As filed with the Securities and Exchange Commission on March 24, 2000
Registration No.__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Tufco Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 39-1723477
( State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
4800 Simonton Road
Dallas, Texas 75244
(Address of Principal Executive Offices) (Zip Code)
TUFCO TECHNOLOGIES, INC.
AMENDED AND RESTATED
1992 NON-QUALIFIED STOCK OPTION PLAN
TUFCO TECHNOLOGIES, INC.
AMENDED AND RESTATED
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of plans)
Gregory L. Wilemon
Chief Financial Officer
4800 Simonton Road
Dallas, Texas 75244
(972) 789-1079
(Name, address, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
Amount to maximum offering Proposed maximum Amount of
Title of securities be price aggregate offering registration
to be registered registered(1) per share(2) price(2) fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 350,000 $10.44 $3,654,000 $965.00
</TABLE>
(1) This registration statement on Form S-8 (the "Registration Statement") is
being filed to register an additional 350,000 shares of the Registrant's
Common Stock for issuance under the Registrant's 1992 Non-Qualified Stock
Option Plan, as amended, and the 1993 Non-Employee Director Stock Option
Plan, as amended, as a result of which the aggregate number of shares of
the Registrant's Common Stock reserved and available for issuance under the
two plans will be 850,000 shares.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with paragraphs (c) and (h)(1) of Rule 457 of the Securities Act
of 1933, as amended (the "Securities Act"), based upon the average of the
closing bid and ask price per share of the Common Stock as reported on the
National Association of Securities Dealers, Inc. Automated Quotation System
("Nasdaq") on March 22, 2000, within five business days prior to the date
of filing of this Registration Statement..
927445.3
<PAGE>
STATEMENT OF INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 incorporates by reference the
contents of the Registration Statement on Form S-8 (File No. 333-44539),
relating to the Registrant's 1992 Non-Qualified Stock Option Plan, as amended,
and the Company's 1993 Non-Employee Director Stock Option Plan, as amended.
EXPLANATORY NOTE
Tufco Technologies, Inc. (the "Registrant") hereby files this Registration
Statement on Form S-8 relating to the common stock, par value $.01 per share
(the "Common Stock"), of the Registrant to include an additional 250,000 shares
under the Registrant's Amended and Restated 1992 Non-Qualified Stock Option Plan
(attached hereto as Exhibit 4.1) and an additional 100,000 shares under the
Registrant's Amended and Restated 1993 Non-Employee Director Stock Option Plan
(attached hereto as Exhibit 4.2). As of March 13, 2000 an aggregate of 850,000
shares of Common Stock were subject to the Registrant's stock option plans, of
which an aggregate of 500,000 of such shares of Common Stock have been
previously registered under a Registration Statement on Form S-8 (File No.
333-44539).
927445.3
<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 City of Dallas, State of Texas, on this 24th day of March,
2000.
TUFCO TECHNOLOGIES, INC.
Louis LeCalsey, III
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Tufco Technologies, Inc.
hereby severally constitute Louis Lecalsey, III and Gregory L. Wilemon, and each
of them singly, our true and lawful attorneys with full power to them, and each
of them singly, to sign for us and in our names in the capacities indicated
below, this Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable Tufco Technologies, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of the, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Robert J. Simon Chairman of the Board of March 13, 2000
Robert J. Simon Directors
/s/ Louis LeCalsey, III Director, President and Chief March 13, 2000
Louis LeCalsey, III Executive Officer (Principal
Executive Officer)
/s/ Samuel J. Bero Director March 13, 2000
Samuel J. Bero
/s/ Seymour S. Preston Director March 13, 2000
Seymour S. Preston
927445.3
II-1
<PAGE>
Signature Title Date
/s/ C. Hamilton Davison Director March 13, 2000
C. Hamilton Davison
/s/ William J. Malooly Director March 13, 2000
William J. Malooly
/s/ Gregory L. Wilemon Chief Financial Officer, Chief March 13, 2000
Gregory L. Wilemon Operating Officer, Secretary
Treasurer and Vice-President -
Finance (Principal Financial and
Accounting Officer)
927445.3
II-2
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 -- Tufco Technologies, Inc. Amended and Restated 1992 Non-Qualified Stock
Option Plan
4.2 -- Tufco Technologies, Inc. Amended and Restated 1992 Non-Employee
Director Stock Option Plan
5.1 -- Opinion of Battle Fowler, LLP. regarding the legality of the securities
being registered
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Battle Fowler LLP (included in Exhibit 5.1)
24.1 -- Power of Attorney (contained in the signature page hereof)
927445.3
II-3
TUFCO TECHNOLOGIES, INC.
AMENDED AND RESTATED
1992 NON-QUALIFIED STOCK OPTION PLAN
1. Purposes of the Plan
The purposes of the Plan are to foster and promote the long-term
financial success of the Company by (a) attracting and retaining officers and
other key management personnel of outstanding ability by the granting of stock
options as a separate incentive and not in lieu of salary or other compensation;
(b) strengthening the Company's capacity to develop and maintain a competent
management team; (c) providing incentive compensation opportunities which are
competitive with those of other corporations; and (d) enabling such officers and
personnel to participate in such financial success of the Company by encouraging
them to become owners of the Common Stock of the Company.
2. Definitions
(a) "Affiliate" is used herein as defined in Rule 12b-2 under the Exchange
Act.
(b) "Associate" is used herein as defined in Rule 12b-2 under the Exchange
Act.
(c) "Beneficial Owner" is used herein as defined in Rule 13d-3 under the
Exchange Act.
(d) "Board" means the Board of Directors of the Company.
(e) "Committee" means a Committee appointed by the Board to administer the
Plan. The Committee shall consist of not less than three persons who shall serve
at the pleasure of the Board.
(f) "Common Stock" means the shares of Common Stock of the Company, par
value $.01 per share. Unless specified otherwise, references to Common Stock
shall not include any Common Stock that may be issuable upon the conversion or
exercise of any rights to acquire Common Stock, such as the Stock Options and
any convertible indebtedness.
(g) "Company" means Tufco Technologies, Inc., a Delaware corporation,
and/or one or more of its Subsidiaries.
(h) "Disinterested Person" is used as defined in Rule 16b-3.
<PAGE>
(i) "Effective Date" means April 30, 1992.
(j) "Employee" means any person (including any officer of the Company, and
any member of the Board and of the board of directors of any Subsidiary) who is
employed by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Exercise Period" means the period during which a Participant is
entitled to exercise a Stock Option granted to such Participant under the Plan.
(m) "Fair Market Value" means the average closing price for the five most
recent trading days preceding and including the date of grant on the stock
exchange or system on which the shares of Common Stock are listed or included.
If the shares of Common Stock are not listed on a stock exchange or included in
a system that provides a closing sales price, but are traded in the
over-the-counter market without the availability of closing sales price
information, such determination shall be made on the basis of the mean between
the bid and offer prices for such shares on the over-the-counter market for such
trading days. If the shares of Common Stock are not traded in the
over-the-counter market, the Fair Market Value shall be determined by the Board
based on such factors as the Board, in its sole discretion, may deem relevant.
In no case shall such Fair Market Value be less than the par value of such
shares.
(n) "Participant" means any Employee who is selected by the Plan
Administrator to receive a Stock Option.
(o) "Person" means any natural person, trust, corporation, partnership,
joint venture or other entity, and it shall also include two or more persons who
act together, or agree to act together, within the meaning of Section 13(d)3 or
Section 14(d)2 of the Exchange Act or Rule 13d-5 under the Exchange Act.
(p) "Plan" means this Amended and Restated 1992 Non-Qualified Stock Option
Plan of the Company.
(q) "Plan Administrator" means either the Board or the Committee, whichever
is designated from time to time to administer the Plan under Section 3(a)
hereof.
(r) "Reorganization Transaction" means a merger, consolidation or
combination of the Company with another corporation or entity or any similar
reorganization of the Company, the complete liquidation of the Company, or the
sale of all or substantially all of the assets of the Company.
2
<PAGE>
(s) "Retirement" means a Termination of Employment by reason of a
Participant's retirement (other than by reason of disability) as determined
pursuant to and in accordance with the then current regular retirement plan
applicable to such Participant; provided, however, that the Participant must be
at least age 65 at the time of such Termination of Employment.
(t) "Rule 16b-3" means Rule 16b-3 under the Exchange Act.
(u) "Securities Act" means the Securities Act of 1933, as amended.
(v) "Shares" means shares of Common Stock reserved for issuance or transfer
by the Company upon the exercise of outstanding Stock Options.
(w) "Stock Option" means an option to purchase Shares granted under Section
7 hereof.
(x) "Subsidiary" means any corporation the majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company.
(y) "Termination of Employment" means the time when the employee-employer
relationship between the Participant and the Company is terminated for any
reason, including, but not limited to, a termination by resignation, discharge,
death, Total Disability, or Retirement, but excluding any such termination where
there is simultaneous reemployment by the Company.
(z) "Total Disability" means a Termination of Employment by reason of the
Participant's total disability as determined pursuant to and in accordance with
the then current regular long-term disability insurance plan applicable to such
Participant. All determinations as to the date and extent of disability of any
Employee shall be made by the Plan Administrator, in its absolute discretion,
upon the basis of such evidence as it deems necessary or desirable.
3. Administration of the Plan
(a) The Plan shall be administered under the direction or either (i) the
Board, or (ii) the Committee, provided that a majority of the members of the
Plan Administrator, whether it is the Board or the Committee, are Disinterested
Persons. "Disinterested Person" is used herein as defined in Rule 16b-3. As of
the Effective Date, a Disinterested Person includes any director who is not,
during the one year prior to service as an administrator of the Plan, or during
such service, granted or awarded equity securities pursuant to the Plan or any
other plan of the Company or any of its affiliates, excepting those items
specifically listed in Rule 16b-3. If the definition of Disinterested Person is
deleted from Rule 16b-3 by an amendment, the definition that was included in
Rule 16b-3 immediately prior to such deletion
3
<PAGE>
shall govern the Plan. The Board shall determine, from time to time, whether the
Plan shall be administered by the Board or the Committee, and whichever body is
so designated shall be the Plan Administrator hereunder.
(b) Subject to the provisions of the Plan, the Plan Administrator shall
have the exclusive power to select the Employees who are to be Participants
under the Plan as set forth in Section 5 hereof and to determine the Stock
Options to be granted to the Participants selected and the time or times when,
and terms, conditions and restrictions subject to which, such Stock Options will
be granted.
(c) Decisions and determinations by the Plan Administrator shall be final
and binding upon all persons, including, but not limited to, the Company, its
stockholders, Participants and their personal representatives, heirs and
assigns, and other Employees. The Plan Administrator shall have the authority to
interpret the Plan, establish and revise rules and regulations relating to the
Plan, and make any other determinations that it believes necessary or advisable
for the administration of the Plan, including determinations, with the consent
of a Participant, to amend the terms of the Participant's outstanding Stock
Option that were previously established by the Plan Administrator.
(d) The provisions of the by-laws of the Company governing the number of
Directors of the Board required for action to be taken by the Board at a meeting
and the requirements for voting by Directors at a meeting at which a quorum is
present, or for acting by their written consent, shall be complied with by the
Board in order to take valid actions under the Plan. Notwithstanding anything in
the by-laws to the contrary, a majority of the Committee shall constitute a
quorum, and the acts of a majority of the members of the Committee present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the Committee without a meeting, shall be the acts of the Committee.
(e) All expenses and liabilities incurred by the Plan Administrator in the
administration of the Plan shall be borne by the Company. The Plan Administrator
may employ attorneys, consultants, accountants, or other persons to render
services in connection with the Plan, and the Company, the Board, the Committee,
and members of the Board and the Committee shall be entitled to rely upon the
advice, opinions, or valuations of any such persons. Neither the Company, the
Board, the Committee, nor any member of the Board or Committee shall be
personally liable for any action, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the Board and
Committee shall be indemnified by the Company with respect to any such liability
to the fullest extent permitted by the laws of the State of Delaware.
4. Common Stock Subject to the Plan
(a) There is no maximum number of shares of Common Stock that may be issued
or transferred by the Company under the Plan. The number of shares of Common
Stock issuable
4
<PAGE>
under Stock Options under the Plan shall vary from time to time in relation to
the number of shares of Common Stock issuable under Stock Options that are
outstanding. There may not be at any one time more than 650,000 unexercised
and outstanding Stock Options.
(b) The Board may authorize the purchase of Shares by the Company in the
open market to be held in treasury and reserved for issuance under the Plan, and
may reserve authorized but unissued Shares, not otherwise reserved or
restricted, for issuance under the Plan.
(c) The approval of the Plan by the Board shall constitute the Board's
conclusive judgment and determination that, when Shares have been issued to a
Participant in accordance with the terms and conditions of the Plan, such Shares
shall be considered to be issued for full and adequate consideration and shall
be fully paid and non-assessable Common Stock, and that such consideration shall
be credited to the Company's stated and paid-in capital accounts in accordance
with the Company's standard accounting practice.
5. Eligibility
The Plan Administrator shall from time to time, in its absolute discretion,
select Participants to whom Stock Options shall be granted from among those
Employees who are officers and other key executive personnel of the Company.
6. Agreement
Each Participant granted a Stock Option under the Plan shall enter into an
Agreement with the Company, in form approved by the Plan Administrator, which
shall set forth the terms and conditions of the Options granted to the
Participant as set forth in Section 7 and 8 hereof and such other terms and
conditions as the Plan Administrator shall, in its sole discretion, determine.
The Agreement shall not become effective until the conditions set forth in
Section 10 hereof have been satisfied.
7. Terms of Stock Option
At the time a Stock Option is granted, the Plan Administrator shall
specify in the Agreement referred to in Section 6 the following terms and
conditions with respect to the Option:
(a) Number of Shares. The number of Shares issuable or transferable to
the Participant upon the exercise of the Option.
(b) Price. The purchase price per Share deliverable upon the exercise
of the Stock Option. The purchase price may be paid in cash, by check or by
the surrender for delivery to the Company of shares of Common Stock equal
in Fair Market Value to the exercise price of the Stock Option determined
as of the date of exercise.
5
<PAGE>
(c) Exercise Period. The Plan Administrator shall specify when Stock
Options granted are exercisable, subject to Section 10, and the Plan
Administrator shall specify the length of the Exercise Period during which
the Stock Options shall be exercisable.
(d) Withholding. Before the Company issues Shares to a Participant
pursuant to the exercise of a Stock Option, the Company shall have the
right to require that the Participant make such provision, or furnish the
Company such authorization, necessary or desirable so that the Company may
satisfy its obligation, under applicable income tax laws, to withhold for
income or other taxes due upon or incident to such exercise. Participants
may elect (hereinafter a "Withholding Election") with respect to the
exercise of a Stock Option either:
to have the Company withhold, from the Shares to be issued pursuant to
such exercise such number of Shares which, or
to surrender to the Company such number of shares of Common Stock of
the Company already owned by the Participant (which may be Shares
received upon such exercise) which,
at their Fair Market Value on the date as of which the option exercise is
taxable for federal income tax purposes (the "Tax Date"), shall be
sufficient to satisfy the Company's withholding obligation with respect to
the option exercise. If the Fair Market Value on the Tax Date of the number
of shares of Common Stock required to be withheld or surrendered pursuant
to a Withholding Election exceeds the Company's withholding obligation with
respect to the exercise, a fractional share of Common Stock shall not be
issued for the excess, but an amount equal to the excess shall be paid to
the Participant by the Company in cash as soon as reasonably practicable
after the amount of such excess is determined by the Company. A withholding
Election may be made applicable with respect to a particular option
exercise, to all previously granted Stock Options, and/or to all such
options to be granted in the future. A Withholding Election by a
Participant who is not subject to Rule 16b-3 of the Exchange Act may be
made continuing until revoked by the Participant. The Plan Administrator
may adopt such rules, forms and procedures as it considers necessary or
desirable to implement this Section 7(d) and/or to comply with Rule 16b-3
of the Exchange Act if it becomes applicable. Any of such rules, forms and
procedures shall be binding upon all Participants and shall be applied
uniformly to all Participants similarly situated.
(e) Other. Such other terms and conditions not inconsistent with the
Plan as the Plan Administrator shall specify.
8. Termination of Employment
6
<PAGE>
Unless the Plan Administrator specifies otherwise, the following terms and
conditions shall apply to each Stock Option granted under the Plan:
(a) Termination For Cause. If a Participant's employment is terminated
by the Company for cause, such determination be made by the Plan
Administrator in its sole discretion, all Stock Options granted to such
Participant shall terminate at the time employment is terminated.
(b) Death. If the Participant dies while an Employee, any Stock Option
held by such Participant at the date of such Participant's death shall be
exercisable in its entirety by such Participant's personal representatives,
heirs or legatees at any time prior to the expiration of one year after the
date of the Participant's death.
(c) Retirement or Total Disability. If there is a Termination of
Employment of a Participant by reason of Retirement or Total Disability,
any Stock Option held by the Participant shall be exercisable in its
entirety at any time prior to the expiration of three months in the case of
Retirement and one year in the case of Total Disability after the date of
such Termination of Employment.
(d) Other Termination. If there is a Termination of Employment of a
Participant for any reason other than those specified in Sections 8(a),
8(b) above, such Participant shall be permitted, for a 45-day period
following the date of termination, to exercise any Stock Option which was
exercisable as of such termination date.
9. Leave of Absence
If a Participant is granted a leave of absence by the Company, the Plan
Administrator may make such provision respecting continuance of any Stock Option
held by such Participant while such Participant continues as an Employee as it
may deem advisable, except that in no event shall any Stock Option become
exercisable after the expiration of the Exercise Period applicable to such Stock
Option.
10. Compliance with Applicable Laws
(a) No Stock Options shall be granted, and no Shares shall be issued or
transferred, by the Company to a Participant pursuant to the Plan unless the
Plan Administrator, in its sole discretion, shall have first determined that all
registrations, approvals, exemptions, and any other action required by law to be
taken with respect to the Plan shall have been accomplished, including, but not
limited to, such action, if any, as is then required to comply with the
provisions of the Securities Act, the Exchange Act, any applicable state Blue
Sky laws, and the requirements of any exchange or other system on which the
Common Stock may, at the time, be listed or quoted.
7
<PAGE>
(b) Each certificate for Shares issued or transferred pursuant to the Plan
shall be registered in the name of the Participant or in such other name as the
Participant shall designate. If so required by the Plan Administrator upon the
advice of counsel, the Company shall place a stop transfer order with its
transfer agent with respect to such Shares, the Participant shall furnish a
representation that the Shares are being acquired as an investment and not with
a view to the distribution thereof, and such certificate shall bear an
appropriate legend restricting the transfer of such Shares. Any such stop
transfer order, investment representation or legend shall apply only so long as
necessary, in the opinion of the Plan Administrator, to insure that the resale
or other disposition of the Shares of the Participant would not involve a
violation of the provisions of the Securities Act or applicable state Blue Sky
laws.
11. Employment
No Employee or other person shall have any claim or right to be granted a
Stock Option under the Plan. Nothing herein contained shall at any time be
deemed to give to any Employee the right to be retained in the employ of the
Company, interfere with the right of the Company to discharge any Employee, give
to the Company the right to require any Employee to remain in its employ, or
interfere with any Employee's right to terminate employment.
12. Corporate Changes
(a) If any change in the outstanding shares of Common Stock occurs by
reason of a stock split or recapitalization, any pro rata distribution to all
stockholders of property in respect to or in exchange for their outstanding
shares of Common Stock, or other similar corporate change occurs, the number of
Shares issuable or transferable to Participants upon the exercise of outstanding
Stock Options, the exercise price of such Stock Options or what Participants
shall be entitled to receive in substitution for Shares issuable or transferable
to them upon the exercise of outstanding Stock Options, may be appropriately
adjusted by the Board, whose determination in such regard shall be conclusive.
(b) If the Company becomes a party to a Reorganization Transaction, the
Board shall either: (i) determine what Participants shall be entitled to
receive, in substitution for Shares issuable or transferable to them upon the
exercise of outstanding Stock Options, in the form of stock, securities, cash or
other property to be received by owners of Common Stock of the Company as a
result of such Reorganization Transaction; provided, however, that the excess of
the aggregate fair market value of the stock, securities or other property
subject to the Stock Options immediately after such substitution or the
aggregate value of such cash over the exercise price of the Options shall not be
less than the excess of the aggregate Fair Market Value of the Shares subject to
such Stock Options immediately before such substitution over the exercise price
of the Stock Options; or (ii) upon written notice to Participants, provide that
the Participants' Stock Options shall be terminated unless exercised in
accordance with the
8
<PAGE>
Plan within 60 days after the date of such notice. In either such case, the
Board, in its absolute discretion, may determine whether and to what extent the
Exercise Periods applicable to such Stock Options shall continue to apply, but
in no event shall any such Board determination increase the length of such
Periods.
13. Indemnification of Board
In addition to and without affecting such other rights of indemnification
as they may have as members of the Board or otherwise, each member of the
Committee or of the Board shall be indemnified by the Company to the extent
legally possible against reasonable expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense of any action,
suit or proceeding, or in connection with any appeal therein, to which he or she
may be a party by reason of any action taken or failure to act under or in
connection with the Plan, or any option granted thereunder, and against all
judgments, fines and amounts paid by him or her in settlement thereof; provided
that such payment of amounts so indemnified is first approved by a majority of
the members of the Board who are not parties to such action, suit or proceeding,
or by independent legal counsel selected by the Company, in either case on the
basis of a determination that such member acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Company; and except that no indemnification shall be made in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member or Board member is liable for misconduct in his or her duties;
and provided further that the Committee member or Board Member shall in writing
offer the Company the opportunity, at its own expense, to handle and defend the
same.
14. Miscellaneous
(a) Effective Date of the Plan. The effective date of the Plan shall be
April 30, 1992.
(b) Effect Upon Other Plans. The adoption of the Plan shall not affect any
stock option or other compensation or incentive plan in effect for the Company,
and the Plan shall not preclude the Board from establishing any other forms of
incentive, bonus or other compensation for Employees.
(c) Termination. The right to grant Stock Options under the Plan shall
terminate automatically at the close of business on the tenth anniversary of the
Effective Date, and thereafter, the function of the Plan Administrator shall be
limited to the administration of Stock Options previously granted. The Board
shall have the right to suspend or terminate the Plan at any time provided that
no action shall, without the consent of the Participant, adversely affect any
rights or obligations under any Stock Options previously granted to the
Participant.
9
<PAGE>
(d) Amendment of the Plan. The Board may modify or amend the Plan in any
respect whatsoever. Any modification or amendment of the Plan shall not, without
the consent of the Participant, adversely affect any rights or obligations under
Stock Options previously granted to the Participant. The Plan Administrator may,
with the consent of a Participant, amend any outstanding Stock Option held by a
Participant in a manner not inconsistent with the Plan.
(e) Assignability. No Stock Option shall be assignable or transferable by a
Participant. During the life of the Participant, Options shall be exercisable
only by such Participant. No Participant shall have any rights as a stockholder
with respect to any Shares covered by a Stock Option until date of issuance of
stock certificates ti such Participant for such Shares. Except as otherwise
expressly provided herein, no adjustment shall be made for dividends or other
stockholder rights for which the record date is prior to the date such stock
certificates are issued.
(f) Binding Effect. Any delivery of Shares upon the exercise of Stock
Options to any Participant or former Participant or such Participant's legal
representative or to any beneficiary of such Participant in accordance with the
provisions of the Plan shall be in full satisfaction of all claims with respect
to such Stock Options which such Participant, representative or beneficiary may
have against the Company, Plan Administrator or any member of the Plan
Administrator. The Plan shall be binding upon the beneficiaries, heirs,
executors, administrators, distributees and assigns of the Participants and the
successors and assigns of the Company.
(g) Governing Law. The Plan shall be construed and enforced in accordance
with the laws of the State of Delaware.
10
TUFCO TECHNOLOGIES, INC.
AMENDED AND RESTATED
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purposes of the Plan
The purposes of this Plan are to foster and promote the long-term financial
success of the Company by (a) attracting and retaining non-employee directors of
outstanding ability by the granting of stock options; (b) providing director
compensation opportunities which are competitive with those of other
corporations; and (c) enabling such directors to participate in such financial
success of the Company by encouraging them to become owners of the Common Stock
of the Company.
2. Definitions
(a) "Affiliate" is used herein as defined in Rule 12b-2 under the Exchange
Act.
(b) "Associate" is used herein as defined in Rule 12b-2 under the Exchange
Act.
(c) "Beneficial Owner" is used herein as defined in Rule 12d-3 under the
Exchange Act.
(d) "Board" means the Board of Directors of the Company.
(e) "Committee" means a Committee appointed by the Board to administer the
Plan. The Committee shall consist of not less than three persons who shall serve
at the pleasure of the Board.
(f) "Common Stock" means the shares of Common Stock of the Company, par
value $.01 per share. Unless specified otherwise, references to Common Stock
shall not include any Common Stock that may be issuable upon the conversion or
exercise of any rights to acquire Common Stock, such as the Stock Options and
any convertible indebtedness.
(g) "Company" means Tufco Technologies, Inc., a Delaware corporation,
and/or one or more of its Subsidiaries.
(h) "Director" means any member of the Board of Directors of the Company.
(i) "Disinterested Person" is used as defined in Rule 16b-3.
<PAGE>
(j) "Effective Date" means the original date of adoption of the Plan by the
Company's Board of Directors, November 19, 1993.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Exercise Period" means the period during which a Participant is
entitled to exercise a Stock Option granted to such Participant under the Plan.
(m) "Fair Market Value" means the average closing price for the five most
recent trading days preceding and including the date of grant on the stock
exchange or system on which the shares of Common Stock are listed or included.
If the shares of Common Stock are not listed on a stock exchange or included in
a system that provides a closing sales price, but are traded in the
over-the-counter market without the availability of closing sales price
information, such determination shall be made on the basis of the mean between
the bid and offer prices for such shares on the over-the-counter market for such
trading days. If the shares of Common Stock are not traded in the
over-the-counter market, the Fair Market Value shall be determined by the Board
based on such factors as the Board, in its sole discretion, may deem relevant.
In no case shall such Fair Market Value be less than the par value of such
shares.
(n) "Non-Employee Director" means any Director of the Company who is not a
full-time employee of the Company or any Subsidiary or who is not a retired
employee from the Company or any Subsidiary.
(o) "Participant" means any Non-Employee Director who receives a Stock
Option.
(p) "Person" means any natural person, trust, corporation, partnership,
joint venture or other entity, and it shall also include or more persons who act
together, or agree to act together, within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or Rule 13d-5 under the Exchange Act.
(q) "Plan" means this Amended and Restated 1993 Non-Employee Director Stock
Option Plan of the Company.
(r) "Plan Administrator" means either the Board or the Committee, whichever
is designated from time to time to administer the Plan under Section 3(a)
hereof.
(s) "Reorganization Transaction" means a merger, consolidation or
combination of the Company with another corporation or entity or any similar
reorganization of the Company, the complete liquidation of the Company, or the
sale of all or substantially all of the assets of the Company.
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<PAGE>
(t) "Retirement" means a Termination of Directorship by reason of a
Participant's retirement as a Director (other than by reason of disability).
(u) "Rule 16b-3" means Rule 16b-3 under the Exchange Act.
(v) "Securities Act" means the Securities Act of 1933, as amended.
(w) "Shares" means shares of Common Stock reserved for issuance or transfer
by the Company under the Plan as set forth in Section 4(a) hereof.
(x) "Stock Option" means an option to purchase Shares granted under Section
7 hereof.
(y) "Subsidiary" means any corporation the majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company.
(z) "Termination of Directorship" means the time when the Participant's
relationship with the Company as Director is terminated for any reason,
including, but not limited to, a termination by death. Total Disability, or
Retirement.
(aa) "Total Disability" means a Termination of Directorship by reason of
the Participant's total disability as determined pursuant to and in accordance
with the term current regular long-term disability insurance plan applicable to
such Participant. All determinations as to the date and extent of disability of
any Non-Employee Director shall be made by the Plan Administrator, in its
absolute discretion, upon the basis of such evidence as it deems necessary or
desirable.
3. Administration of the Plan
(a) The Plan shall be administered under the direction of either (i) the
Board, or (ii) the Committee, provided that each member of the Plan
Administrator, whether it is the Board or the Committee is a Disinterested
Person. "Disinterested Person" is used herein as defined in Rule 16b-3. As of
the Effective Date, a Disinterested Person includes any director who is not,
during the one year prior to service as an administrator of the Plan, or during
such service, granted or awarded equity securities pursuant to any plan of the
Company or any of its affiliates, excepting those items specifically listed in
Rule 16b-3. If the definition of Disinterested Person is deleted from Rule 16b-3
by an amendment, the definition that was included in Rule 16b-3 immediately
prior to such deletion shall govern the Plan. The Board shall determine, from
time to time, whether the Plan shall be administered by the Board or the
Committee, and whichever body is so designated shall be the Plan Administrator
hereunder.
(b) The Plan Administrator shall have no power to select Participants or to
determine any of the terms of the Stock Options set forth in Section 7 hereof.
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(c) Decisions and determinations by the Plan Administrator shall be final
and binding upon all persons, including, but not limited to, the Company, its
stockholders, Participants and their personal representatives, heirs and
assigns. The Plan Administrator shall have the authority to interpret the Plan,
establish and revise rules and regulations relating to the Plan, and make any
other determinations that it believes necessary or advisable for the
administration of the Plan, including determinations, with the consent of a
Participant, to amend the terms of the Participant's outstanding Stock Option
that were previously established by the Plan Administrator.
(d) The provisions of the by-laws of the Company governing the number of
Directors of the Board required for action to be taken by the Board at a meeting
and the requirements for voting by Directors at a meeting at which a quorum is
present, or for acting by their written consent, shall be complied with by the
Board in order to take valid actions under the Plan. Notwithstanding anything in
the by-laws to the contrary, a majority of the Committee shall constitute a
quorum, and the acts of a majority of the members of the Committee present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the Committee without a meeting, shall be the acts of the Committee.
(e) All expenses and liabilities incurred by the Plan Administrator in the
administration of the Plan shall be borne by the Company. The Plan Administrator
may employ attorneys, consultants, accountants, or other persons to render
services in connection with the Plan, and the Company, the Board, the Committee
and members of the Board and the Committee shall be entitled to rely upon the
advice, opinions, or valuations of any such persons. Neither the Company, the
Board, the Committee, nor any member of the Board or Committee shall be
personally liable for any action, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the Board and
Committee shall be indemnified by the Company with respect to any such liability
to the fullest extent permitted by the laws of the State of Delaware.
4. Common Stock Subject to the Plan
(a) The maximum number of shares of Common Stock that may be issued or
transferred by the Company under the Plan, and which shall be reserved for such
issuance or transfer, shall be 200,000 (post-split effected by the Company's
Restated Certificate of Incorporation in November 1993). Shares or the number
and kind of shares of stock which shall be substituted for the Shares or to
which the Shares shall be adjusted as provided in Section 12(a) hereof.
(b) The Board may authorize the purchase of Shares by the Company in the
open market to be held in treasury and reserved for issuance under the Plan, and
may reserve authorized but unissued Shares, not otherwise reserved or
restricted, for issuance under the
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<PAGE>
Plan. Shares reserved for issuance or transfer under outstanding Stock Options
under the Plan that expire unexercised shall again become reserved for issuance
under the Plan.
(c) The approval of the Plan by the Board shall constitute the Board's
conclusive judgment and determination that, when Shares have been issued to a
Participant in accordance with the terms and conditions of the Plan, the Shares
shall be considered to be issued for full and adequate consideration and shall
be fully paid and non-assessable Stock, and that such consideration shall be
credited to the Company's stated and paid-in capital accounts in accordance with
the Company's standard accounting practice.
5. Eligibility
Only Non-Employee Directors shall be eligible to receive Stock Options
under the Plan.
6. Agreement
Each Participant granted a Stock Option under the Plan shall enter into an
Agreement with the Company, in a form approved by the Plan Administrator, which
shall set forth the terms and conditions of the Stock Options granted to the
Participant as set forth in Sections 7 and 3 hereof.
7. Terms of Stock Option
Without the exercise of the discretion of any person or persons, a Stock
Option will be granted each year during the period 1999 through and including
2004, at the close of business on the date on which Directors (or a class of
Directors if the Company then has a classified Board) are elected or reelected
by stockholders of the Company, to each Non-Employee Director then serving as a
Director who is eligible to participate under Section 5 hereof. Stock Options
granted under the Plan will be non-qualified stock options which will be subject
to the following terms and conditions:
(a) Number of Shares. Each Stock Option shall be an option to
purchase 2,000 Shares (subject to adjustment as provided in Section
12(a) hereof). If on the date of grant there are not sufficient Shares
available under the Plan to allow for the grant to each eligible
Non-Employee Director of a Stock Option to purchase the number of
Shares provided herein, then each Stock Option granted n such date
shall be an option to purchase the eligible Non- Employee Director's
pro rata share of the total number of Shares available under the Plan.
(b) Price. The purchase price per Share deliverable upon the
exercise of the Stock Option, but the price specified shall be the Fair
Market Value on
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the date of grant. The purchase price may be paid in cash, by check or
by the surrender for delivery to the Company of shares of Common Stock
equal in Fair Market Value to the exercise price of the Stock Option
determined as of the date of exercise.
(c) Exercise Period. All Stock Options granted shall be fully
exercisable beginning with the date of grant and shall have an Exercise
Period of 10 years during which the Stock Option shall be exercisable.
8. Termination of Directorship
The following terms and conditions shall apply to each Stock Option granted
under the Plan:
(a) Death. If there is a Termination of Directorship because of
the death of a Participant, any Stock Option held by such Participant
at the date of such Participant's death shall be exercisable in its
entirety by such Participant's personal representatives, heirs or
legatees at any time prior to the expiration of one year after the date
of the Participant's death.
(b) Retirement or Total Disability. If there is a Termination of
Directorship of a Participant by reason of Retirement or Total
Disability, any Stock Option held by the Participant shall be
exercisable in its entirety at any time prior to the expiration of
three months in the case of Retirement and one year in the case of
Total Disability after the date of such Termination of Directorship.
(c) Other Termination. If there is a Termination of Directorship
of a Participant for any reason other than those specified in Sections
8(a) and 8(b) above, such Participant shall be permitted, for a 45-day
period following the date of termination, to exercise any Stock Option
which was exercisable as of such termination date.
9. Continued Service to the Company
If a Participant ceases serving as a Director and, immediately thereafter,
is employed by, or engaged as a consultant by, the Company or any Subsidiary,
then, solely for the purposes of Section 8 hereof, such Participant will not be
deemed to have a Termination of Directorship at that time, and his or her
continued employment or consulting period will be deemed to be continued service
as a Director; provided, however, that such former Director sill not be eligible
for additional grants of Stock Options under the Plan.
10. Compliance with Applicable Laws
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<PAGE>
(a) No Stock Options shall be granted, and no Shares shall be issued or
transferred, by the Company to a Participant pursuant to the Plan unless the
Plan Administrator, in its sole discretion, shall have first determined that all
registrations, approvals, exemptions, and any other action required by law to be
taken with respect to the Plan shall have been accomplished, including, but not
limited to, such action, if any, as is then required to comply with the
provisions of the Securities Act, the Exchange Act, any applicable state Blue
Sky laws, and the requirements of any exchange or other system on which the
Common Stock may, at the time, be listed or quoted.
(b) Each certificate for Shares issued or transferred pursuant to the Plan
shall be registered in the name of the Participant or in such other name as the
Participant shall designate. If so required by the Plan Administrator upon the
advice of counsel, the Company shall place a stop transfer order with its
transfer agent with respect to such Shares, the Participant shall furnish a
representation that the Shares are being acquired as an investment and not with
a view to the distribution thereof, and such certificate shall bear an
appropriate legend restricting the transfer of such Shares. Any such stop
transfer order, investment representation or legend shall apply only so long as
necessary, in the opinion of the Plan Administrator, to insure that the resale
or other disposition of the Shares of the Participant would not involve a
violation of the provisions of the Securities Act or applicable state Blue Sky
laws.
11. No Right to Continue as a Director
Nothing herein contained shall at any time be deemed to give to any
Participant the right to continue service as a Director of the Company.
12. Corporate Changes
(a) If any change in the outstanding shares of Common Stock occurs by
reason of a stock split or recapitalization, any pro rata distribution to all
stockholders of property in respect to or in exchange for their outstanding
shares of Common Stock, or other similar corporate change occurs, the maximum
aggregate number and class of Shares reserved under the Plan, or the exercise
price of all outstanding Stock Options, may be appropriately adjusted by the
Board, whose determination in such regard shall be conclusive. When such an
adjustment is made, the number of Shares issuable or transferable to
Participants upon the exercise of outstanding Stock Options, or the exercise
price of such Stock Options, as the case may be, shall likewise be appropriately
adjusted by the Board.
(b) If the Company becomes a party to a Reorganization Transaction, the
Board shall either: (1) determine what Participants shall be entitled to
receive, in substitution for Shares issuable or transferable to them upon the
exercise of outstanding Stock Options, in the form of stock, securities, cash or
other property to be received by owners of Common Stock of
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<PAGE>
the Company as a result of such Reorganization Transaction; provided, however,
that the excess of the aggregate fair market value of the stock, securities or
other property subject to the Stock Options immediately after such substitution
or the aggregate value of such cash over the exercise price of the Stock Options
shall not be less than the excess of the aggregate Fair Market Value of the
Shares subject to such Stock Options immediately after such substitution over
the exercise price of the Stock Options; or (2) upon written notice to
Participants, provide that the Participants' Stock Options shall be terminated
unless exercised in accordance with the Plan within sixty (60) days after the
date of such notice. In either such case, the Board, in its absolute discretion,
may determine whether and to what extent the Exercise Periods applicable to such
Stock Options shall continue to apply, but in no event shall any such Board
determination increase the length of such Exercise Periods.
13. Indemnification of Board and Committee
In addition to and without affecting such other rights of indemnification
as they may have as members of the Board or otherwise, each member of the
Committee or of the Board shall be indemnified by the Company to the extent
legally possible against reasonable expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense of any action,
suit or proceeding, or in connection with any appeal therein, to which he or she
may be a party by reason of any action taken or failure to act under or in
connection with the Plan, or any option granted thereunder, and against all
judgments, fines and amounts paid by him or her in settlement thereof; provided
that such payment of amounts so indemnified is first approved by a majority of
the members of the Board who are not parties to such action, suit or proceeding,
or by independent legal counsel selected by the Company, in either case on the
basis of a determination that such member acted in good faith and in a manner he
or she reasonable believed to be in or not opposed to the best interests of the
Company; and except that no indemnification shall be made in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member or Board member is liable for misconduct in his or her duties;
and provided further that the Committee member or Board member shall in writing
offer the Company the opportunity, at its own expense, to handle and defend the
same.
14. Miscellaneous
(a) Effective Date of the Plan. The Plan became effective November 19,
1993. The Plan, as amended and restated, was adopted by the Board on February
__, 2000.
(b) Effect Upon Other Plans. The adoption of the Plan shall not affect any
stock option or other compensation or incentive plan in effect for the Company,
and the Plan shall not preclude the Board from establishing any other forms of
incentive, bonus or other compensation for Non-Employee Directors.
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<PAGE>
(c) Termination. The right to grant Stock Options under the Plan shall
terminate automatically at the close of business on the day before the Company's
2004 Annual Meeting of Stockholders, and thereafter, the function of the Plan
Administrator shall be limited to the administration of Stock Options previously
granted. If no Shares remain available to be reserved for the grant of Stock
Options under Section 4(a) hereof, then the Board shall have the right to
suspend or terminate the Plan provided that no action shall, without the consent
of the Participant, adversely affect any rights or obligations under any Stock
Options previously granted to the Participant.
(d) Amendment of the Plan. The Board may modify or amend the Plan in any
respect, except that without stockholder approval the Board may not make any
amendment to the Plan as to which, in the opinion of counsel to the Company,
stockholder approval is required under Rule 16b-3. In addition, any modification
or amendment of the Plan shall not, without the consent of the Participant,
adversely affect any rights or obligations under Stock Options previously
granted to the Participant. Notwithstanding any other provision of this Plan,
the provisions of Sections 5 and Section 7 may not be amended more than once
every six months, except for amendments necessary to conform the Plan to changes
in the provisions of, or the regulations relating to, the Internal Revenue Code
of 1986, as amended. The Plan Administrator may, with the consent of a
Participant, amend an outstanding Stock Option held by a Participant in a manner
not inconsistent with the Plan.
(e) Assignability. No Stock Option shall be assignable or transferable by a
Participant except by will or by the laws of descent and distribution. During
the life of the Participant, Stock Options shall be exercisable only by such
Participant. No Participant shall have any rights as a stockholder with respect
to any Shares covered by a Stock Option until the date of issuance of stock
certificates to such Participant for such Shares. Except as otherwise expressly
provided herein, no adjustment shall be made for dividends or other stockholder
rights for which the record date is prior to the date such stock certificates
are issued.
(f) Binding Effect. Any delivery of Shares upon the exercise of Stock
Options to any Participant or former Participant or such Participant's legal
representative or to any beneficiary of such Participant in accordance with the
provisions of the Plan shall be in full satisfaction of all claims with respect
to such Stock Options which such Participant, representative or beneficiary may
have against the Company, Plan Administrator or any member of the Plan
Administrator. The Plan shall be binding upon the beneficiaries, heirs,
executors, administrators, distributees and assigns of the Participants and the
successors and assigns of the Company.
(g) Governing Law. This Plan shall be construed and enforced in accordance
with the laws of the State of Delaware.
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1
BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
March 24, 2000
Tufco Technologies, Inc.
4800 Simonton Road
Dallas, Texas 75244
Re: Tufco Technologies, Inc.
Amendment to Registration of 1992 Non-Qualified Stock Option Plan
and 1993 Non-Employee Director Stock Option Plan on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Tufco Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
Post-Effective Amendment No. 2 to the registration statement on Form S-8 filed
on January 20, 1998 with the Securities and Exchange Commission (File No.
333-44539), as amended by Post-Effective Amendment No. 1 on January 26, 1998
(File No. 333-44539), for the 1992 Non-Qualified Stock Option Plan, as amended,
and the 1993 Non-Employee Director Stock Option Plan, as amended (the "Amended
Registration Statement"). Pursuant to the Amended Registration Statement, the
Company may issue an additional 250,000 shares of its common stock, par value
$.01 per share ("Common Stock"), under the Company's Amended and Restated 1992
Non-Qualified Stock Option Plan (the "NQSO Plan"), and an additional 100,000
shares of Common Stock under the Company's Amended and Restated 1993
Non-Employee Director Stock Option Plan (the "Director Plan") for a total of
350,000 shares of Common Stock (the "Shares"). You have requested that we
furnish our opinion as to the matters hereinafter set forth.
In connection with this opinion we have examined a copy of (i) the
Amended Registration Statement, (ii) the Certificate of Incorporation of the
Company, (iii) the By-laws of the Company, (iv) the resolutions of the Board of
Directors of the Company (the "Board"), dated March 13, 2000, approving the
filing of the Amended Registration Statement, (v) the resolutions of the Board,
<PAGE>
2
dated February 1, 2000, approving the NQSO Plan and the Director Plan and
reserving an additional 350,000 shares of Common Stock for issuance under the
plans, (vi) the Report of the Inspector of Election at the Annual Meeting of
Stockholders held March 13, 2000 evidencing stockholder approval of the proposed
amendments to the 1992 Non-Qualified Stock Option Plan and the 1993 Non-Employee
Director Stock Option Plan, (vii) the NQSO Plan and (viii) the Director Plan.
In rendering the opinion herein expressed we have assumed the
genuineness of all signatures, the authenticity of all original documents,
instruments and certificates examined by us, the conformity with the original
documents, instruments and certificates of all copies of documents, instruments
and certificates examined by us and the legal capacity to sign of all
individuals executing documents. We have relied upon the representations of the
Company as to the accuracy and completeness of (i) the By-laws of the Company,
(ii) the NQSO Plan, (iii) the Director Plan, (iv) the Amended Registration
Statement, and (v) the resolutions of the Company. We also have relied upon the
representations of the Company that (i) the resolutions of the Board, dated
March 13, 2000, approving the filing of the Registration Statement, (ii) the
resolutions of the Board, dated February 1, 2000, approving the plans and
reserving the Shares, and (iii) the By-laws of the Company were duly adopted
and have not been rescinded, modified or revoked.
We do not express any opinion as to the laws of states or jurisdictions
other than the laws of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware. No opinion is
expressed as to the effect that the law of any other jurisdiction may have upon
the subject matter of the opinion expressed herein under conflicts of law
principles, rules and regulations or otherwise.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance, and when (i) the Amended
Registration Statement shall have become effective, (ii) the Shares shall have
been issued in the proposed form, and (iii) the Shares shall have been delivered
as contemplated by the Plan, the Shares will be validly issued, fully paid and
non- assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Battle Fowler LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Tufco Technologies, Inc. on Form S-8 of our report dated December 3, 1999,
appearing in the Annual Report on Form 10-K of Tufco Technologies, Inc. for the
year ended September 30, 1999.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
March 24, 2000
