<PAGE>
As filed with the Securities and Exchange Commission on November 19, 1997
Registration No. 333-_____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------
Holophane Corporation
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 31-1288751
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 East Broad Street, Suite 1400, Columbus, Ohio 43215
- ------------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
Holophane Employee Stock Option Plan
------------------------------------
(Full title of the plan)
Copy to:
Bruce A. Philp Ronald A. Robins, Jr., Esq.
c/o Holophane Corporation Vorys, Sater, Seymour and Pease
250 East Broad Street, Suite 1400 52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43215 Columbus, Ohio 43216-1008
- ---------------------------------
(Name and address of agent
for service)
(614) 224-3134
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed maximum Amount of
securities to to be offering price aggregate offering registration
be registered registered per share(1) price(1) fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 300,000 $23.875 $7,162,500 $2,171.00
$0.01 par
value
</TABLE>
__________________
(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed on
the basis of $23.875, which is the average of the high and low sales prices
of the Common Stock as reported on The NASDAQ National Market on
November 18, 1997.
Page 1 of 24; Index to Exhibits at Page 13
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Annual Report on Form 10-K for the fiscal year ended December 31,
1996 of Holophane Corporation (the "Registrant"), and all other reports filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since that date are hereby incorporated
by reference.
The description of the Registrant's shares of Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed with the Commission
on September 9, 1993, as amended on October 26, 1993, and all amendments thereto
or reports filed for the purpose of updating such description heretofore filed
by the Registrant with the Commission, are hereby incorporated by reference.
Any definitive proxy statement or information statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with the
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act subsequent
to the date hereof and prior to the completion of the offering contemplated
hereby, shall also be deemed to be incorporated herein by reference and to be
made a part hereof from the date of filing of such documents; provided, however,
that no report of the Compensation Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph included in any
proxy statement or information statement filed pursuant to Section 14 of the
Exchange Act shall be deemed to be incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation
2
<PAGE>
in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director for monetary damages
for breaches of the director's fiduciary duty, except (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of
the DGCL (providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")) if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
Article ELEVENTH of Registrant's Restated Certificate of Incorporation
provides as follows:
ELEVENTH: (a) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by Delaware
Law.
(b) (1) Each person (and the heirs, executors or administrators
of such person) who was or is a party or is threatened to be made a
party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a
director or officer of the Corporation or is or was serving at the
request of the Corporation as
3
<PAGE>
a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by
Delaware Law. The right to indemnification conferred in this
ARTICLE ELEVENTH shall also include the right to be paid by the
Corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition to the fullest
extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE ELEVENTH shall be a contract right.
(2) The Corporation may, by action of its Board of Directors,
provide indemnification to such of the officers, employees and agents
of the Corporation to such extent and to such effect as the Board of
Directors shall determined [sic] to be appropriate and authorized by
Delaware law.
(c) The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss incurred by such person in any such
capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under Delaware Law.
(d) The rights and authority conferred in this ARTICLE ELEVENTH
shall not be exclusive of any other right which any person may otherwise
have or hereafter acquire.
(e) Neither the amendment nor repeal of this ARTICLE ELEVENTH,
nor the adoption of any provision of this Certificate of Incorporation or
the bylaws of the Corporation, nor, to the fullest extent permitted by
Delaware Law, any modification of law, shall eliminate or reduce the effect
of this ARTICLE ELEVENTH in respect of any acts or omissions occurring
prior to such amendment, repeal, adoption or modification.
Article VII of the Registrant's Bylaws provides further as follows:
7.01 RIGHT TO INDEMNIFICATION. Each director or officer of the
Corporation who was or is made a party or is threatened to be made a party
to or is otherwise involved in
4
<PAGE>
any action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact
that he or she is or was a director or officer of the Corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest
extent permitted by Delaware Law against all expense, liability and loss
(including attorneys' fees, judgments, fines, taxes, penalties and
amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; PROVIDED, HOWEVER, that, except as
provided in Section 7.02 hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this
Section 7.01 shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); PROVIDED,
HOWEVER, that, if Delaware Law so requires, expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee
benefit plan) shall be advanced only upon delivery to the Corporation of
an undertaking (hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further
right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise.
7.02 RIGHTS OF INDEMNITEE TO BRING SUIT. If a claim under
Section 7.01 is not paid in full by the Corporation within sixty days after
a written claim has been received by the Corporation, except in the case of
a claim for an advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by
the
5
<PAGE>
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. It shall be a defense of
the Corporation in any suit brought by an indemnitee to enforce a right to
indemnification hereunder (but not in a suit to enforce a right to an
advancement of expenses) that the indemnitee has not met the applicable
standard of conduct set forth in Delaware Law, and a final adjudication
that an indemnitee has not met such standard shall entitle the Corporation
to recover such expenses pursuant to the terms of an undertaking. Neither
the failure of the Corporation (including the Board, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper
in the circumstances because the indemnitee has met the applicable standard
of conduct set forth in Delaware Law, nor an actual determination by the
Corporation (including the Board, independent legal counsel or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of
expenses, the burden of proving that the indemnitee is not entitled to be
indemnified in any respect, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
7.03 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent approved or ratified from time to time
by the Board, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent
contemplated by this Article VII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
7.04 OTHER RIGHTS AND REMEDIES. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
sections of this Article VII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses
may be entitled under the Corporation's or any other corporation's
Certificate of Incorporation or any Bylaw, other charter documents,
agreement, vote of stockholders or disinterested directors or otherwise, or
under Delaware Law
6
<PAGE>
or any other applicable statute or regulation, both as to action in such
person's official capacity and as to action in another capacity while
holding such office.
7.05 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VII shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a person, except in any
such case to the extent that any grant of rights to indemnification and
advancement of expenses pursuant to Section 7.03 otherwise provides, and
shall be binding upon any successor to the Corporation to the fullest
extent permitted by Delaware Law, as from time to time in effect.
7.06 INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article VII or Delaware
Law.
7.07 OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to a director or officer of the Corporation "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants, or beneficiaries. For purposes of
determining whether a person has met the applicable standard of conduct set
forth in Delaware Law, a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the Corporation."
7
<PAGE>
7.08 SAVINGS CLAUSE. In the event that any provision of this
Article VII is determined by a court of competent jurisdiction to require
the Corporation to do or to fail to do an act which is in violation of
applicable law, such provision shall be limited or modified in its
application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this
Article VII shall be enforceable by an indemnitee in accordance with its
terms.
In addition, the Company has purchased a directors' and officers'
liability insurance policy insuring directors and officers with respect to
certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See the Index to Exhibits attached hereto at page 13.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of 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; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration
8
<PAGE>
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 information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this 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.
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 provisions described in Item 6 of this
Part II, 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
9
<PAGE>
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.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Columbus, State of Ohio, on the 18th day of
November, 1997.
HOLOPHANE CORPORATION
By: /s/ John R. DallePezze
----------------------------------------
JOHN R. DALLEPEZZE
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
We, the undersigned directors and officers of Holophane Corporation
(the "Company") and each of us, do hereby constitute and appoint John R.
DallePezze and Bruce A. Philp, or either of them, our true and lawful attorneys
and agents, each with power of substitution, to do any and all acts and things
in our name and on our behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our names in the capacities
indicated above, which said attorneys or agents, or either of them, may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the filing of this
Registration Statement on Form S-8 in connection with the registration of the
Holophane Employee Stock Option Plan, including specifically but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) to such Registration Statement; and we do hereby ratify and confirm
all that the said attorneys and agents, or their substitute or substitutes, or
either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
11
<PAGE>
Signature Title Date
--------- ----- ----
/s/ John R. DallePezze Chairman of the Board of November 18, 1997
- -------------------------- Directors; President and
JOHN R. DALLEPEZZE Chief Executive Officer
(Principal Executive Officer)
/s/ Bruce A. Philp Vice President Finance; Chief November 18, 1997
- -------------------------- Financial Officer and
BRUCE A. PHILP Secretary (Principal
Financial and Accounting
Officer)
/s/ William R. Michaels Director November 18, 1997
- --------------------------
WILLIAM R. MICHAELS
/s/ Robert L. Purdum Director November 18, 1997
- --------------------------
ROBERT L. PURDUM
/s/ Anthony P. Scotto Director November 18, 1997
- --------------------------
ANTHONY P. SCOTTO
/s/ Tadd C. Seitz Director November 18, 1997
- --------------------------
TADD C. SEITZ
/s/ Jeffrey M. Wilkins Director November 18, 1997
- --------------------------
JEFFREY M. WILKINS
12
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Page No.
----------- ----------- --------
5 Opinion of Vorys, Sater, Pages 14 through 15
Seymour and Pease, counsel
to Registrant
10 Holophane Employee Stock Pages 16 through 23
Option Plan
23(a) Consent of Deloitte & Page 24
Touche LLP, Independent
Auditors
23(b) Consent of Vorys, Sater, Filed as part of
Seymour and Pease, counsel Exhibit 5 hereof.
to Registrant
24 Powers of Attorney Pages 11 and 12
13
<PAGE>
EXHIBIT 5
(614) 464-6400
November 19, 1997
Board of Directors
Holophane Corporation
Suite 1400
250 East Broad Street
Columbus, OH 43215
Re: Holophane Employee Stock Option Plan
------------------------------------
Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
Holophane Corporation, a Delaware corporation (the "Company"), in connection
with the institution of the Holophane Employee Stock Option Plan (the "Plan"),
the granting of options to purchase shares of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company pursuant to the Plan and the issuance
and sale of shares of Common Stock of the Company upon exercise of options to be
granted under the Plan, as described in the Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission on November 19, 1997. The purpose of the Registration Statement is
to register 300,000 shares of Common Stock reserved for issuance under the Plan
pursuant to the provisions of the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
In connection with this opinion, we have examined an original or copy of,
and have relied upon the accuracy of, without independent verification or
investigation: (a) the Registration Statement; (b) the Plan; (c) the Company's
Restated Certificate of Incorporation, as currently in effect; (d) the Company's
Bylaws, as currently in effect; and (e) certain proceedings of the directors of
the Company. We have also relied upon such representations of the Company
<PAGE>
Board of Directors
November 19, 1997
Page 2
and officers of the Company and such authorities of law as we have deemed
relevant as a basis for this opinion.
We have relied solely upon the examinations and inquiries recited herein,
and we have not undertaken any independent investigation to determine the
existence or absence of any facts, and no inference as to our knowledge
concerning such facts should be drawn.
Based upon and subject to the foregoing and the further qualifications and
limitations set forth below, as of the date hereof, we are of the opinion that
after the 300,000 shares of Common Stock of the Company to be registered under
the Registration Statement have been issued and delivered by the Company upon
the exercise of options granted under the Plan against payment of the purchase
price therefor, in accordance with the terms of the Plan, said shares of Common
Stock will be validly issued, fully paid and non-assessable, assuming, in each
case, that (i) the Plan is approved by the stockholders of the Company on or
before November 17, 1998 and no options granted under the Plan are exercised
prior to the approval of the Plan by the Company's stockholders and (ii) all
applicable federal and state securities laws are complied with.
Our opinion is limited to the General Corporation Law of Delaware in effect
as of the date hereof. This opinion is furnished by us solely for the benefit
of the Company in connection with the offering of the shares of Common Stock
pursuant to the Plan and the filing of the Registration Statement and any
amendments thereto. This opinion may not be relied upon by any other person or
assigned, quoted or otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this opinion as
an exhibit to the Registration Statement and to the reference to us therein.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE
<PAGE>
HOLOPHANE CORPORATION
EMPLOYEE STOCK OPTION PLAN
SECTION 1. PURPOSE
The Holophane Corporation Employee Stock Option Plan (the "Plan") is
designed to provide employees of Holophane Corporation (the "Company") and its
U.S. and Canadian subsidiaries with the opportunity to acquire shares of common
stock of the Company ("Stock"), by granting options to such employees on such
dates not later than November 18, 2007 (each such date is herein referred to as
an "Offering Date") to be exercised on such dates, in each case not later than
27 months after the related Offering Date (each such date of exercise is herein
referred to as the "Exercise Date") as the Board of Directors of the Company
(the "Board") may determine. The Plan is intended to constitute an "employee
stock purchase plan" within the meaning of Section 423 of the Internal Revenue
Code of 1986, as amended (the "Code").
SECTION 2. ELIGIBLE EMPLOYEES
All persons who on an Offering Date are U.S. or Canadian employees of the
Company or of such of its U.S. or Canadian subsidiary corporations (within the
meaning of Section 424(f) of the Code) as may be designated prior to such
Offering Date by the Board ("Participating Subsidiaries") will be eligible to
participate in the Plan except for:
(a) directors of the Company or a Participating Subsidiary that
are not employees;
(b) employees whose customary employment is less than 20 hours
per week or for not more than five months in any calendar year; and
(c) any employee who, if granted an option under the Plan, would
immediately after the option is granted own stock equal to five
percent or more of the total combined voting power or value of all
classes of stock of the Company and of its parent and subsidiary
corporations (within the meaning of Section 423(b)(3) and 424(d) of
the Code).
SECTION 3. GRANT OF OPTIONS
3.01. As of each Offering Date, each eligible employee shall be granted an
option to purchase a maximum number of shares of Stock (decreased by any
fractional amount required to make a whole share), which number of shares, when
multiplied by the option price described in Section 3.02, will most closely
approximate a percentage fixed by the Board prior to such Offering Date, of his
total compensation (or a specified portion of such total compensation) for the
period beginning the first day of the year following the Offering Date and
ending on the last day of the second year following the Offering Date (the
Payroll Deduction Period).
1
<PAGE>
The number of shares so determined is subject to possible adjustment as
provided in Sections 3.03 and 5 below.
3.02. The option price for all shares for which options are granted on an
Offering Date will be the lesser of:
(a) an amount equal to 85% of the average of the high and low selling
price of Stock on the NASDAQ Stock Exchange on the Offering Date, or if
there is no such sale on the Offering Date, on the then most recent
preceding day on which any such sale occurred; or
(b) an amount equal to 100% of the average of the high and low
selling price of Stock on the NASDAQ Stock Exchange on the Exercise Date,
or if there is no such sale on the Exercise Date, on the most recent
preceding day on which any such sale occurred.
3.03. No employee may be granted an option that permits his rights to
purchase Stock under the Plan and under all other employee stock option plans of
the Company and its parent and subsidiary corporations to exceed the amount
provided by Section 423(b)(8) of the Code from time to time for each calendar
year in which such option is outstanding at anytime. If an employee would
become entitled to purchase a number of shares exceeding such maximum amount,
the number of shares available for purchase by the employee shall be reduced by
such excess.
SECTION 4. ELECTIONS TO PURCHASE SHARES AND PAYROLL DEDUCTIONS
Not later than 45 days (or such longer or shorter period established by the
Company) after the Offering Date, an employee may elect to purchase all, part or
none of the shares that he is entitled to purchase with respect to that Offering
Date. Such election shall be made by the execution by the employee of an
approved form authorizing uniform payroll deductions over the Payroll Deduction
Period, in such amounts as will in the aggregate (exclusive of interest) equal
the total option price described in Section 3.02 of all shares that he has
elected to purchase. An employee may elect payroll deductions equal to 1%, 2%,
3%, 4% or 5% of the employee's total compensation (or portion of such total
compensation used by the Board under Section 3.01). The minimum payroll
deduction shall be 1%. Any election to purchase may be reduced or terminated as
hereinafter set forth. With respect to shares as to which no election to
purchase is made by the employee on or before the relevant time period after the
Offering Date, the option granted to the employee on that Offering Date shall
expire.
SECTION 5. NUMBER OF SHARES OFFERED
5.01. The aggregate number of shares which may be issued under the Plan is
300,000 shares of Stock, which shares may be authorized but unissued shares or
treasury shares, or both. Should the total number of shares specified in all
employees' initial elections to purchase as provided in Section 4 with respect
to any Offering Date exceed the aggregate number of shares for which options are
to be granted on that Offering Date, the Company will, on the Exercise Date,
make a pro rata allocation in a uniform manner to all employees who have
remained enrolled in the Plan through the Exercise
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Date of the aggregate number of shares for which options were to be granted
on such Offering Date, and the initial election to purchase of each such
employee will be canceled with respect to any shares in excess of the number
of shares allocated to each such employee, written notice will be given to
the employee that his election has become effective for a reduced number of
shares and any excess funds (together with interest) in the employee's
accumulated account will be refunded to him.
5.02. The aggregate number of shares that may be issued under this Plan
may be modified to reflect a change in capitalization of the Company, such as a
stock dividend or stock split.
5.03. If, prior to the expiration of an option theretofore granted, the
Company shall effect a subdivision or consolidation of shares of Stock or the
payment of a stock dividend on Stock without receipt of consideration by the
Company, the number of shares of Stock thereafter subject to such option (i) in
the event of an increase in the number of outstanding shares shall be
proportionately increased, and the option price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the option price per
share shall be proportionately increased.
5.04. If (i) the Company is to be merged into or consolidated with one or
more corporations and the Company is not to be the surviving corporation, (ii)
the Company is to be dissolved and liquidated, (iii) substantially all of the
assets and business of the Company are to be sold, or (iv) there occurs a
"change in control of the Company," then the Board may, in its sole discretion,
with respect to any or all options then outstanding under this Plan (a) at any
time on or prior to the effective date of such merger, consolidation,
dissolution and liquidation, or sale, and, at any time on or after a change in
control cause the Exercise Date to be accelerated to a date fixed by the Board
("Acceleration Date") and permit an employee (or his legal representative) to
make a lump-sum deposit prior to the Acceleration Date in lieu of the remaining
payroll deductions or periodic payments which otherwise would have been made,
and upon such Acceleration Date, cancel any unexercised options; or (b) at any
time during the 20-day period ending on the effective date of such merger,
consolidation, change in control or, if later, the date the Company has notice
thereof, cancel any option in whole or in part by payment in cash to the
employee of an amount equal to the excess, but only if the amount is positive,
of the fair market value of the Company's Common Stock on the date of said
cancellation over the option price per share times the number of shares covered
by the option or portion thereof so canceled. For purposes hereof, a "change in
control of the Company" shall be deemed to have occurred if (i) any "person," as
such term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act") is or becomes the "beneficial owner," as such
term is used in Rule 13d-3 issued under the Exchange Act, of securities of the
Company representing 30% or more of the combined voting power of the Company's
then outstanding securities or (ii) during any period of two consecutive years,
directors of the Company on the date hereof (the "Current Board"), or such
directors who are recommended, endorsed or nominated for election to the Board
by a majority of the Current Board or their successors so recommended, endorsed
or nominated, shall cease to constitute a majority of the Board.
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5.05. Any adjustment provided for in this Section 5 shall be subject to
any required shareholder action. No adjustment shall be made if such adjustment
would result in a modification of an option (within the meaning of Section 424
of the Code), or cause such option to fail to continue to qualify as an option
under an employee stock purchase plan (within the meaning of Section 423 of the
Code).
SECTION 6. APPLICATION OF FUNDS AND PAYMENT OF INTEREST
6.01. The Company will establish a stock purchase account for employees
who elect to purchase shares with respect to an Offering Date (an "Account"), to
which all payroll deductions or cash payments of that employee with respect to
the Offering Date will be credited. Interest will be credited on the balance in
the Account in accordance with the actual rate of interest earned by the
investment vehicle in which the account is deposited. Interest credited to the
date of termination will be paid to the employee upon termination, for any
reason, of his election to purchase shares with respect to that Offering Date.
Such Account will be kept in a segregated custodial account which will be
protected from the general creditors of the Company.
6.02. Amounts credited to all Accounts may be maintained or controlled as
a single fund or account. The amount, exclusive of interest, credited to each
Account as of the close of business on the respective Exercise Date for that
Offering Date will be applied by the Company to the payment for the shares to be
purchased by such employee on that Exercise Date, any amount not used for this
purpose, together with interest, shall be paid in cash to the employee, and the
option granted the employee on that Offering Date shall thereupon terminate.
6.03. In the event that any law or regulation, in the opinion of counsel
for the company, may prohibit the handling or use of all or any part of the
funds in the manner contemplated by the Plan, the Company may deal with such
funds in any lawful manner it may deem advisable.
SECTION 7. CHANGES IN ELECTION TO PURCHASE
At any time on or before the Exercise Date with respect to an Offering
Date, an employee may give written notice that his payroll deductions with
respect to such Offering Date shall thereafter be reduced or shall terminate
and, as the case may be:
(a) reduce the amount of his subsequent payroll deductions in which
event his election to purchase shall be reduced to the number of shares
that may be purchased, at the option price described in Section, with the
aggregate amount of the payroll deductions theretofore made and to be made
thereafter;
(b) terminate further payroll deductions and continue his election to
purchase with respect to the number of shares that may be purchased, at the
option price described in Section 3.02, with the amount (exclusive of
interest) then credited to his Account; or
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(c) withdraw the entire amount (including interest) in his Account
and terminate his election to purchase shares.
Any such reduction, termination or withdrawal shall be irrevocable.
SECTION 8. TERMINATION OF EMPLOYMENT
In the event that on or prior to the Exercise Date with respect to an
Offering Date, the employment of an employee of the Company or of a
Participating Subsidiary is terminated otherwise than by his death or retirement
under a plan of the Company or such Participating Subsidiary, any election to
purchase shares made by him with respect to that Offering Date shall terminate
and any amount then credited to his Account, together with interest to the date
of termination, shall be paid in cash to him. In the event that on or prior to
the Exercise Date, an employee leaves the employ of the Company in connection
with the sale of a subsidiary, division or line of business of the Company, the
Company may terminate the election of such employee to purchase shares
(refunding any amount credited to the employee's Account, together with accrued
interest) or continue said election on any basis deemed appropriate by the
Company, including the making of arrangements for continued payroll deductions
by a successor employer willing to provide this service.
SECTION 9. RETIREMENT
In the event an employee leaves the employ of the Company or of a
Participating Subsidiary by retirement under a plan of the Company or the
Participating Subsidiary, the retired employee may elect, within thirty (30)
days of his retirement, to either:
(a) at the Exercise Date, purchase the number of shares that may be
purchased, at the option price described in Section 3.02, with the
aggregate amount of the payroll deductions made up to retirement; or
(b) withdraw the entire amount (including interest) in his Account and
terminate his election to purchase shares.
SECTION 10. LAYOFF, STRIKE OR AUTHORIZED LEAVE OF ABSENCE
Payroll deductions for shares for which an election to purchase with
respect to an Offering Date has been made will be suspended during any period of
layoff, strike, or authorized leave of absence without pay of an employee. If
such an employee returns to active service prior to the last Payroll Deduction
Period preceding the Exercise Date with respect to that Offering Date, his
payroll deductions will be resumed.
An employee on layoff, strike, or authorized leave of absence without pay
as of 15 days preceding such Exercise Date shall given written notice prior to
such Exercise Date specifying his choice of one of the following options:
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(a) at the Exercise Date, purchase the number of shares that may be
purchased, at the option price described in Section 3.02, with the
aggregate amount of the payroll deductions made prior to layoff, strike or
authorized leave of absence; or
(b) withdraw the entire amount (including interest) in his Account and
terminate his election to purchase shares.
SECTION 11. DEATH
In the event of the death of an employee while an election by him to
purchase shares with respect to an Offering Date is in effect, the legal
representative of such employee may, within 90 days after his death but not
later than the Exercise Date with respect to such Offering Date, by written
notice elect to either:
(a) continue the employee's election to purchase with respect to such
number of shares as may be purchased, at the option price described in
Section 3.02, with the amount (exclusive of interest) then credited to the
employee's Account, and make no further payments; or
(b) withdraw the entire amount (including interest) in the employee's
Account and terminate his election to purchase shares.
In the event the legal representative of such an employee shall fail to
give notice within the prescribed period, the employee's legal representative
will be deemed to have elected (a) above.
SECTION 12. NONASSIGNABILITY
No option granted under the Plan shall be transferable by the employee
otherwise than by will or the laws of descent and distribution. Each option
shall be exercisable, during his lifetime, only by the employee to whom granted.
Any purported assignment or transfer, whether voluntary or by operation of law
(other than by will or the laws of descent and distribution) shall have the
effect of terminating such option and the related election to purchase shares
thereunder.
SECTION 13. ADMINISTRATION
13.01. The Plan shall be administered at the Company's principal office in
Columbus, Ohio, by the Compensation Committee of the Board (the "Committee").
The Committee is authorized to interpret the Plan and from time to time to adopt
such rules and regulations, consistent with the provisions of the Plan, as may
be deemed advisable to carry out the Plan. The decision of the Committee shall
be final and binding for all purposes with respect to any question arising under
the Plan.
13.02. Uniform policies shall be pursued in the administration of the
Plan, and there shall be no discrimination among employees or groups of
employees. The administration of the Plan shall
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include the authority, which shall be exercised without discrimination, to
make exceptions (available on a uniform basis to all employees) to provisions
of the Plan in the case of unusual circumstances where strict adherence to
such provisions would work undue hardship. All eligible employees under the
Plan shall have the same rights and privileges under the Plan with respect to
the number of shares for which options may be granted as provided in
Section 3.
13.03. The Board shall have the right to amend, modify or terminate the
Plan at any time without notice; provided, that no amendment, modification or
termination may be made which would impair the rights of the employee in any
option theretofore granted without the consent of such employee; and provided,
further, that the Board may not make any alteration of amendment to the Plan
which would increase the aggregate number of shares that may be issued under the
Plan (other than an increase pursuant to Section 5.02 of the Plan) or change the
group from among which Participating Subsidiaries may be designated.
SECTION 14. TERMINATION OF PLAN
The period for payroll deductions with respect to any Offering Date may not
be extended beyond the Exercise Date for such Offering Date. If no sooner
terminated by the Board, the Plan will terminate following the delivery to
employees, as soon as practicable after the Exercise Date with respect to the
last Offering Date, of stock certificates for all shares purchased and the
repayment to them of all funds, including interest, not used for the purchase of
shares on that Exercise Date.
SECTION 15. HOLIDAYS
In the event any date specified in the Plan falls on other than a business
day of the Company at its principal office in Columbus, Ohio, such date shall be
deemed to refer to the next succeeding business day.
SECTION 16. LIENS NOT AUTHORIZED
There is no provision in the Plan, or in any contract in connection
therewith, whereby any person has or may create a lien on any funds, securities
or other property held under the Plan.
SECTION 17. SHAREHOLDER APPROVAL
In the event this Plan has not been approved by the shareholders of the
Company at the time any option is granted hereunder, said option shall be
subject to and contingent upon shareholder approval. If the shareholders fail
to approve the plan, within twelve (12) months at the Initial Plan Offering, as
defined below, no options granted hereunder will be available for exercise.
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SECTION 18. FIRST OFFERING
Notwithstanding anything contained in the Plan, all persons who are
employees on the date of the initial plan offering of the Company's Stock,
unless excluded by Sections 2(b) and 2(c) of the Plan, will be eligible for the
first Offering ("Initial Plan Offering") under the Plan.
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Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Holophane Corporation on Form S-8 of our reports dated February 21, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Holophane Corporation for the year ended December 31, 1996.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbus, Ohio
November 18, 1997
