<PAGE>
As filed with the Securities and Exchange Commission on June 8, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-8
Registration Statement Under the Securities Act of 1933
---------------------
Cable Design Technologies Corporation
(Exact name of registrant as specified in its charter)
Delaware 36-3601505
(State of or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Foster Plaza 7
661 Andersen Drive
Pittsburgh, PA 15220
(Address of Principal Executive Offices) (zip code)
---------------------
1999 Long-Term Performance Incentive Plan
(Full title of plans)
---------------------
Mr. Charles B. Fromm
Vice President, General Counsel
Foster Plaza 7
661 Andersen Drive
Pittsburgh, PA 15220
(Name and address of agent for service)
(412) 937-2300
(Telephone number, including area code, of agent for service)
Copy to:
Lance C. Balk
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Proposed maximum
Title of securities to Amount to be maximum price aggregate offering Amount of
be registered registered(1) per share(2) price(2) registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,007,000 $17 1/4 $17,370,750 $4,829.07
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement also relates to such additional securities as
may be offered or issued under the 1999 Long-Term Performance Incentive
Plan to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Estimated solely for purposes of calculating the Registration Fee based,
pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, on the
average of the high and low prices of the Common Stock as of June 1, 1999.
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of certain documents by reference.
The following documents filed with the Securities and Exchange Commission are
incorporated herein by reference:
(a) Cable Design Technologies Corporation's (the "Registrant") Annual Report
on Form 10-K for the fiscal year ended July 31, 1998 and Quarterly Reports on
Form 10-Q for the fiscal quarter ended October 31, 1998 and January 31, 1999.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (the "Form S-1"), as amended,
originally filed on October 5, 1993 (File No. 33-69992) under the caption
"Description of Capital Stock."
All reports and other documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement, but prior to the filing of a post-effective
amendment 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 the
filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
-2-
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State Delaware permits
indemnification of, and certain expense advancements to, directors, employees
and agents of corporations under certain conditions and subject to certain
limitations. ARTICLE EIGHT of the Restated Certificate of Incorporation (the
"Certificate") of the Registrant provides that the personal liability of the
directors of the Registrant is eliminated to the fullest extent permitted by
Paragraph (7) of Subsection (b) of Section 102 of the General Corporation Law of
the State of Delaware, as the same may be amended or supplemented.
ARTICLE V of the By-Laws of the Registrant provides as follows:
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party
--------- -------------------
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, 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, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to
do so by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees actually and reasonably incurred by such person in connection with such
proceeding and such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that, except as provided
in Section 2 hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the Board of Directors of the corporation.
The right to indemnification conferred in this Article V shall be a contract
right and, subject to Sections 2 and 5 hereof, shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition. The corporation may, by action of its
Board of Directors, provide indemnification to employees and agents of the
corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
Section 2. Procedure for Indemnification of Directors and Officers. Any
--------- -------------------------------------------------------
indemnification of a director or officer of the corporation under Section 1 of
this
-3-
<PAGE>
Article V or advance of expenses under Section 5 of this Article V shall be
made promptly, and in any event within 30 days, upon the written request of the
director or officer. If a determination by the corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the corporation fails to respond within sixty days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the
corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 30 days, the right to indemnification or advances as granted by
this Article V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the corporation to indemnify the claimant for the amount claimed, but the burden
of such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the
--------- ---------------------
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain insurance
--------- ---------
on its own behalf and on behalf of any person who is or was a director, officer,
employee, fiduciary, or agent of the corporation 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 him or her and incurred by him or her in any such
capacity, whether or not the corporation would have the power to indemnify such
person against such liability under this Article V.
-4-
<PAGE>
Section 5. Expenses. Expenses incurred by any person described in Section
--------- --------
1 of this Article V in defending a proceeding shall be paid by the corporation
in advance of such proceeding's final disposition unless otherwise determined by
the Board of Directors in the specific case upon receipt of an undertaking by or
on behalf of the director or officer to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by the
corporation. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
Section 6. Employees and Agents. Persons who are not covered by the
--------- --------------------
foregoing provisions of this Article V and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the Board of Directors.
Section 7. Contract Rights. The provisions of this Article V shall be
--------- ---------------
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the General Corporation Law of the State of Delaware or
other applicable law are in effect, any repeal or modification of this Article V
or any such law shall not affect any rights or obligations then existing with
respect to any state of facts or proceeding then existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
--------- -----------------------
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article V
with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
Item 7. Exemption from Registration Claimed.
Not applicable.
-5-
<PAGE>
Item 8. Exhibits.
Reference is made to the Exhibit Index that immediately precedes the
exhibits filed with this Registration Statement.
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;
(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;
(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 the undertakings set forth in paragraphs (i) and
-------- -------
(ii) above 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 Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 further undertakes that, for the
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration
-6-
<PAGE>
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as the indemnification for liabilities arising under the
Securities Act 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
Securities Act and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of express 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
Securities Act and will be governed by the final adjudication of such issue.
-7-
<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 Pittsburgh, State of Pennsylvania, on June 8, 1999.
CABLE DESIGN TECHNOLOGIES CORPORATION
By: /s/ Paul M. Olson
-------------------------------------
Paul M. Olson
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Paul M. Olson and Kenneth O. Hale his true
and lawful attorney-in-fact and agent, with full power of substitution and
revocation, for him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent, full power and
authority to do and perform such, each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said attorney-
in-fact and agent or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act this Registration
Statement and the foregoing Power of Attorney have been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
/s/ Bryan C. Cressey Chairman of the Board, Director June 8,1999
- ---------------------------
Bryan C. Cressey
/s/ Paul M. Olson
- --------------------------- President, Chief Executive Officer and Director June 8, 1999
Paul M. Olson (principal executive officer)
/s/ Kenneth O. Hale Vice President, Chief Financial Officer and June 8, 1999
- --------------------------- Secretary (principal accounting and financial
Kenneth O. Hale officer)
/s/ George Graeber Chief Operating Officer and Director June 8, 1999
- ---------------------------
George Graeber
/s/ Myron S. Gelbach, Jr. Director June 8, 1999
- ---------------------------
Myron S. Gelbach, Jr.
/s/ Michael F.O. Harris Director June 8, 1999
- ---------------------------
Michael F.O. Harris
/s/ Glenn Kalnasy Director June 8, 1999
- ---------------------------
Glenn Kalnasy
/s/ Richard Tuttle Director June 8, 1999
- ---------------------------
Richard Tuttle
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -------------------------------------------------------------------
4.1 Restated Certificate of Incorporation, as amended, of the
Registrant. Incorporated by reference to Exhibit 3.1 to the
Form S-1 and Exhibit 2.4 to Form 8-A/A as filed December 23, 1996.
4.2 By-laws of Registrant, as amended to date. Incorporated by
reference to Exhibit 3.2 to the Form S-1.
4.3 1999 Long-Term Performance Incentive Plan.
5.1 Opinion and consent of Kirkland & Ellis, special counsel to the
Registrant.
15.1 Letter of Arthur Andersen LLP regarding unaudited interim financial
statement information.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included in signature page).
<PAGE>
EXHIBIT 4.3
-----------
CABLE DESIGN TECHNOLOGIES CORPORATION
1999 Long-Term Performance Incentive Plan
1. Purpose. The purpose of the 1999 Long-Term Performance Incentive Plan (the
"Plan") is to advance the interests of Cable Design Technologies Corporation, a
Delaware corporation (the "Company") and its stockholders by providing
incentives to certain key employees of the Company and to certain other key
individuals who perform services for the Company, including those who contribute
significantly to the strategic and long-term performance objectives and growth
of the Company.
2. Administration. The Plan shall be administered solely by the Board of
Directors (the "Board") of the Company or, if the Board shall so designate, by a
committee of the Board that shall be comprised of not fewer than two directors
(the "Committee"); provided that if at any time Rule 16b-3 or any successor rule
("Rule 16b-3") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), so permits without adversely affecting the ability of the Plan
to comply with the conditions for exemption from Section 16 of the Exchange Act
(or any successor provision) provided by Rule 16b-3, the Committee may delegate
the administration of the Plan in whole or in part, on such terms and
conditions, and to such person or persons as it may determine in its discretion,
as it relates to persons not subject to Section 16 of the Exchange Act (or any
successor provision). References to the Committee hereunder shall include the
Board where appropriate. The membership of the Committee or such successor
committee shall be constituted so as to comply at all times with the applicable
requirements of Rule 16b-3.
The Committee has all the powers vested in it by the terms of the Plan set
forth herein, such powers to include exclusive authority (except as may be
delegated as permitted herein) to select the key employees and other key
individuals to be granted Awards under the Plan, to determine the type, size and
terms of the Award to be made to each individual selected, to modify the terms
of any Award that has been granted, to determine the time when Awards will be
granted, to establish performance objectives, to make any adjustments necessary
or desirable as a result of the granting of Awards to eligible individuals
located outside the United States and to prescribe the form of the instruments
embodying Awards made under the Plan. The Committee is authorized to interpret
the Plan and the Awards granted under the Plan, to establish, amend and rescind
any rules and regulations relating to the Plan, and to make any other
determinations which it deems necessary or desirable for the administration of
the Plan. The Committee (or its delegate as permitted herein) may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or in
any Award in the manner and to the extent the Committee deems necessary or
desirable to carry it into effect. Any decision of the Committee (or its
delegate as permitted herein) in the interpretation and administration of the
Plan, as described herein, shall lie within its sole and absolute discretion and
shall be final, conclusive and binding on all parties concerned. The Committee
may act only by a majority of its members in office, except that the members
thereof may authorize any one or more of their members or any officer of the
Company to execute and deliver documents or to take any other ministerial action
on behalf of the Committee with respect to Awards made or to be made to Plan
participants. No member of the Committee and no officer of the Company shall be
liable for anything done or omitted to be done by him, by any other member of
the Committee or by any officer of the Company in connection with the
performance of duties under the Plan, except for his own willful misconduct or
as expressly provided by statute. Determinations to be made by the Committee
under the Plan may be made by its delegates.
3. Participation. Consistent with the purposes of the Plan, the Committee
shall have exclusive power (except as may be delegated as permitted herein) to
select the key employees and other key individuals performing services for the
Company who may participate in the Plan and be granted Awards under the Plan.
Eligible individuals may be
<PAGE>
selected individually or by groups or categories, as determined by the Committee
in its discretion. No non-employee director of the Company shall be eligible to
receive an Award under the Plan.
4. Awards under the Plan.
(a) Types of Awards. Awards under the Plan may include, but need not be
limited to, one or more of the following types, either alone or in any
combination thereof: (i) "Stock Options," (ii) "Stock Appreciation Rights,"
(iii) "Restricted Stock," (iv) "Performance Grants" and (v) any other type of
Award deemed by the Committee in its discretion to be consistent with the
purposes of the Plan (including, but not limited to, Awards of or options or
similar rights granted with respect to unbundled stock units or components
thereof, and Awards to be made to participants who are foreign nationals or are
employed or performing services outside the United States). Stock Options, which
include "Nonqualified Stock Options" (which may be awarded to participants or
sold at a price determined by the Committee ("Purchased Options")) and
"Incentive Stock Options" or combinations thereof, are rights to purchase common
shares of the Company having a par value of $.01 per share and stock of any
other class into which such shares may thereafter be changed (the "Common
Shares"). Nonqualified Stock Options and Incentive Stock Options are subject to
the terms, conditions and restrictions specified in Paragraph 5. Stock
Appreciation Rights are rights to receive (without payment to the Company) cash,
Common Shares, other Company securities (which may include, but need not be
limited to, unbundled stock units or components thereof, debentures, preferred
stock, warrants, securities convertible into Common Shares or other property
("Other Company Securities")) or property, or other forms of payment, or any
combination thereof, as determined by the Committee, based on the increase in
the value of the number of Common Shares specified in the Stock Appreciation
Right. Stock Appreciation Rights are subject to the terms, conditions and
restrictions specified in Paragraph 6. Shares of Restricted Stock are Common
Shares which are issued subject to certain restrictions pursuant to Paragraph 7.
Performance Grants are contingent awards subject to the terms, conditions and
restrictions described in Paragraph 8, pursuant to which the participant may
become entitled to receive cash, Common Shares, Other Company Securities or
property, or other forms of payment, or any combination thereof, as determined
by the Committee.
(b) Maximum Number of Shares that May be Issued. There may be issued under the
Plan (as Restricted Stock, in payment of Performance Grants, pursuant to the
exercise of Stock Options or Stock Appreciation Rights, or in payment of or
pursuant to the exercise of such other Awards as the Committee, in its
discretion, may determine) an aggregate of not more than 1,007,000 Common
Shares, subject to adjustment as provided in Paragraph 14. Common Shares issued
pursuant to the Plan may be either authorized but unissued shares, treasury
shares, reacquired shares, or any combination thereof; provided, however, that,
unless and until this plan is approved by the Company's shareholders, only
treasury shares shall be issued hereunder. If any Common Shares issued as
Restricted Stock or otherwise subject to repurchase or forfeiture rights are
reacquired by the Company pursuant to such rights, or if any Award is canceled,
terminates or expires unexercised, any Common Shares that would otherwise have
been issuable pursuant thereto will be available for issuance under new Awards.
(c) Rights with respect to Common Shares and Other Securities.
(i) Unless otherwise determined by the Committee in its discretion, a
participant to whom an Award of Restricted Stock has been made (and any person
succeeding to such a participant's rights pursuant to the Plan) shall have,
after issuance of a certificate for the number of Common Shares awarded and
prior to the expiration of the Restricted Period (as hereinafter defined) or the
earlier repurchase of such Common Shares as herein provided, ownership of such
Common Shares, including the right to vote the same and to receive dividends or
other distributions made or paid with respect to such Common Shares (provided
that such Common Shares, and any new, additional or different shares, or Other
Company Securities or property, or other forms of consideration which the
participant may be entitled to receive with respect to such Common Shares as a
result of a stock split,
2
<PAGE>
stock dividend or any other change in the corporation or capital structure of
the Company, shall be subject to the restrictions hereinafter described as
determined by the Committee in its discretion), subject, however, to the
options, restrictions and limitations imposed thereon pursuant to the Plan.
Notwithstanding the foregoing, a participant with whom an Award agreement is
made to issue Common Shares in the future, shall have no rights as a stockholder
with respect to Common Shares related to such agreement until issuance of a
certificate to him.
(ii) Unless otherwise determined by the Committee in its discretion, a
participant to whom a grant of Stock Options, Stock Appreciation Rights,
Performance Grants or any other Award is made (and any person succeeding to such
a participant's rights pursuant to the Plan) shall have no rights as a
stockholder with respect to any Common Shares or as a holder with respect to
other securities, if any, issuable pursuant to any such Award until the date of
the issuance of a stock certificate to him for such Common Shares or other
instrument of ownership, if any. Except as provided in Paragraph 14, no
adjustment shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities, other property or
other forms of consideration, or any combination thereof) for which the record
date is prior to the date such stock certificate or other instrument of
ownership, if any, is issued.
5. Stock Options. The Committee may grant or sell Stock Options either alone,
or in conjunction with Stock Appreciation Rights, Performance Grants or other
Awards, either at the time of grant or by amendment thereafter; provided that an
Incentive Stock Option may be granted only to an eligible employee of the
Company or any parent or subsidiary corporation. Each Stock Option (referred to
herein as an "Option") granted or sold under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but not limited
to, restrictions upon the Option or the Common Shares issuable upon exercise
thereof, as the Committee, in its discretion, shall establish:
(a) The option price may be less than, equal to, or greater than, the fair
market value of the Common Shares subject to such Option at the time the Option
is granted, as determined by the Committee, but in no event will such option
price be less than 50% of the fair market value of the underlying Common Shares
at the time the Option is granted; provided, however, that in the case of an
Incentive Stock Option granted to such an employee, the option price shall not
be less than the fair market value of the Common Shares subject to such Option
at the time the Option is granted, or if granted to such an employee who owns
stock representing more than ten percent of the voting power of all classes of
stock of the Company or any parent or subsidiary (a "Ten Percent Employee"),
such option price shall not be less than 110% of such fair market value at the
time the Option is granted; but in no event will such option price be less than
the par value of such Common Shares.
(b) The Committee shall determine the number of Common Shares to be subject to
each Option. The number of Common Shares subject to an outstanding Option may be
reduced on a share-for-share or other appropriate basis, as determined by the
Committee, to the extent that Common Shares under such Option are used to
calculate the cash, Common Shares, Other Company Securities or property, or
other forms of payment, or any combination thereof, received pursuant to
exercise of a Stock Appreciation Right attached to such Option, or to the extent
that any other Award granted in conjunction with such Option is paid.
(c) The Option may not be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of, except by will or the laws of descent and
distribution, and shall be exercisable during the grantee's lifetime only by
him. Unless the Committee determines otherwise, the Option shall not be
exercisable for at least six months after the date of grant, unless the grantee
ceases employment or performance of services before the expiration of such six-
month period by reason of his disability as defined in Paragraph 12 or his
death.
(d) The Option shall not be exercisable:
3
<PAGE>
(i) in the case of any Incentive Stock Option granted to a Ten Percent
Employee, after the expiration of five years from the date it is granted, and,
in the case of any other Option, after the expiration of ten years from the date
it is granted. Any Option may be exercised during such period only at such time
or times and in such installments as the Committee may establish;
(ii) unless payment in full is made for the shares being acquired
thereunder at the time of exercise; such payment shall be made in such form
(including, but not limited to, cash, Common Shares, or the surrender of another
outstanding Award under the Plan, or any combination thereof) as the Committee
may determine in its discretion; and
(iii) unless the person exercising the Option has been, at all times
during the period beginning with the date of the grant of the Option and ending
on the date of such exercise, employed by or otherwise performing services for
the Company, or a corporation, or a parent or subsidiary of a corporation,
substituting or assuming the Option in a transaction to which Section 424(a) of
the Internal Revenue Code of 1986, as amended, or any successor statutory
provision thereto (the "Code"), is applicable, except that
(A) if such person shall cease such employment or performance of
services by reason of his disability as defined in Paragraph 12 or early,
normal or deferred retirement under an approved retirement program of the
Company (or such other plan or arrangement as may be approved by the
Committee, in its discretion, for this purpose) while holding an Option which
has not expired and has not been fully exercised, such person, at any time
within three years (or such period determined by the Committee) after the
date he ceased such employment or performance of services (but in no event
after the Option has expired), may exercise the Option with respect to any
shares as to which he could have exercised the Option on the date he ceased
such employment or performance of services, or with respect to such greater
number of shares as determined by the Committee;
(B) if any person to whom an Option has been granted shall die holding
an Option which has not expired and has not been fully exercised, his
executors, administrators, heirs or distributees, as the case may be, may, at
any time within one year (or such other period determined by the Committee)
after the date of death (but in no event after the Option has expired),
exercise the Option with respect to any shares as to which the decedent could
have exercised the Option at the time of his death, or with respect to such
greater number of shares as determined by the Committee; or
(C) if such person shall cease employment or performance of services
while holding an Option which has not expired and has not been fully
exercised, the Committee may determine to allow such person at any time
within the one year (or three months in the case of an Incentive Stock
Option) or such other period determined by the Committee after the date he
ceased such employment or performance of services (but in no event after the
Option has expired), to exercise the Option with respect to any shares as to
which he could have exercised the Option on the date he ceased such
employment or performance of services, or with respect to such greater number
of shares as determined by the Committee.
(e) In the case of an Incentive Stock Option, the amount of the aggregate fair
market value of Common Shares (determined at the time of grant of the Option
pursuant to subparagraph 5(a) of the Plan) with respect to which incentive stock
options are exercisable for the first time by an employee during any calendar
year (under all such plans of his employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000.
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(f) It is the intent of the Company that Nonqualified Stock Options granted
under the Plan not be classified as Incentive Stock Options, that the Incentive
Stock Options granted under the Plan be consistent with and contain or be deemed
to contain all provisions required under Section 422 and the other appropriate
provisions of the Code and any implementing regulations (and any successor
provisions thereof), and that any ambiguities in construction shall be
interpreted in order to effectuate such intent.
6. Stock Appreciation Rights. The Committee may grant Stock Appreciation
Rights either alone, or in conjunction with Stock Options, Performance Grants or
other Awards, either at the time of grant or by amendment thereafter. Each Award
of Stock Appreciation Rights granted under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but not limited
to, restrictions upon the Award of Stock Appreciation Rights or the Common
Shares issuable upon exercise thereof, as the Committee, in its discretion,
shall establish:
(a) The Committee shall determine the number of Common Shares to be subject to
each Award of Stock Appreciation Rights. The number of Common Shares subject to
an outstanding Award of Stock Appreciation Rights may be reduced on a share-for-
share or other appropriate basis, as determined by the Committee, to the extent
that Common Shares under such Award of Stock Appreciation Rights are used to
calculate the cash, Common Shares, Other Company Securities or property, or
other forms of payment, or any combination thereof, received pursuant to
exercise of an Option attached to such Award of Stock Appreciation Rights, or to
the extent that any other Award granted in conjunction with such Award of Stock
Appreciation Rights is paid.
(b) The Award of Stock Appreciation Rights may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by will or
the laws of descent and distribution, and shall be exercisable during the
grantee's lifetime only by him. Unless the Committee determines otherwise, the
Award of Stock Appreciation Rights shall not be exercisable for at least six
months after the date of grant, unless the grantee ceases employment or
performance of services before the expiration of such six-month period by reason
of his disability as defined in Paragraph 12 or his death.
(c) The Award of Stock Appreciation Rights shall not be exercisable:
(i) in the case of any Award of Stock Appreciation Rights which is attached
to an Incentive Stock Option granted to a Ten Percent Employee, after the
expiration of five years from the date it is granted, and, in the case of any
other Award of Stock Appreciation Rights, after the expiration of ten years from
the date it is granted. Any Award of Stock Appreciation Rights may be exercised
during such period only at such time or times and in such installments as the
Committee may establish;
(ii) unless the Option or other Award to which the Award of Stock
Appreciation Rights is attached is at the time exercisable; and
(iii) unless the person exercising the Award of Stock Appreciation Rights
has been, at all times during the period beginning with the date of the grant
thereof and ending on the date of such exercise, employed by or otherwise
performing services for the Company, except that
(A) if such person shall cease such employment or performance of
services by reason of his disability as defined in Paragraph 12 or early, normal
or deferred retirement under an approved retirement program of the Company (or
such other plan or arrangement as may be approved by the Committee, in its
discretion, for this purpose) while holding an Award of Stock Appreciation
Rights which has not expired and has not been fully exercised, such person may,
at any time within three years (or such other period determined
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by the Committee) after the date he ceased such employment or performance of
services (but in no event after the Award of Stock Appreciation Rights has
expired), exercise the Award of Stock Appreciation Rights with respect to any
shares as to which he could have exercised the Award of Stock Appreciation
Rights on the date he ceased such employment or performance of services, or with
respect to such greater number of shares as determined by the Committee; or
(B) if any person to whom an Award of Stock Appreciation Rights has been
granted shall die holding an Award of Stock Appreciation Rights which has not
expired and has not been fully exercised, his executors, administrators, heirs
or distributees, as the case may be, may at any time within one year (or such
other period determined by the Committee) after the date of death (but in no
event after the Award of Stock Appreciation Rights has expired), exercise the
Award of Stock Appreciation Rights with respect to any shares as to which the
decedent could have exercised the Award of Stock Appreciation Rights at the time
of his death, or with respect to such greater number of shares as determined by
the Committee.
(d) An Award of Stock Appreciation Rights shall entitle the holder (or any
person entitled to act under the provisions of subparagraph 6(c)(iii)(B) hereof)
to exercise such Award and surrender unexercised the Option (or other Award), if
any, to which the Stock Appreciation Right is attached (or any portion of such
Option or other Award) to the Company and to receive from the Company in
exchange thereof, without payment to the Company, that number of Common Shares
having an aggregate value equal to (or, in the discretion of the Committee, less
than) the excess of the fair market value of one share, at the time of such
exercise, over the exercise price (or Option Price, as the case may be), times
the number of shares subject to the Award or the Option (or other Award), or
portion thereof, which is so exercised or surrendered, as the case may be. The
Committee shall be entitled in its discretion to elect to settle the obligation
arising out of the exercise of a Stock Appreciation Right by the payment of cash
or Other Company Securities or property, or other forms of payment, or any
combination thereof, as determined by the Committee, equal to the aggregate
value of the Common Shares it would otherwise be obligated to deliver. Any such
election by the Committee shall be made as soon as practicable after the receipt
by the Committee of written notice of the exercise of the Stock Appreciation
Right. The value of a Common Share, Other Company Securities or property, or
other forms of payment determined by the Committee for this purpose shall be the
fair market value thereof on the last business day next preceding the date of
the election to exercise the Stock Appreciation Right, unless the Committee, in
its discretion, determines otherwise.
(e) A Stock Appreciation Right may provide that it shall be deemed to have
been exercised at the close of business on the business day preceding the
expiration date of the Stock Appreciation Right or of the related Option (or
other Award), or such other date as specified by the Committee, if at such time
such Stock Appreciation Right has a positive value. Such deemed exercise shall
be settled or paid in the same manner as a regular exercise thereof as provided
in subparagraph 6(d) hereof.
(f) No fractional shares may be delivered under this Paragraph 6, but in lieu
thereof a cash or other adjustment shall be made as determined by the Committee
in its discretion.
7. Restricted Stock. Each Award of Restricted Stock under the Plan shall be
evidenced by an instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions, and with such other terms and conditions as the Committee,
in its discretion, shall establish:
(a) The Committee shall determine the number of Common Shares to be issued to
a participant pursuant to the Award, and the extent, if any, to which they shall
be issued in exchange for cash, other consideration, or both.
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(b) Restricted Stock awarded to a participant in accordance with the Award
shall be subject to the following restrictions until the expiration of such
period as the Committee shall determine, from the date on which the Award is
granted (the "Restricted Period"): (i) a participant to whom an award of
Restricted Stock is made shall be issued, but shall not be entitled to, the
delivery of a stock certificate, (ii) the Restricted Stock shall not be
transferable prior to the end of the Restricted Period, (iii) the Restricted
Stock shall be forfeited and the stock certificate shall be returned to the
Company and all rights of the holder of such Restricted Stock to such shares and
as a shareholder shall terminate without further obligation on the part of the
Company if the participant's continuous employment or performance of services
for the Company shall terminate for any reason prior to the end of the
Restricted Period, except as otherwise provided in subparagraph 7(c), and (iv)
such other restrictions as determined by the Committee in its discretion.
(c) If a participant who has been in continuous employment or performance of
services for the Company since the date on which a Restricted Stock Award was
granted to him shall, while in such employment or performance of services, die,
or terminate such employment or performance of services by reason of disability
as defined in Paragraph 12 or by reason of early, normal or deferred retirement
under an approved retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee in its discretion, for this
purpose) and any of such events shall occur after the date on which the Award
was granted to him and prior to the end of the Restricted Period of such Award,
the Committee may determine to cancel any and all restrictions on any or all of
the Common Shares subject to such Award.
8. Performance Grant. The Award of the Performance Grant ("Performance Grant")
to a participant will entitle him to receive a specified amount determined by
the Committee (the "Actual Value"), if the terms and conditions specified herein
and in the Award are satisfied. Each Award of a Performance Grant shall be
subject to the following terms and conditions, and to such other terms and
conditions, including but not limited to, restrictions upon any cash, Common
Shares, Other Company Securities or property, or other forms of payment, or any
combination thereof, issued in respect of the Performance Grant, as the
Committee, in its discretion, shall establish, and shall be embodied in an
instrument in such form and substance as is determined by the Committee:
(a) The Committee shall determine the value or range of values of a
Performance Grant to be awarded to each participant selected for an Award and
whether or not such a Performance Grant is granted in conjunction with an Award
of Options, Stock Appreciation Rights, Restricted Stock or other Award, or any
combination thereof, under the Plan (which may include, but need not be limited
to, deferred Awards) concurrently or subsequently granted to the participant
(the "Associated Award"). As determined by the Committee, the maximum value of
each Performance Grant (the "Maximum Value") shall be: (i) an amount fixed by
the Committee at the time the Award is made or amended thereafter, (ii) an
amount which varies from time to time based in whole or in part on the then
current value of the Common Shares, Other Company Securities or property, or
other securities or property, or any combination thereof or (iii) an amount that
is determinable from criteria specified by the Committee. Performance Grants may
be issued in difference classes or series having different names, terms and
conditions. In the case of a Performance Grant awarded in conjunction with an
Associated Award, the Performance Grant may be reduced on an appropriate basis
to the extent that the Associated Award has been exercised, paid to or otherwise
received by the participant, as determined by the Committee.
(b) The award period ("Award Period") related to any Performance Grant shall
be a period determined by the Committee. At the time each Award is made, the
Committee shall establish performance objectives to be attained within the Award
Period as the means of determining the Actual Value of such a Performance Grant.
The performance objectives shall be based on such measure or measures of
performance, which may include, but need not be limited to, the performance of
the participant, the Company, one or more of its subsidiaries or one or more of
their divisions or units, or any combination of the foregoing, as the Committee
shall determine, and may be applied on an absolute basis or be relative to
industry or other indices, or any combination thereof. The Actual
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Value of a Performance Grant shall be equal to its Maximum Value only if the
performance objectives are attained in full, but the Committee shall specify the
manner in which the Actual Value of Performance Grants shall be determined if
the performance objectives are met in part. Such performance measures, the
Actual Value or the Maximum Value, or any combination thereof, may be adjusted
in any manner by the Committee in its discretion at any time and from time to
time during or as soon as practicable after the Award Period, if it determines
that such performance measures, the Actual Value or the Maximum Value, or any
combination thereof, are not appropriate under the circumstances.
(c) The rights of a participant in Performance Grants awarded to him shall be
provisional and may be canceled or paid in whole or in part, all as determined
by the Committee, if the participant's continuous employment or performance of
services for the Company shall terminate for any reason prior to the end of the
Award Period.
(d) The Committee shall determine whether the conditions of subparagraph 8(b)
or 8(c) hereof have been met and, if so, shall ascertain the Actual Value of the
Performance Grants. If the Performance Grants have no Actual Value, the Award
and such Performance Grants shall be deemed to have been canceled and the
Associated Award, if any, may be canceled or permitted to continue in effect in
accordance with its terms. If the Performance Grants have any Actual Value and:
(i) were not awarded in conjunction with an Associated Award, the Committee
shall cause an amount equal to the Actual Value of the Performance Grants earned
by the participant to be paid to him or his beneficiary as provided below; or
(ii) were awarded in conjunction with an Associated Award, the Committee shall
determine, in accordance with criteria specified by the Committee (A) to cancel
the Performance Grants, in which event no amount in respect thereof shall be
paid to the participant or his beneficiary, and the Associated Award may be
permitted to continue in effect in accordance with its terms, (B) to pay the
Actual Value of the Performance Grants to the participant or his beneficiary as
provided below, in which event the Associated Award may be canceled or (C) to
pay to the participant or his beneficiary as provided below, the Actual Value of
only a portion of the Performance Grants, in which event all or a portion of the
Associated Award may be permitted to continue in effect in accordance with its
terms or be canceled, as determined by the Committee.
Such determination by the Committee shall be made as promptly as practicable
following the end of the Award Period or upon the earlier termination of
employment or performance of services, or at such other time or times as the
Committee shall determine, and shall be made pursuant to criteria specified by
the Committee.
Payment of any amount in respect of the Performance Grants which the Committee
determines to pay as provided above shall be made by the Company as promptly as
practicable after the end of the Award Period or at such other time or times as
the Committee shall determine, and may be made in cash, Common Shares, Other
Company Securities or property, or other forms of payment, or any combination
thereof or in such other manner, as determined by the Committee in its
discretion. Notwithstanding anything in this Paragraph 8 to the contrary, the
Committee may, in its discretion, determine and pay out the Actual Value of the
Performance Grants at any time during the Award Period.
9. Deferral of Compensation. The Committee shall determine whether or not an
Award shall be made in conjunction with deferral of the participant's salary,
bonus or other compensation, or any combination thereof, and whether or not such
deferred amounts may be
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(i) forfeited to the Company or to other participants or any combination
thereof, under certain circumstances (which may include, but need not be limited
to, certain types of termination of employment or performance of services for
the Company),
(ii) subject to increase or decrease in value based upon the attainment of or
failure to attain, respectively, certain performance measures and/or
(iii) credited with income equivalents (which may include, but need not be
limited to, interest, dividends or other rates of return) until the date or
dates of payment of the Award, if any.
10. Deferred Payment of Awards. The Committee may specify that the payment of
all or any portion of cash, Common Shares, Other Company Securities or property,
or any other form of payment, or any combination thereof, under an Award shall
be deferred until a later date. Deferrals shall be for such periods or until the
occurrence of such events, and upon such terms, as the Committee shall determine
in its discretion. Deferred payments of Awards may be made by undertaking to
make payment in the future based upon the performance of certain investment
equivalents (which may include, but need not be limited to, government
securities, Common Shares, other securities, property or consideration, or any
combination thereof), together with such additional amounts of income
equivalents (which may be compounded and may include, but need not be limited
to, interest, dividends or other rates of return or any combination thereof) as
may accrue thereon until the date or dates of payment, such investment
equivalents and such additional amounts of income equivalents to be determined
by the Committee in its discretion.
11. Amendment or Substitution of Awards under the Plan. The terms of any
outstanding Award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including,
but not limited to, acceleration of the date of exercise of any Award and/or
payments thereunder); provided that no such amendment shall adversely affect in
a material manner any right of a participant under the Award without his written
consent, unless the Committee determines in its discretion that there have
occurred or are about to occur significant changes in the participant's
position, duties or responsibilities, or significant changes in economic,
legislative, regulatory, tax, accounting or cost/benefit conditions which are
determined by the Committee in its discretion to have or to be expected to have
a substantial effect on the performance of the Company, or any subsidiary,
affiliate, division or department thereof, on the Plan or on any Award under the
Plan. The Committee may, in its discretion, permit holders of Awards under the
Plan to surrender outstanding Awards in order to exercise or realize the rights
under other Awards, or in exchange for the grant of new Awards, or require
holders of Awards to surrender outstanding Awards as a condition precedent to
the grant of new Awards under the Plan.
12. Disability. For the purposes of this Plan, a participant shall be deemed
to have terminated his employment or performance of services for the Company and
its Affiliates by reason of disability, if the Committee shall determine that
the physical or mental condition of the participant by reason of which such
employment or performance of services terminated was such at that time as would
entitle him to payment of monthly disability benefits under any Company
disability plan. If the participant is not eligible for benefits under any
disability plan of the Company, he shall be deemed to have terminated such
employment or performance of services by reason of disability if the Committee
shall determine that his physical or mental condition would entitle him to
benefits under any Company disability plan if he were eligible therefor.
13. Termination of a Participant. For all purposes under the Plan, the
Committee shall determine whether a participant has terminated employment with,
or the performance of services for, the Company.
14. Dilution and Other Adjustments. In the event of any change in the
outstanding Common Shares of the Company by reason of any stock split, dividend,
split-up, split-off, spin-off, recapitalization, merger, consolidation, rights
offering, reorganization, combination or exchange of shares, a sale by the
Company of all of its assets, any
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distribution to stockholders other than a normal cash dividend, or other
extraordinary or unusual event, if the Committee shall determine, in its
discretion, that such change equitably requires an adjustment in the terms of
any Award (including, without limitation, the number and type of consideration
subject to any Award) or the number of Common Shares available for Awards, such
adjustment may be made by the Committee and shall be final, conclusive and
binding for all purposes of the Plan.
In the event of the proposed dissolution or liquidation of the Company, all
outstanding Awards shall terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Committee. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, all restrictions on any
outstanding Awards shall lapse and participants shall be entitled to the full
benefit of all such Awards immediately prior to the closing date of such sale or
merger, unless otherwise provided by the Committee.
15. Designation of Beneficiary by Participant. A participant may name a
beneficiary to receive any payment to which he may be entitled in respect of any
Award under the Plan in the event of his death, on a written form to be provided
by and filed with the Committee, and in a manner determined by the Committee in
its discretion. The Committee reserves the right to review and approve
beneficiary designations. A participant may change his beneficiary from time to
time in the same manner, unless such participant has made an irrevocable
designation. Any designation of beneficiary under the Plan (to the extent it is
valid and enforceable under applicable law) shall be controlling over any other
disposition, testamentary or otherwise, as determined by the Committee in its
discretion. If no designated beneficiary survives the participant and is living
on the date on which any amount becomes payable to such a participant's
beneficiary, such payment will be made to the legal representatives of the
participant's estate, and the term "beneficiary" as used in the Plan shall be
deemed to include such person or persons. If there are any questions as to the
legal right of any beneficiary to receive a distribution under the Plan, the
Committee in its discretion may determine that the amount in question be paid to
the legal representatives of the estate of the participant, in which event the
Company, the Board and the Committee and the members thereof, will have no
further liability to anyone with respect to such amount.
16. Financial Assistance. If the Committee determines that such action is
advisable, the Company may assist any person to whom an Award has been granted
in obtaining financing from the Company (or under any program of the Company
approved pursuant to applicable law), or from a bank or other third party, on
such terms as are determined by the Committee, and in such amount as is required
to accomplish the purposes of the Plan, including, but not limited to, to permit
the exercise of an Award, the participation therein, and/or the payment of any
taxes in respect thereof. Such assistance may take any form that the Committee
deems appropriate, including, but not limited to, a direct loan from the
Company, a guarantee of the obligation by the Company, or the maintenance by the
Company of deposits with such bank or third party.
17. Miscellaneous Provisions.
(a) No employee or other person shall have any claim or right to be granted an
Award under the Plan. Determinations made by the Committee under the Plan need
not be uniform and may be made selectively among eligible individuals under the
plan, whether or not such eligible individuals are similarly situated. Neither
the Plan nor any action taken hereunder shall be construed as giving any
employee or other person any right to continue to be employed by or perform
services for the Company, and the right to terminate the employment of or
performance of services by any participants at any time and for any reason is
specifically reserved.
(b) No participant or other person shall have any right with respect to the
Plan, the Common Shares reserved for issuance under the Plan or in any Award,
contingent or otherwise, until written evidence of the Award shall
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have been delivered to the recipient and all the terms, conditions and
provisions of the Plan and the Award applicable to such recipient (and each
person claiming under or through him) have been met.
(c) Except as may be approved by the Committee where such approval shall not
adversely affect compliance of the Plan with Rule 16b-3 under the Exchange Act,
a participant's rights and interest under the Plan may not be assigned or
transferred, hypothecated or encumbered in whole or in part either directly or
by operation of law or otherwise (except in the event of a participant's death)
including, but not by way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner; provided, however, that
any Option or similar right (including, but not limited to, a Stock Appreciation
Right) offered pursuant to the Plan shall not be transferable other than by will
or the laws of descent and distribution and shall be exercisable during the
participant's lifetime only by him.
(d) No Common Shares, Other Company Securities or property, other securities
or property, or other forms of payment shall be issued hereunder with respect to
any Award unless counsel for the Company shall be satisfied that such issuance
will be in compliance with applicable federal, state, local and foreign legal,
securities exchange and other applicable requirements.
(e) It is the intent of the Company that the Plan comply in all respects with
Rule 16b-3 under the Exchange Act, that any ambiguities or inconsistencies in
construction of the Plan be interpreted to give effect to such intention and
that if any provision of the Plan is found not to be in compliance with Rule
16b-3, such provision shall be deemed null and void to the extent required to
permit the Plan to comply with Rule 16b-3.
(f) The Company shall have the right to deduct from any payment made under the
Plan any federal, state, local or foreign income or other taxes required by law
to be withheld with respect to such payment. It shall be a condition to the
obligation of the Company to issue Common Shares, Other Company Securities or
property, other securities or property, or other forms of payment, or any
combination thereof, upon exercise, settlement or payment of any Award under the
Plan, that the participant (or any beneficiary or person entitled to act) pay to
the Company, upon its demand, such amount as may be required by the Company for
the purpose of satisfying any liability to withhold federal, state, local or
foreign income or other taxes. If the amount requested is not paid, the Company
may refuse to issue Common Shares, Other Company Securities or property, other
securities or property, or other forms of payment, or any combination thereof.
Notwithstanding anything in the Plan to the contrary, the Committee may, in its
discretion, permit an eligible participant (or any beneficiary or person
entitled to act) to elect to pay a portion or all of the amount requested by the
Company for such taxes with respect to such Award, at such time and in such
manner as the Committee shall deem to be appropriate (including, but not limited
to, by authorizing the Company to withhold, or agreeing to surrender to the
Company on or about the date such tax liability is determinable, Common Shares,
Other Company Securities or property, other securities or property, or other
forms of payment, or any combination thereof, owned by such person or a portion
of such forms of payment that would otherwise be distributed, or have been
distributed, as the case may be, pursuant to such Award to such person, having a
fair market value equal to the amount of such taxes).
(g) The expenses of the Plan shall be borne by the Company.
(h) The Plan shall be unfunded. The Company shall not be required to establish
any special or separate fund or to make any other segregation of assets to
assure the payment of any Award under the Plan, and rights to the payment of
Awards shall be no greater than the rights of the Company's general creditors.
(i) By accepting any Award or other benefit under the Plan, each participant
and each person claiming under or through him shall be conclusively deemed to
have indicated his acceptance and ratification of, and consent to, any action
taken under the Plan by the Company, the Board or the Committee or its
delegates.
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(j) Fair market value in relation to Common Shares, Other Company Securities
or property, other securities or property or other forms of payment of Awards
under the Plan, or any combination thereof, as of any specific time shall mean
such value as determined by the Committee in accordance with applicable law.
(k) The masculine pronoun includes the feminine and the singular includes the
plural wherever appropriate.
(l) The appropriate officers of the Company shall cause to be filed any
reports, returns or other information regarding Awards hereunder of any Common
Shares issued pursuant hereto as may be required by Section 13 or 15(d) of the
Exchange Act (or any successor provision) or any other applicable statute, rule
or regulation.
(m) The validity, construction, interpretation, administration and effect of
the Plan, and of its rules and regulations, and rights relating to the Plan and
to Awards granted under the Plan, shall be governed by the substantive laws, but
not the choice of law rules, of the State of Delaware.
18. Plan Amendment or Suspension. The Plan may be amended or suspended in
whole or in part at any time from time to time by the Board, but no amendment
shall be effective unless and until the same is approved by stockholders of the
Company where the failure to obtain such approval would adversely affect the
compliance of the Plan with Rule 16b-3 under the Exchange Act. No amendment of
the Plan shall adversely affect in a material manner any right of any
participant with respect to any Award theretofore granted without such
participant's written consent, except as permitted under Paragraphs 11 and 14.
19. Plan Termination. This Plan shall terminate upon the earlier of the
following dates or events to occur:
(a) upon the adoption of a resolution of the Board terminating the Plan; or
(b) ten years from the date the Plan is initially approved and adopted by
the board of directors of the Company; provided, however, that the Board may,
prior to the expiration of such ten-year period, extend the term of the Plan
for an additional period of up to five years for the grant of Awards other
than Incentive Stock Options. No termination of the Plan shall materially
alter or impair any of the rights or obligations of any person, without his
consent, under any Award theretofore granted under the Plan, except that
subsequent to termination of the Plan, the Committee may make amendments
permitted under Paragraph 11.
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EXHIBIT 5.1
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June 8, 1999
Cable Design Technologies Corporation
Foster Plaza 7
661 Andersen Drive
Pittsburgh, PA 15220
Re: Shares of Common Stock, $.01 par value
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Ladies and Gentlemen:
We are acting as counsel to Cable Design Technologies Corporation, a
Delaware corporation (the "Registrant"), in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8
(the "Registration Statement") pertaining to the registration of a proposed
offering of up to 1,007,000 shares of the Registrant's Common Stock, $.01 par
value per share (the "Common Stock") pursuant to the Registrant's 1999 Long-Term
Performance Incentive Plan.
We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary for the purposes of this opinion,
including the following: (i) Restated Certificate of Incorporation and the
Bylaws of the Registrant, each as amended to the date hereof; and (ii) certain
resolutions adopted by the Board of Directors of the Registrant. In addition,
we have made such other and further investigations as we have deemed necessary
to enable us to express the opinions hereinafter set forth.
Based upon the foregoing and having regard to legal considerations
that we deem relevant, and subject to the comments and qualifications set forth
below, it is our opinion that the Common Stock has been duly authorized.
For purposes of this opinion, we have with your permission made the
following assumptions, in each case without independent verification: (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as
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copies, (iii) the authenticity of the originals of all documents submitted to us
as copies, (iv) the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, (v) the authority
of such persons signing all documents on behalf of the parties thereto and (vi)
the due authorization, execution and delivery of all documents by the parties
thereto.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations promulgated thereunder.
We do not find it necessary for purposes of this opinion to cover, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the offering and sale of the Common
Stock.
This opinion shall be limited to the laws of the State of Delaware.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
KIRKLAND & ELLIS
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EXHIBIT 15.1
June 8, 1999
To the Stockholders and Board of Directors of
Cable Design Technologies Corporation:
We are aware that Cable Design Technologies Corporation has incorporated by
reference in its Registration Statement on Form S-8 dated June 8, 1999, its Form
10-Q for the quarters ended January 31, 1999 and October 31, 1998, which include
our reports dated February 24, 1999 and November 25, 1998, respectively,
covering the unaudited interim financial statement information contained
therein. Pursuant to Regulation C of the Securities Act of 1933 (the Act),
those reports are not considered a part of the registration statement prepared
or certified by our firm or a report prepared or certified by our firm within
the meaning of Sections 7 and 11 of the Act.
Very truly yours,
ARTHUR ANDERSEN LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
September 11, 1998, included in Cable Design Technologies Corporation and
Subsidiaries' Form 10-K for the year ended July 31, 1998, and to all references
to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Pittsburgh, Pennsylvania,
June 8, 1999
