As filed with the Securities and Exchange Commission
on June 20, 1997
Registration No. 333-27475
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
Post-Effective Amendment No. 1
to the
Form S-8
Registration Statement
Under
The Securities Act of 1933
Control Devices, Inc.
(Exact name of Registrant as specified in its charter)
Indiana 01-0490335
(State of Incorporation) (IRS Employer
Identification No.)
228 Northeast Road
Standish, Maine 04084
(Address of Principal (Zip Code)
Executive Offices)
Control Devices, Inc.
Employee Stock Purchase Plan
(Full title of the plan)
Jeffrey G. Wood
228 Northeast Road
Standish, Maine 04084
(Name and address of agent for service)
(217) 642-0300
(Telephone number, including area code, of agent for service)
Copies to:
Philip L. McCool, Esq.
Sommer & Barnard, PC
4000 Bank One Tower
Indianapolis, Indiana 46204
(317) 630-4000
=================================================================
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The documents listed below, and all documents filed by
Registrant pursuant to Sections 13(a), 13(c) 14 and 15(d) of the
Securities Exchange Act of 1934 subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996, filed with the Commission on
March 14, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997, filed with the Commission
on May 8, 1997; and
(c) The information contained in "Description of Capital
Shares" in the Registrant's Registration Statement on
Form S-1 (Reg. No. 333-09379) filed with the Securities
and Exchange Commission on August 1, 1996 is hereby
incorporated by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the issuance of the Common Shares registered
hereby will be passed upon for the Registrant by Sommer &
Barnard, PC, Indianapolis, Indiana, counsel for the Registrant.
Item 6. Indemnification of Directors and Officers.
Chapter 37 of the Indiana Business Corporation law, as amended
grants to each Indiana corporation broad powers to indemnify
directors, officers, employees or agents against expenses incurred
in certain proceedings if the conduct in question was found to be
in good faith and was reasonably believed to be in the
corporation's best interest. This statute provides, however, that
this indemnification should not be deemed exclusive of any other
indemnification rights provided by the articles of incorporation,
by-laws, resolution or other authorization adopted by a majority
vote of the voting shares then issued and outstanding. Section
7.02 of the Second Amended and Restated Code of By-Laws of the
Registrant read as follows:
Clause 7.021. Definitions. Terms defined in Chapter 37 of
the Indiana Business Corporation Law (IND. CODE Section 23-1-37, et
seq.) which are used in this Article 7 shall have the same
definitions for purposes of this Article 7 as they have in such
chapter of the Indiana Business Corporation Law.
Clause 7.022. Indemnification of Directors and Officers. The
Corporation shall indemnify any individual who 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, partner or trustee of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise whether
or not for profit, against liability and expenses, including
attorneys fees, incurred by him in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, and
whether formal or informal, in which he is made or threatened to be
made a party by reason of being or having been in any such
capacity, or arising out of his status as such, except (i) in the
case of any action, suit, or proceeding terminated by judgment,
order, or conviction, in relation to matters as to which he is
adjudged to have breached or failed to perform the duties of his
office and the breach or failure to perform constituted willful
misconduct or recklessness; and (ii) in any other situation, in
relation to matters as to which it is found by a majority of a
committee composed of all directors not involved in the matter in
controversy (whether or not a quorum) that the person breached or
failed to perform the duties of his office and the breach or
failure to perform constituted willful misconduct or recklessness.
The Corporation may pay for or reimburse reasonable expenses
incurred by a director or officer in defending any action, suit, or
proceeding in advance of the final disposition thereof upon receipt
of (i) a written affirmation of the director's or officer's good
faith belief that such director or officer has met the standard of
conduct prescribed by Indiana law; and (ii) an undertaking of the
director or officer to repay the amount paid by the Corporation if
it is ultimately determined that the director or officer is not
entitled to indemnification by the Corporation.
Clause 7.023. Other Employees or Agents of the Corporation.
The Corporation may, in the discretion of the Board of Directors,
fully or partially provide the same rights of indemnification and
reimbursement as hereinabove provided for directors and officers of
the Corporation to other individuals who are or were employees or
agents of the Corporation or who are or were serving at the request
of the Corporation as or is or was serving at the request of the
Corporation as employees or agents of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise whether or not for profit.
Clause 7.024. Nonexclusive Provision. The indemnification
authorized under Section 7.02 above is in addition to all rights to
indemnification granted by Chapter 37 of the Indiana Business
Corporation Law (IND. CODE Section 23-1-37, et seq.) and in no way
limits the indemnification provisions of such Chapter.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
-------- --------------
4 Control Devices, Inc. Employee Stock Purchase
Plan
5 Opinion re: Legality
23.1* Consent of Independent Accountants
23.2 Consent of Sommer & Barnard (included in
Exhibit 5)
24* Power of Attorney (included at page II-5)
______________
*Previously filed
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered
which remain unsold at the termination of the offering.
SIGNATURES
The Registrant. 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 requirement
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 Standish, State of Maine, on the
20th day of June, 1997.
Control Devices, Inc.
By: /s/ Jeffrey G. Wood
-------------------------
Jeffrey G. Wood
Chief Executive Officer
The Plan. Pursuant to the requirements of the Securities Act,
the Plan Administrator has duly caused this Registration Statement
to be signed on its behalf by the Undersigned, thereunto duly
authorized, in the city of Standish, State of Maine, on the 20th
day of June, 1997.
Control Devices, Inc.
By: /s/ Jeffrey G. Wood
-------------------------
Jeffrey G. Wood
Plan Administrator
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 to the Registration Statement
has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
----------- ---------- ---------
/s/ Jeffrey G. Wood Chief Financial Officer 6/20/97
- ------------------------- Principal Financial Officer
Jeffrey G. Wood and Principal Accounting
Officer
/s/ Bruce D. Atkinson* Chief Executive Officer 6/20/97
- ------------------------- and Director
Bruce D. Atkinson Principal Executive Officer
/s/ Ralph R. Whitney, Jr.* Director and 6/20/97
- ------------------------- Chairman of the Board
Ralph R. Whitney, Jr.
/s/ Charles M. Brennan, III* Director 6/20/97
- -------------------------
Charles M. Brennan, III
/s/ John D. Cooke Director 6/20/97
- -------------------------
John D. Cooke
/s/ James O. Futterknecht, Jr.* Director 6/20/97
- -------------------------
James O. Futterknecht, Jr.
/s/ Alan I. Mossberg Director 6/20/97
- -------------------------
Alan I. Mossberg
/s/ John M. Ramey* Director 6/20/97
- -------------------------
John M. Ramey
/s/ Glenn Scolnik* Director 6/20/97
- -------------------------
Glenn Scolnik
* By: /s/ Jeffrey G. Wood
___________________________________
Jeffrey G. Wood as Attorney-in-Fact
INDEX TO EXHIBITS FILED
TO REGISTRATION STATEMENT ON
FORM S-8 OF CONTROL DEVICES, INC.
Sequentially
Exhibit Numbered
No. Description Page
------ ------------- ------------
4 Control Devices, Inc. Employee Stock
Purchase Plan
5 Opinion re: Legality
23.2 Consent of Sommer & Barnard
(included in Exhibit 5)
PREAMBLE
Effective as of April 25, 1997, Control Devices, Inc.
adopts this Employee Stock Purchase Plan ("Plan") for its
employees.
This Plan shall be known as the CONTROL DEVICES, INC.
EMPLOYEE STOCK PURCHASE PLAN. The purpose of the Plan is to enable
employees to purchase Control Devices, Inc. Common Shares through
payroll deductions.
NOW, THEREFORE, effective as of April 25, 1997, the
provisions of this Plan are adopted by the Company as set forth
hereinafter.
ARTICLE I
Definitions
The following terms when used herein, unless otherwise
expressly provided and/or unless the context clearly indicates
otherwise, shall have the following respective meanings:
1.01 Board or Board of Directors. The term "Board" or
"Board of Directors" shall mean the Board of Directors of Control
Devices, Inc.
1.02 Code. The term "Code" shall mean the Internal Revenue
Code of 1986, as amended.
1.03 Committee. The term "Committee" shall mean the Plan
Administrative Committee appointed by the Board of Directors of the
Company to administer the Plan.
1.04 Company. The term "Company" shall mean Control
Devices, Inc., an Indiana Corporation.
1.05 Compensation. The term "Compensation" shall mean the
amount paid by the Company or any designated subsidiary of the
Company to an Employee as remuneration for services rendered, and
reportable as income by the Employee for federal income tax
purposes, including commissions, bonuses, and overtime payments,
but exclusive of payments or benefits not paid directly to the
Employee.
1.06 Designated Subsidiaries. The term "Designated
Subsidiaries" shall mean the Subsidiaries which have been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
1.06 Effective Date. The term "Effective Date" shall mean
January 1, 1997
1.07 Employees. The term "Employee" or "Employees" shall
mean all employees of the Company (or any Subsidiary of the
Company) who are in an eligible class specified in this Plan.
1.08 Employee Account. The term "Employee Account" shall
mean the book account to which Payroll Deductions are credited.
1.09 Entry Date. The term "Entry Date" shall mean the first
trading day of each offering period. Unless otherwise subsequently
changed by the Company or the Committee, there will be four (4)
Entry Dates under this Plan; January 1, April 1, July 1, and
October 1. Provided, however, that the first Entry Date under this
Plan shall be such date as is selected by the Committee.
1.10 Fair Market Value. The term "Fair Market Value" shall
be determined as follows:
(a) NASDAQ. If the Common Stock is not at the time
listed or admitted to trading on any stock exchange, but is traded
in the over-the-counter market, the Fair Market Value will be the
closing price of one share of Common Stock on the date in
question in the over-the-counter market, as such prices are
reported by the National Association of Securities Dealers through
its NASDAQ system or any successor system.
(b) Stock Exchange. If the Common Stock is at the time
listed or admitted to trading on any stock exchange, then the Fair
Market Value will be the closing price of one share of Common
Stock on the date in question on the stock exchange that is the
primary market for the stock, as such prices are officially quoted
on such exchange.
(c) No Listing: No Stock Exchange. If the Common Stock
is at the time neither listed nor admitted to trading on any stock
exchange nor traded in the over-the-counter market, or if the
Committee determines that neither subparagraph (a) nor (b) above
reflects Fair Market Value of the stock, then the Fair Market Value
will be determined by the Committee after taking into account such
factors as the Committee deems appropriate.
1.11 Offering Period. the term "Offering Period" shall mean,
subject to the discretion of the Board, a period of up to 24 months
during which Payroll Deductions are collected and applied to the
purchase of Company Stock. The Board shall have the power to
change the duration of the Offering Periods with respect to future
offerings without shareholder approval if such change is announced
at least 15 days prior to the scheduled beginning of the first
Offering Period to be affected. Unless and until otherwise
determined by the Committee. Offering Periods shall be three-month
periods, and shall run concurrently with Purchase Periods.
1.12 Participant. The term "Participant" shall mean an
Employee who meets the eligibility requirements of this Plan and
who elects to participate in this Plan.
1.13 Payroll Deduction. The term "Payroll Deduction" shall
mean amounts withheld from an Employee's compensation at his or her
election which are credited to the Employee's Account for purchase
of Company Stock hereunder.
1.14 Plan. The term "Plan" shall mean the CONTROL DEVICES,
INC. EMPLOYEE STOCK PURCHASE PLAN, created hereunder.
1.15 Plan Administrator. The term "Plan Administrator"
shall mean the Committee appointed by the Board of Directors of the
Company to administer the Plan, or such other person or entity
which may be subsequently appointed by the Board of Directors of
the Company as a successor Plan Administrator.
1.16 Purchase Date. The term "Purchase Date" shall mean the
last Trading Day of each Purchase Period.
1.17 Purchase Period. The term "Purchase Period" shall mean
the approximately three month period commencing on the day after
one Purchase Date and ending with the next following Purchase Date,
except that the first Purchase Period of any Offering Period shall
commence on the Entry Date and end with the next following Purchase
Date.
1.18 Purchase Price. The term "Purchase Price" shall mean
the lower of (i) a designated percentage of the Fair Market Value
of a share of Company Stock on the first day of the Offering
Period, or (ii) a designated percentage of the Fair Market Value of
a share of Company Stock on the last day of the Purchase Period.
The designated percentage shall be 85% unless otherwise determined
by the Committee. In no event shall the designated percentage be
less than 85%.
1.19 Stock or Company Stock.. The term "Stock" or "Company
Stock" shall mean Control Devices, Inc. no par value common shares.
1.20 Stock Certificate. The term "Stock Certificate" shall
mean a certificate issued for Company Stock purchased under this
Plan.
1.21 Stock Rights. The term "Stock Rights" shall mean all
rights attributable to owning Company Stock as provided hereunder
including, but not limited to dividend rights and voting rights.
1.22 Subsidiary. The term "Subsidiary" shall mean a
corporation, domestic or foreign, of which not less than 50% of the
voting shares are held by the Company or a Subsidiary, whether or
not such corporation now exists or is hereafter organized or
acquired by the Company or a Subsidiary.
1.23 Trading Day. The term "Trading Day" shall mean a day on
which national stock exchanges and the National Association of
Securities Dealers Automated Quotation (NASDAQ) System are open for
trading.
ARTICLE II
Term of Plan and Stock to be Issued
2.01 Purpose. The following constitutes the provisions of
the Control Devices, Inc. Employee Stock Purchase Plan, subject
to approval of the Company's shareholders. The purpose of this
Plan is to provide Employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Company Stock
through accumulated Payroll Deductions. It is the intention of
the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Code Section 423. The provisions of the
Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of
that section of the Code. It is intended that the Stock will be
purchased either directly from the Company or on the open market,
assuming such purchase can be done without adverse impact on
future "pooling of interest" methods of acquisition. The shares
purchased from the Company will be from the Company's authorized
but unissued shares or treasury shares.
2.02 Term of Plan. This Plan will continue in existence
until terminated by the Board of Directors of the Company.
2.03 Stock to be Issued. The initial number of shares of
Company Stock which may be issued under this Plan shall be
200,000 shares. The Board of Directors of the Company in its
discretion may authorize the issuance of additional shares under
this Plan at any subsequent date by appropriate resolutions
adopted by the Board and Shareholder approval.
2.04 Adjustments. The aggregate number of shares of Stock
offered under the Plan and the price of shares that any
Participant has elected to purchase shall be adjusted
proportionately by the Committee for any increase or decrease in
the number of outstanding shares of Stock resulting from a
subdivision or consolidation of shares, the payment of a stock
dividend, any other increase or decrease in such shares effected
without receipt or payment of consideration by the Company or the
distribution of the shares of a Subsidiary to the Company's
shareholders.
2.05 Reorganizations. In the event of a dissolution or
liquidation of the Company, or a merger or consolidation to which
the Company is a constituent corporation, the Plan shall
terminate unless the plan of merger, consolidation or
reorganization provides otherwise, and all amounts that have been
withheld but not yet applied to purchase Stock hereunder shall be
refunded, without interest. The Plan shall in no event be
construed to restrict in any way the Company's right to undertake
a dissolution, liquidation, merger, consolidation or other
reorganization.
ARTICLE III
Eligibility
3.01 Eligibility Requirements. Employees of the Company
(or any Designated Subsidiary) will be eligible to participate in
this Plan on the Entry Date immediately following completion of
one full year of employment, provided the Employee is employed
as a full-time regular employee on that date. The Committee will
make the final decision as to the eligibility date of any
particular Employee. For the purposes of the Plan, the
employment relationship shall be treated as continuing intact
while the individual is on sick leave or other leave of absence
approved by the Company. Where the period of leave exceeds 90
days and the individual's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship
will be deemed to have terminated on the 91st day of such leave.
The Committee will have the authority to make a final
determination as to whether or not a particular Employee is a
full-time regular Employee who is eligible under this Plan. As a
general rule, an Employee who normally completes fewer than 1,000
hours of active employment per year, and/or whose customary
employment is for not more than five months in any calendar year
will not be considered a regular full-time Employee who is
eligible under this Plan.
3.02 Election to Participate. An eligible Employee may
become a Participant in the Plan by completing an enrollment form
authorizing Payroll Deductions in the form provided by the
Company and filing it with the Company's payroll office prior to
the applicable Entry Date. Payroll Deductions for a Participant
shall commence on the first payroll period following the Entry
Date and shall end on the last payroll period in the Offering
Period, unless sooner terminated by the Participant as provided
in Section 4.03.
Participation in this Plan will be optional by eligible
Employees. An Employee who decides not to participate on any
particular Entry Date may later decide to participate on any
subsequent Entry Date. Likewise, an Employee who decides to
participate in this Plan may subsequently decide to discontinue
participation as of any Entry Date, and likewise, resume
participation as of any subsequent Entry Date. No Employee shall
be required to participate in this Plan.
3.03 Eligibility Determinations. Any provisions of the
Plan to the contrary notwithstanding, no Employee shall be
granted a purchase right under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would
be attributed to such Employee pursuant to Section 424(d) of the
Code) would own stock and or hold outstanding purchase rights to
purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the
Company or of any Subsidiary of the Company, or (ii) which
permits his or her rights to purchase stock under all employee
stock purchase plans of the Company and its Subsidiaries to
accrue at a rate which exceeds $25,000 worth of stock (determined
at Fair Market Value of the shares at the time such purchase
right is granted) for each calendar year in which such purchase
right is outstanding at any time.
ARTICLE IV
Purchase and Sale of Stock and
Payroll Deduction Procedures
4.01 Purchase of Stock. Company Stock may be purchased
under this Plan only through Payroll Deductions. The Company
Stock will be purchased either directly from the Company or on
the open market. Shares purchased directly from the Company will
be from the Company's authorized but unissued shares or treasury
shares as determined by the Company. Such Stock will be
purchased on each Purchase Date during the year.
4.02 Valuation of Stock - Purchase Price. The Purchase
Price to be paid for Company Stock purchased hereunder may not be
less than the Book Value of such Stock as of the last day of the
prior quarter. (Example: On the January 2nd Purchase Date, the
Book Value to be used will be the Book Value of the Company
reported for the particular quarter (March 31, June 30, September
30 or December 31) on reports filed with the Securities and
Exchange Commission (or as reported to shareholders if not
otherwise reported to the Securities and Exchange Commission)
("Book Value"). If Book Value for such prior quarter exceeds the
Purchase Price on the particular Purchase Date, the Purchase
Price will be the Book Value of such Stock. Provided, however,
no purchase will be made until the next Purchase Date if such
Book Value exceeds the closing price of the Company Stock on the
NASDAQ Stock Exchange as of the particular Purchase Date. In no
event shall the Purchase Price be less than the lower of (i) 85%
of the Fair Market Value of a share of Company Stock on the Entry
Date, or (ii) 85% of the Fair Market Value of a share of Company
stock on the Purchase Date.
4.03 Payroll Deduction Procedures. The Committee shall
determine the exact Payroll Deduction procedures to be used under
the Plan. At the time the Participant files an enrollment form,
he or she shall elect to have Payroll Deductions made on each
payday during the Offering Period in and amount of between 1% and
10% of his or her Compensation. The aggregate of such Payroll
Deductions during any Offering Period shall not exceed 10% of the
Participant's Compensation paid during that Offering Period.
A Participant may increase or decrease the rate of his or
her Payroll Deductions during a Purchase Period by filing with
the Company a new enrollment form authorizing a change in the
Payroll Deduction rate. The change in rate will generally be
effective with the first payroll period following such advance
notice period as the Company shall specify. A Participant's
enrollment form shall remain in effect for successive Purchase
Periods and Offering Periods unless terminated as provided in
this Section 4.03. The Board is authorized to limit the number
of Participant rate changes during any Offering Period.
Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code, a Participant's
Payroll Deduction may be decreased to 0% at such time during the
Purchase Period which is scheduled to end during the current
calendar year (the "Current Purchase Period") that the aggregate
of all Payroll Deductions which were previously used to purchase
Stock under the Plan in a prior Purchase Period which ended
during that calendar year plus all Payroll Deductions accumulated
with respect to the Current Purchase Period equal $22,500. The
Company may provide either (i) that Payroll Deductions shall
recommence at the rate provided in the Participant's enrollment
form at the beginning of the first Purchase Period scheduled to
end in the following calendar year, unless terminated by the
Participant as provided in this Section, or (ii) that
participation shall recommence only upon filing a new enrollment
form.
On or before March 15, June 15, September 15 or December
15 of any year (or on such other dates as the Committee may
designate from time to time), Employees may elect to withdraw
all but not less than all their Payroll Deductions credited to
his or her Employee Account and not yet used to purchase Company
Stock, and have those amounts returned to him or her on the next
Purchase Date. Such Participant's purchase right will
automatically terminate, and participation will not resume until
the Participant files another enrollment form. The Committee
will establish appropriate procedures for implementation of such
election. There will be no interest accrued on payroll
deductions.
4.04 Purchase Rights. On the Enrollment Date of each
Offering Period, each eligible Employee participating in the
Offering Period shall be granted a purchase right to purchase on
each Purchase Date during the Offering Period, as many shares
(including fractional) of Company Stock as are possible based on
the amount of cash credited to each such Employee's Account.
4.05 Issuance of Stock Certificates. Subject to such
reasonable procedures as the Committee may establish from time to
time, a Participant may make a written or phone request for
actual issuance of a Stock Certificate for all of the whole
shares of Stock in his or her Employee Account. As soon as
feasible after such request, such Stock Certificate will be
issued to the Participant.
In the event of termination of employment, within a
reasonable time after such termination, generally 30 days after
the end of the calendar quarter in which termination occurs, the
Employee or his or her designated beneficiary, as the case may
be, will be issued a Stock Certificate with the number of whole
shares of Company Stock credited to such Participant in his or
her Employee Account. Likewise, the Employee or his or her
designated beneficiary will receive cash in lieu of any
fractional shares held in the Employee's Account. Finally, any
Payroll Deductions not yet applied to the purchase of Company
Stock will be refunded in cash.
4.06 Dividends and Voting. To the extent that Stock
Certificates have actually been issued to an Employee, any
dividends shall be paid directly to the Employee. If Stock
Certificates have not been issued, but the shares are credited to
an Employee's Account, any dividends will be credited to such
Employee's Account and will be used to purchase additional shares
of Company Stock as of the next Purchase Date.
Any Employee who becomes an owner of Company Stock under
this Plan will be entitled to vote such Company Stock. Such
Employees will receive a form of proxy each year to enable them
to exercise their voting rights.
4.07 Sale of Stock by Employees. An Employee who owns
Company Stock under this Plan will have the right to sell such
Stock on a daily basis. If a Stock Certificate has been issued
to the Employee, the Employee may sell such Shares through any
broker of his or her choice subject to applicable securities
laws.
If a Stock Certificate has not actually been issued to an
Employee hereunder, but the Employee has Company Stock in the
Employee's Account hereunder, the Employee (subject to such
reasonable procedures as the Committee may establish from time to
time) will have the following choices if he or she
desires to sell the Company Stock:
1. The Employee may make a written request
accompanied by a $15 check for actual issuance of a Stock
Certificate, which will be issued to the Employee as soon as
feasible. The Employee may then sell such Stock in any manner
that the Employee chooses; or
2. The Employee may request a sale of all of the
shares of Company Stock in the Employee's Account by sending a
written request to such individual or entity as is designated by
the Committee from time to time. Any requested sales will occur
within five (5) business days after such written request is
received by the Trustee and will be sold through a broker
selected by the Committee or the Trustee. Brokerage commissions
and transaction fees will be deducted from the sales price.
ARTICLE V
Termination of Employment/Payment of Benefits
5.01 Termination of Employment. Within a reasonable time
after termination of employment, generally shortly after the end
of the calendar quarter in which termination occurs, the
Participant will receive a Stock Certificate for all full shares
of Company Stock credited to the Employee's Account. The
Employee also will receive any additional cash that is credited
to the Employee's Account.
5.02 Beneficiary Designation. Each Participant shall be
entitled to designate one or more beneficiaries who will be
entitled to receive all Stock Certificates, cash in lieu of
fractional shares, and all accrued Payroll Deductions held in the
Employee's Account in the event of the death of the Employee.
5.03 Unclaimed Benefits. If any payments directed to be
made are not claimed, the Committee shall dispose of such
payments as the Committee determines.
5.04 Payment of Benefits on Behalf of Minor or Legal
Incompetent. In the event that any benefit under the Plan is
payable to a minor or other legally incompetent person, the
Committee shall not be required to seek the appointment of a
guardian, but shall be authorized to pay the same to any person
having custody of such minor or incompetent person, to pay to
such minor or incompetent person without the intervention of a
guardian, or to pay the same to a legal guardian of such minor
or incompetent person if one has already been appointed.
5.05 Non-Alienation of Benefits. Unless otherwise
required by law, none of the benefits, payments, proceeds,
claims or rights of any Participant or beneficiary hereunder
shall be subject to any claim of any creditor of any Participant
or beneficiary, and in particular, the same shall not be
subject to attachment or garnishment or other legal process. No
Participant or beneficiary shall have any rights to alienate,
pledge, encumber, or assign any of the benefits or payments or
proceeds, which he or she may expect to receive, continentally
or otherwise, under the Plan.
ARTICLE VI
Plan Administration
6.01 Appointment of Committee as Plan Administrator. The
Board of Directors will appoint a Plan Administrative Committee
consisting of three (3) individuals, unless a different number
of individuals is specified by the Board from time to time. Such
Committee members will continue to serve on the Committee until
and unless replaced by the Board or unless one or more of such
members resigns by written instrument. At any time, the Board
may appoint new or replacement members for the Committee.
At any time, the Board may appoint any other entity or
persons to act as Plan Administrator in place of the Committee.
In the event that another entity is appointed as Plan
Administrator, such entity will take over the duties of the
Committee hereunder.
6.02 Administration of the Plan. As Plan Administrator,
such Committee will interpret Plan provisions, administer the
day-to-day activities of the Plan, establish appropriate
procedures for efficient and economical operation of the Plan and
appoint advisers as necessary to help administer the Plan. As
necessary, the Committee shall establish such procedures and
rules as are appropriate to carry out the purposes of this Plan.
6.03 Appointment of Advisers. As Plan Administrator, the
Committee shall have the power to appoint such advisers as are
deemed appropriate by the Committee to assist the Committee in
administering the Plan.
6.04 Administrative Costs. Except to the extent that the
Company or the Committee determines to charge specific fees
directly to Participants, the Company shall pay any costs
involved with respect to administration of the Plan, including
any costs associated with employment of outside advisers to
assist in administering or interpreting the Plan.
6.06 Responsibilities of Company, and Committee. It is
recognized that the Company, and the Committee, have certain
responsibilities hereunder, but only with respect to those
specific powers, duties, responsibilities, and obligations as
are specifically given them under this Plan. Each of the parties
warrants that any directions given, information furnished, or
action taken by it shall be in accordance with the provisions of
this Plan. Furthermore, each of the parties may rely upon any
such direction, information or action of another party as being
proper under this Plan and is not required under this Plan to
inquire into the propriety of any such direction, information, or
action. It is intended that each of the parties shall be
responsible for the proper exercise of its own powers, duties,
responsibilities, and obligations under this Plan and shall not
be responsible for any act or failure to act of another party.
The parties shall discharge the specific powers, duties,
responsibilities, or obligations given them under this Plan
solely in the interests of participants and their beneficiaries
and for the exclusive purpose of providing benefits to
participants and their beneficiaries and defraying reasonable
expenses of administering the Plan, and with the care, skill,
prudence, and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like
character and with like aims.
ARTICLE VII
Amendment or Termination of Plan and the Trust
7.01 Amendment and Termination of Plan. This Plan may be
amended or terminated at any time by the Board of Directors of
the Company, except that no Plan termination can affect purchase
rights previously granted. However, an Offering Period may be
terminated by the Board on any Purchase Date if the Board
determines that the termination of the Plan is in the best
interests of the Company and its shareholders. No amendment may
make any change in any purchase right theretofore granted which
adversely affects the rights of any Participant without the
consent of the affected participants.
ARTICLE VIII
Miscellaneous Provisions
8.01 Conditions of Issuance of Shares. Certain officers,
directors, other affiliates and insiders may be restricted by
various securities laws with respect to disposition of their
Stock. Shares shall not be issued with respect to a purchase
right unless the exercise of that option, and the issuance and
delivery of those shares complies with all applicable provisions
of law, and such issuance will be subject to the approval of
counsel for the Company with respect to such compliance.
8.02 Indemnification. To the extent permitted by
applicable laws, the Company and Committee shall be indemnified
and saved harmless with respect to liability or claims of
liability to which they may be subjected by reason of their good
faith compliance with any duties and responsibilities imposed
upon them by this Plan.
8.03 Liabilities Mutually Exclusive. Except to the extent
expressly provided by applicable laws, each party (the Company
and Committee) hereunder shall only be responsible for its own
act or omissions.
8.04 Authority of Committee. The Committee shall have
complete authority to determine the existence, nonexistence,
nature, and amount of the rights and interests of all persons in
the Plan.
8.05 Persons Authorized to Act on Behalf of Company.
Whenever the Company, under the terms of this Plan, is permitted
or required to do or perform any matter, act, or thing, it shall
be done and performed by any duly authorized officer of the
Company.
8.06 Applicable Law and Severability of Plan Provisions.
Except to the extent preempted by the laws of the United States,
this Agreement shall be construed according to the laws of the
State of Indiana, and all provisions hereof shall be
administered according thereto and its validity shall be
determined according to the laws of such State.
If any provision of this Plan is held to be illegal or
invalid, such illegality or invalidity shall not affect the
remaining provisions of this Plan, and they shall be construed
and enforced as if such illegal or invalid provision had never
been inserted therein.
8.07 Grammatical Interpretations. Whenever any words are
used herein in the masculine gender, they shall be construed as
though they were also used in the feminine gender in all cases
where they would so apply, and wherever any words are used
herein in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they
would so apply.
8.08 Multiple Counterparts. This Agreement is signed in
multiple counterparts, each of which shall be deemed an
original.
8.09 Titles. The titles of the Articles and sections
herein are for convenience only and shall have no bearing on the
interpretation of this Plan.
8.10 Use of Funds. All Payroll Deductions received or held
by the Company under the Plan may be used by the Company for any
corporate purpose, and the Company shall not be obligated to
segregate such Payroll Deductions.
8.11 Reports. Statements of account will be given to
participating Employees at least annually, which statements will
set forth the amounts of Payroll Deductions, the Purchase Price,
the number of shares purchased and the remaining cash balance, if
any.
8.12 No Rights as an Employee. Nothing in this Plan shall
be construed to give any person the right to remain in the
employment of the Company or one of its Subsidiaries. The
Company and each Designated Subsidiary reserves the right to
terminate the employment of any person at any time, with or
without cause.
IN WITNESS WHEREOF, the parties hereto have caused this Plan
to be signed on the 25th day of April 1997, to be effective as of
April 25, 1997. .
CONTROL DEVICES, INC.
By:________________________
Title:_____________________
By:________________________
Title:_____________________
c:\MSOFFICE\WINWORD\STOCKOPT
Sommer & Barnard, PC
Attorneys At Law
4000 Bank One Tower
111 Monument Circle
Indianapolis, IN 46204
Phone: (317)630-4000
Fax: (317)236-9802
May 20, 1997
Control Devices, Inc.
228 Northeast Road
Standish, Maine 04084
Ladies and Gentlemen:
You have requested our opinion in connection with the Form S-8
Registration Statement which is being filed with the Securities and
Exchange Commission by Control Devices, Inc. ("CDI"), with respect
to the shares of the Common Stock, no par value, of CDI (the
"Shares") to be issued pursuant to the Control Devices, Inc.
Employee Stock Purchase Plan (the "Plan").
We have examined such records and documents, and have made
such investigations of law and fact as we have deemed necessary in
the circumstances. Based on that examination and investigation, it
is our opinion that, when issued in accordance with the Plan and in
compliance with the Securities Act of 1933, as amended, and
applicable state Blue Sky laws, the Shares will have been duly
authorized, validly issued, fully paid and not subject to further
assessment.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
Sommer & Barnard, PC
SOMMER & BARNARD, PC
S&B/pas
