance and Indemnification of Board Members. The Board may employ
attorneys, consultants, accountants or other persons and the Board, the Company
and its officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. No member of the Board shall be
personally liable for any action, determination or interpretation taken or made
in good faith by the Board with respect to the Plan, any NQSO or Compensation
granted thereunder, and all members of the Board shall be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.
(c) Director's Account. The Board shall maintain or cause to be
maintained a journal or other record in which a separate account for each
Participant shall be established. Whenever NQSOs are granted to or exercised by
a Participant, or whenever Compensation is accrued by a Participant, the
Participant's account shall reflect such grant, exercise or accrual and
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<PAGE>
the Participant's account shall be appropriately adjusted in the event of any
change in capitalization or transaction pursuant to Section 13 hereof.
6. Term of the Plan. No NQSO shall be granted pursuant to the Plan, nor
shall any Compensation accrue, on or after the tenth anniversary of the
Effective Date, but NQSOs theretofore granted may be extended beyond that date
and the Board shall have the authority to amend, alter, adjust, suspend,
discontinue, or terminate any such NQSO, and to amend the Plan, beyond that
date.
PART B - DEFERRED COMPENSATION FOR NON-EMPLOYEE DIRECTORS
7. Compensation. Effective July 1, 1997, each person who serves as a Non-
Employee Director during a fiscal year of the Company shall be entitled to
receive the Annual Retainer with respect to that fiscal year as set forth in
subsection (a) below, and the Meeting Fee Compensation as set in subsection (b)
below. Effective July 1, 1997, each person who becomes a Non-Employee Director,
and has not previously received a NQSO or an Initial Retainer, shall be entitled
to receive an Initial Retainer as set forth in subsection (c) below.
(a) Annual Retainer. The Annual Retainer payable to Non-Employee
Directors for services rendered as a Non-Employee director during a fiscal year
as follows: 800 shares of Common Stock for Board membership; 600 shares of
Common Stock for committee chairmanship; and 150 shares of Common Stock for
committee membership. Payment shall be made annually, if not deferred pursuant
to Section 8 of the Plan, on the first business day following the end of the
fiscal year for which the Annual Retainer is payable, to each person who served
as a Non-Employee Director during such year. If a Non-Employee Director for any
reason does not serve a full fiscal year, the Annual Retainer for such
incomplete fiscal year shall be pro- rated based on the number of full months
during which the Participant served as a Non-Employee Director, and the payment
therefor shall be made, if not deferred pursuant to Section 8 of the Plan, on
the first business day following the end of the fiscal year for which the
pro-rated Annual Retainer is payable.
(b) Meeting Fee Compensation. The Meeting Fee Compensation payable to
Non-Employee Directors for Board and committee meetings attended as a
Non-Employee director during a fiscal year shall be paid in shares of Common
Stock, as follows: 50 shares of Common Stock per meeting for Board meetings; and
25 shares of Common Stock per meeting for committee meetings. Payment shall be
made annually, if not deferred pursuant to Section 8 of the Plan, on the first
business day following the end of the fiscal year for which the Meeting Fee
Compensation is payable.
(c) Grant to New Directors. An Initial Retainer of 1,000 shares of
Common Stock shall be payable to any person who becomes a Non-Employee Director
at any time on or after July 1, 1997, serves as a Non-Employee Director for at
least one year, and has not previously received a NQSO or an Initial Retainer,
if not deferred pursuant to Section 8 of the
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<PAGE>
Plan, on the first business day following the end of the fiscal year in which he
or she became entitled to the Initial Retainer.
8. Election To Defer.
(a) Time of Election. As soon as practicable prior to the beginning of
a fiscal year, a Non-Employee Director may elect to defer Compensation to be
received pursuant to the Plan by directing that all of the Compensation which
otherwise would have been payable in accordance with Section 7 above during such
fiscal year and succeeding fiscal years shall be credited to the Director's
Account. Any person who shall become a Non-Employee Director during any fiscal
year, and who was not a Non-Employee Director of the Company prior to the
beginning of such fiscal year, may elect, within 30 days after his or her term
begins, to defer payment of all of his or her Compensation earned during the
remainder of such fiscal year and for succeeding fiscal years. Under a valid
election, such deferred Compensation shall be payable in accordance with Section
10 below.
(b) Form and Duration of Election. An election to defer Compensation
shall be made by written notice executed by the Non-Employee Director and filed
with the Secretary of the Company. Such election shall continue until the
Non-Employee Director terminates such election by subsequent written notice
filed with the Secretary of the Company. Any such election to terminate deferral
shall become effective beginning with the fiscal year following receipt of the
election form by the Company and shall only be effective with respect to
Compensation payable for services rendered as a Non-Employee Director
thereafter. Amounts credited to the Director's Account prior to the effective
date of termination shall not be affected by such termination and shall be
distributed only in accordance with the terms of the Plan.
(c) Change of Election. A Non-Employee Director who has terminated his
or her election to defer compensation hereunder may thereafter make another
election in accordance with Section 8(a) to defer such compensation for the
fiscal year subsequent to the filing of such election and succeeding fiscal
years.
9. The Director's Account. All Compensation that a Non-Employee Director
has elected to defer under the Plan shall be credited to the Director's Account
as follows:
(a) As of the date the Compensation would otherwise be payable, there
shall be credited to the Director's Account the number of full shares of Common
Stock.
(b) At the end of each fiscal year, there shall be credited to the
Director's Account an amount equal to any stock dividends that would have been
paid on the number of shares of Common Stock credited to the Director's Account
as of the dividend record date, if any, occurring during such fiscal year as if
such shares had been shares of issued and outstanding Common Stock on such
record date. In addition, the Director's Account shall be subject to adjustment
as provided for in Section 13 below.
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(c) A Non-Employee Director shall not have any interest in the Common
Stock in his or her Director's Account until such Common Stock is distributed in
accordance with the Plan.
10. Distribution From Accounts.
(a) Form of Election. At the time a Non-Employee Director makes an
election to defer receipt of the Compensation pursuant to Section 8, such
Non-Employee Director shall also file with the Secretary of the Company a
written election with respect to the distribution of the aggregate number of
shares of Common Stock to be credited to the Director's Account pursuant to such
election. A Non-Employee Director may elect to receive such shares of Common
Stock in one lump-sum payment to be paid as of (i) the first business day on or
after the fifth anniversary of the date the Compensation would otherwise be
payable, (ii) upon a Change in Control, or (iii) the earlier of (i) or (ii) as
the Non-Employee Director may elect. Notwithstanding anything to the contrary
contained herein, the Corporation may, by a vote of a majority of the
disinterested directors, elect to distribute any shares of Common Stock credited
to a Director's Account earlier than elected by the Non-Employee Director. A
cash payment will be made with the distribution for any fraction of a share of
Common Stock credited to the Director's Account.
(b) Adjustment of Date of Distribution. A Non-Employee Director
participating in the Plan may, prior to the beginning of any fiscal year, file
another written election with the Secretary of the Company electing to change
the date of distribution of the aggregate number of shares of Common Stock
credited to the Director's Account for services rendered as a director
commencing with such fiscal year. Prior Amounts credited to the Director's
Account before the effective date of such change shall not be affected by such
change and shall be distributed only in accordance with the election in effect
at the time the Prior Amounts were credited to the Director's Account; provided,
however, that a Non-Employee Director may elect to change the time at which
Prior Amounts are to be paid, if (i) a written election to effect such change is
filed with the Secretary of the Company at least one year before the earliest
scheduled payment of the Prior Amounts and (ii) such change would not accelerate
the Non-Employee Director's receipt of the Prior Amounts.
11. Distribution On Cessation of Services. The balance in such Director's
Account shall be paid on the first business day of the month immediately
following the date of a Non- Employee Director's cessation of services as a
director of the Company. If such distribution occurs due to the death of a
Non-Employee Director, the balance in such Director's Account shall be paid to
the beneficiary designated in writing by such Director. Such balance shall be
paid to the estate of the Non-Employee Director if (a) no such designation has
been made or (b) the designated beneficiary shall have predeceased the Director
and no further beneficiary designation has been made.
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<PAGE>
PART C - OPTIONS GRANTED UNDER THE PLAN PRIOR TO JULY 1, 1997.
12. Non-qualified Stock Options.
(a) Grant of NQSOs. Each person who is a Non-Employee Director at
September 28, 1995, and any other person who becomes a Non-Employee Director
after September 28, 1995 and on or prior to June 30, 1997, shall automatically
be granted one option to purchase 15,000 shares of Common Stock, subject to all
provisions of the Plan.
(b) Exercise Price. The price at which each Share covered by a NQSO may
be purchased pursuant to this Plan shall be one hundred percent (100%) of the
Fair Market Value of the Common Stock on the date immediately preceding the date
of grant.
(c) Terms and Conditions. All NQSOs granted pursuant to the Plan shall
be evidenced by a Stock Option Agreement (which need not be the same for each
Participant or NQSO), in substantially the form annexed hereto, which shall be
subject to the following express terms and conditions and to the other terms and
conditions specified in this Section, and to such other terms and conditions as
shall be determined by the Board in its sole and absolute discretion which are
not inconsistent with the Plan:
(i) except as set forth in Section 13(d) hereof all NQSOs granted to
a Participant shall vest as follows: 5,000 immediately, and 2,500 per year
for the subsequent four years;
(ii) the failure of a NQSO to vest for any reason whatsoever shall
cause the NQSO to expire and be of no further force or effect;
(iii) unless terminated earlier pursuant to Section 12(e) hereof,
the term of each NQSO shall in no event be more than ten years from the
date of the grant;
(iv) NQSOs shall not be transferable by the holder otherwise than by
will or by the laws of descent and distribution and shall be exercised
during the lifetime of the holder only by the holder; provided, however,
that if so determined by the Board, a Participant, in the manner
established by the Board, may designate a beneficiary or beneficiaries to
exercise the rights of the Participant, and to receive any property
distributable, with respect to any NQSO, upon the death or permanent
disability of the Participant;
(v) except as provided in clause (iv) above, no NQSO or interest
therein may be transferred, assigned, pledged or hypothecated by the
holder during the holder's lifetime whether by operation of law or
otherwise, or be made subject to execution, attachment or similar process;
and
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(vi) payment for the Shares to be received upon exercise of a NQSO
shall be made in full in cash, or as provided in (d) below.
(d) Exercise. The holder of an NQSO may exercise the same by filing
with the Corporate Secretary of the Company a written election, in such form as
the Board may determine, specifying the number of Shares with respect to which
such NQSO is being exercised and such election notice shall be accompanied by
(i) such documentation, if any, as may be required by the Company as provided in
Section 16(h), and (ii) payment of the aggregate option price. Such payment
shall be in the form of (i) cash or a certified check (unless such certification
is waived by the Company) payable to the order of the Company in the amount of
the aggregate NQSO price, (ii) certificates duly endorsed for transfer (with all
transfer taxes paid or provided for) evidencing a number of shares of Common
Stock of the Company of which the aggregate Fair Market Value on the date of
exercise is equal to the aggregate NQSO exercise price of the Shares being
purchased, or (iii) a combination of these methods of payment. Delivery of said
notice shall constitute an irrevocable election to purchase the Shares specified
in said notice, and the date on which the Company receives the last of said
notice documentation and the aggregate NQSO exercise price for all of the Shares
covered by the notice shall be the date as of which the Shares so purchased
shall be deemed to have been issued. The Participant entitled to exercise the
NQSO shall not have the right or status as a holder of the Shares to which such
exercise relates prior to receipt by the Company of the payment, notice and
documentation expressly referred to in this Section.
(e) Termination of NQSOs. NQSOs granted under the Plan shall expire
immediately upon a Participant ceasing to be a member of the Board, provided
that if a Non- Employee Director ceases to be a member of the Board due to death
or permanent disability, the NQSO shall be exercisable as provided in this
subsection 12(e). The Participant (or his or her duly appointed guardian,
conservator, executor or administrator, as the case may be) shall have the
privilege of exercising the unexercised portion of the NQSO which the
Participant could have exercised on the day on which his or her status as a
Non-Employee Director ceased due his or her death or disability, provided,
however, that such exercise must be in accordance with the terms of this
Agreement and within one year of the Participant's disability or death, as the
case may be. In no event, however, shall the Participant (or his or her duly
appointed guardian, conservator, executor or administrator, as the case may be),
exercise the NQSO after the expiration date specified therein.
(f) Share Certificates. All certificates for Shares delivered under the
Plan pursuant to any NQSO or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Board may deem advisable under the
Plan or the rules, regulations, and other restrictions of the Securities and
Exchange Commission, any stock exchange upon which such Shares are then listed,
and any applicable Federal or state securities laws, and the Board may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
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PART D - GENERAL
13. Recapitalization.
(a) Corporate Flexibility. The existence of the Plan and the NQSOs
granted hereunder shall not affect or restrict in any way the right or power of
the Board or the stockholders of the Company, in their sole and absolute
discretion, to make, authorize or consummate any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of bonds,
debentures, common stock, preferred or prior preference stocks ahead of or
affecting the Company's capital stock or the rights thereof, the dissolution or
liquidation of the Company or any sale or transfer of all or part of its assets
or business, or any other grant of rights, issuance of securities, transaction,
corporate act or proceeding and notwithstanding the fact that any such activity,
proceeding, action, transaction or other event may have, or be expected to have,
an impact (whether positive or negative) on the value of any NQSO or the Common
Stock.
(b) Adjustments Upon Changes in Capitalization. Subject to any required
action by the stockholders of the Company, if the Outstanding Shares shall be
divided into a greater number of Outstanding Shares, or a dividend in shares of
Common Stock shall be paid in respect of shares of Common Stock, the Shares
pursuant to NQSO's, the Director's Accounts, and the Plan, in effect immediately
prior to such subdivision or at the record date of such dividend shall,
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend, be proportionately increased, and conversely
if the Outstanding Shares shall be combined into a smaller number of Outstanding
Shares, the Shares pursuant to NQSO's, the Director's Accounts, and the Plan,
the Exercise Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
reduced.
(c) Adjustments Upon Reorganizations. Subject to any required action by
the stockholders of the Company, in case of any Reorganization, a Participant
shall thereafter, with respect to any NQSO be entitled to purchase, and with
respect to any Shares in a Director's Account be entitled to receive, the kind
and number of shares of stock or other securities or property of the Company
receivable upon such Reorganization by a stockholder holding the number of
Shares which the Participant may be entitled to purchase or receive under an
NQSO or Director's Account, prior to such Reorganization.
(d) Adjustments Upon Merger or Dissolution. If, in the event of a
merger or consolidation, the Company is not the surviving corporation, and in
the event that the agreements governing such merger or consolidation do not
provide for the substitution of new options or other rights in lieu of the NQSO
granted hereunder or for new accounts in lieu of Director's Accounts as provided
for hereunder, or for the express assumption of such outstanding NQSOs and
Director's Accounts, by the surviving corporation, or in the event of the
dissolution or liquidation of the Company, the holder of any NQSO theretofore
granted under this Plan shall
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<PAGE>
have the right not less than five days prior to the record date for the
determination of stockholders entitled to participate in such merger,
consolidation, dissolution or liquidation, to exercise the NQSO, in whole or in
part, without regard to any installment provision that may have been made part
of the terms and conditions of such option (provided, that any conditions
precedent to such exercise set forth in any Option Agreement granted under this
Plan, other than the passage of time, have been satisfied). In any such event,
the Company will mail or cause to be mailed to each Participant a notice
specifying the date that is to be fixed as of which all holders of record of the
Shares shall be entitled to exchange their shares for securities, cash or other
property issuable or deliverable pursuant to such merger, consolidation,
dissolution or liquidation; such notice shall be mailed at least ten (10) days
prior to the date therein specified. In the event any then outstanding NQSO is
not exercised in its entirety on or prior to the date specified therein, all
remaining outstanding NQSOs granted hereunder and any and all rights thereunder
shall terminate as of said date.
14. Election to Decline Participation. With respect to NQSOs, a
Non-Employee Director otherwise eligible to participate in the Plan may make an
irrevocable, one-time election by written notice to the Secretary of the Company
within thirty days after his or her initial election or appointment to the Board
to decline to participate in the Plan or, in the case of Non-Employee Directors
in office on the date the Plan was adopted by the Board, within thirty days of
such adoption. With respect to Compensation, a Non-Employee Director otherwise
eligible to participate in the Plan may make an irrevocable election by written
notice to the Secretary of the Company within thirty days after his or her
initial election or appointment to the Board to decline to participate in the
Plan or, in the case of Non-Employee Directors in office on the date the amended
and restated Plan was adopted by the Board, within thirty days of such adoption.
A written election to decline Compensation or to receive Compensation may be
terminated with respect to a given fiscal year by written notice to the
Secretary of the Corporation prior to the beginning of that fiscal year.
15. Amendment and Termination.
(a) Modifications to the Plan. The Board, insofar as permitted by law,
may from time to time, amend or terminate the Plan; provided, however, that (i)
no amendment or termination shall impair the rights of a Participant with
respect to amounts then credited to the Director's Account and (ii) no amendment
shall become effective without approval of the stockholders of the Company if
such stockholder approval is required to enable the Plan to satisfy applicable
state or Federal statutory or regulatory requirements.
(b) Rights of Participant. No amendment, suspension or termination of
the Plan that would adversely affect the right of any Participant with respect
to an outstanding NQSO or Director's Account will be effective without the
written consent of the affected Participant.
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<PAGE>
(c) Correction of Defects, Omissions and Inconsistencies. The Board may
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or any NQSO in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
16. Miscellaneous.
(a) Stockholders' Rights; No Rights to Assets or Voting Rights. No
Participant and no beneficiary or other person claiming under or through such
Participant shall acquire any rights as a stockholder of the Company by virtue
of such Participant's having been granted a NQSO under the Plan. No Participant
and no beneficiary or other person claiming under or through such Participant
will have any right, title or interest in or to any Shares allocated or reserved
under the Plan except as to Shares, if any, that have been issued or transferred
to such Participant. With respect to NQSOs, no adjustment shall be made for
dividends or distributions or other rights for which the record date is prior to
the date of exercise of such NQSO. The establishment and maintenance of, or
allocation and credits to, the Director's Account shall not vest in the
Participant or his or her beneficiary any right, title or interest in and to any
specific assets of the Company. A Participant shall not have any dividend or
voting rights or any other rights of a stockholder (except as expressly set
forth in Section 9(b) with respect to dividends and as provided in Section 13
above) until the shares of Common Stock credited to a Director's Account are
distributed. The rights of a Participant (or his or her beneficiary) to receive
payments under this Plan shall be no greater than the right of an unsecured
general creditor of the Company.
(b) No Rights to Options. No Non-Employee Director or Participant shall
have any claim to be granted any NQSO under the Plan, and there is no obligation
for uniformity of treatment of Non-Employee Directors, Participants, or holders
or beneficiaries of NQSOs under the Plan. The terms and conditions of NQSOs need
not be the same or similar with respect to each recipient.
(c) No Right to Continue as Director. Nothing contained in the Plan or
in any instrument executed pursuant to the Plan will confer upon any Participant
any right to continue as a member of the Board or affect the right of the
Company, the Board or the stockholders of the Company to terminate the
directorship of any Participant at any time with or without cause.
(d) Annual Statement. Each Participant will receive an annual statement
indicating the number of shares of Common Stock credited to the Director's
Account as of the end of the preceding fiscal year, and the number of Shares
exercisable pursuant to any NQSO.
(e) Governing Law. The validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined solely in accordance with the
laws of the State of Delaware, without regard to any principles of conflicts of
law, and applicable Federal law.
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<PAGE>
(f) Severability. If any term or provision of this Plan or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, then the remainder of the Plan, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision hereof shall be valid and be enforced to the fullest extent
permitted by applicable law.
(g) Other Compensation Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting other compensation arrangements for
Non-Employee Directors, subject to stockholder approval if such approval is
required. Such other arrangements may be either generally applicable or
applicable only in specific cases.
(h) Representations. The Board may require, as a condition to the right
to exercise an NQSO or receive payment of the Compensation (whether directly or
from the Director's Account), that the Company receive from the Participant,
representations, warranties and agreements to the effect that the Shares are
being purchased or accepted by the Participant only for investment and without
any present intention to sell or otherwise distribute such Shares and that the
Participant will not dispose of such Shares in transactions which, in the
opinion of counsel to the Company, would violate the registration provisions of
the Securities Act of 1933, as then amended, and the rules and regulations
thereunder. The certificate issued to evidence such Shares shall bear
appropriate legends summarizing such restrictions on the disposition thereof.
(i) Withholding. The Company shall be authorized to withhold from any
Director's Account, NQSO granted or exercised, or any payment due under the
Plan, the amount of withholding taxes due in respect thereof, and to take such
other action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes. Upon the exercise of a NQSO or
receiving distributions from the Director's Account, the Participant receiving
Shares pursuant thereto may be required to pay the Company the amount of any
such withholding taxes which is required to be withheld with respect to such
Shares.
(j) Cost of the Plan. The costs and expenses of administering the Plan
shall be borne by the Company.
(k) No Waiver of Breach. No waiver by any person at any time or any
breach by another person of, or compliance with, any condition or provision of
the Plan to be performed by such other person shall be deemed a waiver of the
same, any similar or any dissimilar provisions or conditions at the same or at
any prior or subsequent time.
(l) No Trust or Fund Created. Neither the Plan nor any NQSO shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a Participant or any other
Person. To the extent that any Person acquires a right to
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<PAGE>
receive payments from the Company pursuant to an NQSO, or a Directors' Account,
such right shall be no greater than the right of any unsecured general creditor
of the Company.
(m) Headings. The headings contained herein are for references purposes
only and shall not affect in any way the meaning or interpretation of this Plan.
14
<PAGE>
FORM OF NON-EMPLOYEE DIRECTOR
OPTION CERTIFICATE AND AGREEMENT
This Option Certificate and Agreement ("Certificate") certifies that
as of this _____ day of ______________, ____, Ultrafem, Inc., a Delaware
corporation ("Ultrafem"), has granted to the person named below (the "Option
Holder") an option ("Option") to purchase the following number of shares
("Option Shares") of Ultrafem's Common Stock, $.001 par value per share, under
Ultrafem's 1995 Stock Option Plan for Non-Employee Directors (the "Plan").
Name of Option Holder: ______________________
Address of Option Holder: ______________________
______________________
Number of Option Shares: 15,000
Exercise Price: ______________________
Option Expiration Date: The tenth anniversary of the date
hereof.
The Options shall become exercisable as follows: with respect to the first 5,000
shares immediately and with respect to the other 10,000 shares as follows: 2,500
on each of the first, second, third and fourth anniversary of the date hereof.
The Option may be exercised only by delivery by registered or certified mail to
the Secretary of Ultrafem at its principal office of (1) written notice, signed
by the Option Holder, of exercise in form and substance identical to Exhibit I
attached hereto stating the number of Option Shares then being purchased; (2)
payment of the aggregate Exercise Price such payment shall be in the form of (A)
certified (unless such certification is waived by Ultrafem) check payable to the
order of Ultrafem, Inc. or cash in the amount of the Exercise Price for such
Option Share; (B) certificates duly endorsed for transfer (with all transfer
taxes paid or provided for) evidencing a number of shares of Common Stock of
Ultrafem of which the aggregate fair market value on the date of exercise is
equal to the aggregate Option Exercise Price of the Option Shares being
purchased, or (C) a combination of these methods of payment; and (3) an executed
investment letter in form and substance substantially identical to Exhibit II
attached hereto. Delivery of said notice and such documentation shall constitute
an irrevocable election of the Option Holder to purchase the Option Shares
specified in said notice, and the date on which Ultrafem receives said notice
and documentation shall be the date as of which the Option Shares so purchased
shall be deemed to have been issued. Ultrafem shall issue and deliver to the
Option Holder a stock certificate or certificates evidencing the Option Shares
so purchased. The term "Fair Market Value" shall mean (i) if the shares of
Common Stock are listed on a registered securities exchange or quoted on the
National Market System, the closing price per share of Common Stock on such date
(or, if there was no trading reported on such date, on the next preceding day on
which there was trading reported); (ii) if the shares of Common Stock are not
listed on a registered securities exchange
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<PAGE>
and not quoted on the National Market System, but the bid and asked prices per
share of Common Stock are provided by NASDAQ, the National Quotation Bureau
Incorporated or any similar organization, the average of the closing bid and
asked price per share of Common Stock on such date (or, if there was no trading
in the shares of Common Stock on such date, on the next preceding day on which
there was trading) as provided by such organization; and (iii) if the shares of
Common Stock are not traded on a registered securities exchange and not quoted
on the National Market System and the bid and asked price per share of the
shares of Common Stock are not provided by NASDAQ, the National Quotation Bureau
Incorporated or any similar organization, as determined by the Board of
Directors of Ultrafem (the "Board") or a committee thereof in good faith.
Notwithstanding anything to the contrary contained herein, if the
Option Holder shall cease to be a member of the Board for any reason, including,
without limitation, death or permanent disability, (i) any portion of the Option
which has not yet vested shall expire immediately, and (ii) any portion of the
Option which is fully vested upon the date the Option Holder ceased to be a
member of the Board will be exercisable in accordance with the terms hereof
within one year from such date, but not beyond the Option Expiration Date.
The Option shall not be transferable by the Holder otherwise than by
will or by the laws of descent and distribution and shall be exercised during
the lifetime of the Holder only by the Holder; provided, however, that the
Option Holder may designate a beneficiary or beneficiaries to exercise the
rights of the Option Holder, and to receive any property distributable, with
respect to the Option upon the death or permanent disability of the Option
Holder.
The Option Holder agrees not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of any of the Option Shares unless and until
all of the following have occurred: (i) the Option Shares are disposed of
pursuant to and in conformity with an effective registration statement filed
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act"), or the Option Holder delivers to Ultrafem a
written opinion of counsel, satisfactory to Ultrafem and its counsel, to the
effect that the proposed disposition is exempt from the registration and
prospectus delivery requirements of that Act; and (ii) the Option Holder
delivers to Ultrafem a written opinion of counsel, satisfactory in form and
substance to Ultrafem and its counsel, to the effect that the proposed
disposition will not result in a violation of the securities laws of any state
in the United States. Any attempted transfer and breach of this paragraph and
the preceding paragraph and the preceding paragraph shall be null and void, and
of no force or effect whatsoever.
Subject to any required action by the stockholders of Ultrafem:
(i) if outstanding shares of Ultrafem's Common Stock (the "Outstanding
Shares") shall be divided into a greater number of Outstanding
Shares or a dividend in shares of Common Stock shall be paid in
respect of shares of Common Stock, the
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<PAGE>
Exercise Price in effect immediately prior to such subdivision or at
the record date of such dividend shall, simultaneously with the
effectiveness of such subdivision or immediately after the record
date of such dividend, be proportionately reduced, and conversely if
the Outstanding Shares shall be combined into a smaller number of
Outstanding Shares, the Exercise Price in effect immediately prior
to such combination shall, simultaneously with the effectiveness of
such combination, be proportionately increased;
(ii) when any adjustment is required to be made in the Exercise Price,
the number of Option Shares purchasable upon the exercise of the
Option shall be changed and the number determined by dividing (A) an
amount equal to the number of Option Shares purchasable on the
exercise of the Option immediately prior to such adjustment
multiplied by the Exercise Price in effect immediately prior to such
adjustment, by (B) the Exercise Price in effect immediately after
such adjustment;
(iii) in case of any capital reorganization, any reclassification of the
shares of Common Stock (other than a change in par value or as a
result of a stock dividend, subdivision, split up or combination of
shares of Common Stock), or a consolidation or merger of Ultrafem
with another person where Ultrafem is the surviving corporation
(collectively referred to as "Reorganizations"), the Option Holder
shall thereafter be entitled to purchase the kind and number of
shares of stock or other securities or property of Ultrafem
receivable upon such Reorganization by a stockholder holding the
number of Option Shares which the Option entitles the Option Holder
to purchase from Ultrafem prior to such Reorganization; and in any
case appropriate adjustment shall be made in the application of the
provisions of this Certificate to the end that the provisions set
forth herein (including the specified changes and other adjustments
to the Exercise Price) shall thereafter apply to any Option Shares
or other property thereafter purchasable upon exercises of the
Option;
(iv) a dissolution or liquidation of Ultrafem, or a merger or
consolidation in which Ultrafem is not the surviving corporation,
shall cause the Option to terminate. The Option Holder may, in such
event, exercise at any time during a ten-day period ending on the
fifth day prior to such dissolution or liquidation, or merger or
consolidation in which Ultrafem is not the surviving corporation,
the Option in whole or in part; provided, however, that if such
merger or consolidation is to be consummated in whole or in part by
the tender of shares of Common Stock to the surviving corporation,
the Option Holder agrees to tender the Option Shares received upon
exercise of the Option to the surviving corporation on the same
terms and subject to the same conditions as are applicable to other
stockholders of Ultrafem who are tendering their shares of Common
Stock;
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<PAGE>
(v) to the extent that the foregoing adjustments relate to stock or
securities of Ultrafem, such adjustments shall be made by the Board
of Directors of Ultrafem and its determination shall be final,
binding and conclusive;
(vi) the adjustments described in the foregoing paragraphs (i) through
(v) shall constitute the sole and exclusive adjustments to be made
to the Option, or the number of or Exercise Price of the Option
Shares, with respect to any of the events described in those
paragraphs; and
(vii) the grant of the Option shall not affect in any way the right or
power of Ultrafem to make adjustments, reclassification,
reorganizations or changes in its capital or business structure, or
to merge or consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
For purposes of this Certificate, a "Change in Control" of Ultrafem
occurs if: (a) any "person" (defined as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
other than Audrey Contente is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of Ultrafem's outstanding securities then entitled to vote
for the election of directors; or (b) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors cease for any reason to constitute at least a majority thereof; or (c)
the Board of Directors shall approve the sale of all or substantially all of the
assets of the Company or any merger, consolidation, issuance of securities or
purchase of assets, the result of which would be the occurrence of any event
described in clause (a) or (b) above.
The Option shall immediately become exercisable upon a Change of
Control of Ultrafem.
Option Holder represents and agrees by signing this Certificate
representing the Option Shares that if he/she exercises this Option in whole or
in part, he/she will acquire the Option Shares upon such exercise for the
purpose of investment and not with a view to the resale or distribution of such
Option Shares, except as permitted by applicable securities laws, and that upon
each exercise of the Option he/she will furnish to Ultrafem, as provided above,
a written statement to such effect. The Option Holder will agree that Ultrafem
may place on each certificate representing the Option Shares an appropriate
legend or legends required by applicable federal and state securities laws.
The Option Holder shall have no rights as a stockholder with respect
to the Option Shares until the date of the issuance of a stock certificate or
stock certificates evidencing the Option Shares to the Option Holder. 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.
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<PAGE>
This Option shall expire immediately upon the Holder ceasing to be a
member of the Board, provided that if the Holder ceases to be a member of the
Board due to death or permanent disability, the vested portion of this Option
will be exercisable in accordance with the terms contained herein within one
year of the Holder ceasing to be a member of the Board.
Anything in this Agreement to the contrary notwithstanding, in no
event may the Option be exercisable if Ultrafem shall, at any time and in its
sole discretion, determine that (i) the listing, registration or qualification
of any shares otherwise deliverable upon such exercise, upon any securities
exchange or under any state or federal law, or (ii) the consent or approval of
any regulatory body or the satisfaction of withholding tax or other withholding
liabilities is necessary or desirable in connection with such exercise. In such
event, such exercise shall be held in abeyance and shall not be effective unless
and until such withholding, listing, registration, qualification or approval
shall have been affected or obtained free of any conditions not acceptable to
Ultrafem in its sole discretion, notwithstanding any termination of any Option
or any portion of any Option during the period when exercisability has been
suspended.
This Certificate shall be binding on and shall inure to the benefit
of the parties and their respective successors, assigns, heirs and personal
representatives. This Certificate shall be construed in accordance with the laws
of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
have caused this Agreement to be executed and delivered by their authorized
representative as of the date above written.
ULTRAFEM, INC.
a Delaware corporation
By:
---------------------------------------
Name: John Andersen
Title: Chief Executive Officer
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<PAGE>
EXHIBIT I
Notice of Exercise
(to be signed only upon exercise of the Option)
TO: Ultrafem, Inc.
The undersigned, the holder of the within Option, hereby irrevocably
elects to exercise the purchase right represented by such Option for, and to
purchase thereunder, _________ shares of the Common Stock of Ultrafem, Inc. and
herewith makes payment of $____ therefor or surrenders the enclosed certificates
of Common Stock duly endorsed for transfer to Ultrafem, Inc.
Dated: ________
----------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of the
Option)
----------------------------------------------
Address
----------------------------------------------
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<PAGE>
EXHIBIT II
TO: Ultrafem, Inc.
500 Fifth Avenue Suite 3620
New York, NY 10110
Ladies and Gentlemen:
The undersigned understands that the shares of Common Stock ("Shares") of
Ultrafem, Inc., a Delaware corporation (the,"Company") that he/she has today
purchased, have not been registered under the Securities Act of 1933, as amended
(the "Securities Act").
The undersigned agrees not to sell, transfer, assign, pledge, hypothecate,
or otherwise dispose of any or all of the Shares otherwise than in accordance
with the terms and provisions of that certain Option Certificate and Agreement
dated ________, 19__ between the undersigned and the Company, the provisions
of-which-are incorporated by reference herein. The undersigned agrees that the
Company may issue stock transfer instructions to its transfer agent with respect
to the Shares to the effect that there are restrictions on transfer as described
above.
The undersigned understands that there is no market for the Shares and
there may never be a market for the Shares, and that even if a market develops
for the Shares, as a result of the foregoing restrictions on transfer and the
undersigned's representations and warranties hereunder and under aforementioned
Option Certificate and Agreement, the undersigned may never be able to sell or
dispose of the Shares and may thus have to bear the risk of his or her
investment in the Shares for a substantial period of time, or forever.
The undersigned further agrees to indemnify and hold the Company harmless
at all times from and against any and all claims, actions, demands, liabilities,
losses, damages, costs and expenses incurred by the Company as a result of the
sale, transfer, assignment, pledge, hypothecation or other disposition by the
undersigned of any or all of the Shares in violation of this letter, the
aforementioned Option Certificate and Agreement, the Securities Act, or any
other applicable law.
Very truly yours,
-------------------------------
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<PAGE>
FORM OF ELECTION
THE AMENDED AND RESTATED ULTRAFEM, INC.
1995 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
Reference is hereby made to the Amended and Restated Ultrafem, Inc.1995
Stock Plan For Non- Employee Directors (the "Plan"). All capitalized terms used
herein and not defined shall have the meaning ascribed to such term in the Plan.
By checking the below listed boxes, the undersigned Non-Employee Director of the
Company may elect to defer receipt of Compensation under the Plan, and the form
of distributions under the Plan. The election is irrevocable once the fiscal
year of the Company begins; however, it may be changed with respect to future
fiscal years. This Form of Election is subject to the terms and conditions of
the Plan.
ELECTION TO DEFER RECEIPT OF COMPENSATION
|_| ELECTION TO DEFER RECEIPT OF COMPENSATION. If you do not check this
box, or do not file this "Form of Election" with the Secretary of the
Corporation, all Compensation will be paid currently, as it becomes due under
the Plan.
EVENTS OF DISTRIBUTION:
|_| The first business day on or after the fifth anniversary of the date
the Compensation would otherwise be payable.
|_| The first business day following a Change in Control.
|_| The first business day after the earliest of the above listed events
which were selected by the undersigned.
ELECTION TO DECLINE TO PARTICIPATE
|_|ELECTION TO DECLINE TO PARTICIPATE. If you check this box you will not
be entitled to Compensation under the Plan, until a new "Form of Election" is
executed pursuant to the Plan, and then only with respect to future fiscal years
of the Corporation.
ELECTION BY: ACCEPTED FOR FILING BY:
- ------------------------------------- ----------------------------------------
Secretary of Ultrafem, Inc.
Date: Date:
------------------------ ------------------------
IF NO BOXES ON THIS FORM OF ELECTION ARE CHECKED, COMPENSATION WILL BE PAID
CURRENTLY AS IT BECOMES DUE UNDER THE PLAN.
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