As filed with the Securities and Exchange Commission on May 25, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
QUAD SYSTEMS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 23-2180139
- -------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2405 MARYLAND ROAD, WILLOW GROVE, PENNSYLVANIA 19090
- ------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
QUAD SYSTEMS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
- --------------------------------------------------------------------------------
(Full Title of the Plan)
THEODORE J. SHONECK, PRESIDENT
QUAD SYSTEMS CORPORATION
2405 MARYLAND ROAD
WILLOW GROVE, PENNSYLVANIA 19090
- --------------------------------------------------------------------------------
(Name and Address of Agent For Service)
(215) 657-6202
- --------------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
1
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Securities Amount To Be Offering Aggregate
To Be Registered Registered Price Offering Price (2) Amount Of
(1) Per Share Registration Fee
(2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.03 par value 150,000 $1.86 $279,000 $77.56
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
plan in the event of a stock dividend, split-up of shares, recapitalization
or other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457 (h) (1), on the basis of the average of the high
and low prices of the Common Stock as reported on the Nasdaq National
Market on May 21, 1999.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to an aggregate of 150,000
shares of Common Stock, $.03 par value per share, of Quad Systems Corporation
(the "Company"), which represent the increase in the number of shares issuable
under the Company's 1995 Employee Stock Purchase Plan (the "Plan") approved by
the Board of Directors of the Company on December 21, 1998 and subsequently
approved by the stockholders of the Company on March 9, 1999. The Company
previously filed with the Securities and Exchange Commission (the "Commission")
on June 13, 1995 a Registration Statement on Form S-8 (File No. 33-93436),
covering an aggregate of 150,000 shares of the Company's Common Stock reserved
for issuance under the Plan.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(Not required to be filed as part of this Registration Statement)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Securities Act of 1933, as amended, by Quad Systems Corporation
(the "Company") are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K, as amended by Form 10-K/A filed
on January 25, 1999, for the year ended September 30, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended December
31, 1998;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1999; and
(d) the description of the Company's Common Stock contained in the Registration
Statement on Form 8-A filed on April 5, 1993, as amended by Form 8A/A filed
on May 7, 1993, by the Company under the Exchange Act.
In addition, all documents filed by the Company subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
3
<PAGE>
ITEM 6. IDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law generally provides that
a corporation may indemnify its directors, officers, employees, fiduciaries and
agents against liabilities and reasonable expenses incurred in connection with
any threatened, pending, or completed action, suit or proceeding whether civil,
criminal, administrative or investigative and whether formal or informal (a
"Proceeding"), by reason of being or having been a director, officer, employee,
fiduciary or agent of the corporation, if such person acted in good faith and
reasonably believed that his conduct, in this official capacity, was in the best
interests of the corporation (or, with respect to employee benefit plans, was in
the best interests of the participants of the plan), and in all other cases his
conduct was at least not opposed to the corporation's best interests. In the
case of a criminal proceeding, the director, officer, employee, fiduciary or
agent must have had no reasonable cause to believe his conduct was unlawful.
Under Delaware law, the corporation may not indemnify a director, officer,
employee, fiduciary or agent in connection with a Proceeding by or in the right
of the corporation if the director is adjudged liable to the corporation, unless
and only to the extent that the Delaware Court of Chancery or the court in which
the Proceeding was brought determines that despite the adjudication of
liability, in view of all the circumstances of the case, such person is still
fairly and reasonably entitled to indemnification to the extent such court deems
it proper.
Article VII of the Company's Amended and Restated Articles of Incorporation
provides that the Company shall indemnify its officers and directors against all
expenses, liability and loss incurred as a result of such person's being a party
to, or threatened to be made a party to, any Proceeding by reason of the fact
that he or she is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, to the full extent authorized by the General Corporation
Law of the State of Delaware. Article VII further permits the Company to
maintain insurance, at its expense, to protect itself and any such director or
officer of the Company or another enterprise against such expense, liability or
loss. Amendments, repeals or modification of such Article VII may only be made
prospectively, and such changes require the affirmative vote of not less than
three-fourths of the outstanding shares of stock of the Company entitled to vote
in the election of directors. The indemnification provisions in Article VII of
the Company's By-Laws are substantially similar to the provisions of Section 145
of the Delaware General Corporation Law, which permit such indemnification to
the fullest extent authorized by the General Corporation Law of the State of
Delaware.
The Company has purchased directors' and officers' liability insurance
coverage for the indemnifications described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5. Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature page)
99.1 Quad Systems Corporation Employee Stock Purchase Plan
4
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a) (3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii)
do not apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
5
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certified that it has reasonable grounds to believe that it meets all 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 Willow Grove Township, Commonwealth of Pennsylvania, on May 20,
1999.
QUAD SYSTEMS CORPORATION
By: /s/ THEODORE J. SHONECK
------------------------------------------
Theodore J. Shoneck
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Theodore J. Shoneck and Anthony R. Drury, and
each of them, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ THEODORE J. SHONECK President and Chief Operating Officer May 20, 1999
- ------------------------------ (Principal Executive Officer)
Theodore J. Shoneck
/s/ ANTHONY R. DRURY Senior Vice President-Finance and Chief May 20, 1999
- ------------------------------ Financial Officer (Principal Financial and
Anthony R. Drury Accounting Officer)
/s/ VAHRAM V. ERDEKIAN Director May 20, 1999
- ------------------------------
Vahram V. Erdekian
/s/ ROBERT P. PINKAS Director May 20, 1999
- ------------------------------
Robert P. Pinkas
/s/ LORIN J. RANDALL Director May 20, 1999
- ------------------------------
Lorin J. Randall
/s/ DAVID H. YOUNG Director May 20, 1999
- ------------------------------
David H. Young
</TABLE>
7
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
5 Opinion of Ballard Spahr Andrews &
Ingersoll, LLP
23.1 Consent of Ballard Spahr Andrews &
Ingersoll, LLP
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature
page)
99.1 Quad Systems Corporation
Employee Stock Purchase Plan
8
[Letterhead of Ballard Spahr Andrews & Ingersoll, LLP]
EXHIBIT 5
May 25, 1999
Quad Systems Corporation
2405 Maryland Road
Willow Grove, PA 19090
Re: Shares of Common Stock of Quad Systems Corporation to be Issued
Pursuant to the Quad Systems Corporation Employee Stock Purchase Plan
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Quad Systems Corporation (the "Company") in
connection with the Company's Employee Stock Purchase Plan (the "Plan") and the
registration and issuance of up to an additional 150,000 shares of the Company's
common stock, par value $.03 per share (the "Shares"), issuable under the Plan
pursuant to the terms thereof.
In rendering our opinion, we have assumed that a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, with respect to the Shares will have been filed by the Company with the
Securities and Exchange Commission and will have become effective before any of
the Shares are issued, and that persons acquiring the Shares will do so strictly
in acccordance with the terms of the Plan and will receive a prospectus
containing all of the information required by Part I of Form S-8 before
acquiring such Shares. We have also reviewed such certificates, documents,
corporate records and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. In giving this
opinion, we are assuming the authenticity of all instruments presented to us as
originals, the conformity with the originals of all instruments presented to us
as copies and the genuineness of all signatures.
Based upon the foregoing, we are of the opinion that the 150,000 Shares
covered by the Registration Statement, when issued by the Company to the
purchasers of the Shares in accordance with the terms and conditions of the
Plan, will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to Quad Systems Corporation Employee Stock
Purchase Plan of our report dated November 6, 1998, with respect to the
consolidated financial statements of Quad Systems Corporation included in its
Annual Report on Form 10-K, as amended, for the year ended September 30, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
May 21, 1999
Adopted 2/16/95 EXHIBIT 99.1
Revised 3/10/95
Revised 3/5/97
Revised 7/20/98
Amended 3/9/99
QUAD SYSTEMS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The purpose of the Quad Systems Corporation Employee Stock Purchase Plan
(the "Plan") is to assist Quad Systems Corporation, a Delaware corporation (the
"Company"), and its Subsidiaries in retaining the employment of employees by
offering them a greater stake in the Company's success and a closer identity
with it, and to aid in obtaining the services of individuals whose employment
would be helpful to the Company and would contribute to its success. This is to
be accomplished by providing employees a continuing opportunity to purchase
Shares (as hereinafter defined) from the Company through periodic offerings.
The Plan is intended to comply with the provisions of section 423 of the
Code (as hereinafter defined), and the Plan shall be administered, interpreted
and construed accordingly. In addition, the Plan is adopted by the Company
effective June 1, 1995, subject to the approval of the Plan by the Company's
stockholders at the next regularly scheduled stockholders' meeting in accordance
with all applicable provisions of the corporate charter, bylaws and applicable
State law prescribing the method and degree of stockholder approval required for
the issuance of corporate stock or options. If no such applicable State law
exists, the approval must be by vote of a majority of the votes cast at such
meeting provided that a quorum representing a majority of all outstanding voting
stock of the Company is, either in person or by proxy, present and voting on the
approval of the Plan. In the alternative, the Plan will be effective commencing
June 1, 1995 if the approval of the Plan by the Company's stockholders is
obtained by any other method prior to June 1, 1995 provided such approval is in
a degree that would be treated as adequate under applicable State law in the
case of an action requiring stockholder approval.
2. DEFINITIONS. For purposes of the Plan:
"ACCOUNT" means the non-interest bearing account which the Company (or the
Subsidiary which employs the Participant) shall establish for Participants, to
which Participants' payroll deductions pursuant to the Plan shall be credited.
"AGENT" means the person or persons appointed by the Board in accordance
with Paragraph 3(d).
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
<PAGE>
"COMMITTEE" means the committee described in Paragraph 3(a).
"COMPANY" means Quad Systems Corporation.
"COMPENSATION" means the total amount of compensation for services paid to
a Participant for an Offering Period by the Company and the Subsidiaries
including, but not limited to, salary, wages, overtime pay, bonuses and
commissions.
"ELIGIBLE EMPLOYEE" means an employee of the Company or Subsidiary who is
described in Paragraph 4.
"EMPLOYER" means the Company or Subsidiary for whom an Eligible Employee is
performing services at the time the Eligible Employee becomes a Participant.
"FAIR MARKET VALUE" on any date means the closing bid for Shares as
reported on the Nasdaq National Market on such date, or if there is no closing
bid reported, then Fair Market Value of a Share shall mean the average between
the closing bid and asked quotations for Shares on such date as reported. If
there are no sales reports or bid or asked quotations, as the case may be, for a
given date, the closest preceding date on which there were sales reports or a
bid or asked quotations shall be used. If Shares are not publicly traded, the
Fair Market Value of a Share shall be determined by the Committee.
"INVESTMENT ACCOUNT" means the account established for a Participant
pursuant to Paragraph 9(a) to hold Shares acquired for a Participant pursuant to
the Plan.
"NASDAQ" means the National Association of Security Dealers, Inc. Automated
Quotations System.
"OFFERING PERIOD" means each six-month period beginning on June 1 and
December 1 of each year. The first Offering Period shall commence on June 1,
1995.
"PARTICIPANT" means an Eligible Employee who makes an election to
participate in the Plan in accordance with Paragraph 5.
"PLAN" means the Quad Systems Corporation Employee Stock Purchase Plan as
set forth in this document, and as may be amended from time to time.
"PLAN YEAR" means the 12 month period commencing each June 1 and ending on
the subsequent May 31. The first Plan Year shall be the 12 month period
commencing June 1, 1995.
"PURCHASE DATE" means the last business day of each Offering Period on
which the Employer is conducting business.
"PURCHASE PRICE" means the lesser of 85% of the Fair Market Value of a
Share on (i) the first business day of the Offering Period or (ii) the Purchase
Date.
<PAGE>
"SHARE" or "SHARES" means a share or shares of Common Stock, $0.03 par
value, of the Company.
"SUBSCRIPTION AGREEMENT" means the agreement between the Participant and
the Employer pursuant to which the Participant authorizes payroll deductions to
the Account.
"SUBSIDIARY" means any corporation that, at the time in question, is a
subsidiary corporation of the Company, within the meaning of section 424(f) of
the Code.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors or by a
committee (hereafter, the Committee), which shall be a committee of the Board
consisting of at least three members designated by the Board. No member of the
Board of Directors who is eligible to participate in the Plan may vote on any
matter affecting the administration of the Plan. If a Committee is established,
no member of the Board of Directors who is also eligible to participate in the
Plan may be a member of the Committee. If, at any time, there are fewer than
three members of the Committee eligible to serve in such capacity for purposes
of administration of the Plan, the Board of Directors shall appoint one or more
members of the Board of Directors, who shall qualify hereunder, to serve as
members of the Committee solely for purposes of administration. All Committee
members shall serve, and may be removed, at the pleasure of the Board of
Directors.
(b) For purposes of administration of the Plan, a majority of the members
of the Committee (but not less than two) eligible to serve as such shall
constitute a quorum, and any action taken by a majority of such members of the
Committee present at any meeting at which a quorum is present, or acts approved
in writing by all members of the Committee, shall be the acts of the Committee.
(c) Subject to the express provisions of the Plan, the Committee shall have
full discretionary authority to interpret the Plan, to issue rules for
administering the Plan, to change, alter, amend or rescind such rules, and to
make all other determinations necessary or appropriate for the administration of
the Plan. All determinations, interpretations and constructions made by the
Committee with respect to the Plan shall be final and conclusive. No member of
the Board of Directors or the Committee shall be liable for any action,
determination or omission taken or made in good faith with respect to the Plan
or any right granted hereunder.
(d) The Committee may engage an Agent to purchase Shares on each Purchase
Date and to perform custodial and record keeping functions for the Plan, such as
holding record title to the Participants' Share certificates, maintaining an
individual Investment Account for each such Participant and providing periodic
account status reports to such Participants.
(e) The Committee shall have full discretionary authority to delegate
ministerial functions to management of the Company.
<PAGE>
4. ELIGIBILITY. All employees of the Company, and of such of its
Subsidiaries as may be designated for such purpose from time to time by the
Committee, shall be eligible to participate in the Plan as of the first day of
an Offering Period, provided each of such employees:
(a) has been employed by the Company or any of its Subsidiaries for at
least six months;
(b) is customarily employed for more than 20 hours per week;
(c) is customarily employed more than five months per calendar year; and
(d) does not own stock possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company or a Subsidiary. In
determining stock ownership for purposes of the preceding sentence, the rules of
section 424(d) of the Code shall apply and stock which the employee may purchase
under outstanding options, including rights to purchase stock under the Plan,
shall be treated as stock owned by the employee.
For purposes of this Paragraph 4, the term "employment" shall be
interpreted in accordance with the provisions of section 1.421-7(h) of the
Treasury Regulations (or any successor regulations).
5. ELECTION TO PARTICIPATE.
(a) INITIAL SUBSCRIPTION AGREEMENTS. Each Eligible Employee may become a
Participant by filing a Subscription Agreement authorizing specified regular
payroll deductions. A Subscription Agreement authorizing specified regular
payroll deductions must specify the date on which such deduction is to commence,
which may not be retroactive. Payroll deductions may be in any amount not less
than one percent (1%) and not in excess of ten percent (25%) of an Eligible
Employee's Compensation; provided however, that payroll deductions during any
single Offering Period may not exceed twelve thousand five hundred dollars
($12,500) for any Participant. All payroll deductions shall be recorded in the
Accounts. All funds recorded in Accounts may be used by the Company and
Subsidiaries for any corporate purpose, subject to the Participant's right to
withdraw at any time an amount equal to the balance accumulated in his or her
Account as described in Paragraph 8 below. Funds credited to Accounts shall not
be required to be segregated from the general funds of the Company or any
Subsidiary.
(b) SUBSEQUENT SUBSCRIPTION AGREEMENTS. Any Participant may file a
Subscription Agreement subsequent to his or her filing an initial Subscription
Agreement changing the terms of his or her participation in accordance with
Section 6 of the Plan.
6. SUBSEQUENT SUBSCRIPTION AGREEMENTS AND DEDUCTION CHANGES. A Participant
may at any time decrease his or her payroll deduction by filing a new
Subscription Agreement with the Committee during an Offering Period which will
supersede any prior Subscription Agreement effective no later than thirty (30)
days after receipt of such new Subscription Agreement by the Committee. If
administratively practicable, and at the Committee's discretion, such decrease
in a Participant's payroll deduction shall be effective as of the first day of
the payroll period following the receipt by the Committee of the new
Subscription Agreement or as of such other date no later than thirty (30) days
after receipt of the new Subscription Agreement as the Committee determines.
Other than as provided in the case of a termination of participation under
Paragraph 8 below, such change in the rate of regular payroll deductions may not
be made more than once during each Offering Period. During the two week period
immediately preceding each new Offering Period, a Participant may increase or
decrease his or her payroll deduction effective as of the next Offering Period
by filing a new Subscription Agreement with the Committee. If a Participant does
not file a new Subscription Agreement with the Committee, the terms of the
previously submitted Subscription Agreement shall remain in effect for each
subsequent Offering Period. Notwithstanding anything contained herein to the
contrary, a Participant may file a new Subscription Agreement at any time for
the sole purpose of changing his or her designation of beneficiary.
<PAGE>
7. STATUTORY LIMIT ON PURCHASE OF SHARES.
(a) No employee may be granted a right to purchase Shares under the Plan if
immediately following such grant, such employee would have rights to purchase
equity securities under all plans of the Company and Subsidiaries that are
intended to meet the requirements of section 423 of the Code, that accrue at a
rate which exceeds $25,000 of Fair Market Value (determined at the time the
rights are granted) for each calendar year in which such rights to purchase
Shares are outstanding at any time. For purposes of this Paragraph 7:
(i) The right to purchase Shares accrues when the right (or any
portion thereof) first becomes exercisable during the calendar year;
(ii) Subject to the limitations under Paragraph 10, each Participant
accrues the right to purchase up to a number of Shares for each Offering
Period equal to $12,500 divided by the Fair Market Value of the Shares,
determined on the first day of the Offering Period, but in no case may such
accrual of rights to purchase Shares exceed $25,000 of Fair Market Value,
determined on the first day of each Offering Period, for any calendar year;
(iii) A right to purchase Shares which has accrued under one grant of
rights under the Plan may not be carried over to any other grant of rights;
and
(iv) The limits of this Paragraph 7 shall be interpreted by the
Committee in accordance with applicable rules and regulations issued under
section 423 of the Code.
(b) No employee may be granted a right to purchase Shares under the Plan
if, immediately following such grant, such employee would own stock possessing
5% or more of the total combined voting power or value of all classes of stock
of the Company or a Subsidiary. In determining stock ownership for purposes of
the preceding sentence, the rules of section 424(d) of the Code shall apply and
stock which the employee may purchase under outstanding options, including
rights to purchase stock under the Plan, shall be treated as stock owned by the
employee.
<PAGE>
8. TERMINATION OF PARTICIPATION AND WITHDRAWAL OF FUNDS. A Participant may
at any time and for any reason, withdraw from participation in the Plan for an
Offering Period by filing a notice of withdrawal form with the Committee prior
to the last day of such Offering Period, in which case the entire balance
accumulated in his or her Account shall be paid to such Participant as soon as
practicable thereafter and no further payroll deductions shall be made pursuant
to the Plan. Partial withdrawals shall not be permitted. A Participant may
recommence participation in the Plan by submitting a new Subscription Agreement
to the Committee, which will be effective as of the next Offering Period which
commences after the date on which the Committee receives such Subscription
Agreement.
9. METHOD OF PURCHASE AND INVESTMENT ACCOUNTS.
(a) EXERCISE OF OPTION FOR SHARES. Each Participant having funds credited
to an Account on a Purchase Date shall be deemed, without any further action, to
have exercised on such Purchase Date, the option to purchase the number of whole
Shares which the funds in such Account would purchase at the Purchase Price,
subject to the limit:
(i) on the aggregate number of Shares that may be made available for
purchase to all Participants under the Plan during each Offering Period and
for the term of the Plan, as set forth in Paragraph 10; and
(ii) on the number of Shares that may be made available for purchase
to any individual Participant, as set forth in Paragraph 7.
Such option shall be deemed exercised if the Participant does not withdraw such
funds before the Purchase Date. All Shares so purchased shall be credited to a
separate Investment Account established by the Agent for each Participant. The
Agent shall hold in its name or the name of its nominee all certificates for
Shares purchased until such Shares are withdrawn by a Participant pursuant to
Paragraph 11. No purchases of fractional Shares shall be made pursuant to the
Plan. Any funds left in a Participant's Account following a Purchase Date shall
be applied to the purchase of Shares on the next Purchase Date, along with any
additional funds added to such Participant's Account as a result of subsequent
payroll deductions, subject to Participants' withdrawal rights against Accounts
and the other limits of the Plan.
(b) DIVIDENDS ON SHARES HELD IN INVESTMENT ACCOUNTS. All cash dividends
paid with respect to the Shares credited to a Participant's Investment Account
shall, unless otherwise directed by the Committee, be credited to his or her
Account and used, in the same manner as other funds credited to Accounts, to
purchase additional Shares under the Plan on the next Purchase Date, subject to
Participants' withdrawal rights against Accounts and the other limits of the
Plan.
(c) ADJUSTMENT OF SHARES ON APPLICATION OF AGGREGATE LIMITS. If the total
number of Shares that would be purchased pursuant to Paragraph 9(a) but for the
limits described in Paragraph 9(a)(i) exceeds the number of Shares available for
purchase under the Plan, then the number of available Shares shall be allocated
among the Investment Accounts of Participants in the ratio that the amount
credited to a Participant's Account as of the Purchase Date bears to the total
amount credited to all Participants' Accounts as of the Purchase Date. The cash
balance not applied to the purchase of Shares shall be held in Participants'
Accounts subject to the terms and conditions of the Plan.
<PAGE>
10. SHARES SUBJECT TO PLAN. The aggregate maximum number of Shares that may
be issued pursuant to the Plan is three hundred thousand (300,000), subject to
adjustment as provided in Paragraph 18 of the Plan. In addition, the aggregate
maximum number of Shares that may be issued pursuant to the Plan during any
single Offering Period is thirty thousand (30,000), subject to adjustment as
provided in Paragraph 18 of the Plan. The Shares delivered pursuant to the Plan
may, at the option of the Company, be Shares purchased specifically for purposes
of the Plan, shares otherwise held in treasury or Shares originally issued by
the Company for such purpose.
11. WITHDRAWAL OF CERTIFICATES. A Participant shall have the right at any
time to withdraw a certificate or certificates for all or a portion of the
Shares credited to his or her Investment Account by giving written notice to the
Company.
12. REGISTRATION OF CERTIFICATES. Each certificate withdrawn by a
Participating Employee may be registered only in the name of the Participant,
or, if the Participant so indicated on the Participant's Account, in the
Participant's name jointly with a member of the Participant's family, with right
of survivorship. A Participant who is a resident of a jurisdiction which does
not recognize such a joint tenancy may have certificates registered in the
Participant's name as tenant in common or as community property with a member of
the Participant's family without right of survivorship.
13. VOTING. The Agent shall vote all Shares held in an Investment Account
in accordance with the Participant's instructions.
14. RIGHTS ON RETIREMENT, DEATH OR OTHER TERMINATION OF EMPLOYMENT. In the
event of a Participant's retirement, death or other termination of employment,
or in the event that a Participant otherwise ceases to be an Eligible Employee,
(a) no payroll deduction shall be taken from any pay due and owing to the
Participant thereafter, and the balance in the Participant's Account shall be
paid to the Participant or, in the event of the Participant's death, to the
person or persons designated as the Participant's beneficiary on Participant's
most recently filed Subscription Agreement, or if no beneficiary has been
designated, to the person to whom the Participant's rights shall have passed
under the laws of descent and distribution, and (b) a certificate for the Shares
credited to the Participant's Investment Account will be forwarded to the
Participant (or, in the event of the Participant's death, to the person or
persons designated as the Participant's beneficiary on Participant's most
recently filed Subscription Agreement, or if no beneficiary has been designated,
to the person to whom the Participant's rights shall have passed under the laws
of descent and distribution).
15. RIGHTS NOT TRANSFERABLE. Except as permitted by Paragraph 14, rights
under the Plan are not transferable by a Participant and are exercisable during
the employee's lifetime only by the employee.
16. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor any right
granted under the Plan shall confer upon any Participant any right to
continuance of employment with the Company or any Subsidiary, or interfere in
any way with the right of the Company or Subsidiary to terminate the employment
of such Participant.
<PAGE>
17. APPLICATION OF FUNDS. All funds received or held by the Company under
this Plan may be used for any corporate purpose.
18. ADJUSTMENTS IN CASE OF CHANGES AFFECTING SHARES. In the event of a
subdivision of outstanding Shares, or the payment of a stock dividend, the Share
limit set forth in Paragraph 10 shall be adjusted proportionately, and such
other adjustments shall be made as may be deemed equitable by the Committee. In
the event of any other change affecting Shares (including any event described in
section 424(a) of the Code), such adjustment, if any, shall be made as may be
deemed equitable by the Committee to give proper effect to such event, subject
to the limitations of section 424 of the Code.
19. AMENDMENT OF THE PLAN. The Board of Directors of the Company may at any
time, or from time to time, amend the Plan in such manner as it may deem
advisable. Nevertheless, the Board of Directors of the Company may not (i)
increase the maximum number of shares that may be issued pursuant to the Plan
(ii) materially increase the benefits accruing to Participants under the Plan,
or (iii) modify the requirements as to eligibility for participation in the Plan
without obtaining approval, within twelve months before or after such action, of
the stockholders in accordance with all applicable provisions of the corporate
charter, bylaws and applicable State law prescribing the method and degree of
stockholder approval required for the issuance of corporate stock or options,
provided, that if no such applicable State law exists, the approval must be by
vote of a majority of the votes cast at a duly held meeting of the stockholders
at which a quorum representing a majority of all outstanding voting stock of the
Company is, either in person or by proxy, present and voting on the matter or by
a method and in a degree that would be treated as adequate under applicable
State law in the case of an action requiring stockholder approval.
20. TERMINATION OF THE PLAN. The Plan and all rights of employees under any
offering hereunder shall terminate on the earliest of:
(a) any time at the discretion of the Board of Directors; or
(b) May 31, 2000.
Upon termination of this Plan, (i) all amounts in the Accounts of Participants
shall be carried forward into the Participant's Account under a successor plan,
if any, or promptly refunded, and (ii) all certificates for the Shares credited
to a Participant's Investment Account shall be forwarded to him or her.
21. GOVERNMENTAL REGULATIONS.
(a) Anything contained in this Plan to the contrary notwithstanding, the
Company shall not be obligated to sell or deliver any Shares certificates under
this Plan unless and until the Company is satisfied that such sale or delivery
complies with (i) all applicable requirements of the governing body of the
principal market in which such Shares are traded, (ii) all applicable provisions
of the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations thereunder and (iii) all other laws or regulations by which the
Company is bound or to which the Company is subject.
(b) The Company (or a Subsidiary) may make such provisions as it may deem
appropriate for the withholding of any taxes or payment of any taxes which it
determines it may be required to withhold or pay in connection with any Shares.
The obligation of the Company to deliver certificates under this Plan is
conditioned upon the satisfaction of the provisions set forth in the preceding
sentence.
22. SECTION 16 RESTRICTIONS FOR OFFICERS AND DIRECTORS. Notwithstanding any
other provision of the Plan, each officer (for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), and director
of the Company shall be subject to such restrictions as are required so that
transactions under the Plan by such officer or director shall be exempt from
Section 16(b) of the Exchange Act.
23. REPURCHASE OF SHARES. The Company shall not be required to repurchase
from any Participant any Shares which such Participant acquires under the Plan.
