<PAGE> 1
As filed with the Securities and Exchange Commission on November 16, 1998.
Registration No. 333-
---------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
HELEN OF TROY LIMITED
(Exact name of registrant as specified in its charter)
BERMUDA 74-2692550
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization
6827 MARKET AVENUE
EL PASO, TEXAS 79915
(Address, including Zip Code,
of Principal Executive Offices)
HELEN OF TROY LIMITED
1998 STOCK OPTION AND RESTRICTED STOCK PLAN
(Full title of the plan)
SAM L. HENRY
HELEN OF TROY LIMITED
6827 MARKET AVENUE
EL PASO, TEXAS 79915
(915)779-6363
(Name, address, and telephone number,
including area code, of agent for service)
with a copy to:
Daniel W. Rabun
Baker & McKenzie
2001 Ross Avenue, Suite 4500
Dallas, Texas 75201
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED(1) REGISTERED SHARE(2) PRICE(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value 3,000,000 Shares $14.96875 $44,906,250 $12,483.94
=======================================================================================================
</TABLE>
(1) Shares of common stock of Helen of Troy Limited (the "Company"), $.10 par
value per share (the "Common Stock"), being registered hereby relate to
the Helen of Troy Limited 1998 Stock Option and Restricted Stock Plan (the
"Plan"). Pursuant to Rule 416 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), there are also being registered such
additional shares of Common Stock as may become issuable pursuant to the
anti-dilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) promulgated under the Securities Act on the
basis of the average of the high and low sale prices of the Common Stock on
November 13, 1988, as reported on the Nasdaq National Market System.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below are hereby incorporated
by reference into this Registration Statement. All documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
shares of Common Stock offered hereunder have been sold or which deregisters all
shares then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended May 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended August 31, 1998; and
(d) The Company's description of its Common Stock, which is contained
in its registration statement filed under the Exchange Act
(Registration No. 0-23312), including any amendments or reports
filed for the purpose of updating such descriptions.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 98 of the Companies Act of 1981 of Bermuda (as amended, the
"Act") provides generally that a Bermuda company may indemnify its directors,
officers and auditors against any liability which by virtue of Bermuda law
otherwise would be imposed on them, except in cases where such liability arises
from the fraud or dishonesty of which such officer, director or auditor may be
guilty in relation to the Company. Section 98 further provides that a Bermuda
company may indemnify its directors, officers, and auditors against any
liability incurred against them in defending any proceedings, whether civil or
criminal, in which judgment is awarded in their favor or they are acquitted or
granted relief by the Supreme Court of Bermuda in certain proceedings arising
under Section 281 of the Act.
The Company has adopted provisions in its Memorandum of Association and
Bye-Laws that provide that the Company shall indemnify its officers and
directors to the maximum extent permitted under the Act. The Company has also
entered into indemnity agreements with each of its directors and officers to
provide them with the maximum indemnification allowed under its Memorandum of
Association, Bye-Laws and the Act.
The Act also permits a company to purchase and maintain insurance for
the benefit of its officers and directors covering certain liabilities. The
Company intends to maintain a policy of officers' and directors' liability
insurance for the benefit of such persons.
The preceding discussion of the Company's Memorandum of Association,
Bye-Laws, the Act and the Indemnity Agreements is not intended to be exhaustive
and is qualified in its entirety by the Memorandum of Association, Bye-Laws, the
Act and the Indemnity Agreements.
2
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Memorandum of Association of the Company (incorporated herein by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-4 filed with
the Securities and Exchange Commission on December 30, 1993 (Registration
No. 33-73594)).
4.2 Bye-Laws of the Company (incorporated herein by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-4 filed with the Securities and
Exchange Commission on December 30, 1993 (Registration No. 33-73594)).
4.3 Helen of Troy Limited 1998 Stock Option and Restricted Stock Plan.*
5 Opinion of Conyers, Dill & Pearman.*
23.1 Consent of Conyers, Dill & Pearman (See Exhibit 5).*
23.2 Consent of KPMG Peat Marwick LLP.*
</TABLE>
Power of Attorney (included on the signature page of the Registration
Statement).*
- ------------------
* filed herewith
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the
Plan of Distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
3
<PAGE> 4
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or Form
F-3, and 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 Exchange Act that are incorporated
by reference in the 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 undertakes that, for
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 an 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
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 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 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 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.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 El Paso, State of Texas, on November 13, 1998.
HELEN OF TROY LIMITED
By: /s/ Gerald J. Rubin
-----------------------------------------------
Gerald J. Rubin
Chairman and Chief Executive Officer (Principal
Executive Officer)
5
<PAGE> 6
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Gerald J.
Rubin to file one or more amendments (including post-effective amendments) to
this Registration Statement, which amendments may make such changes in this
Registration Statement as each of them deems appropriate, and each such person
hereby appoints Gerald J. Rubin as attorney-in-fact to execute in the name and
on behalf of the Company and any such person, individually and in each capacity
stated below, any such amendments to this Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gerald J. Rubin Chairman, Chief Executive Officer November 13, 1998
- ------------------------------ and Director (Principal Executive
GERALD J. RUBIN Officer)
/s/ H. McIntyre Gardner President and Chief Operating November 13, 1998
- ------------------------------ Officer
H. MCINTYRE GARDNER
/s/ Sam L. Henry Senior Vice-President, Finance, November 13, 1998
- ------------------------------ Secretary, and Chief Financial
SAM L. HENRY Officer (Principal Financial and
Accounting Officer)
/s/ Stanlee N. Rubin Director November 13, 1998
- ------------------------------
STANLEE N. RUBIN
/s/ Gary B. Abromovitz Director November 13, 1998
- ------------------------------
GARY B. ABROMOVITZ
/s/ Christopher L. Carameros Director November 13, 1998
- ------------------------------
CHRISTOPHER L. CARAMEROS
/s/ Byron H. Rubin Director November 13, 1998
- ------------------------------
BYRON H. RUBIN
</TABLE>
6
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4.3 Helen of Troy Limited 1998 Stock Option and Restricted Stock Plan.
5 Opinion of Conyers, Dill & Pearman.
23.1 Consent of Conyers, Dill & Pearman (See Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on the signature page of the Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
HELEN OF TROY LIMITED
1998 STOCK OPTION AND RESTRICTED STOCK PLAN
SECTION 1
ESTABLISHMENT AND PURPOSE
This Plan is established (i) to offer selected Employees of the Company
or its Subsidiaries an equity ownership interest in the financial success of the
Company, (ii) to provide the Company an opportunity to attract and retain the
best available personnel for positions of substantial responsibility, and (iii)
to encourage equity participation in the Company by eligible Participants. This
Plan provides for the grant by the Company of (i) Options to purchase Shares,
and (ii) shares of Restricted Stock. Options granted under this Plan may include
nonstatutory options as well as ISOs intended to qualify under section 422 of
the Code.
SECTION 2
DEFINITIONS
"BOARD OF DIRECTORS" shall mean the board of directors of the Company,
as duly elected from time to time.
"CHANGE IN CONTROL" shall mean to have occurred at such time as either
(i) any "person", as such term is used in section 14(d) of the Exchange Act,
other than the Company, a wholly-owned subsidiary of the Company or any employee
benefit plan of the Company, or its Subsidiaries, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act (or any successor
rule)), directly or indirectly, of fifty percent (50%) or more of the combined
voting power of the Company's common stock, or (ii) individuals who constitute
the Board of the Directors on the effective date of this Plan (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof whose election
or nomination for election by the Company's shareholders was approved by a vote
of at least three quarters of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the Company
in which such person is named as a nominee for the director without objection to
such nomination) shall be, for purposes of this clause (ii) considered as though
such person was a member of the Incumbent Board.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and as
interpreted by the regulations thereunder.
"COMMITTEE" shall mean the Stock Option and Compensation Committee of
the Company, or such other Committee as may be appointed by the Board of
Directors from time to time.
"COMPANY" shall mean Helen of Troy Limited, a Bermuda company.
"CONFIDENTIAL INFORMATION" shall mean all knowledge and information
pertaining to the business of the Company and its Subsidiaries obtained by a
Participant from any source whatever as a result of his or her Services to the
Company and/or its Subsidiaries and which is not a matter of public knowledge,
including, without limitation, any confidential records, documents, contracts,
customer lists, writings, data or other information, whether or not the same is
in written or other recorded form. Without limiting the generality of the
foregoing, Confidential Information shall be deemed to include any information
or knowledge which may now or hereafter be deemed a trade secret of the Company
and/or its Subsidiaries or information which relates to the Company's and/or its
Subsidiaries' personnel; present operations or future planning with respect to
suppliers or customers, the contents of any Company or Subsidiary manual,
practice or procedure, operating, revenue, expense or other statistics; private
or public debt or equity financing or concerning any banking, accounting or
financial matters; current or future advertising or promotion plans or programs;
applications to or matters pending or under the jurisdiction of any regulatory
agency or court, including those that are only threatened; any system, program,
procedure or administrative operations, including those pertaining to any matter
relative to computer operations of any type; information of the type mentioned
above or of any other type regarding
<PAGE> 2
affiliates of the Company; present or future plans for the extension of the
present business or the commencement of new business by the Company and/or its
Subsidiaries.
"DATE OF GRANT" shall mean the date on which the Committee resolves to
grant an Option to an Optionee or grant Restricted Stock to a Participant, as
the case may be.
"DISINTERESTED DIRECTOR" shall mean a member of the Board of Directors
who is both (a) a Non-Employee Director, within the meaning of Rule 16b-3
promulgated under the Exchange Act and (b) an Outside Director, within the
meaning of Section 162(m) of the Code.
"EMPLOYEE" shall include every individual performing Services to the
Company or its Subsidiaries if the relationship between such individual and the
Company or its Subsidiaries is the legal relationship of employer and employee.
This definition of "Employee" is qualified in its entirety and is subject to the
definition set forth in section 3401(c) of the Code and the regulations
thereunder.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and as interpreted by the rules and regulations promulgated thereunder.
"EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement, but in no event less than 100% of the Fair
Market Value of the Shares subject to such Option on the Date of Grant.
"FAIR MARKET VALUE" shall mean such amount as the Board of Directors,
in its sole discretion, shall determine; provided, however, that if there is a
public market for the securities, the Fair Market Value shall be the mean of the
highest and lowest sale prices of the securities per share or unit, as the case
may be, as reported in the Wall Street Journal (or, if not so reported, as
otherwise reported by the National Association of Securities Dealers Automated
Quotation System) as of the date in question or, in the event the securities are
listed on a stock exchange, the Fair Market Value shall be the mean of the
highest and lowest sale prices of the securities per share or unit, as the case
may be, on such exchange, as reported in the Wall Street Journal, as of the date
in question.
"ISO" shall mean a stock option which is granted to an individual and
which meets the requirements of section 422(b) of the Code, pursuant to which
the Optionee has no tax consequences resulting from the grant or, subject to
certain holding period requirements, exercise of the option and the employer is
not entitled to a business expense deduction with respect thereto.
"NONSTATUTORY OPTION" shall mean any Option granted by the Committee
that does not meet the requirements of sections 421 through 424 of the Code, as
amended.
"OPTION" shall mean either an ISO or Nonstatutory Option, as the
context requires.
"OPTIONEE" shall mean a Participant who holds an Option.
"PARTICIPANTS" shall mean those individuals described in Section 1 of
this Plan selected by the Committee who are eligible under Section 4 of this
Plan for grants of either Options or Restricted Stock under this Plan.
"PERFORMANCE GOALS" shall have that meaning set forth in Section
3(c)(xii) of this Plan.
"PERMANENT AND TOTAL DISABILITY" shall mean that an individual is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. An individual shall not be considered to
suffer from Permanent and Total Disability unless such individual furnishes
proof of the existence thereof in such form and manner, and at such times, as
the Committee may reasonably require. The scope of this definition shall
automatically be reduced or expanded to the extent that section 22(e)(3) of the
Code is amended to reduce or expand the scope of the definition of Permanent and
Total Disability thereunder.
2
<PAGE> 3
"PLAN" shall mean this Helen of Troy Limited 1998 Stock Option and
Restricted Stock Plan, as amended from time to time.
"PLAN AWARD" shall mean the grant of either an Option or Restricted
Stock, as the context requires.
"RESTRICTED STOCK" shall have that meaning set forth in Section 7(a) of
this Plan.
"RESTRICTED STOCK ACCOUNT" shall have that meaning set forth in Section
7(a)(ii) of this Plan.
"RESTRICTED STOCK CRITERIA" shall have that meaning in Section 7(a)(iv)
of this Plan.
"RESTRICTION PERIOD" shall have that meaning in Section 7(a)(iii) of
this Plan.
"SERVICES" shall mean services rendered to the Company or any of its
Subsidiaries as an Employee.
"SHARE" shall mean one share of Stock, as adjusted in accordance with
Section 9 of this Plan (if applicable).
"STOCK" shall mean the common stock of the Company, par value $.10 per
share.
"STOCK OPTION AGREEMENT" shall mean the agreement executed between the
Company and an Optionee that contains the terms, conditions and restrictions
pertaining to the granting of an Option.
"SUBSIDIARY" shall mean any corporation, partnership, limited liability
company or other entity as to which more than fifty (50%) percent of the
outstanding voting stock, shares or equity interests shall now or hereafter be
owned or controlled, directly by a person, any Subsidiary of such person, or any
Subsidiary of such Subsidiary.
"TEN-PERCENT SHAREHOLDER" shall mean a person that owns more than ten
percent (10%) of the total combined voting power of all classes of outstanding
stock of the Company or any Subsidiary, taking into account the attribution
rules set forth in section 424 of the Code, as amended. For purposes of this
definition of "Ten Percent Shareholder" the term "outstanding stock" shall
include all stock actually issued and outstanding immediately after the grant of
an Option to an Optionee. "Outstanding stock" shall not include reacquired
shares or shares authorized for issuance under outstanding Options held by the
Optionee or by any other person.
"VEST DATE" shall have that meaning in Section 7(a)(v) of this Plan.
SECTION 3
ADMINISTRATION
(a) GENERAL ADMINISTRATION. This Plan shall be administered by the
Committee, which shall consist of at least two persons, each of whom shall be
Disinterested Directors. The members of the Committee shall be appointed by the
Board of Directors for such terms as the Board of Directors may determine. The
Board of Directors may from time to time remove members from, or add members to,
the Committee. Vacancies on the Committee, however caused, may be filled by the
Board of Directors.
(b) COMMITTEE PROCEDURES. The Board of Directors shall designate one of
the members of the Committee as chairman. The Committee may hold meetings at
such times and places as it shall determine. The acts of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by a majority of all Committee members, shall be valid
acts of the Committee. A majority of the Committee shall constitute a quorum.
(c) AUTHORITY OF COMMITTEE. This Plan shall be administered by, or
under the direction of, the Committee constituted in such a manner as to comply
at all times with Rule 16b-3 (or any successor rule) under the Exchange Act. The
Committee shall administer this Plan so as to comply at all times with the
Exchange Act and, subject to the Code, shall otherwise have absolute and final
authority to interpret this Plan and to make all determinations specified in or
permitted by this Plan or deemed necessary or desirable for its administration
or for the conduct of the Committee's business including without limitation the
authority to take the following actions:
3
<PAGE> 4
(i) To interpret this Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to this Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of this Plan;
(iv) To determine when Plan Awards are to be granted under
this Plan;
(v) To select the Optionees and Participants;
(vi) To determine the number of Shares to be made subject to
each Plan Award;
(vii) To prescribe the terms, conditions and restrictions of
each Plan Award, including without limitation the Exercise Price and the
determination whether an Option is to be classified as an ISO or a Nonstatutory
Option;
(viii) To amend any outstanding Stock Option Agreement (other
than the Exercise Price) or the terms, conditions and restrictions of a grant of
Restricted Stock, subject to Section 6(f) and applicable legal restrictions and
the consent of the Optionee or Participant, as the case may be, who entered into
such agreement;
(ix) To establish procedures so that an Optionee may obtain a
loan through a registered broker-dealer under the rules and regulations of the
Federal Reserve Board, for the purpose of exercising an Option;
(x) To establish procedures for an Optionee (1) to have
withheld from the total number of Shares to be acquired upon the exercise of an
Option that number of Shares having a Fair Market Value, which, together with
such cash as shall be paid in respect of fractional shares, shall equal the
Exercise Price, and (2) to exercise a portion of an Option by delivering that
number of Shares already owned by an Optionee having a Fair Market Value which
shall equal the partial Exercise Price and to deliver the Shares thus acquired
by such Optionee in payment of Shares to be received pursuant to the exercise of
additional portions of the Option, the effect of which shall be that an Optionee
can in sequence utilize such newly acquired shares in payment of the Exercise
Price of the entire Option, together with such cash as shall be paid in respect
of fractional shares;
(xi) To establish procedures whereby a number of Shares may be
withheld from the total number of Shares to be issued upon exercise of an
Option, to meet the obligation of withholding for federal and state income and
other taxes, if any, incurred by the Optionee upon such exercise;
(xii) To establish performance goals ("Performance Goals") in
connection with any grant of Restricted Stock, which Performance Goals may be
based on earnings, cash flow, stock price, return on capital, operating margins,
general and administrative expenses, safety or refinements of these measures;
provided that in any case, the Performance Goals may be based on either a single
period or cumulative results, aggregate or per share data or results computed
independently or with respect to a peer group; and
(xiii) To take any other actions deemed necessary or advisable
for the administration of this Plan.
All interpretations and determinations of the Committee made with
respect to the granting of Plan Awards shall be final, conclusive, and binding
on all interested parties. The Committee may make grants of Plan Awards on an
individual or group basis. No member of the Committee shall be liable for any
action that is taken or is omitted to be taken if such action or omission is
taken in good faith with respect to this Plan or grant of any Plan Award.
(d) HOLDING PERIOD. The Committee may in its sole discretion require as
a condition to the granting of any Option, that a Participant hold the Option
for a period of six months following the date of such acquisition; provided that
this condition shall be satisfied if at least six months elapse from the date of
acquisition of the Option to the date of disposition of the Option (other than
upon exercise or conversion) or its underlying equity security. The Committee
shall require as a condition to the awarding of any Restricted Stock, that a
Participant hold the Restricted Stock for a period of
4
<PAGE> 5
(i) one year following the date of such acquisition in the event such Restricted
Stock award vests upon the achievement of Performance Goals or (ii) three years
following the date of such acquisition in the event such Restricted Stock award
does not vest upon the achievement of Performance Goals.
SECTION 4
ELIGIBILITY
(a) GENERAL RULE. Subject to the limitations set forth in subsection b
below or elsewhere in this Plan, Participants shall be eligible to participate
in this Plan.
(b) NON-EMPLOYEE INELIGIBLE FOR ISOS. In no event shall an ISO be
granted to any individual who is not an Employee on the Date of Grant.
SECTION 5
SHARES SUBJECT TO PLAN
(a) BASIC LIMITATION. Shares offered under this Plan may be authorized
but unissued Shares or Shares that have been reacquired by the Company. The
aggregate number of Shares that are available for issuance under this Plan shall
not exceed three million (3,000,000) Shares, subject to adjustment pursuant to
Section 9 of this Plan; provided that no more than six hundred thousand
(600,000) Shares, subject to adjustment pursuant to Section 9 of this Plan, may
be issued under this Plan in connection with grants of Restricted Stock. The
Committee shall not issue more Shares than are available for issuance under this
Plan. The number of Shares that are subject to unexercised Options at any time
under this Plan shall not exceed the number of Shares that remain available for
issuance under this Plan. The Company, during the term of this Plan, shall at
all times reserve and keep available sufficient Shares to satisfy the
requirements of this Plan.
(b) ADDITIONAL SHARES. In the event any outstanding Option for any
reason expires, is canceled or otherwise terminates, the Shares allocable to the
unexercised portion of such Option shall again be available for issuance under
this Plan. In the event that Shares issued under this Plan revert to the Company
prior to the Vest Date under a grant of Restricted Stock, such Shares shall
again be available for issuance under this Plan.
SECTION 6
TERMS AND CONDITIONS OF OPTIONS
(a) TERM OF OPTION. The term of each Option shall be ten (10) years
from the Date of Grant or such shorter term as may be determined by the
Committee; provided, however, in the case of an ISO granted to a Ten-Percent
Shareholder, the term of such ISO shall be five (5) years from the Date of Grant
or such shorter time as may be determined by the Committee.
(b) EXERCISE PRICE AND METHOD OF PAYMENT.
(i) EXERCISE PRICE. The Exercise Price shall be such price as
is determined by the Committee in its sole discretion and set forth in the Stock
Option Agreement; provided, however, the Exercise Price shall not be less than
100% of the Fair Market Value of the Shares subject to such option on the Date
of Grant (or 110% in the case of an ISO granted to a Participant who is a
Ten-Percent Shareholder on the Date of Grant).
(ii) PAYMENT OF SHARES. Payment for the Shares upon exercise
of an Option shall be made in cash, by certified check, or if authorized by the
Committee, by delivery of other Shares having a Fair Market Value on the date of
delivery equal to the aggregate exercise price of the Shares as to which said
Option is being exercised, or by any combination of such methods of payment or
by any other method of payment as may be permitted under applicable law and this
Plan and authorized by the Committee under Section 3(c) of this Plan.
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(c) EXERCISE OF OPTION.
(i) PROCEDURE FOR EXERCISE; RIGHTS OF SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times under such conditions as
shall be determined by the Committee, including without limitation performance
criteria with respect to the Company and/or the Optionee, and in accordance with
the terms of this Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the Stock
Option Agreement by the Optionee entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the Committee,
consist of any form of consideration and method of payment allowable under
Section 6(b)(ii) of this Plan. Upon the receipt of notice of exercise and full
payment for the Shares, the Shares shall be deemed to have been issued and the
Optionee shall be entitled to receive such Shares and shall be a shareholder
with respect to such Shares, and the Shares shall be considered fully paid and
nonassessable. No adjustment will be made for a dividend or other right for
which the record date is prior to the date on which the stock certificate is
issued, except as provided in Section 9 of this Plan.
Each exercise of an Option shall reduce, by an equal number, the total
number of Shares that may thereafter be purchased under such Option.
(ii) TERMINATION OF STATUS AS AN EMPLOYEE. Except as provided
in Subsections 6(c)(iii) and 6(c)(iv) below, an Optionee holding an Option who
ceases to be an Employee of the Company may, but only until the earlier of the
date (x) the Option held by the Optionee expires, or (y) thirty (30) days after
the date such Optionee ceases to be an Employee, exercise the Option to the
extent that the Optionee was entitled to exercise it on such date; provided,
however, that in the event the Optionee is an Employee and is terminated without
cause (as determined in the sole discretion of the Committee) then the thirty
(30) day period described in this sentence shall be automatically extended to
ninety (90) days (and in the case of a Nonstatutory Option, such period shall be
automatically extended to six (6) months), unless the Committee further extends
such period in its sole discretion. To the extent that the Optionee was not
entitled to exercise an Option on such date, or if the Optionee does not
exercise it within the time specified herein, such Option shall terminate. The
Committee shall have the authority to determine the date an Optionee ceases to
be an Employee.
(iii) PERMANENT AND TOTAL DISABILITY. Notwithstanding the
provisions of Section 6(c)(ii) above, in the event an Optionee is unable to
continue to perform Services for the Company or any of its Subsidiaries as a
result of such Optionee's Permanent and Total Disability (and, for ISOs, at the
time such Permanent and Total Disability begins, the Optionee was an Employee
and had been an Employee since the Date of Grant), such Optionee may exercise an
Option in whole or in part notwithstanding that such Option may not be fully
exercisable, but only until the earlier of the date (x) the Option held by the
Optionee expires, or (y) twelve (12) months from the date of termination of
Services due to such Permanent and Total Disability. To the extent the Optionee
is not entitled to exercise an Option on such date or if the Optionee does not
exercise it within the time specified herein, such Option shall terminate.
(iv) DEATH OF AN OPTIONEE. Upon the death of an Optionee, any
Option held by an Optionee shall terminate and be of no further effect;
provided, however, notwithstanding the provisions of Section 6(c)(ii) above, in
the event an Optionee's death occurs during the term of an Option held by such
Optionee and, at the time of death, the Optionee was an Employee (and, for ISOs,
at the time of death, the Optionee was an Employee and had been an Employee
since the Date of Grant), the Option may be exercised in whole or in part
notwithstanding that such Option may not have been fully exercisable on the date
of the Optionee's death, but only until the earlier of the date (x) the Option
held by the Optionee expires, or (y) twelve (12) months from the date of the
Optionee's death, by the Optionee's estate or by a person who acquired the right
to exercise the Option by bequest or inheritance. To the extent the Option is
not entitled to be exercised on such date or if the Option is not exercised
within the time specified herein, such Option shall terminate.
(d) NON-TRANSFERABILITY OF OPTIONS. Except as may be permitted by the
Committee in its sole discretion, any Option granted under this Plan may not be
sold, pledged, assigned, hypothecated, transferred or disposed of in any
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manner other than by will or by the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder, and is not
assignable by operation of law or subject to execution, attachment or similar
process. Any Option granted under this Plan can only be exercised during the
Optionee's lifetime by such Optionee. Any attempted sale, pledge, assignment,
hypothecation or other transfer of the Option contrary to the provisions hereof
and the levy of any execution, attachment or similar process upon the Option
shall be null and void and without force or effect. No transfer of the Option by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished written notice thereof and
an authenticated copy of the will and/or such other evidence as the Committee
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option. The
terms of any Option transferred by will or by the laws of descent and
distribution shall be binding upon the executors, administrators, heirs and
successors of Optionee.
(e) TIME OF GRANTING OPTIONS. Any Option granted hereunder shall be
deemed to be granted on the Date of Grant. Written notice of the Committee's
determination to grant an Option to an Employee, evidenced by a Stock Option
Agreement, dated as of the Date of Grant, shall be given to such Employee within
a reasonable time after the Date of Grant.
(f) RESTRICTION ON REPRICING. The Exercise Price of outstanding Options
may not be altered or amended, except with respect to adjustments for changes in
capitalization as provided in Section 9(a). Within the limitations of this Plan,
the Committee may otherwise modify outstanding Options, provided that no
modification of an Option shall, without the consent of the Optionee, alter or
impair the Optionee's rights or obligations under such Option. The foregoing
notwithstanding, the Committee may, in its sole discretion, and without the
consent of the Optionee or any other person, accelerate the vesting of all or
part of any Option.
(g) RESTRICTIONS ON TRANSFER OF SHARES. Any Shares issued upon exercise
of an Option shall be subject to such rights of repurchase and other transfer
restrictions as the Committee may determine in its sole discretion. Such
restrictions shall be set forth in the applicable Stock Option Agreement.
(h) SPECIAL LIMITATION ON ISOS. To the extent that the aggregate Fair
Market Value (determined on the Date of Grant) of the Shares with respect to
which ISOs are exercisable for the first time by an individual during any
calendar year under this Plan, and under all other plans maintained by the
Company, exceeds $100,000, such Options shall be treated as Options that are not
ISOs.
(i) LEAVES OF ABSENCE. Leaves of absence approved by the Committee
which conform to the policies of the Company shall not be considered termination
of employment if the employer-employee relationship as defined under the Code or
the regulations promulgated thereunder otherwise exists.
(j) LIMITATION ON GRANTS OF OPTIONS TO COVERED EMPLOYEES. Subject to
potential changes specified in Section 9(a) the total number of Shares for which
Options may be granted and which may be awarded as Restricted Stock to any
"covered employee" within the meaning of Section 162(m) of the Code during any
one (1) year period shall not exceed 1,000,000 in the aggregate.
(k) DISQUALIFYING DISPOSITIONS. The Stock Option Agreement evidencing
any ISO granted under this Plan shall provide that if the Optionee makes a
disposition, within the meaning of Section 424(c) of the Code, of any share or
shares issued to him pursuant to the exercise of the ISO within the two (2) year
period commencing on the day after the Date of Grant of such Option or within
the one (1) year period commencing on the day after the date of transfer of the
share or shares to him pursuant to the exercise of such Option, he shall, within
ten (10) days of such disposition, notify the Company thereof and immediately
deliver to the Company any amount of federal income tax withholding required by
law.
SECTION 7
RESTRICTED STOCK
(a) AUTHORITY TO GRANT RESTRICTED STOCK. The Committee shall have the
authority to grant to Participants Shares that are subject to certain terms,
conditions and restrictions (the "Restricted Stock"). The Restricted Stock may
be granted by the Committee either separately or in combination with Options.
The terms, conditions and restrictions of the Restricted Stock shall be
determined from time to time by the Committee without limitation, except as
otherwise
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<PAGE> 8
provided in this Plan; provided, however, that each grant of Restricted Stock
shall require the Participant to remain an Employee of (or otherwise provide
Services to) the Company or any of its Subsidiaries for at least six (6) months
from the Date of Grant. The granting, vesting and issuing of the Restricted
Stock shall also be subject to the following provisions:
(i) NATURE OF GRANT. Restricted Stock shall be granted to
Participants for Services rendered and at no additional cost to Participant;
provided, however, that the value of the Services performed must, in the opinion
of the Committee, equal or exceed the par value of the Restricted Stock to be
granted to the Participant.
(ii) RESTRICTED STOCK ACCOUNT. The Company shall establish a
restricted stock account (the "Restricted Stock Account") for each Participant
to which Restricted Stock is granted, and such Restricted Stock shall be
credited to such account. No certificates will be issued to the Participant with
respect to the Restricted Stock until the Vest Date as provided herein. Every
credit of Restricted Stock under this Plan to a Restricted Stock Account shall
be considered "contingent" and unfunded until the Vest Date. Such contingent
credits shall be considered bookkeeping entries only, notwithstanding the
"crediting" of "dividends" as provided herein. Such accounts shall be subject to
the general claims of the Company's creditors. The Participant's rights to the
Restricted Stock Account shall be no greater than that of a general creditor of
the Company. Nothing contained herein shall be construed as creating a trust or
fiduciary relationship between the Participants and the Company, the Board of
Directors or the Committee.
(iii) RESTRICTIONS. The terms, conditions and restrictions of
the Restricted Stock shall be determined by the Committee on the Date of Grant.
The Restricted Stock may not be sold, assigned, transferred, redeemed, pledged
or otherwise encumbered during the period in which the terms, conditions and
restrictions apply (the "Restriction Period"). More than one grant of Restricted
Stock may be outstanding at any one time, and the Restriction Periods may be of
different lengths. Receipt of the Restricted Stock is conditioned upon
satisfactory compliance with the terms, conditions and restrictions of this Plan
and those imposed by the Committee.
(iv) RESTRICTED STOCK CRITERIA. At the time of each grant of
Restricted Stock, the Committee in its sole discretion may establish certain
criteria to determine the times at which restrictions placed on Restricted Stock
shall lapse (i.e., the termination of the Restriction Period), which criteria
may include without limitation performance measures and targets (which may
include any Performance Goals established by the Committee) and/or holding
period requirements (the "Restricted Stock Criteria"). The Committee may
establish a corresponding relationship between the Restricted Stock Criteria and
(x) the number of Shares of Restricted Stock that may be earned, and (y) the
extent to which the terms, conditions and restrictions on the Restricted Stock
shall lapse. Restricted Stock Criteria may vary among grants of Restricted
Stock; provided, however, that once the Restricted Stock Criteria are
established for a grant of Restricted Stock, the Restricted Stock Criteria shall
not be modified with respect to such grant.
(v) VESTING. On the date the Restriction Period terminates,
the Restricted Stock shall vest in the Participant (the "Vest Date"), who may
then require the Company to issue certificates evidencing the Restricted Stock
credited to the Restricted Stock Account of such Participant.
(vi) DIVIDENDS. The Committee may provide from time to time
that amounts equivalent to dividends shall be payable with respect to the
Restricted Stock held in the Restricted Stock Account of a Participant. Such
amounts shall be credited to the Restricted Stock Account and shall be payable
to the Participant on the Vest Date.
(vii) TERMINATION OF SERVICES. If a Participant (x) with the
consent of the Committee, ceases to be an Employee of, or otherwise ceases to
provide Services to, the Company or any of its Subsidiaries, or (y) dies or
suffers from Permanent and Total Disability, the vesting or forfeiture
(including without limitation the terms, conditions and restrictions) of any
grant under this Section 7 shall be determined by the Committee in its sole
discretion, subject to any limitations or terms of this Plan. If the Participant
ceases to be an Employee of, or otherwise ceases to provide Services to, the
Company or any of its Subsidiaries for any other reason, all grants of
Restricted Stock under this Plan shall be forfeited (subject to the terms of
this Plan).
(b) DEFERRAL OF PAYMENTS. The Committee may establish procedures by
which a Participant may elect to defer the transfer of Restricted Stock to the
Participant. The Committee shall determine the terms and conditions of such
deferral in its sole discretion.
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SECTION 8
ISSUANCE OF SHARES; TAX WITHHOLDING
(a) ISSUANCE OF SHARES. As a condition to the transfer of any Shares
issued under this Plan, the Company may require an opinion of counsel,
satisfactory to the Company, to the effect that such transfer will not be in
violation of the Securities Act of 1933, as amended, or any other applicable
securities laws, rules or regulations, or that such transfer has been registered
under federal and all applicable state securities laws. The Company may refrain
from delivering or transferring Shares issued under this Plan until the
Committee has determined that the Participant has tendered to the Company any
and all applicable federal, state or local tax owed by the Participant as the
result of the receipt of a Plan Award, the vesting of a Plan Award, the exercise
of an Option or the disposition of any Shares issued under this Plan, in the
event that the Company reasonably determines that it might have a legal
liability to satisfy such tax. The Company shall not be liable to any person or
entity for damages due to any delay in the delivery or issuance of any stock
certificate evidencing any Shares for any reason whatsoever.
(b) TAX WITHHOLDING. Each Participant shall, no later than the date as
of which the value of any Plan Award or of any Shares or other amounts received
thereunder first becomes includable in the gross income of such Participant for
federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any federal, state, or local
taxes of any kind required to be withheld with respect to such income. The
Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Participant. Subject to approval by the Committee, a Participant may elect to
have such tax withholding obligation satisfied, in whole or in part, by (i)
authorizing the Company to withhold from Shares to be issued pursuant to any
award, a number of Shares with an aggregate Fair Market Value (as of the date
the withholding is effected) that would satisfy the withholding amount due, or
(ii) transferring to the Company Shares owned by the Participant with an
aggregate Fair Market Value (as of the date the withholding is effected) that
would satisfy the withholding amount due.
SECTION 9
CAPITALIZATION ADJUSTMENTS; MERGER; CHANGE IN CONTROL
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the number of Shares covered by each
outstanding Option (as well as the Exercise Price covered by any outstanding
Option), the aggregate number of Shares that have been authorized for issuance
under this Plan and the number of Shares of Restricted Stock credited to any
Restricted Stock Account of a Participant, shall be proportionately adjusted for
any increase or decrease in the number of issued Shares resulting from a stock
split, payment of a stock dividend with respect to the Stock or any other
increase or decrease in the number of issued Shares effected without receipt of
consideration by the Company. Such adjustment shall be made by the Committee in
its sole discretion, which adjustment shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of Shares subject to an Option.
(b) DISSOLUTION, LIQUIDATION, SALE OF ASSETS OR MERGER. In the event of
the dissolution or liquidation of the Company, other than pursuant to a
Reorganization (hereinafter defined), any Option granted under the Plan shall
terminate as of a date to be fixed by the Committee, provided that not less than
30 days written notice of the date so fixed shall be given to each Optionee and
each such Optionee shall have the right during such period to exercise his
Options as to all or any part of the Shares covered thereby including Shares as
to which such Options would not otherwise be exercisable by reason of an
insufficient lapse of time.
In the event of a Reorganization in which the Company is not the
surviving or acquiring company, or in which the Company is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization, then
(i) if there is no plan or agreement respecting the
Reorganization ("Reorganization Agreement") or if the
Reorganization Agreement does not specifically provide for
the change, conversion or exchange of the Shares under
outstanding unexercised Options for securities of another
corporation, then the Committee shall take such action,
and the Options shall terminate, as provided above; or
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(ii) if there is a Reorganization Agreement and if the
Reorganization Agreement specifically provides for the
change, conversion or exchange of the shares under
outstanding or unexercised options for securities of
another corporation, then the Committee shall adjust the
Shares under such outstanding unexercised Options (and
shall adjust the Shares which are then available to be
optioned, if the Reorganization Agreement makes specific
provisions therefor) in a manner not inconsistent with the
provisions of the Reorganization Agreement for the
adjustment, change, conversion or exchange of such stock
and such options.
The term "Reorganization" as used in this Subsection 9(b) shall mean
any statutory merger, statutory consolidation, sale of all or substantially all
of the assets of the Company, or sale, pursuant to an agreement with the
Company, of securities of the Company pursuant to which the Company is or
becomes a wholly-owned subsidiary of another company after the effective date of
the Reorganization.
Except as provided above in this Section 9(b) and except as otherwise
provided by the Committee in its sole discretion, any Options shall terminate
immediately prior to the consummation of such proposed action.
(c) CHANGE IN CONTROL. Subject to Section 9(b), in the event there
occurs a Change of Control, (i) the Optionees shall have the right to exercise
from and after the date of the Change in Control the Option held by such
Optionee in whole or in part notwithstanding that such Option may not be fully
exercisable, and (ii) any and all restrictions on any Restricted Stock credited
to a Restricted Stock Account shall lapse and such stock shall immediately vest
in the Participants notwithstanding that the Restricted Stock held in such
account was unvested.
SECTION 10
NO EMPLOYMENT RIGHTS
No provision of this Plan, under any Stock Option Agreement or under
any grant of Restricted Stock shall be construed to give any Participant any
right to remain an Employee of, or provide Services to, the Company or any of
its Subsidiaries or to affect the right of the Company to terminate any
Participant's service at any time, with or without cause.
SECTION 11
CONFIDENTIALITY AND NON-COMPETITION
By accepting Options or Restricted Stock under this Plan and as a
condition to the exercise of Options and the enjoyment of any of the benefits of
this Plan, each Participant agrees as follows:
(a) CONFIDENTIALITY. During the period that each Participant provides
Services (or the Participant's engaging in any other activity with or for the
Company) and for a two year period thereafter, such Participant shall treat and
safeguard as confidential and secret all Confidential Information received by
such Participant at any time. Without the prior written consent of the Company,
except as required by law, such Participant will not disclose or reveal any
Confidential Information to any third party whatsoever or use the same in any
manner except in connection with the businesses of the Company and its
Subsidiaries. In the event that a Participant is requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or other process) to disclose (i) any Confidential
Information or (ii) any information relating to his opinion, judgment or
recommendations concerning the Company or its Subsidiaries as developed from the
Confidential Information, each Participant will provide the Company with prompt
written notice of any such request or requirement so that the Company may seek
an appropriate protective order or waive compliance with the provisions
contained herein. If, failing the entry of a protective order or the receipt of
a waiver hereunder, such Participant is, in the reasonable opinion of his
counsel, compelled to disclose Confidential Information, such Participant shall
disclose only that portion and will exercise best efforts to obtain assurances
that confidential treatment will be accorded such Confidential Information.
(b) NON-COMPETITION. During the period that each Participant provides
Services to the Company or its Subsidiaries, and for a two-year period
thereafter, such Participant shall not, without prior written consent of the
Committee, do, directly or indirectly, any of the following:
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<PAGE> 11
(i) own, manage, control or participate in the ownership,
management, or control of, or be employed or engaged by or otherwise affiliated
or associated with, any other corporation, partnership, proprietorship, firm,
association or other business entity, or otherwise engage in any business which
competes with the business of the Company or any of its Subsidiaries (as such
business is conducted during the term such Participant provides Services to the
Company or its Subsidiaries) in the geographical regions in which such business
is conducted; provided, however, that the ownership of a maximum of one percent
of the outstanding stock of any publicly traded corporation shall not violate
this covenant; or
(ii) employ, solicit for employment or assist in employing or
soliciting for employment any present, former or future employee, officer or
agent of the Company or any of its Subsidiaries.
In the event any court of competent jurisdictions should determine that the
foregoing covenant of non-competition is not enforceable because of the extent
of the geographical area or the duration thereof, then the Company and the
affected Participant hereby petition such court to modify the foregoing covenant
to the extent, but only to the extent, necessary to create a covenant which is
enforceable in the opinion of such court, with the intention of the parties that
the Company shall be afforded the maximum enforceable covenant of
non-competition which may be available under the circumstances and applicable
law.
(c) FAILURE TO COMPLY. Each Participant acknowledges that remedies at
law for any breach by him of this Section 11 may be inadequate and that the
damages resulting from any such breach are not readily susceptible to being
measured in monetary terms. Accordingly, each Participant acknowledges that upon
his or her violation of any provision of this Section 11, the Company will be
entitled to immediate injunctive relief and may obtain an order restraining any
threatened or future breach. Each Participant further agrees, subject to the
proviso at the end of this sentence, that if he or she violates any provisions
of this Section 11, such Participant shall immediately forfeit any rights and
benefits under this Plan and shall return to the Company any unexercised Options
and forfeit the rights under any awards of Restricted Stock and shall return any
Shares held by such Participant received upon exercise of any Option or the
termination of the Restriction Period relating to Restricted Stock granted
hereunder, together with any proceeds from sales of any Shares received upon
exercise of such Options or the termination of the Restriction Period of such
Restricted Stock; provided, however, that upon violation of subsection (b) of
this Section 11, the forfeiture and return provisions contained in this sentence
shall apply only to Options which have become exercisable, and Restricted Stock,
the Restriction Period with respect to which has terminated, and in any such
case the proceeds of sales therefrom, during the two year period immediately
prior to termination of the Participant's Services. Nothing in this Section 11
will be deemed to limit, in any way, the remedies at law or in equity of the
Company, for a breach by a Participant of any of the provisions of this Section
11.
(d) NOTICE. Each Participant agrees to provide written notice of the
provisions of this Section 11 to any future employer of such Participant, and
the Company expressly reserves the right to provide such notice to such
Participant's future employer(s).
(e) SEVERABILITY. If any provisions or part of any provision of this
Section 11 is held for any reason to be unenforceable, (i) the remainder of this
Section 11 shall nevertheless remain in full force and effect and (ii) such
provision or part shall be deemed to be amended in such manner as to render such
provision enforceable.
SECTION 12
TERM OF PLAN; EFFECT OF AMENDMENT OR TERMINATION
(a) EFFECTIVE DATE; TERM OF PLAN. This Plan shall be submitted to the
shareholders of the Company for approval and ratification at the next regular or
special meeting thereof to be held after August 1, 1998. Unless at such meeting
this Plan is approved and ratified by the shareholders of the Company in the
manner provided by the Company's Bye-Laws, then, and in such event, this Plan
and any then outstanding Options or Incentive Stock that may have been
conditionally granted prior to such shareholder meeting shall become null and
void and of no further force or effect. Subject to the immediately preceding
sentence, this Plan shall become effective upon its adoption by the Board of
Directors. This Plan shall continue in effect for a term of ten (10) years
unless sooner terminated under this Section 12.
(b) AMENDMENT AND TERMINATION. The Board of Directors in its sole
discretion may terminate this Plan at any time. The Board of Directors may
amend this Plan at any time in such respects as the Board of Directors may
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deem advisable; provided, that (i) any change in the aggregate number of Shares
that may be issued under this Plan, other than in connection with an adjustment
under Section 9 of this Plan, or (ii) any change in this Plan that would
materially increase the benefits accruing to Participants under this Plan, shall
require approval of the shareholders of the Company in the manner provided by
the Company's Bye-Laws, as amended.
(c) EFFECT OF TERMINATION. In the event this Plan is terminated, no
Shares shall be issued under this Plan nor shall any Shares of Restricted Stock
be credited to a Restricted Stock Account, except upon exercise of an Option
granted prior to such termination or issuance of Shares of Restricted Stock
previously credited to a Restricted Stock Account. The termination of this Plan,
or any amendment thereof, shall not affect any Shares previously issued to a
Participant, any Option previously granted under this Plan or any Restricted
Stock previously credited to a Restricted Stock Account.
SECTION 13
GOVERNING LAW
THIS PLAN AND ANY AND ALL STOCK OPTION AGREEMENTS AND AGREEMENTS
RELATING TO THE GRANT OF RESTRICTED STOCK EXECUTED IN CONNECTION WITH THIS PLAN
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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EXHIBIT 5.0
12 November, 1998
Helen of Troy Limited,
6827 Market Avenue,
El Paso, Texas 79915,
United States of America.
Dear Sirs,
RE: HELEN OF TROY LIMITED (THE "COMPANY")
REGISTRATION OF COMMON STOCK
We have acted as special legal counsel in Bermuda to the Company in
connection with the registration by the Company of an aggregate of 3,000,000 of
its common shares of US$0.10 par value (the "Shares") to be issued pursuant to
the Helen of Troy Limited 1998 Stock Option and Restricted Stock Plan (the
"Plan").
For the purposes of giving this opinion, we have examined a facsimile
copy dated 28 September, 1998 of a draft Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission on 16 November, 1998 under the Securities Act of 1933, as amended
(the "Act").
We have also reviewed the memorandum of association and the bye-laws of
the Company, a certified copy of resolutions passed at a meeting of its
directors and at a meeting of its shareholders held on 25 August, 1998, and such
other documents and made such enquiries as to questions of law as we have deemed
necessary in order to render the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures
and the conformity to the originals of all copies of documents (whether or not
certified), (b) the accuracy and completeness of all factual representations
made in the Registration Statement and other documents reviewed by us, (c) full
payment for the Shares upon the exercise of the stock options pursuant to the
Plan, (d) that there is no provision of the law of any jurisdiction, other than
Bermuda, which would have any implication in relation to the options expressed
herein.
We have made no investigation of and express no opinion in relation to
the laws of any jurisdiction other than Bermuda. This opinion is to be governed
by and construed in accordance with the laws of Bermuda and is limited to and is
given on the basis of the current law and practice in Bermuda. This opinion is
issued solely for your benefit and is not to be relied upon by any other person,
firm or entity or in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion
that the Shares to be registered by the Company as described in the Registration
Statement when issued by the Company, will be validly issued, fully paid and
nonassessable (meaning that no further sums will be payable with respect to the
holdings of the Shares).
We hereby consent to the filing of this opinion as exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Yours faithfully,
CONYERS, DILL & PEARMAN
By: /s/ Conyers, Dill & Pearman
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EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Helen of Troy Limited:
We consent to the use of our report incorporated herein by reference in the
prospectus.
KPMG PEAT MARWICK LLP
/s/ KPMG Peat Marwick LLP
-------------------------------
El Paso, Texas
November 16, 1998
