SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAMINAIRE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
22-2312917
(Employer Identification No.)
960 East Hazelwood Avenue, Rahway, New Jersey 07065
(Address of principal executive offices)
LAMINAIRE CORPORATION 1998 STOCK OPTION PLAN
(Full title of the plan)
Steven Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(212) 448-1100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed maximum Proposed maximum Amount
securities to be offering price aggregate of
to be registered(1) per share (2) offering price (3) registration
registered fee
Common Stock, 1,000,000 shares $0.15 $150,000 $41.70
par value
$.001 per share
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1) Pursuant to Rule 416, the Registration Statement also relates to an
indeterminate number of additional shares to be offered or sold under the
employee benefit plan described herein.
2) Pursuant to Rule 457 (h) , the offering price of such shares is
estimated solely for the purpose of determining the registration fee.
This Registration Statement, including all exhibits and attachments,
contains 28 pages. The exhibit index may be found on page 8 of the consecutively
numbered pages for the Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been or will be granted awards by the
Registrant and are not being filed with, or included in, this Registration
Statement in accordance with the rules and regulations of the Commission.
The Plan provides a means whereby employees, officers, directors,
consultants and independent contractors ("Qualified Grantees") may acquire the
Common Stock of the Company pursuant to grants of (i) Incentive Stock Options
("ISOs") whereby Qualified Grantees may purchase shares of Common Stock; (ii)
nonqualified stock options whereby Qualified Grantees may purchase shares of
Common Stock; and (iii) Stock Appreciation Rights ("SARs") whereby Qualified
Grantees may acquire the right to participate in the appreciation of the Common
Stock. A summary of the significant provisions of the Plan is set forth below. A
copy of the full Plan is attached hereto as Exhibit 4(ii), and the following
summary is subject to the provisions of the attached Exhibit.
The Plan shall be administered by a committee of the Board of Directors
(the "Committee"), all of whose members are "non-employee directors" as that
term is defined in Rule 16b-3(d)(3) of the General Rules and Regulations under
the Securities Exchange Act of 1934, consisting of two directors appointed by,
and who serve at the pleasure of, the Board of Directors. Subject to the express
terms of the Plan, the Committee has the sole discretion to determine to whom
among those eligible, and the time or times at which, options and/or Stock
Appreciation Rights may be exercised. In making such determinations, the
Committee may take into account the nature and period of service of Qualified
Grantees, their level of compensation, their past, present and potential
contributions to the Company and such other factors as the Committee in its
discretion deems relevant.
The Committee may amend, suspend, or terminate the Plan at any time, except
that no amendment may be adopted without the approval of shareholders which
would (i) increase the benefits accruing to participants under the Plan; (ii)
materially increase the number of securities which may be issued under the Plan;
or (iii) change the eligibility requirements for participation in the Plan
Unless terminated earlier by the Board of Directors, the Plan will terminate on
June 29, 2008.
Subject to adjustments resulting from changes in capitalization, no more
than 1,000,000 shares of Common Stock may be issued pursuant to the exercise of
options or SARs. Under certain circumstances involving a change in the number of
shares of
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Common Stock without the receipt by the Company of any consideration
therefor, such as a stock split, stock consolidation or payment of a stock
dividend, the class and aggregate number of shares of Common Stock in respect of
which options may be granted under the Plan, the class and number of shares
subject to each outstanding option and the option price per share will be
proportionately adjusted. In addition, if the Registrant is involved in a
merger, consolidation, dissolution or liquidation, the options or SARs granted
under the Plan will be adjusted or, under certain conditions, will terminate,
subject to the right of the option holder or SARs holder to exercise his option
or stock appreciation right or a comparable option substituted at the discretion
of the Registrant prior to such event. An option or SAR may not be transferred
other than by will or by laws of descent and distribution, and during the
lifetime of the option holder may be exercised only by such holder. If any
option expires or terminates for any reason, without having been exercised in
full, the unpurchased shares subject to such option will be available again for
purposes of the Plan.
Subject to the provisions of the Plan, the Committee shall have full and
final authority to select those individuals who are eligible to receive options
pursuant to the Plan, the terms and conditions of which shall be set forth in an
option agreement between the Registrant and the optionee.
The exercise price of each option or SAR is determined by the Committee,
but may not be less than 100 percent of fair market value (110% for 10% or
greater shareholders) with respect to the grant of ISOs. An ISO holder who meets
the eligibility requirements of Section 422 of the Internal Revenue Code of 1986
(the "Code") will not realize income for Federal income tax purposes, and the
Registrant will not be entitled to a deduction, on either the grant or the
exercise of ISO. If the ISO holder does not dispose of the shares acquired
within two years after the date the ISO was granted to him or within one year
after the transfer of the shares to him, (i) any proceeds realized on a sale of
such shares in excess of the option price will be treated as long-term capital
gain and (ii) the Registrant will not be entitled to any deduction for Federal
income tax purposes with respect to such shares. If an ISO holder disposes of
shares during the two-year or one-year periods referred to above (a
"Disqualifying Disposition"), the ISO holder will not be entitled to the
favorable tax treatment afforded to incentive stock options under the Code.
Instead, the ISO holder will realize ordinary income for Federal income tax
purposes in the year the Disqualifying Disposition is made, in an amount equal
to the excess, if any, of the fair market value of the shares of Common Stock on
the date of exercise over the exercise price.
An ISO generally will recognize long-term capital gains or loss, as the
case may be, if the Disqualifying Disposition is made more than one year after
the shares are transferred the ISO holder. The amount of any such gain or loss
will be equal to the difference between the amount realized on the Disqualifying
Disposition and the sum of (x) the exercise price and (y) the ordinary income
realized by the ISO holder as a result of
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the Disqualifying Disposition, then the amount of ordinary income required
to be recognized upon the Disqualifying Disposition will not exceed the amount
by which the amount realized from the disposition exceeds the exercise price.
Generally, a loss may be recognized if the transaction is not a "wash" sale, a
gift or a sale between certain persons or entities classified under the Code as
"related persons."
For purposes of computing the alternative minimum tax with respect to
shares acquired pursuant to the exercise of ISOs, the difference between the
fair market value of the shares on the date of exercise over the exercise price
will be an item of tax preference in the year of exercise if the shares are not
subject to a Risk of Forfeiture; if the shares are subject to a Risk of
Forfeiture, the amount of the tax preference taken into account in the year that
the Risk of Forfeiture ceases will be the excess of the fair market value of the
shares at the date they cease to be subject to a Risk of Forfeiture over the
exercise price. The basis of the shares for alternative minimum tax purposes,
generally, will be an amount equal to the price, increased by the amount of the
preference taken into account in computing the alternative minimum taxable
income. The rate of tax applied in general to alternative minimum taxable income
is 24%.
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item and a copy
of all documents referenced below which are incorporated by reference in Item 3
or Part II of this registration statement (the "Registration Statement") will be
sent or given to individuals who have been granted or will be granted awards
under the Plan by Laminaire Corporation, (formerly Thermo-Mizer Environmental
Corp.), a Delaware corporation (the"Registrant")upon written or oral request,
without charge. Such documents are incorporated by reference in the Section
10(a) prospectus and shall be provided without charge. Any such other documents
required to be provided to participants pursuant to Rule 424(b) of the
Securities Act of 1933 (the "Act") shall likewise be provided without charge,
upon written or oral request made to Gerald Gallagher, Vice President, 960 East
Hazelwood Avenue, Rahway, New Jersey 07065.
The stockholders of the Registrant have authorized the adoption of the
Laminaire Corporation 1998 Stock Incentive Plan (the "Plan") at the Registrant's
Annual Meeting on June 29, 1998 covering up to 1,000,000 shares of Common Stock.
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INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Certain Documents by Reference
1. The description of the shares of common stock, par value $.001 per share
("the Common Stock"), contained in the Registrant's Registration Statement on
Form 8-A filed with the Commission on October 13, 1995 (File number O-26982)
pursuant to Section 12 (g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock contained in the Registration Statement on Form SB-2
(File Number 33-87284-NY) declared effective by the Commission on August 14,
1995.
2. The Registrant's Registration Statement on Form SB-2
(File Number 33-87284-NY).
3. The Registrant's Annual Report on Form 10-KSB for the transition period
ended December 31, 1997.
4. The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1997.
5. The Registrant's Quarterly Report on Form 10 QSB for the fiscal quarter
ended September 30, 1998.
6. All reports subsequently filed by the Registrant pursuant to sections 13
(a), 13 (c), 14 or 15 (d) of the Exchange Act subsequent to the date hereof and
prior to the filing of a post-effective amendment, which indicate that all
securities offered have been sold or which registers all such securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or deemed to
be incorporated be reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
The description of the shares of common stock, par value $.001 per
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share ("the Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A filed with the Commission on October 31, 1995 (File number
O-26982) pursuant to Section 12(g) of the Exchange Act, which incorporates by
reference the description of the shares of Common Stock contained in the
Registration Statement on Form SB-2 (File Number 33-87284-NY). Such shares are
traded on the Boston Stock Exchange under the symbol "THZ."
A maximum of 1,000,000 shares of Common Stock may be issued pursuant to the
Plan.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed upon
for the Company by McLaughlin & Stern, LLP, New York, New York. Mr. Steven
Schuster, a member of the firm, is Secretary of the Company. Mr. Schuster is the
holder of 100,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation Law,
as amended (the "DGCL"), which provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding is such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interest of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify such individual against the expenses that were
reasonably incurred.
Reference is also made to Section 102 (b) (7) of the DGCL, which
enables a corporation in its certificate of incorporation to eliminate or limit
the personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (i) for any breach of the
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director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which the director
derived an improper personal benefit.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933 MAY BE PERMITTED TO DIRECTORS, OFFICERS OR
PERSONS CONTROLLING THE COMPANY PURSUANT TO HE FOREGOING
PROVISIONS, THE COMPANY HAS BEEN INFORMED THAT IN THE OPINION
OF THE SECURITIES AND EXCHANGE COMMISSION, SUCH
INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE
SECURITIES ACT IS THEREFORE UNENFORCEABLE.
In the event that a claim for indemnification against such liabilities
(other than the payment by Registrant of expenses incurred or paid by a
director, officer or controlling person of 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 of 1933, as amended, and will be governed by the
final adjudication of such issue. Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
3(i) (1) Certificate of Incorporation
3(ii) (1) By-Laws
4(ii) (2) Laminaire Corporation 1998 Stock Incentive Plan
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the
securities being registered.
23.1 Consent of Eichler Bergsman & Co., LLC.
23.2 Consent of McLaughlin & Stern, LLP (included in, and incorporated by
Exhibit 5 hereto).
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(1) Included in, and incorporated by reference to, the Registrant's
Registration Statement on Form SB-2 (File Number 33 87284-NY)..
Item 9. Undertakings.
The 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 to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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 hereby which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Rahway, State of New Jersey, on this 30th day of
November 1998.
LAMINAIRE CORPORATION
By: /s/ Gerard Gallagher
Gerard Gallagher
Vice President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
/s/ Edward A. Sundberg. Chairman of the Board November 20, 1998
Edward A. Sundberg of Directors
/s/ Charles Garay Director November 30 , 1998
Charles Garay
/s/ K. Ivan F. Gothner Director November 24, 1998
K. Ivan F. Gothner
/s/ Edward A. Heil Director November 24, 1998
Edward A. Heil
__________________ Director November__, 1998
Jon Darcy
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EXHIBIT 4(ii)
THERMO-MIZER ENVIRONMENTAL CORP.
1998 STOCK INCENTIVE PLAN
1. Purpose.
The purpose of this Plan is to enable Thermo-Mizer Environmental Corp. and
its affiliates to recruit and retain capable employees for the successful
conduct of its business and to provide an additional incentive to directors,
officers and other eligible key employees, consultants and advisors upon whom
rest major responsibilities for the successful operation and management of the
Company and its affiliates.
2. Definitions.
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change in
Control, the greater of (i) the highest price per Share of Common Stock paid to
holders of the Shares of Common Stock in any transaction (or series of
transactions) constituting or resulting in a Change in Control or (ii) the
highest Fair Market Value of a Share during the ninety (90) day period ending on
the date of a Change in Control.
2.2 "Affiliate Corporation" or "Affiliate" shall mean any corporation,
directly or indirectly, through one of more intermediaries, controlling,
controlled by or under common control with the Company.
2.3 "Agreement" means the written agreement between the Company and an
Optionee evidencing the grant of an Award.
2.4 "Award" means an Incentive Stock Option, Nonqualified Stock Option or
Stock Appreciation Right granted or to be granted pursuant to the Plan.
2.5 "Board means the Board of Directors of the Company.
2.6 "Cause" means:
(a) Solely with respect to Nonemployee Directors, the commission of an act
of fraud or an act of embezzlement, misappropriation or conversion of assets or
opportunities of the Company or any Affiliate, and
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(b) For all other purposes, unless otherwise defined in the Agreement
evidencing a particular Award, an Optionee (other than a Nonemployee Director)
(i) intentional failure to perform reasonably assigned duties, (ii) dishonesty
or willful misconduct in the performance of duties, (iii) involvement in a
transaction in connection with the performance of duties to the Company which
transaction is adverse to the interests of the Company and which is engaged in
for personal profit, or (iv) willful violation of any law, rule or regulation in
connection with the performance of duties (other than traffic violations or
similar offenses).
2.7 "Change in Capitalization" means any increase or reduction in the
Number of Shares, or any change (including, but not limited to, a change in
value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.8 A "Change in Control" shall mean the occurrence during the term of the
Plan of either of any "person" (as such term is used in Section 13(c) and 14(d)
of the Exchange Act), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of Securities of the Company representing 50% or more of the total
voting power represented by the Company's then outstanding voting securities.
2.9 "Code" means the Internal Revenue Code of 1986, as amended.
2.10 "Committee" means a committee, as described in Section 3.1, appointed
by the Board to administer the Plan and to perform the functions set forth
herein.
2.11 "Company" means Thermo-Mizer Environmental Corp. (including any and
all subsidiaries currently existing or hereafter acquired or established).
2.12 "Director Option" means an Option for Shares, Stock Appreciation
Rights or Units granted pursuant to Section 6.
2.13 "Disability" means a physical or mental infirmity which impairs an
Optionee's ability to perform substantially his or her duties for a period of
one hundred eighty (180) consecutive days.
2.14 "Disinterested Director" means a director of the Company who is
"disinterested" within the meaning of Rule 16b-3 under the Exchange Act.
2.15 "Eligible Individual" means any director (other than a Nonemployee
Director), officer or employee of, or consultant or advisor to, the Company or
an Affiliate who is receiving cash compensation and who is designated by the
Committee as eligible to receive Awards subject
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to the conditions set forth herein.
2.16 "Employee Option" means an option granted pursuant to Section 5.
2.17 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.18 "Fair Market Value" on any date means the average of the high and low
sales prices of the Shares on such date on the principal securities exchange on
which such Shares are listed, or if such Shares are not so listed or admitted to
trading, the arithmetic mean of the per Share closing bid price and closing
asked price per Share on such date as quoted on the quotation system of the
Nasdaq Stock Market, Inc. or such other market in which such prices are
regularly quoted, or, if there have been no published bid or asked quotations
with respect to Shares on such date, the Fair Market Value as established by the
Board in good faith and, in the case of an Incentive Stock Option, in accordance
with Section 422 of the Code.
2.19 "Incentive Stock Option" means an Option satisfying the requirements
of Section 422 of the Code and designated by the Committee as an Incentive Stock
Option.
2.20 "Nonemployee Director" means a director of the Company who is not an
employee of the Company or an Affiliate.
2.21 "Nonqualified Stock Option" means an Option which is not an Incentive
Stock Option.
2.22 "Option" means a Nonqualified Stock Option, an Incentive Stock Option,
a Director Option, an Employee Option or any or all of them.
2.23 "Optionee" means a person to whom an Option is being granted under the
Plan.
2.24 "Outside Director" means a director of the Company who is an "outside
director" within the meaning of Section 162(m) of the Code and the regulations
promulgated thereunder.
2.25 "Parent" means any corporation which is a parent corporation (within
the meaning of Section 424(e) of the Code) with respect to the Company.
2.26 "Plan" means the Thermo-Mizer Environmental Corp. 1996 Stock Option
Plan.
2.27 "Pooling Transaction" means an acquisition of the Company in a
transaction which is intended to be treated as a "pooling of interests" under
generally accepted accounting principles as defined in Opinion No. 16 of the
Accounting Principles Board.
2.28 "Shares" means the common stock, par value $.001 per share, of the
Company and any securities or other consideration issuable in respect of Shares
in connection with a Change in Capitalization or Change in Control.
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2.29 "Stock Appreciation Right" or "SARs" means a right to receive all or
some portion of the increase in the value of the Shares as provided in Section 8
hereof.
2.30 "Subsidiary" means any corporation which is a subsidiary corporation
(within the meaning of Section 424(f) of the Code) with respect to the Company.
2.31 "Successor Corporation" means a corporation, or a parent or subsidiary
thereof within the meaning of 424(a) of the Code, which issues or assumes a
stock option in a transaction to which Section 424(a) of the Code applies.
2.32 "Ten Percent Stockholder" means an Eligible Individual, who, at the
time an Incentive Stock Option is to be granted to him or her owns (within the
meaning of Section 422(b) (6) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company, or of a Parent or a Subsidiary thereof.
2.33 "Unit" means a security consisting of one share of Common Stock and
two Class B Warrants.
2.34 "Class B Warrant" shall be exercisable at an exercise price equal to
the greater of $3.00 per share or 120% of the offering price in a secondary
public offering by the Company.
3. Administration.
3.1 The Plan shall be administered by the Committee which shall hold
meetings at such times as may be necessary for the proper administration of the
Plan. The Committee shall keep minutes of its meetings. A quorom shall consist
of not fewer than two (2) members of the Committee and a majority of a quorom
may authorize any action. Any decision or determination reduced to writing and
signed by a majority of all of the members shall be as fully effective as if
made by a majority,vote at a meeting duly called and held. The Committee shall
consist of at least two (2) directors of the Company each of whom shall be a
Disinterested Director and an Outside Director. No member of the Committee shall
be liable for any action, failure to act, determination or interpretation made
in good faith with respect to this Plan or any transaction hereunder, except for
liability arising from his or her own willful misfeasance, gross negligence or
reckless disregard of his or her duties. The Company hereby agrees to indemnify
each member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with defending
against, responding to, negotiating for the settlement of or otherwise dealing
with any claim, cause of action or dispute of any kind arising in connection
with any actions in administering this Plan or in authorizing or denying
authorization to any transaction hereunder.
3.2 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Employee Options shall be
granted
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under the Plan and the number of Employee Options to be granted and to
prescribe the terms and conditions (which need not be identical) of each such
Employee Option, including the purchase price per Share subject to each Employee
Option, and make any amendment or modification to any Option Agreement
consistent with the terms of this Plan;
(b) construe and interpret the Plan and the Options granted hereunder and
to establish, amend and revoke rules and regulations for the administration of
the Plan, including, but not limited to, correcting any defect or supplying any
omission, or reconciling any inconsistency in the Plan or in any Agreement, in
the manner and to the extent it shall deem necessary or advisable so that the
Plan complies with applicable law, including Rule 16b-3 under the Exchange Act
and the Code to the extent applicable, and otherwise to make the Plan fully
effective. All decisions and determinations by the Committee or the exercise of
this power shall be final, binding and conclusive upon the Company, its
Affiliate Corporations, the Options, and all other persons having any interest
therein;
(c) determine the duration and purposes for leaves of absence which may be
granted to an Optionee on an individual basis without constituting a termination
of employment or service for purposes of this Plan;
(d) exercise its discretion with respect to the powers and rights granted
to it as set forth in the Plan; and
(e) exercise such powers and perform such acts as it deems necessary or
advisable to promote the best interests of the Company with respect to the Plan.
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the subject of Options
granted under the Plan is 1,000,000. Upon a Change in Capitalization the maximum
number of Shares shall be adjusted in number and kind pursuant to Section 11.
The Company shall reserve for purposes of the Plan, out of its authorized but
unissued Shares or out of Shares held in the Company's treasury, or partly out
of each, such number of Shares as shall be determined by the Board.
4.2 Upon the granting of an Option, the number of Shares available under
Section 4.1 for the granting of further Options shall be reduced by the number
of shares subject to such Option granted. Whenever any outstanding Option or
portion thereof expires, is canceled or is otherwise terminated for any reason
without having been exercised or payment having been made in respect of the
entire Option, the Shares allocable to the expired, canceled or otherwise
terminated portion of the Option may again be the subject of Options granted
hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the Plan, the
Committee shall have full and final authority to select those Eligible
Individuals who will receive
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Employee Options, the terms and conditions of which shall be set forth in
an Agreement.
5.2 Purchase Price. The purchase price or the manner in which the purchase
price is to be determined for Shares under each Employee Option shall be
determined by the Committee and set forth in the Agreement; provided, however,
that the purchase price per Share under each Incentive Stock Option shall not be
less than 100% of the Fair Market Value of a Share on the date the Incentive
Stock Option is granted (110% in the case of an Incentive Stock Option granted
to a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall be for such
term as the Committee shall determine, provided that an Incentive Stock Option
granted hereunder shall not be exercisable after the expiration of ten (10)
years from the date it is granted (five (5) years in the case of an Incentive
Stock Option granted to a Ten-Percent Stockholder), and a Nonqualified Stock
Option shall not be exercisable after the expiration of ten (10) years from the
date it is granted. The Committee may, subsequent to the granting of any
Employee Option, extend the term thereof but in no event shall the term as so
extended exceed the maximum term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 7.5 hereof, each Employee Option shall
become exercisable in such installments (which need not be equal) and at such
times as may be designated by the Committee and set forth in the Agreement. To
the extent not exercised, installments shall accumulate and be exercisable, in
whole or in part, at any time after becoming exercisable, but not later than the
date the Employee Option expires. The Committee may accelerate the
exercisability of any Option or portion thereof at any time.
5.5 Modification. No modification of an Employee Option shall adversely
alter or impair any rights or obligations under the Employee Option without the
Optionee's consent.
6. Option Grants for Nonemployee Directors.
6.1 Purchase Price. The purchase price for Shares, SARs or Units under each
Director Option shall be not less than to 100% of the Fair Market Value of such
Shares or Units on the date immediately preceding the date of the grant.
6.2 Vesting. Subject to Sections 6.3 and 7.5 each Director Option shall
become exercisable within four (4) equal annual installments beginning on the
date of grant; provided, however, that the Optionee continues to serve as a
Director as of such dates. If an Optionee ceases to serve as a Director for any
reason, the Optionee shall have no rights with respect to that portion of a
Director Option which has not then vested pursuant to the preceding sentence and
the Optionee shall automatically forfeit that portion of the Director Option
which remains unvested.
6.3 Limitations on Amendment. The provisions in this Section 6 and Section
7.1 shall not be amended more than once every six (6) months, other than to
comport with
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changes in the Code or the rules and regulations thereunder.
7. Terms and Conditions Applicable to All Options.
7.1 Duration. Each Option shall terminate on the date which is the tenth
anniversary of the grant date, unless terminated earlier as follows:
(a) If an Optionee's employment or service terminates for any reason other
than Disability, death or Cause, the Optionee may for a period of three (3)
months after such termination exercise his or her Option to the extent, and only
to the extent, such Option or portion thereof was vested and exercisable as of
the date of the Optionee's employment or service terminated, after which time
the Option shall automatically terminate in full.
(b) If an Optionee's employment or service terminates by reason of the
Optionee's Disability, the Optionee may, for a period of one (1) year after such
termination, exercise his or her Option to the extent, and only to the extent,
such Option or portion thereof was vested and exercisable as of the date the
Optionee's employment or service terminated, after which time the Option shall
automatically terminate in full.
(c) If an Optionee's employment or service terminates for Cause, the Option
granted to the Optionee hereunder shall immediately terminate in full and no
rights thereunder may be exercised.
(d) If an Optionee dies while employed or in the service of the Company or
an Affiliate or within the three (3) month or twelve (12) month period described
in clause (a) or (b), respectively, of this Section 7.1 the Option granted to
the Optionee may be exercised at any time within twelve (12) months after the
Optionee's death by the person or persons to whom such rights under the Option
shall pass by will, or by the laws of descent and distribution, after which time
the Option shall terminate in full; provided, however, that an Option may be
exercised to the extent, and only to the extent, such Option or portion thereof
was exercisable on the date of death or earlier termination of the Optionee's
services as a Director.
Notwithstanding clauses (a) through (d) above, the Agreement evidencing the
grant of an Employee Option may, in the Committee's sole and absolute
discretion, set forth additional or different terms and conditions applicable to
Employee Options upon a termination or change in status of the employment or
service of an Eligible Individual. Such terms and conditions may be determined
at the time the Employee Option is granted or thereafter.
7.2 Non-transferability. No Option granted hereunder shall be transferable
by the Optionee to whom granted except by will or the laws of descent and
distribution, and an Option may be exercised during the lifetime of such
Optionee only by the Optionee or his or her guardian or legal representative.
The terms of such Option shall be final, binding and conclusive upon the
beneficiaries, executors, administrators, heirs and successors of the Optionee.
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7.3 Method of Exercise. The exercise of an option shall be made only by a
written notice delivered in person or by mail to the Secretary or Chief
Financial Officer of the Company at the Company's principal executive office,
specifying the number of Shares to be purchased and accompanied by payment
therefor and otherwise in accordance with the Agreement pursuant to which the
Option was granted. The purchase price for any Shares purchased pursuant to the
exercise of an Option shall be paid in full in cash upon such exercise.
Notwithstanding the foregoing, the Committee shall have discretion to determine
at the time of grant of each Employee Option or at any later date (up to and
including the date of exercise) that the form of payment acceptable in respect
of the exercise of such Employee Option may consist of either of the following
(or any combination thereof): (I) cash or (ii) the transfer of Shares to the
Company upon such terms and conditions as determined by the Committee. The
Optionee shall deliver the Agreement evidencing the Option to the Secretary or
Chief Financial Officer of the Company who shall endorse thereon a notation of
such exercise and return such Agreement to the Optionee. No fractional Shares
(or cash in lieu thereof) shall be issued upon exercise of an Option and the
number of Shares that may be purchased upon exercise shall be rounded to the
nearest number of whole Shares.
7.4 Rights of Optionees. No Optionee shall be deemed for any purpose to be
the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares, subject to such terms and
conditions as may be set forth in the applicable Agreement.
7.5 Effect of Change in Control. In the event of a Change in Control, all
Options outstanding on the date of such Change in Control shall become
immediately and fully vested and exercisable. In addition, to the extent set
forth in an Agreement evidencing the grant of an Employee Option, an Optionee
will be permitted to surrender for cancellation within sixty (60) days after
such Change in Control, any Employee Option or portion of an Employee Option to
the extent not yet exercised and the Optionee will be entitled to receive a cash
payment in an amount equal to the excess, if any of (x) (A) in the case of a
Nonqualified Stock Option, the greater of (1) the Fair Market Value, on the date
preceding the date of surrender, of the Shares subject to the Employee Option or
portion thereof surrendered or (2) the Adjusted Fair Market Value of the Shares
subject to the Employee Option or portion thereof surrendered or (B) in the case
of an Incentive Stock Option, the Fair Market Value, on the date preceding the
date of surrender, of the Shares subject to the Employee Option or portion
thereof surrendered, over (y) the aggregate purchase price for such Shares under
the Employee Option or portion thereof surrendered; provided, however, that in
the case of an Employee Option granted within six (6) months prior to the Change
in Control to any Optionee who may be subject to liability under Section 16(b)
of the Exchange Act, such Optionee shall be entitled to surrender for
cancellation his or her Option during the sixty (60) day period commencing upon
the expiration of six (6) months from the date of grant of any such Employee
Option. In the event an Optionee's employment or service with the Company is
terminated by the Company following a Change in Control, each Option held by the
Optionee that was exercisable as of the date of termination of
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the Optionee's employment or service shall remain exercisable for a period
ending not before the earlier of the first anniversary of the termination of the
Optionee's employment or service or the expiration of the stated term of the
Option.
8. Stock Appreciation Rights. The Committee may, in its discretion, either
alone or in connection with the grant of an Employee Option, grant Stock
Appreciation Rights in accordance with the Plan, the terms and conditions of
which shall be set forth in an Agreement. If granted in connection with an
Option, a Stock Appreciation Right shall cover the same Shares covered by the
Option (or such lesser number of Shares as the Committee may determine) and
shall, except as provided in this Section 8, be subject to the same terms.
8.1 Time of Grant. A Stock Appreciation Right may be granted (i) at any
time if unrelated to an Option, or (ii) if related to an Option, either at the
time of grant, or at any time thereafter during the term of the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.8, a Stock Appreciation Right granted in
connection with an Option shall be exercisable at such time or times and only to
the extent that the related Options are exercisable, and will not be
transferable except to the extent the related Option may be transferable. A
Stock Appreciation Right granted in connection with an Incentive Stock Option
shall be exercisable only if the Fair Market Value of a Share on the date of
exercise exceeds the purchase price specified in the related Incentive Stock
Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock Appreciation Right related
to an Option, the holder shall be entitled to receive an amount determined by
multiplying (A) the excess of the Fair Market Value of a Share on the date
preceding the date of exercise of such Stock Appreciation Right over the per
Share purchase price under the related Option, by (B) the number of Shares as to
which such Stock Appreciation Right is being exercised. Notwithstanding the
foregoing, the Committee may limit, in any manner, the amount payable with
respect to any Stock Appreciation Right by including such a limit in the
Agreement evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation Rights Upon
Exercise. Upon the exercise of a Stock Appreciation Right granted in connection
with an Option, the Option shall be canceled to the extent of the number of
Shares as to which the Stock Appreciation Right is exercised, and upon the
exercise of an Option granted in connection with a Stock Appreciation Right or
the surrender of such Option pursuant to Section 7.3, the Stock Appreciation
Right shall be canceled to the extent of the number of Shares as to which the
Option is exercised or surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The Committee may
grant to Eligible Individuals Stock Appreciation Rights unrelated to Options.
Stock Appreciation Rights unrelated to Options shall contain such terms and
conditions as to exercisability (subject to Section 8.8), vesting and duration
as the Committee shall determine,
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but, in no event, shall they have a term of greater than ten (10) years.
Upon exercise of a Stock Appreciation Right unrelated to an Option, the holder
shall be entitled to receive an amount determined by multiplying (A) the excess
of the Fair Market Value of a Share on the date preceding the date of exercise
of such Stock Appreciation Right over the Fair Market Value of a Share on the
date the Stock Appreciation Right was granted, by (B) the number of Shares as to
which the Stock Appreciation Right is being exercised. Notwithstanding the
foregoing, the Committee may limit, in any manner, the amount payable with
respect to any Stock Appreciation Right by including such a limit in the
Agreement evidencing the same Stock Appreciation Right at the time it is
granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be exercised by a
holder only by a written notice delivered in person or by mail to the Secretary
or Chief Financial Officer of the Company at the Company's principal executive
office, specifying the number of Shares with respect to which the Stock
Appreciation Right is being exercised. If requested by the Committee, the holder
shall deliver the Agreement evidencing the Stock Appreciation Right being
exercised and the Agreement evidencing any related Option to the Secretary or
Chief Financial Officer of the Company who shall endorse thereon a notation of
such exercise and return such Agreement to the holder.
8.5 Form of Payment. Payment of the amount determined under Sections 8.2(b)
or 8.3 may be made in the discretion of the Committee, solely in whole Shares in
a number determined at their Fair Market Value in the date preceding the date of
exercise of the Stock Appreciation Right, or solely in cash, or in a combination
of cash and Shares. If the Committee decides to make full payment in Shares and
the amount payable results in a fractional Share, payment for the fractional
Share will be made in cash. Notwithstanding the foregoing, no payment in the
form of cash may be made upon the exercise of a Stock Appreciation Right
pursuant to Sections 8.2(b) or 8.3 to an officer of the Company who is subject
to liability under Section 16(b) of the Exchange Act, unless the exercise of
such Stock Appreciation Right is made either (i) during the period beginning on
the third business day and ending on the twelfth business day following the date
of release for publication of the Company's quarterly or annual statements of
earnings (the "Window Period") or (ii) pursuant to an irrevocable election to
receive cash made at least six (6) months prior to the exercise of such Stock
Appreciation Right.
8.6 Restrictions. No Stock Appreciation Right may be exercised before a
date six (6) months after the date on which it is granted.
8.7 Modification. No modification of an Award shall adversely alter or
impair any rights or obligations under the Agreement without the holder's
consent.
8.8 Effect of Change in Control. In the event of a Change in Control but
subject to Section 8.6, all Stock Appreciation Rights shall become immediately
and fully exercisable. In addition, to the extent set forth in an Agreement
evidencing the grant of a Stock Appreciation Right, a holder will be entitled to
receive a payment in cash or stock, in either case, with a value equal to the
excess, if any, of (A) the greater of (x) the Fair Market Value, on the date
preceding the date of exercise, of the underlying Shares subject to the Stock
Appreciation
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Right or portion thereof exercised and (y) the Adjusted Fair Market Value,
on the date preceding the date of exercise, of the Shared over (B) the aggregate
Fair Market Value, on the date the Stock Appreciation Right was granted, of the
Shares subject to the Stock Appreciation Right or portion thereof exercised;
provided, however, that in the case of a Stock Appreciation Right granted within
six (6) months of the Change in Control to any holder who may be subject to
liability under Section 15(b) of the Exchange Act, such holder shall be entitled
to exercise his or her Stock Appreciation Right during the sixty (60) day period
commencing upon the expiration of six months from the date of grant of any such
Stock Appreciation Right. In the event of a holder's employment or service with
the Company is terminated by the Company following a Change in Control, each
Stock Appreciation Right held by the holder that was exercisable as of the date
of termination of the holder's employment or service shall remain exercisable
for a period ending but not before the earlier of the first anniversary of the
termination of the holder's employment or service or the expiration of the
stated term of the Stock Appreciation Right.
9. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee shall
conclusively determine the appropriate adjustments, if any, to the (i) maximum
number of Shares with respect to which Options may be granted under the Plan,
(ii) maximum number of Shares with respect to which Options may be granted to
any Eligible Individual during the term of the Plan, (iii) the number of Shares
which are subject to outstanding Options granted under the Plan, and the
purchase price therefor, if applicable, and (iv) the number of Shares in respect
of which Director Options are to be granted under Section 6.
(b) Any such adjustment in the Shares subject to Incentive Stock Options
(including any adjustments in the purchase price) shall be made in such manner
as not to constitute a modification as defined by Section 424(h)(3) of the Code
and only to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change of Capitalization, an Optionee shall be
entitled to exercise an Option with respect to new, additional or different
shares of stock, such new, additional or different shares shall thereupon be
subject to all of the conditions, restrictions and performance criteria which
were applicable to the Shares subject to the Option, prior to such Change in
Capitalization.
10. Effect of Certain Transactions. Subject to Sections 7.5 and 8.8 or as
otherwise provided in an Agreement, in the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company, the
Plan and the Options issued hereunder shall continue in effect in accordance
with their respective terms.
11. Interpretation.
(a) The Plan is intended to comply with Rule 16b-3 promulgated under the
Exchange Act and the Committee shall interpret and administer the provisions of
the Plan or any Agreement in a manner consistent therewith. Any provisions
inconsistent with such Rule shall
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be inoperative and shall not affect the validity of the Plan.
(b) The Director Options described in Section 6 are intended to qualify as
formula awards under Rule 16b-3 promulgated under the Exchange Act (thereby
preserving the disinterested status of Nonemployee Directors receiving such
Awards) and the Committee shall interpret and administer the provisions of the
Plan or any Agreement in a manner consistent therewith. Any provisions
inconsistent with the foregoing intent shall be inoperative and shall interpret
and administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with the foregoing intent
shall be inoperative and shall not affect the validity of the Plan.
(c) Unless otherwise expressly stated in the relevant Agreement, each
Option granted under the Plan is intended to be performance-based compensation
within the meaning of Section 162(m)(4)(C) of the Code. The Committee shall not
be entitled to exercise any discretion otherwise authorized hereunder with
respect to such Options if the ability to exercise such discretion or the
exercise of such discretion itself would cause the compensation attributable to
such Options to fail to qualify as performance-based compensation.
12. Pooling Transactions.
Notwithstanding anything contained in the Plan or any Agreement to the
contrary, in the event of a Change in Control which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if any,
which are specifically recommended by an independent public accounting firm
engaged by the Company to the extent reasonably necessary in order to assure
that the Pooling Transaction will qualify as such, including but not limited to
(i) deferring the vesting, exercise, payment or settlement in respect of any
Option, (ii) providing that the payment or settlement in respect of any Option
be made in the form of cash, Shares or securities of a successor or acquiree of
the Company, or a combination of the foregoing, and (iii) providing for the
extension of term of any Option to the extent necessary to accommodate the
foregoing, but not beyond the maximum term permitted for any Option.
13. Termination and Amendment of the Plan.
The Plan shall terminate on the preceding the tenth anniversary of the date
of its adoption by the stockholders of the Company, and no Option may be granted
thereafter. Subject to Section 6.5, the Board may sooner terminate the Plan, and
the Board may at any time and from time to time amend, modify or suspend the
Plan; provided, however, that:
(a) No such amendment, modification, suspension or termination shall impair
or adversely alter any Award already granted under the Plan, except with the
consent of the Optionee or holder of an SAR nor shall any amendment,
modification or termination deprive any Optionee or holder of an SAR of any
Shares which he or she may have acquired through or as a result of the Plan; and
(b) To the extent necessary under Section 16(b) of the Exchange Act and the
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rules and regulations promulgated thereunder or other applicable law, no
amendment shall be effective unless approved by the stockholders of the Company
in accordance with applicable law and regulations.
14. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed as amending,
modifying or rescinding any previously approved incentive arrangement or as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
15. Limitation of Liability.
As illustrative of the limitations of liability of the Company, but not
intended to be exhaustive thereof, nothing in the Plan shall be construed to:
(a) give any person any right to be granted an Option other than at the
sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares except as
specifically provided in the Plan;
(c) limit in any way the right of the Company to terminate the employment
of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or implied,
that the Company will employ any person at any particular rate of compensation
or for any particular period of time.
16. Regulations and Other Approvals; Governing Law.
16.1 Except as to matters of Federal law, this Plan and the rights of all
persons claiming hereunder shall be construed and determined in accordance with
the laws of the State of New Jersey.
16.2 The obligation of the Company to sell or deliver Shares with respect
to Options granted under the Plan shall be subject to all applicable laws, rules
and regulations, including all applicable Federal and state securities laws, and
the obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Committee.
16.3 The Board may make such changes as may be necessary or appropriate to
comply with the rules and regulations of any government authority, or to obtain
for Eligible Individuals granted Incentive Stock Options the tax benefits under
the applicable provisions of the Code and regulations promulgated thereunder.
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16.4 Each Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval or any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance of
Shares, no Options shall be granted or payment made or Shares issued, in whole
or in part, unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions as acceptable to the Committee.
16.5 Notwithstanding anything contained in the Plan or any Agreement to the
contrary, in the event that the disposition of Shares acquired pursuant to the
Plan is not covered by a then current registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), and is not otherwise
exempt from such registration, such Shares shall be restricted against transfer
to the extent required by the Securities Act and Rule 144 or other regulations
thereunder. The Committee may require an individual receiving Shares pursuant to
an Award granted under the Plan, as a condition precedent to receipt of such
Shares, to represent and warrant to the Company in writing that the Shares
acquired by such individual are acquired without a view to any distribution
thereof and will not be sold or transferred other than pursuant to an exemption
applicable under the Securities Act as amended, or the rules and regulations
promulgated thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
17. Miscellaneous.
17.1 Multiple Agreements. The terms of each Award granted to an Eligible
Individual may differ from other Awards granted under the Plan at the same time,
or at some other time. The Committee may also grant more than one Award to a
given Eligible Individual during the term of the Plan, either in addition to, or
in substitution for, one or more Awards previously granted to that Eligible
Individual.
17.2 Withholding of Taxes.
(a) At such times as an Optionee or holder of an SAR recognizes taxable
income in connection with the receipt of Shares or cash hereunder (a "Taxable
Event"), the Optionee or holder shall pay other amounts as may be required by
law to be withheld by the Company in issuance or release from escrow of such
Shares or the payment of such cash. The Company shall have the right to deduct
from any payment of cash to an Optionee or holder an amount equal to the
Withholding Taxes in satisfaction of the obligation to pay Withholding Taxes. In
satisfaction of the obligation to pay Withholding Taxes to the Company, the
Optionee or holder may make a written election (the "Tax Election"), which may
be accepted or rejected in the discretion of the Committee to have withheld a
portion of the Shares then issuable to him or her having an aggregate Fair
Market Value, on the date preceding the date of such issuance, equal to the
Withholding Taxes, provided that in respect of an Optionee or holder who may be
subject to liability under Section 16(b) of the Exchange Act either; (i)(A) the
Tax Election is made at least six (6) months prior to the date of the Taxable
Event and (B) the Tax Election is
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irrevocable with respect to all Taxable Events of a similar nature
occurring prior to the expiration of six (6) months following a revocation of
the Tax Election; or (ii)(A) the Tax Election is made at least six (6) months
after the date the Award was granted, (B) the Award is exercised during the
Window Period and (C) the Tax Election is made during the Window Period in which
the related Award is exercised or prior to such Window Period and subsequent to
the immediately preceding Window Period. Notwithstanding the foregoing, the
Committee may, by the adoption of rules or otherwise, (i) modify this Section
17.2 (other than as regards Director Options) or impose such other restrictions
or limitations on Tax Elections to be made at such times and subject to such
other conditions as the Committee determines will constitute exempt transactions
under Section 16(b) of the Exchange Act.
(b) If an Optionee makes a disposition, within the meaning of Section 424
(c) of the Code and regulations promulgated thereunder, of any Share or Shares
issued to such Optionee pursuant to the exercise of an Incentive Stock Option
within the two-year period commencing on the day after the date of the grant or
within the one-year period commencing on the day after the date of transfer of
such Share or Shares to the Optionee pursuant to such exercise, the Optionee
shall, within ten (10) days of such disposition, notify the Company thereof, by
delivery of written notice to the Company at its principal executive office.
17.3 Effective Date. The effective date of the Plan shall be as determined
by the Board, subject only to the approval by the affirmative vote of the
stockholders.
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Exhibit 5
MCLAUGHLIN & STERN, LLP.
260 MADISON AVENUE, 18TH FLOOR
NEW YORK, NEW YORK 10016
(212) 448-1100
FAX (212) 448-0066
November 30, 1998
United States Securities
& Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Laminaire Corporation
Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement"), filed with the Securities and Exchange Commission by
Laminaire Corporation (the "Company").
We hereby advise you that we have examined originals or copies certified to
our satisfaction of the Certificate of Incorporation and amendments thereto and
the By-Laws of the Company, minutes of the meetings of the Board of Directors
and Shareholders and such other documents and instruments, and we have made such
examination of law as we have deemed appropriate as the basis for the opinions
hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware.
2. The 1,000,000 shares of Common Stock, which are due to be sold pursuant
to the Registration Statement have been duly and validly authorized and, when
paid for, will be validly issued, fully paid and non-assessable.
In addition, we hereby consent to the reference to our firm under the
caption "Legal Matters" in the prospectus forming part of such Registration
Statement and to the filing of this opinion as
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an exhibit to the Registration Statement. In so doing, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
McLaughlin & Stern, LLP
27
EXHIBIT 23.1
We consent to the incorporation by reference on Forms S-8 of Laminaire
Corporation (formerly Thermo-Mizer Environmental Corp.) of our report dated
April 13, 1998 appearing on Form 10-KSB of the company for the transition period
ended December 31, 1997 and our report dated October 9, 1997 with respect to the
Form 10-KSB for the year ended June 30, 1997.
EICHLER BERGSMAN & CO., LLP
Certified Public Accountants
New York, New York
November 24, 1998
28
