<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 1996
REGISTRATION STATEMENT NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONTAINING A REOFFER
PROSPECTUS ON FORM S-3
------------------------
CYBEX COMPUTER PRODUCTS
CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
ALABAMA 3577 63-0801728
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or organization) Industrial Classification Code Number) Identification Number)
</TABLE>
4912 RESEARCH DRIVE
HUNTSVILLE, ALABAMA 35805
(205) 430-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------
STEPHEN F. THORNTON
CHAIRMAN OF THE BOARD OF DIRECTORS,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
4912 RESEARCH DRIVE
HUNTSVILLE, ALABAMA 35805
(205) 430-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------
Copies of Communications To:
JOHN H. COOPER, ESQ.
SIROTE & PERMUTT, P.C.
2222 ARLINGTON AVENUE SOUTH
BIRMINGHAM, ALABAMA 35255-5727
TEL: (205) 930-5108
FAX: (205) 930-5301
This Registration Statement shall become effective immediately upon filing
with the Securities and Exchange Commission and sales of the registered
securities will thereafter be effected upon option exercises under the
Company's 1989 Employee Incentive Stock Option Plan (the "1989 Plan"), the 1995
Employee Stock Option Plan (the "1995 Plan"), the Directors' Compensation
Equity Program (the "Directors' Equity Program"), and the 1995 Outside
Directors Stock Option Plan (the "Outside Directors Plan") (collectively the
"Plans"), of which 183,275 shares of Common Stock are available for future
grants under the Plans.
-------------------
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE(1) PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock. $.001 par value 183,275 shares(2) $14.50(3) $ 2,657,488(3) $916.38
- ------------------------------------------------------------------------------------------------------------------
Common Stock. $.001 par value 475,125 shares(4) $14.50(5) $ 6,889,313(5) $2,375.63
- ------------------------------------------------------------------------------------------------------------------
Common Stock. $.001 par value 136,125 shares(6) $16.44(7) $ 2,237,895(7) $771.69
- ------------------------------------------------------------------------------------------------------------------
Total 794,525 shares $11,784,696 $4,063.70
=================================================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been divided into
three subtotals.
(2) Of this amount, 142,025 shares are issuable upon exercise of options not
yet granted under the 1995 Plan, and 41,250 shares are issuable upon exercise
of options not yet granted under the Outside Directors Plan.
(3) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The computation is based upon the last sale
price of the Common Stock on the Nasdaq Stock Market on August 27, 1996, given
that the price at which options to be granted in the future may be exercised is
not currently determinable.
(4) Of this amount, 241,875 shares and 130,500 shares represent shares
previously issued under the 1989 Plan and the Directors' Equity Program,
respectively, and 46,125 shares, 5,000 shares, 50,625 shares and 1,000 shares
represent outstanding options currently exercisable under the 1989 Plan, the
1995 Plan, the Directors' Equity Program and the Outside Directors Plan,
respectively.
(5) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The computation is based upon the last sale
price of the Common Stock on the Nasdaq Stock Market on August 27, 1996.
(6) Of this amount, 27,000 shares, 95,125 shares and 14,000 shares are
issuable upon the exercise of presently outstanding options issued but not yet
exercisable under the 1989 Plan, the 1995 Plan and the Outside Directors Plan,
respectively.
(7) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The computation is based on the weighted
average exercise price at which the options whose exercise will result in the
issuance of the shares being registered may be exercised.
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I is included in documents that will be
sent or given to the Participants in the Restated 1989 Cybex Computer Products
Corporation Employee Incentive Stock Option Plan, the Cybex Computer Products
Corporation 1995 Employee Stock Option Plan, the Directors' Compensation Equity
Program, and the Cybex Computer Products Corporation 1995 Outside Directors
Stock Option Plan pursuant to Rule 428(b) and is not being filed with or
included in this Form S-8 in accordance with the rules and regulations of the
Securities and Exchange Commission.
2
<PAGE> 4
PROSPECTUS
[LOGO CYBEX]
475,125 Shares of Common Stock, $0.001 par value
This Prospectus relates to the resale of up to 475,125 shares ("the
Shares") of common stock (the "Common Stock"), $.001 par value per share of
Cybex Computer Products Corporation, an Alabama corporation ("Cybex" or the
"Company") which may be offered hereby from time to time by any or all of the
selling stockholders named herein (the "Selling Stockholders") for their own
benefit. The Common Stock of the Company is quoted on the National Association
of Dealers Automatic Quotation System ("Nasdaq") National Market. None of the
Shares offered pursuant to this Prospectus have been registered under the
Securities Act of 1933, as amended, prior to the filing of the Registration
Statement of which this Prospectus is a part.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------------
<TABLE>
<CAPTION>
============================================================================================================
Underwriting Discounts and Proceeds to Issuer or
Price to Public Commissions Other Persons
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Total * * *
============================================================================================================
</TABLE>
The Shares may be offered and sold by the Selling Stockholders
directly or through broker-dealers designated from time to time. The Shares
may be sold from time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at prices determined on a
negotiated or competitive bid basis. Shares may be sold through a
broker-dealer acting as agent or broker for a Selling Stockholder, or to a
broker-dealer acting as principal. In addition to sales under this Prospectus,
the Selling Stockholders may also effect sales of the Shares covered by this
Prospectus pursuant to Rule 144, promulgated under the Securities Act of 1933,
as amended (the "Act"). These securities will be sold at market prices
prevailing at the time of sale or at negotiated prices. All of the foregoing
transactions will be made without payment of any underwriting commissions or
discounts, other than the customary brokers' fees normally paid in connection
with such transactions. The basis upon which the registration fee was
calculated was $14.00, the last sale price per share of the Common Stock on the
Nasdaq National Market on August 21, 1996. With respect to expenses of
issuance and distribution, the Company will pay the costs of preparation,
reproduction and distribution of this Prospectus and any Registration Statement
containing this Prospectus, any filing fee set forth in such Registration
Statement and any related accountants' fees and expenses (all of which
individually and in total are expected to be minimal) and the Selling
Stockholders will bear other such expenses, if any, none of which are presently
<PAGE> 5
susceptible of reasonable estimation. The Company will receive no proceeds
from the sale of these securities pursuant to this Prospectus.
This Prospectus also relates to such additional shares as may be
issued to the Selling Stockholders because of future stock dividends in or
stock distributions, stock splits or similar capital readjustments made with
respect to the Shares.
The Shares have not been registered for sale under the securities law
of any state or jurisdiction as of the date of this Prospectus. Brokers or
dealers effecting transactions in the Shares should confirm the existence of
any exemption from registration or the registration thereof under the
securities laws of the states in which such transactions occur.
----------------------------
The date of this Prospectus is August 28, 1996.
2
<PAGE> 6
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
(including the Registration Statement containing this Prospectus) with the
Securities and Exchange Commission (the "Commission"), all of which may be
inspected and copied at the public reference facilities maintained by the
Commission, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the following Regional Offices of the Commission: New York Regional Office,
Seven World Trade Center, New York, New York 10048 and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60601.
Copies of such material can be obtained at prescribed rates from the Public
Reference Section of the Securities and Exchange Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549. The Commission also maintains a Web site on the
Internet that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
at http://www.sec.gov.
The Prospectus does not contain all of the information set forth in
the Registration Statement, of which this Prospectus is a part, which the
Company has filed with the Commission pursuant to the Act. For further
information with respect to the Company and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed
as part thereof, copies of which can be inspected at, or obtained at prescribed
rates from, the Public Reference Section of the Commission at the address above
set forth. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission are not necessarily complete, and in each instance,
reference is made to the copy of such document so filed. Each such statement
is qualified in its entirety by such reference. Additional updating
information with respect to the Company may be provided in the future by means
of appendices, or supplements, to this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request of such persons,
a copy of any and all of the information that has been incorporated by
reference in this Prospectus and any Registration Statement containing this
Prospectus (not including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference in
the information that this Prospectus and any Registration Statement containing
this Prospectus incorporates). Such requests should be made to Doyle C. Weeks,
Vice President-Finance, Chief Financial Officer and Treasurer at Cybex Computer
Products Corporation, 4912 Research Drive, Huntsville, Alabama 35805 (telephone
(205) 430-4000), which address and telephone number are those of the Company's
principal executive offices.
SELLING STOCKHOLDERS
This Prospectus relates to possible sales by Stockholders of the
Company of Shares issued in connection with the exercise of options granted
under the Company's 1989 Employee Incentive Stock Option Plan (the
"1989 Plan"), the Company's 1995 Employee Stock Option Plan (the "1995 Plan"),
the Director's Compensation Equity Program (the "Directors' Equity Program")
and under the Company's 1995 Outside Directors Stock Option Plan (the "Outside
Directors Plan") (collectively referred to as the "Plans"), and Shares that may
be issued upon exercise of vested options granted under the Plans.
3
<PAGE> 7
The following table shows the names of the Selling Stockholders who
are affiliates of the Company, the number of Shares and percentage of
outstanding shares of Common Stock of the Company beneficially owned by each of
them as of August 26, 1996, and the number of Shares available for resale
hereunder.
<TABLE>
<CAPTION>
Percentage of
Number of Number of Shares Shares
Relationship With the Shares Beneficially Available for Sale Outstanding
Name and Address Company Owned Hereunder Owned
============================================================================================================
<S> <C> <C> <C> <C>
R. Byron Driver Senior Vice President-
Operations and Chief
Operating Officer 61,925(1) 61,875 1.1
David S. Butler Director 115,515(2) 57,875 2.1
Oscar L. Pierce Director 207,200(3) 61,250 3.7
Doyle C. Weeks Chief Financial 10,900(4) 8,750 *
Officer and Treasurer
- ----------------------------------
</TABLE>
* less than 1%
(1)Includes 45,000 shares of Common Stock owned directly, 50 shares owned by
his spouse and 16,875 shares of Common Stock issuable upon the exercise of
outstanding options.
(2)Includes 95,640 shares of Common Stock owned directly, 11,500 shares
beneficially owned by a Section 401(k) plan, 1,125 owned by each of his spouse
and child, and 6,125 shares issuable upon the exercise of outstanding options.
(3)Includes 161,700 shares of Common Stock owned directly and 45,500 shares
issuable upon the exercise of outstanding options.
(4)Includes 500 shares of Common Stock owned directly, 1,650 shares
beneficially owned by an individual retirement account and 8,750 shares
issuable upon the exercise of outstanding options.
The following table shows the names of the Selling Stockholders, who
are non-affiliate employees and consultants of the Company, the number of
Shares and percentage of outstanding shares of Common Stock of the Company
beneficially owned by each of them as of August 26, 1996, and the number of
Shares available for resale hereunder.
<TABLE>
<CAPTION>
Number of Shares Number of Shares Available Percentage of Shares
Name Beneficially Owned for sale Hereunder Outstanding Owned
=============================================================================================================
<S> <C> <C> <C>
Jeff Clark 11,250(1) 11,250 *
Terri Coyle 11,250 11,250 *
Paul Durden 5,625 5,625 *
Sid Falling 1,000(2) 1,000 *
Jimmy Henderson 46,625 33,750 *
David Ligon 11,250(3) 11,250 *
Thomas Lusk 22,500 22,500 *
Joe Ritch 89,662 63,000 1.6
Joe Rosswog 1,000(4) 1,000 *
Chris Thomas 1,000(5) 1,000 *
Charles Williams 22,500 22,500 *
- --------------
</TABLE>
*less than 1%
(1)Includes 11,250 shares of Common Stock issuable upon the exercise of
outstanding options.
(2)Includes 1,000 shares of Common Stock issuable upon the exercise of
outstanding options.
(3)Includes 11,250 shares of Common Stock issuable upon the exercise of
outstanding options.
(4)Includes 1,000 shares of Common Stock issuable upon the exercise of
outstanding options.
(5)Includes 1,000 shares of Common Stock issuable upon the exercise of
outstanding options.
4
<PAGE> 8
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholders that
they intend to sell all or a portion of the Shares offered hereby from time to
time in the over-the-counter market and that sales will be made at prices
prevailing at the time of such sales. The Selling Stockholders may also make
private sales directly or through a broker or brokers, who may act as agent or
as principal. In connection with any sales, the Selling Stockholders and any
brokers participating in such sales may be deemed to be underwriters within the
meaning of the Securities Act.
Any broker-dealer participating in such transactions as an
agent may receive commissions from the Selling Stockholders (and, if such
broker acts as agent for the purchaser of such shares, from such purchaser).
Usual and customary brokerage fees will be paid by the Selling Stockholders.
Any broker-dealer may agree with the Selling Stockholders to sell a specified
number of Shares at a stipulated price per share, and, to the extent such a
broker- dealer is unable to do so acting as an agent for the Selling
Stockholders, to purchase as principal any unsold Shares at the price required
to fulfill the broker-dealer commitment to the Selling Stockholders.
Broker-dealers who acquire Shares as principal may thereafter resell such
Shares from time to time in transactions (which may involve crosses and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above) in the over-the-counter
market, in negotiated transactions or otherwise at market prices prevailing at
the time or sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such Shares commissions computed
as described above.
The Company has advised the Selling Stockholders that the
anti-manipulative Rules 10b-6 and 10b-7 under the Exchange Act may apply to
sales in the market, has furnished the Selling Stockholders with a copy of
these Rules and has informed them of the possible need for delivery of copies
of this Prospectus. The Selling Stockholders may indemnify any broker-dealer
that participates in transactions involving the sale of the Shares against
certain liabilities, including liabilities arising under the Act. Any
commissions paid or any discounts or concessions allowed to any such
broker-dealers, and, if any such broker-dealers purchase Shares as principal,
any profits received on the resale of such Shares, may be deemed to be
underwriting discounts and commissions under the Act.
Upon the Company's being notified by the Selling Stockholders
that any material arrangement has been entered into with a broker-dealer of the
sale of Shares through a cross or block trade, a supplemental prospectus will
be filed under Rule 424(c) under the Act, setting forth the name of the
participating broker-dealer(s), the number of Shares involved, the price at
which such Shares were sold by the Selling Stockholders, the commission paid or
discounts or concessions allowed by the Selling Stockholders to such
broker-dealer(s), and where applicable, that such broker-dealer(s) did not
conduct any investigation to verify the information set out in this Prospectus.
Any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144 under the Act may be sold under that Rule rather than
pursuant to this Prospectus.
There can be no assurances that the Selling Stockholders will
sell any or all of the shares of Common Stock offered hereunder.
5
<PAGE> 9
EXPERTS
The consolidated balance sheets of Cybex Computer Products
Corporation as of March 31, 1995 and 1996 and the related consolidated
statements of income, changes in shareholders' equity and cash flows for each
of the three years in the period ended March 31, 1996, incorporated by
reference in Cybex Computer Products Corporation's annual report on Form 10-K
filed with the Securities and Exchange Commission on June 27, 1996, pursuant to
Rule 13(a) or 15(d) of the Exchange Act, have been audited by Coopers & Lybrand
L.L.P., independent auditors, as set forth in their report thereon incorporated
by reference therein and incorporated herein by reference. Such financial
statements are incorporated herein in reliance upon the report of Coopers &
Lybrand L.L.P. given upon the authority of such firm as experts in accounting
and auditing.
LEGAL MATTERS
The validity of the Shares of Common Stock offered hereby will
be passed upon for the Company by Sirote & Permutt, P.C., Birmingham, Alabama.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents listed in (a) through (d) below are
incorporated by reference in this Prospectus.
(a) The Company's prospectus filed pursuant to Rule
424(b) of the Act in connection with the Company's
initial public offering of common stock, the
Registration Statement (No. 33-93124) on Form S-1.
(b) The description of securities to be registered
contained in the Registration Statement filed with
the Commission on Form 8-A under the Exchange Act
including any amendment or reports filed for the
purpose of updating such description.
(c) The Company's latest annual report filed with the
Commission on Form 10-K on June 27, 1996 filed
pursuant to Section 13(a) and 15(d) of the Exchange
Act which contains the financial statements for the
Company's latest fiscal year.
(d) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since June
27, 1996.
(e) All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 (the "Exchange
Act") 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, shall be deemed to be
incorporated by reference into this Registration
Statement and to be a part hereof from the date of
filing of such documents.
6
<PAGE> 10
INDEMNIFICATION
Sections 10-2B-8.51 and 10-2B-8.56 of the Alabama Business
Corporation Act (the "ABCA"), allow indemnification by a corporation, under
certain circumstances, of any person who was or is a party (or is threatened to
be made a party) to any threatened, pending or completed claim, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise; provided, that such
person acted in good faith and in a manner he reasonably believed to be, in the
case of conduct in his or her official capacity with the corporation, in its
best interests, and, in all other cases, in or not opposed to its best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation also has
the power under Section 10-2B-8.57 of the ABCA to purchase and maintain
indemnity insurance against such threatened, pending or completed claim,
action, suit or proceeding on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or who is or was serving at the
request of the corporation as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
Insofar as indemnification for liability arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or, otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-----------------------------------
No person has been authorized to give any information or to
make any representations other than those contained or incorporated by
reference in this Prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or the Selling Stockholders. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of the Company since
the date hereof or that the information contained herein is correct as of any
time subsequent to the date hereof.
This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the securities to
which this Prospectus relates or an offer to or solicitation of any person in
any jurisdiction in which such offer or solicitation would be unlawful.
7
<PAGE> 11
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Cybex Computer Products Corporation ("Cybex" or the
"Company") hereby incorporates by reference into this Registration Statement
the following documents previously filed with the Securities and Exchange
Commission:
(a) The Company's Prospectus filed pursuant to
Rule 424(b) of the Act in connection with the Company's initial public offering
of common stock, the Registration Statement (No. 33-93124) on Form S-1.
(b) The Company's latest annual Report filed with
the Commission on Form 10-K on June 27, 1996 pursuant to Section 13(a) and
15(d) of the Exchange Act which contains financial statements for the Company's
latest fiscal year.
(c) All other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended March
31, 1996.
(d) All documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregistered all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statements contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed documents which is also incorporated by reference herein)
modified or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this Prospectus except as so
modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS & COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS & OFFICERS
Sections 10-2B-8.51 and 10-2B-8.56 of the Alabama Business Corporation
Act (the "ABCA"), allow indemnification by a corporation, under certain
circumstances, of any person who was or is a party (or is threatened to be made
a party) to any threatened, pending or completed claim, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise; provided, that such person acted in
good faith and in a manner he reasonably believed to be, in the case of conduct
in his or her official capacity with the corporation, in its best interests,
and, in all other cases, in or not opposed to its best interest and, with
II-1
<PAGE> 12
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. A corporation also has the power under
Section 10-2B-8.57 of the ABCA to purchase and maintain indemnity insurance
against such threatened, pending or completed claim, action, suit or
proceeding on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
-------------- ----------------------
<S> <C>
5 Opinion Re Legality of Shares
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Sirote & Permutt, P.C.
(contained in opinion of counsel filed in Exhibit 5 hereto)
24 Power of Attorney (set forth on the signature pages of this
Registration Statement)
99.1 Cybex Computer Products Corporation 1995 Outside Directors
Stock Option Plan
99.2 Cybex Computer Products Corporation 1995 Employee Stock
Option Plan
99.3 1989 Cybex Computer Products Corporation Employee Incentive
Stock Option Plan
</TABLE>
ITEM 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or
sales are being made, a post-effective amendment to
this registration statement;
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
II-2
<PAGE> 13
securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high and of the estimated
maximum offering range may be
reflected in the form of prospectus
filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the
changes in volume and price represent
no more than 20 percent change in the
maximum aggregate offering price set
forth in the "Calculation of
Registration Fee" table in the
effective registration statement; and
(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, Form S-8, or Form F-3, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the 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.
4. If the registrant is a foreign private
issuer, to file a post-effective amendment to
the registration statement to include any
financial statements required by Rule 3-19 of
this chapter at the start of any delayed
offering or throughout a continuous offering.
Financial statements and information
otherwise required by Section 10(a)(3) of the
Act need not be furnished, provided, that the
registrant includes in the prospectus, by
means of a post-effective amendment,
financial statements required pursuant to
this paragraph (a)(4) and other information
necessary to ensure that all other
information in the prospectus is at least as
current as the date of those financial
statements. Notwithstanding the foregoing,
with respect to registration statements on
Form F-3, a post-effective amendment need not
be filed to include financial statements and
information required by Section 10(a)(3) of
the Act or Rule 3-19 of this chapter if such
financial statements and information are
contained in periodic reports filed with or
furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
B. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered
II-3
<PAGE> 14
therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liability arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or,
otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission
such indemnification is against public policy as
expressed in the Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than
payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of
the registrant in the successful defense of any
action, suit or proceeding) is asserted by such
director, officer or controlling person in connection
with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question
whether such indemnification by it is against public
policy as expressed in the Act and will be governed
by the final adjudication of such issue.
II-4
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all requirements for filing on Form S-8 and has duly caused this registration
statement to be singed on its behalf by the undersigned, thereunto duly
authorized, in the City of Huntsville, State of Alabama, on August 26, 1996.
CYBEX COMPUTER PRODUCTS CORPORATION
BY: /s/ Stephen F. Thornton
-------------------------------------
Stephen F. Thornton
Chairman of the Board, President and
Chief Executive Officer
II-5
<PAGE> 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen F. Thornton and Doyle C. Weeks,
and each or either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Stephen F. Thornton
- -------------------------------- Chairman of the Board, President August 26, 1996
Stephen F. Thornton and Chief Executive Officer
(Principal Executive Officer)
/s/ Doyle C. Weeks
- -------------------------------- Senior Vice President - Finance, August 26, 1996
Doyle C. Weeks Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
/s/ Remigius G. Shatas
- -------------------------------- Senior Vice President and Chief Technical August 26, 1996
Remigius G. Shatas Officer, Secretary and Director
/s/ Oscar L. Pierce
- -------------------------------- Director August 20, 1996
Oscar L. Pierce
/s/ David S. Butler
- -------------------------------- Director August 26, 1996
David S. Butler
/s/ Douglas E. Pritchett
- -------------------------------- Director August 20, 1996
Douglas E. Pritchett
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5
[SIROTE & PERMUTT LETTERHEAD]
August 28, 1996
Cybex Computer Products Corporation
4912 Research Drive
Huntsville, Alabama 35805
Re: Registration Statement on Form S-8
Registration No. 33-
Gentlemen:
We have acted as your counsel in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on August 28, 1996, for the
registration of up to 794,525 shares of Common Stock, $.001 par value (the
"Shares") of Cybex Computer Products Corporation (the "Company") pursuant to
the Company's 1989 Employee Incentive Stock Option Plan, the 1995 Employee
Stock Option Plan, the Directors' Compensation Equity Program, and the 1995
Outside Directors' Stock Option Plan.
In connection with the opinion, we have examined and relied upon such
records, documents and other instruments as in our judgment are necessary and
appropriate in order to express the opinions hereinafter set forth and have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to original documents submitted
to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, which
are issued and outstanding and the unissued share, when issued and delivered in
the manner and on the terms described in the Registration Statement, will be
duly authorized, validly issued, fully paid and non-assessable.
<PAGE> 2
Cybex Computer Products Corporation
August 27, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Tax Matters" in the 10(a) Prospectus included in the Registration
Statement.
Very truly yours,
/s/ SIROTE & PERMUTT, P.C.
SIROTE & PERMUTT, P.C.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated April 30, 1996, on our audits of the consolidated
financial statement of Cybex Computer Products Corporation, as of March 31, 1995
and 1996, and for each of the three years in the period ended March 31, 1996.
We also consent to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
August 26, 1996
<PAGE> 1
Page 1
EXHIBIT 99.1
1995 OUTSIDE DIRECTORS STOCK OPTION PLAN
OF
CYBEX CORPORATION
1. Purpose of the Plan.
The purposes of the 1995 Outside Directors Stock Option Plan (the
"Plan") of Cybex Corporation (the "Company") are to:
1.1 promote the interests of the Company and its shareholders by
strengthening the Company's ability to attract, motivate and retain outside
directors ("Outside Directors") of training, experience and ability,
1.2 furnish incentives to individuals or entities chosen to
receive Options because they are considered capable of responding by improving
operations and increasing profits; and
1.3 encourage the highest level of Outside Director performance by
providing Outside Directors with a proprietary interest in the Company's
financial success and growth through their participation in the growth in value
of the common stock, $.001 par value, of the Company ("Common Stock").
To accomplish the foregoing objectives, this Plan provides a means
whereby individuals may receive Options to purchase Common Stock. Options
granted under this Plan ("Options") will be non-qualified options subject to
federal income taxation upon exercise.
2. Definitions.
2.1 "Affiliate" means a "parent corporation" or "subsidiary
corporation" as defined in Section 425 of the Code.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Committee" means the Compensation Committee of the Board.
2.5 "Common Stock" means the $.001 par value common stock of the
Company.
2.6 "Company" means Cybex Corporation.
2.7 "Director" means a member of the Board.
2.8 "Employee" means any full-time employee of the Company, or of
any Affiliate.
2.9 "Fair Market Value" is defined in Section 7.4.
2.10 "Option" means a non-qualified stock option that is granted
under this Plan and does not satisfy the statutory requirements of Section 422
of the Code.
<PAGE> 2
Page 2
2.11 "Optionee" means any recipient of an Option under this Plan.
2.12 "Outside Director" means a member of the Board who is not an
employee of the Company or an Affiliate.
2.13 "Participant" means each Director who is not an employee of the
Company.
2.14 "Plan" means the 1995 Outside Directors Stock Option Plan of
Cybex Corporation, as set forth herein, which may be amended from time to time.
2.15 "Stock Option Agreement" means the agreement to be entered
into between the Company and the Optionee pursuant to which Options are granted
under the Plan.
3. Eligible Persons.
Every person who at the date on which an Option granted to the person
becomes effective (the "Grant Date") is an Outside Director of the Company or
is an Outside Director of any Affiliate is eligible to receive Options under
this Plan.
4. Stock Subject to the Plan.
The total number of shares of Common Stock that may be issued upon the
exercise of Options under this Plan is 25,000 shares of Common Stock. The
shares covered by the portion of any grant that expires unexercised under this
Plan shall become available again for grants under this Plan. The additional
number of shares available for issuance under this Plan is subject to
adjustment in accordance with the provisions for adjustment in this Plan.
5. Administration of the Plan.
The Plan shall be administered by the Committee, which shall have the
power to interpret the Plan and, subject to its provisions, to prescribe, amend
and rescind rules and to make all other determinations necessary for the Plan's
administration. Subject to the approval of the Board of Directors and the
provisions of this Plan, the Committee shall have the authority to select the
persons to receive Options under this Plan, to fix the number of shares that
each Optionee may purchase, to set the terms and conditions of each Option, and
to determine all other matters relating to this Plan. Any act approved in
writing by a majority of the members of the Committee shall be a valid act of
the Committee. All questions of interpretation, implementation and application
of this Plan shall be determined by the Committee. Such determinations shall
be final and binding on all persons. No member of the Board of Directors or
the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Option granted under the Plan.
6. Granting of Rights.
6.1 Five Year Limitation. No Options shall be granted under this
Plan after five (5) years from the date the Board adopts this Plan.
6.2 Written Agreement; Effect. Each Option shall be evidenced by
a written Stock Option Agreement, in form satisfactory to the Committee,
executed by the Company and by the
<PAGE> 3
Page 3
person to whom such Option is granted. Failure of the grantee to execute a
Stock Option Agreement shall not void or invalidate the grant of an Option; the
Option may not be exercised, however, until the Stock Option Agreement is
executed.
6.3 Advance Approvals. The Board of Directors may approve the
grant of Options to persons who are expected to become Outside Directors, but
are not members of the Board of Directors of the Company at the date of
approval. In such cases, the Option shall be deemed granted, without further
approval, on the date the grantee becomes an Outside Director and must satisfy
all requirements of this Plan for Options granted on that date.
7. Terms and Conditions of Options. All Options shall be subject to the
following terms and conditions:
7.1 Changes in Capital Structure. Subject to Section 7.2, if the
Common Stock of the Company is changed by reason of a stock split,
reverse stock split, stock dividend, or recapitalization, or converted
into or exchanged for other securities as a result of a merger,
consolidation, or reorganization, appropriate adjustments shall be
made in (A) the number and class of shares of Common Stock subject to
this Plan and each outstanding Option, and (B) the exercise price of
each outstanding Option; provided, however, that the Company shall not
be required to issue fractional shares as a result of any such
adjustment. Each such adjustment shall be determined by the Committee
in its sole discretion, which determination shall be final and binding
on all persons.
7.2 Corporate Transactions. New Option rights may be substituted
for Options granted, or the Company's obligations as to outstanding
Options may be assumed, by an employer corporation other than the
Company, or an Affiliate thereof, in connection with any merger,
consolidation, acquisition, separation, reorganization, dissolution,
liquidation, sale, or like occurrence (a "Corporate Transaction") in
which the Company is involved and which the Committee determines, in
its absolute discretion, would materially alter the capital structure
of the Company. If such an event occurs and if such employer
corporation, or an Affiliate thereof, does not substitute new Options
for, and substantially equivalent to, the outstanding Options granted
hereunder, or assume the outstanding Options granted hereunder, or if
there is no employer corporation, or if the Committee determines, in
its sole discretion, that outstanding Options should not then continue
to be outstanding, the Committee may upon ten (10) days prior written
notice to Optionees in its absolute discretion (A) shorten the period
during which Options are exercisable (provided they remain
exercisable, to the extent otherwise exercisable, for at least thirty
(30) days after the date the notice is given), or (B) cancel Options
upon payment to the Optionee in cash, with respect to each Option to
the extent then exercisable, of an amount which, in the absolute
discretion of the Committee, is determined to be equivalent to any
excess of the fair market value (at the effective time of the
Corporate Transaction) of the consideration that the Optionee would
have received if the Option had been exercised before the effective
time of the Corporate Transaction, over the exercise price of the
Option; provided, however, if there is a successor corporation and
replacement Options are not granted by the successor corporation, all
outstanding Options shall become exercisable prior to the consummation
of the Corporate Transaction such that the Optionees shall have not
less than thirty (30) days to exercise their Options and become
shareholders of record entitled to receive the consideration paid to
the other shareholders of the Company. Furthermore, notwithstanding
the provisions of this section 7.2, the Company may, in its sole
<PAGE> 4
Page 4
discretion, provide in any Stock Option Agreement that all Options
granted thereunder shall vest and become immediately exercisable for a
period of at least thirty (30) days prior to the consummation of a
Corporate Transaction. If an Optionee fails to exercise his Option
within any exercise period described in this paragraph and the
Corporate Transaction is consummated, his Option shall no longer be
exercisable. Any unexercised Option shall be cancelled and
terminated. Notwithstanding anything herein to the contrary, nothing
shall extend an Optionee's right to exercise the Option after the
expiration of five (5) years from the date it is granted. The actions
described in this Section may be taken without regard to any resulting
tax consequences to the Optionee.
7.3 Option Grant Date. Each Stock Option Agreement shall specify
the date as of which it shall be effective, which date shall be the Grant Date.
7.4 Fair Market Value. For purposes of this Plan, the fair market
value of the Company's Common Stock shall be determined as follows:
(a) if the Common Stock is listed on any established
stock exchange or a national market system, including without
limitation the Nasdaq Stock Market, its fair market value shall be the
closing sales price for the Common Stock, or the mean between the high
bid and low asked prices if no sales were reported, as quoted on such
system or exchange (or the largest such exchange) for the date the
value is to be determined (or if there are no sales or bids for such
date, then for the last preceding business day on which there were
sales or bids), as reported in the Wall Street Journal or similar
publication;
(b) if the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its
fair market value shall be the mean between the high bid and low
asking prices for the Common Stock on the date the value is to be
determined (or if there are no quoted prices for the date of grant,
then for the last preceding business day on which there were quoted
prices); or
(c) in the absence of an established market for the
Common Stock, the fair market value shall be determined in "good
faith" by the Committee, with reference to the Company's net worth,
prospective earning power, dividend-paying capacity, and other
relevant factors, including net income for the most recent twelve (12)
month period, the goodwill of the Company, the economic outlook in the
Company's industry, the Company's position in the industry and its
management and the values of stock of other corporations in the same
or a similar line of business.
7.5 Time of Option Exercise. An Option may be exercised with
respect to all or any shares of Common Stock covered thereby during its term as
provided in the Stock Option Agreement. Notwithstanding any other provision to
the contrary contained in the Plan, each Option will expire not later than five
(5) years from the Grant Date.
7.6 Terminations. Subject to the provisions of Section 7.5, each
Option will expire ninety (90) days after the time the Participant ceases to be
a Director, except as follows:
(a) If the service of the Director is terminated by the
Company other than for cause, for which the Company will be the sole
judge, then the Option will expire eight (8) months after the date of
termination, subject to the provisions of Section 7.5 hereof.
<PAGE> 5
Page 5
(b) If the Director retires at normal retirement age or
retires with the consent of the Company, the Option will expire three
(3) years after the date of termination, subject to the provisions of
Section 7.5 hereof.
(c) If the Director dies or becomes permanently disabled
while serving in such capacity, the Option will expire three (3) years
after the date of death or permanent disability, subject to the
provision of Section 7.5 hereof. If the Director dies or becomes
permanently disabled within the eight (8) months referred to in
subparagraph 7.6(b) above, the Option will expire one (1) year after
the date of death or permanent disability, subject to the provisions
of Section 7.5 hereof. If the Director dies or becomes permanently
disabled within the three (3) year period referred to in subparagraph
7.6(b) above, the Option will expire upon the later of three (3) years
after retirement or one (1) year after the date of death or permanent
and total disability, subject to the provisions of Section 7.5 hereof.
For purposes of this Plan, permanent disability means the failure by
the Optionee to perform his duties as a member of the Board of
Directors of the Company on account of illness or physical or mental
incapacity, and such illness or incapacity continues for a period of
more than six (6) consecutive months.
7.6 Nonassignability of Option Rights. No Option shall be
assignable or otherwise transferable by the Optionee except by will or by the
laws of descent and distribution. During the life of the Optionee, an Option
shall be exercisable only by the Optionee or the Optionee's guardian or legal
representative.
7.7 Exercise Price. The exercise price of Common Stock of an
Option shall be the Fair Market Value of the Common Stock on the Grant Date.
7.8 Payment. Except as provided below, payment in full, in cash,
shall be made for all shares of Common Stock purchased at the time written
notice of exercise of an Option is given to the Company, and proceeds of any
payment shall constitute general funds of the Company. At the time an Option
is granted or before it is exercised, the Committee, in the exercise of its
absolute discretion, may authorize any one or more of the following additional
methods of payment:
(a) delivery by the Optionee of Common Stock or
other securities of the Company already owned by the Optionee
for all or part of the aggregate exercise price of the shares
being acquired, provided the fair market value of such Common
Stock or securities is equal on the date of exercise to the
aggregate exercise price of the shares being acquired, or such
portion thereof as the Optionee is authorized to pay by
delivery of such Common Stock or securities; and
(b) any other property, so long as such property
is acceptable to the Committee and constitutes valid
consideration under applicable law for the shares being
acquired and is surrendered in good form for transfer.
7.9 Regulatory Compliance. No shares of Common Stock will be
issued or transferred pursuant to an Option unless and until all
then-applicable requirements imposed by Federal and state securities and other
laws, rules and regulations and by any regulatory agencies having jurisdiction,
and by any stock exchanges upon which the Common Stock may
<PAGE> 6
be listed, having been fully met. As a condition precedent to the issuance of
shares pursuant to the exercise of an Option, the Company may require the
Participant to take any reasonable action to meet such requirements.
7.10 Other Provisions. Each Stock Option Agreement may contain
such other terms, provisions, and conditions not inconsistent with this Plan,
including rights of repurchase, as may be determined by the Committee.
7.11 Withholding and Employment Taxes. At the time of exercise of
an Option, the Optionee shall remit to the Company in cash all applicable
federal and state withholding and employment taxes. If and to the extent
authorized and approved by the Committee in its sole discretion, an Optionee
may elect, by means of a form of election to be prescribed by the Committee, to
have shares which are acquired upon exercise of an Option withheld by the
Company or tender other shares of Common Stock or other securities of the
Company owned by the Optionee to the Company at the time the amount of such
taxes is determined in order to pay the amount of such tax obligations, subject
to the following limitations:
(a) such election shall be irrevocable;
(b) such election shall be subject to the disapproval
of the Committee at any time;
(c) such election may not be made within six (6) months
of the Grant Date of the Option the exercise of which resulted in the
tax withholding obligation (the "Related Option") (except that this
limitation shall not apply in the event death or disability of the
Optionee occurs before the expiration of the six-month period); and
(d) such election must be made either (i) six months
before the date that the amount of tax to be withheld upon exercise of
the Related Option is determined or (ii) in any ten-day period before
such tax determination date beginning on the third business day
following the date of release by the Company for publication of
quarterly or annual summary statements of sales or earnings of the
Company.
Any Common Stock or other securities so withheld or tendered will be valued by
the Company as of the date they are withheld or tendered. Unless the Committee
otherwise determines, the Optionee shall pay to the Company in cash, promptly
when the amount of such obligations become determinable, all applicable federal
and state withholding taxes resulting from the lapse of restrictions imposed on
exercise of an Option, from a transfer or other disposition of shares acquired
upon exercise of an Option or otherwise related to the Option or the shares
acquired upon exercise of the Option.
8. Manner of Exercise.
An Optionee wishing to exercise an Option shall give written notice to
the Company at its principal executive office, to the attention of the
Secretary of the Company, accompanied by an executed stock purchase agreement
in form and substance satisfactory to the Company, by payment of the exercise
price and by such other documents as the Committee may request. The date the
Company receives written notice of an exercise hereunder accompanied by payment
of the exercise price and all such other documents will be considered the date
the Option was exercised. Promptly after receipt of written notice of exercise
of an Option, the
<PAGE> 7
Page 7
Company shall, without stock issue or transfer taxes to the Optionee or any
other person entitled to exercise the Option, deliver to the Optionee or such
other person a certificate or certificates for the requisite number of shares
of Common Stock. An Optionee or transferee of an Option shall not have any
privileges as shareholder with respect to any Common Stock covered by the
Option until the date of issuance of a stock certificate.
9. Relationship with the Company.
Nothing in this Plan or any Option granted hereunder shall interfere
with or limit in any way the right of the Company to terminate any Optionee's
affiliation or other relationship with the Company at any time, nor confer upon
any Optionee any right to continue as a Director of or otherwise affiliated in
any way with, the Company.
10. Amendment, Suspension or Termination of this Plan.
The Board of Directors may at any time amend, alter, suspend or
discontinue this Plan. The Board of Directors may amend this Plan and the
terms of any Option outstanding hereunder if the amendment is designed to
maximize federal income tax benefits accorded to Options; provided, that with
respect to outstanding Options, the Optionee consents to such amendment.
11. Liability and Indemnification of Committee.
No member of the Committee shall be liable for any act or omission on
such member's own part, including but not limited to the exercise of any power
or discretion given to such member under this Plan, except for those acts or
omissions resulting from such member's own gross negligence or willful
misconduct. The Company shall indemnify each present and future member of the
Committee against, and each member of the Committee shall be entitled without
further act on his or her part to indemnity from the Company for, all expenses
(including attorneys' fees and the amount of judgments and the amount of
approved settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Company itself) reasonably incurred
by such person in connection with or arising out of any action, suit, or
proceeding to which the Committee or any member of the committee may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any Option granted or not granted under the Plan to the full extent
permitted by law and by the Certificate of Incorporation and Bylaws of the
Company. The right of indemnity described in this Section 11 shall be in
addition to such other rights of indemnification as the members of the
Committee shall otherwise be entitled because of their serving on the Board of
Directors of the Company or as an employee of the Company.
12. Effective Date of Plan and Duration of Plan.
This Plan shall become effective as of April 1, 1995.
Adopted by the Board of Directors on March 29, 1995.
<PAGE> 1
Page 1
EXHIBIT 99.2
1995 EMPLOYEE STOCK OPTION PLAN
OF
CYBEX CORPORATION
1. PURPOSE OF THE PLAN
The purposes of this 1995 Employee Stock Option Plan (the
"Plan") of Cybex Corporation (the "Company") are to:
1.1 furnish incentives to individuals chosen to
receive options because they are considered capable of responding by improving
operations and increasing the profits of the Company;
1.2 encourage selected employees to accept or
continue employment with the Company or its Affiliates; and
1.3 increase the interest of selected employees
in the Company's welfare through their participation in the growth in value of
the common stock, $.001 par value, of the Company (the "Common Stock").
To accomplish the foregoing objectives, this Plan provides a
means whereby individuals may receive options ("Options") to purchase Common
Stock. Options granted under this Plan will be either nonqualified options
("NQOs") subject to federal income taxation upon exercise or Options intended
to be incentive stock options ("ISOs") not subject to immediate federal income
taxation upon exercise.
2. ELIGIBLE PERSONS
2.1 General. Every person who at the date on
which an Option granted to the person becomes effective (the "Grant Date") is a
full-time employee of the Company or of any Affiliate is eligible to receive
Options under this Plan.
2.2 Definition of Affiliate. The term
"Affiliate," as used in this Plan, means a "parent corporation" or "subsidiary
corporation," as defined in Section 424 of the Internal Revenue Code of 1986,
as amended (the "Code"). The term "employee" shall have the meaning ascribed
for purposes of Section 3401(c) of the Code and the Treasury Regulations
promulgated thereunder and shall include an officer or a director who is also
an employee.
3. STOCK SUBJECT TO THIS PLAN
A total of 125,000 shares of Common Stock have been reserved
for issuance upon the exercise of Options under the Plan. The shares of Common
Stock covered by the portion of any grant that expires unexercised under this
Plan shall become available again for grants under this Plan. The number of
shares reserved for issuance under this Plan is subject to adjustment in
accordance with the provisions for adjustment in this Plan.
4. ADMINISTRATION
<PAGE> 2
Page 2
This Plan shall be administered by the Compensation Committee
of the Company (the "Committee") ,which shall consist of not less than three
(3) members appointed by the Board of Directors of the Company, at least two
(2) of which must be nonemployee disinterested Directors ("Disinterested
Directors") as defined in Rule 16b-3 promulgated under the Securities Exchange
Act of 1934 (the "Exchange Act"). The Committee may delegate nondiscretionary
administrative duties to other employees of the Company as it deems proper.
Subject to the approval of the Board of Directors and the provisions of this
Plan, the Committee shall have the authority to select the persons to receive
Options under this Plan, to fix the number of shares that each optionee may
purchase, to set the terms and conditions of each Option, and to determine all
other matters relating to this Plan; provided, however, that any Options
granted to management of the Company or other insiders shall be determined
solely by the Disinterested Directors and all Options granted to members of the
Board of Directors, who are full-time employees of the Company, shall comply
with Rule 16b-3 of the Exchange Act. Any act approved in writing by a majority
of the members of the Committee shall be a valid act of the Committee. All
questions of interpretation, implementation and application of this Plan shall
be determined by the Committee. Such determinations shall be final and binding
on all persons. No member of the Board of Directors or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any option granted under the Plan.
5. GRANTING OF OPTIONS
5.1 Ten Year Limitation. No Options shall be
granted under this Plan after ten years from the effective date of this Plan.
5.2 Written Agreement; Effect. Each Option shall
be evidenced by a written agreement (the "Option Agreement"), in form
satisfactory to the Committee, executed by the Company and by the person to
whom such Option is granted. The Option Agreement shall specify whether each
Option it evidences is a NQO or an ISO. Failure of the grantee to execute an
Option Agreement shall not void or invalidate the grant of an Option. An Option
may not be exercised, however, until the Option Agreement is executed. Each
optionee who is or is expected to become an employee shall contemporaneously
with the grant of an Option execute a nondisclosure and assignment agreement in
a form satisfactory to the Committee.
5.3 Annual $100,000 Limitation on ISOs. To the
extent required by Section 422(d) of the Code, the aggregate fair market value
of shares of the Common Stock with respect to which incentive stock options are
exercisable for the first time by any individual during any calendar year shall
not exceed $100,000. For this purpose, fair market value shall be the fair
market value of the shares of Common Stock covered by the ISOs when the ISOs
were granted. If by their terms, such ISOs taken together would first become
exercisable at a faster rate, this $100,000 limitation shall be applied by
deferring the exercisability of those ISOs or portions of ISOs which have the
highest per share exercise prices. The ISOs or portions of ISOs, the
exercisability of which are so deferred, shall become exercisable on the first
day of the first subsequent calendar year during which they may be exercised,
as determined by applying these same principles of this Section and all other
provisions of this Section and all other provisions of this Plan, including
those relating to the expiration and termination of ISOs.
5.4 Advance Approvals. The Board of Directors
may approve the grant of Options to persons who are expected to become
full-time employees of the Company,
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but are not employees at the date of approval. In such cases, the Option shall
be deemed granted, without further approval, on the date the grantee becomes a
full-time employee, and must satisfy all requirements of this Plan for Options
granted on that date.
6. TERMS AND CONDITIONS OF OPTIONS
Each Option shall be designated as an ISO or a NQO and shall
be subject to the terms and conditions set forth in Section 6.1. NQOs shall
also be subject to the terms and conditions set forth in Section 6.2, but not
those set forth in Section 6.3. ISOs shall also be subject to the terms and
conditions set forth in Section 6.3, but not those set forth in Section 6.2.
6.1 Terms and Conditions to Which All Options Are
Subject. All Options shall be subject to the following terms and conditions:
(a) Changes in Capital Structure.
Subject to Section 6.1(b), if the Common Stock of the Company is changed by
reason of a stock split, reverse stock split, stock dividend, or
recapitalization, or converted into or exchanged for other securities as a
result of a merger, consolidation, or reorganization, appropriate adjustments
shall be made in (A) the number and class of shares of stock subject to this
Plan and each outstanding Option, and (B) the exercise price of each
outstanding Option; provided, however, that the Company shall not be required
to issue fractional shares as a result of any such adjustment. Each such
adjustment shall be determined by the Committee in its sole discretion, which
determination shall be final and binding on all persons.
(b) Corporate Transactions. New option
rights may be substituted for Options granted, or the Company's obligations as
to outstanding Options may be assumed, by an employer corporation other than
the Company, or an Affiliate thereof, in connection with any merger,
consolidation, acquisition, separation, reorganization, dissolution,
liquidation, sale, or like occurrence in which the Company is involved
("Corporate Transaction") and which the Committee determines, in its absolute
discretion, would materially alter the Company's capital structure.
Substitution shall be done in such manner that the then outstanding Options
which are ISOs will continue to be "incentive stock options" within the meaning
of Section 422 of the Code to the full extent permitted thereby.
Notwithstanding the provisions of Section 6.1(a), if such an event occurs and
if such employer corporation, or an Affiliate thereof, does not substitute new
option rights for, and substantially equivalent to, the outstanding Options
granted hereunder, or assume the outstanding Options granted hereunder, or if
there is no employer corporation, or if the Committee determines, in its sole
discretion, that outstanding Options should not then continue to be
outstanding, the Committee may upon ten (10) days prior written notice to
optionees in its absolute discretion (A) shorten the period during which
Options are exercisable (provided they remain exercisable, to the extent
otherwise exercisable, for at least thirty days after the date the notice is
given), or (B) cancel Options upon payment to the optionee in cash, with
respect to each Option to the extent then exercisable, of an amount which, in
the absolute discretion of the Committee, is determined to be equivalent to any
excess of the fair market value (at the effective time of the Corporate
Transaction) of the consideration that the optionee would have received if the
Option had been exercised before the effective time of the Corporate
Transaction, over the exercise price of the Option; provided, however, if there
is a successor corporation and replacement options are not granted by the
successor corporation, all outstanding Options shall become exercisable prior
to the consummation of the Corporate Transaction such that the optionees shall
have not less
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than thirty days to exercise their Options and become stockholders of record
entitled to receive the consideration paid to the other stockholders of the
Company. Furthermore, notwithstanding the provisions of this section 6.1(b),
the Company may, in its sole discretion, provide in any Option Agreement that
all Options granted thereunder shall vest and become immediately exercisable
for a period of at least thirty days prior to the consummation of a Corporate
Transaction.If an optionee fails to exercise his option within any exercise
period described in this paragraph and the Corporate Transaction is
consummated, his option shall no longer be exercisable. Any unexercised option
shall be cancelled and terminated. Notwithstanding anything herein to the
contrary, nothing shall extend an optionee's right to exercise an Option after
the expiration of ten (10) years from the date it is granted. The actions
described in this Section may be taken without regard to any resulting tax
consequences to the optionee.
(c) Option Grant Date. Each Option
Agreement shall specify the date as of which it shall be effective, which date
shall be the Grant Date (determined pursuant to Section 5.4 in the case of
advance approvals).
(d) Fair Market Value. For purposes of
this Plan, the fair market value of the Company's Common Stock shall be
determined as follows:
(1) if the Common Stock is listed
on any established stock exchange or a national market system, including
without limitation the Nasdaq Stock Market National Market System, its fair
market value shall be the closing sales price for the Common Stock, or the mean
between the high bid and low asked prices if no sales were reported, as quoted
on such system or exchange (or the largest such exchange) for the date the
value is to be determined (or if there are no sales or bids for such date, then
for the last preceding business day on which there were sales or bids), as
reported in the Wall Street Journal or similar publication;
(2) if the Common Stock is
regularly quoted by a recognized securities dealer but selling prices are not
reported, its fair market value shall be the mean between the high bid and low
asking prices for the Common Stock on the date the value is to be determined
(or if there are no quoted prices for the date of grant, then for the last
preceding business day on which there were quoted prices); or
(3) in the absence of an
established market for the Common Stock, the fair market value shall be
determined in "good faith" by the Committee, with reference to the Company's
net worth, prospective earning power, dividend-paying capacity, and other
relevant factors, including sales for the most recent 12 month period, the
goodwill of the Company, the economic outlook in the Company's industry, the
Company's position in the industry and its management and the values of stock
of other corporations in the same or a similar line of business.
(e) Time of Option Exercise. The
Company shall not grant any Options which may become exercisable at a rate in
excess of 20% per annum from the date of such grant without the written consent
of a majority of the Disinterested Directors.
(f) Nonassignability of Option Rights.
No Option shall be assignable or otherwise transferable by the optionee except
by will or by the laws of descent and distribution. During the life of the
optionee, an Option shall be exercisable only by the optionee or the optionee's
guardian or legal representative.
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(g) Payment. Except as provided below,
payment in full, in cash, shall be made for all Common Stock purchased at the
time written notice of exercise of an Option is given to the Company, and
proceeds of any payment shall constitute general funds of the Company. At the
time an Option is granted or before it is exercised, the Committee, in the
exercise of its absolute discretion, may authorize any one or more of the
following additional methods of payment:
(1) delivery by the optionee of
Common Stock or other securities of the Company already owned by the optionee
for all or part of the aggregate exercise price of the shares of Common Stock
being acquired, provided the fair market value of such Common Stock or
securities is equal on the date of exercise to the aggregate exercise price of
the shares of Common Stock being acquired, or such portion thereof as the
optionee is authorized to pay by delivery of such Common Stock or securities;
and
(2) any other property, so long as
such property is acceptable to the Committee and constitutes valid
consideration under applicable law for the shares being acquired and is
surrendered in good form for transfer.
(h) Termination.
(1) Any Option or portion thereof
which has not expired or been exercised on or before the date on which an
optionee ceases to be an employee or member of the Board of Directors or
otherwise affiliated with the Company ("Termination") for cause, shall expire
upon Termination.
(2) Any Option or portion thereof
which has not expired or been exercised on or before the date of Termination
without cause, shall expire ninety (90) days after the date of Termination. A
leave of absence duly authorized by the Company, shall not be deemed a
Termination or a break in continuous employment.
(3) Notwithstanding the foregoing,
if Termination is due to the permanent disability or death of the optionee, the
optionee, the optionee's personal representative or any other person who
acquires Options from the optionee by will or the applicable laws of descent
and distribution, may, within twelve months after the date of Termination,
exercise such Options to the extent they were exercisable on the date of
Termination. For purposes of this Plan, permanent disability means the failure
by the Optionee to perform his duties as an employee of the Company on account
of illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than six (6) consecutive months.
(i) Other Provisions. Each Option
Agreement may contain such other terms, provisions, and conditions not
inconsistent with this Plan, including rights of repurchase, as may be
determined by the Committee, and each ISO granted under this Plan shall include
such provisions and conditions as are necessary to qualify such option as an
"incentive stock option" within the meaning of Section 422 of the Code.
(j) Withholding and Employment Taxes.
At the time of exercise of an Option, the optionee shall remit to the Company
in cash all applicable federal
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and state withholding and employment taxes. If and to the extent authorized
and approved by the Committee in its sole discretion, an optionee may elect, by
means of a form of election to be prescribed by the Committee, to have shares
of Common Stock which are acquired upon exercise of an Option withheld by the
Company or tender other shares of Common Stock or other securities of the
Company owned by the optionee to the Company at the time the amount of such
taxes is determined in order to pay the amount of such tax obligations, subject
to the following limitations:
(1) such election shall be
irrevocable;
(2) such election shall be
subject to the disapproval of the Committee at any time;
(3) such election may not be made
within six months of the Grant Date of the Option the exercise of which
resulted in the tax withholding obligation (the "Related Option") (except that
this limitation shall not apply in the event death or disability of the
optionee occurs before the expiration of the six-month period); and
(4) such election must be made
either (i) six months before the date that the amount of tax to be withheld
upon exercise of the Related Option is determined or (ii) in any ten-day period
before such tax determination date beginning on the third business day
following the date of release by the Company for publication of quarterly or
annual summary statements of sales or earnings of the Company.
Any shares of Common Stock or other securities so withheld or tendered will be
valued by the Company as of the date they are withheld or tendered. Unless the
Committee otherwise determines, the optionee shall pay to the Company in cash,
promptly when the amount of such obligations become determinable, all
applicable federal and state withholding taxes resulting from the lapse of
restrictions imposed on exercise of an Option, from a transfer or other
disposition of shares of Common Stock acquired upon exercise of an Option or
otherwise related to the Option or the shares of Common Stock acquired upon
exercise of the Option.
6.2 Terms and Conditions to Which Only NQOs Are
Subject. Options granted under this Plan which are designated as NQOs shall be
subject to the following terms and conditions:
(a) Exercise Price. The exercise price
of an NQO shall not be less than 85 percent of the fair market value of the
Common Stock on the Grant Date; provided however, that the exercise price of an
NQO granted to any person who owns, directly or indirectly (or is treated as
owning by reason of attribution rules, currently set forth in Code Section
424), Common Stock of the Company constituting more than ten percent of the
total combined voting power of all classes of outstanding stock of the Company
or of any Affiliate of the Company, shall in no event be less than 100 percent
of such fair market value.
(b) Option Term. Unless an earlier
expiration date is specified by the Committee at the Grant Date in the Option
Agreement, each NQO shall expire ten years from its Grant Date.
6.3 Terms and Conditions to Which Only ISOs Are
Subject. Options granted under this Plan which are designated as ISOs shall be
subject to the following terms
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and conditions:
(a) Exercise Price. The exercise price
of an ISO shall be determined in accordance with the applicable provisions of
the Code and shall in no event be less than the fair market value of the Common
Stock at the Grant Date; provided, however, that the exercise price of an ISO
granted to any person who owns, directly or indirectly (or is treated as owning
by reason of attribution rules, currently set forth in Code Section 424),
Common Stock of the Company constituting more than ten percent of the total
combined voting power of all classes of outstanding stock of the Company or of
any Affiliate of the Company, shall in no event be less than 110 percent of
such fair market value.
(b) Option Term. Unless an earlier
expiration date is specified by the Committee at the Grant Date in the Option
Agreement, each ISO shall expire ten (10) years from its Grant Date; except
that an ISO granted to any person who owns, directly or indirectly (or is
treated as owning by reason of applicable attribution rules currently set forth
in Section 424 of the Code) stock of the Company constituting more than ten
percent of the total combined voting power of the Company's outstanding stock,
or the stock of any Affiliate of the Company, shall expire five years from its
Grant Date.
(c) Disqualifying Dispositions. If
shares of Common Stock acquired by exercise of an ISO is disposed of within two
years from the Grant Date or within one year after the transfer of the Common
Stock to the optionee, the holder of the Common Stock immediately prior to the
disposition shall promptly notify the Company in writing of the date and terms
of the disposition and shall provide such other information regarding the
disposition as the Company may reasonably require. Such holder shall pay to
the Company any withholding and employment taxes which the Company in its sole
discretion deems applicable. The Company may instruct its stock transfer agent
by appropriate means, including placement of legends on stock certificates, not
to transfer stock acquired by exercise of an ISO unless it has been advised by
the Company that the requirements of this Section have been satisfied.
7. MANNER OF EXERCISE
An optionee wishing to exercise an Option shall give written
notice to the Company at its principal executive office, to the attention of
the Secretary of the Company, accompanied by an executed stock purchase
agreement in form and substance satisfactory to the Company, by payment of the
exercise price and by such other documents as the Committee may request. The
date the Company receives written notice of an exercise hereunder accompanied
by payment of the exercise price and all such other documents will be
considered the date the Option was exercised. Promptly after receipt of
written notice of exercise of an Option, the Company shall, without stock issue
or transfer taxes to the optionee or any other person entitled to exercise the
Option, deliver to the optionee or such other person a certificate or
certificates for the requisite number of shares of Common Stock. An optionee
or transferee of an Option shall not have any privileges as stockholder with
respect to any Common Stock covered by the Option until the date of issuance of
a stock certificate.
8. RELATIONSHIP WITH THE COMPANY
Nothing in this Plan or any Option granted hereunder shall
interfere with or limit
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in any way the right of the Company to terminate any optionee's employment,
affiliation or other relationship with the Company at any time, nor confer upon
any optionee any right to continue in the employ of the Company.
9. AMENDMENT, SUSPENSION OR TERMINATION OF THIS PLAN
The Board of Directors may at any time amend, alter, suspend
or discontinue this Plan. The Board of Directors may amend this Plan and the
terms of any Option outstanding hereunder if the amendment is designed to
maximize federal income tax benefits accorded to Options; provided, that with
respect to outstanding Options, the optionee consents to such amendment.
10. LIABILITY AND INDEMNIFICATION OF COMMITTEE
No member of the Committee shall be liable for any act or
omission on such member's own part, including but not limited to the exercise
of any power or discretion given to such member under this Plan, except for
those acts or omissions resulting from such member's own gross negligence or
willful misconduct. The Company shall indemnify each present and future member
of the Committee against, and each member of the Committee shall be entitled
without further act on his or her part to indemnity from the Company for, all
expenses (including attorneys' fees and the amount of judgments and the amount
of approved settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Company itself) reasonably incurred
by such person in connection with or arising out of any action, suit, or
proceeding to which the Committee or any member of the committee may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any option granted or not granted under the Plan to the full extent
permitted by law and by the Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws of the Company. The right of indemnity described
in this Section 10 shall be in addition to such other rights of indemnification
as the members of the Committee shall otherwise be entitled because of their
serving on the Board of Directors of the Company or as an employee of the
Company.
11. EFFECTIVE DATE OF THIS PLAN
This Plan shall become effective upon adoption by the Board of
Directors of the Company.
Adopted by the Board of Directors on May 29, 1995.
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EXHIBIT 99.3
RESTATED
1989 EMPLOYEE INCENTIVE STOCK OPTION PLAN
FOR CYBEX CORPORATION
PURPOSE.
This 1989 Employee Incentive Stock Option Plan (the "Plan") of Cybex
Corporation (the "Corporation"), is intended as an incentive for key employees
which will foster increased productivity, encourage them to remain in the
employ of the Corporation and enable them to acquire or to increase their
proprietary interest in the Corporation. It is further intended that options
issued pursuant to this Plan shall constitute incentive stock options within
the meaning of Section 422A of the 1954 Internal Revenue Code, as amended.
ADMINISTRATION.
The Plan shall be administered by a committee appointed by the Board
of Directors of the Corporation (the "Committee"). The Committee shall consist
of no less then two members of the Corporation's Board of Directors. The Board
of Directors may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, however caused, shall be filled by the
Board of Directors. The Committee shall select one of its members as Chairman,
and shall hold meetings at such times and places as it may determine. Action
taken by majority of the Committee at which a quorum is present, or action
approved in writing by a majority of the members of the Committee, shall be the
valid acts of the Committee. Members of the Committee shall be eligible to
receive options under the Plan if they are otherwise qualified to receive such
options. The Committee shall from time to time at its discretion select the
employees who shall be granted options and the amount of stock to be optioned
to each such employee.
The interpretation and construction by the Committee of any provisions
of the Plan or of any option granted under it shall be final. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it.
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ELIGIBILITY.
The persons who shall be eligible to receive options shall be such
employees (including officers) of the Corporation and its subsidiaries as the
Committee shall select from time to time. The determination of whether a
corporation is a subsidiary of the Corporation shall be made in accordance with
Section 425(f) of the Internal Revenue Code, as amended. An optionee may hold
more than one option, but only on the terms and subject to the restrictions
hereafter set forth. No person shall be eligible to receive an option for a
larger number of shares than is recommended for him or her by the Committee.
In selecting the individuals to whom options shall be granted, as well as
determining the number of shares subject to each option, the Committee shall
weigh the position and responsibility of the individual being considered, the
nature of his or her services, his or her present and potential contributions
to the Corporation and such other factors as the Committee shall deem relevant
to accomplish the purpose of this Plan. No option shall be granted to an
employee who, immediately after such option is granted, owns or has rights to
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Corporation unless such option is granted at a
price which is at least 110% of the fair market value of the stock subject to
the option and such option by its terms is not exercisable after the expiration
of five (5) years from the date such option is granted.
STOCK.
The stock subject to the options shelf be shares of the Corporation's
authorized but unissued or reacquired $.01 par value common stock hereafter
sometimes called "Capital Stock." The aggregate number of shares which may be
issued under options shall not exceed 400,000 shares of Capital Stock. The
limitations established by each of the preceding sentences shall be subject to
adjustment as provided in Article 5(h) of the Plan.
In the event that any outstanding option under the Plan for any reason
expires or is terminated, the shares of Capital Stock allocable to the
unexercised portion of such option may again be subjected to an option under
the Plan.
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TERMS AND CONDITIONS OF OPTIONS.
The granting of any option hereunder shall not impose upon the
Corporation any obligation to retain the optionee in its employ for any period.
Stock options granted Pursuant to the Plan shall be authorized by the Committee
and shall be evidenced by agreements in such form as the Committee shall from
time to time approve, which agreements shall comply with and be subject to the
following terms and conditions:
Number of Shares.
Each option shall state the number of shares to which it
pertains.
Option Price.
Each option shall state the option price, which shall be not
less than 100% of the fair market value of the shares of Capital Stock of the
Corporation on the date of the granting of the option. The Board of Directors
shall have full authority and discretion to establish the option price for the
shares of Capital Stock. The Board of Directors and the Committee shall be
fully protected in acting under this Plan. No option may be granted under the
Plan if such grant, together with any applicable prior grants, would exceed any
maximum established under the Internal Revenue Code for incentive stock options
that may be granted to a single employee. Should it be determined that any
option granted under the Plan exceeds such maximum, the option shall be null
and void to the extent, but only to the extent, of such excess. Section
422A(b)(8) of the Internal Revenue Code presently provides that the aggregate
fair market value (determined as of the time the option is granted) of the
stock for which any employee may be granted options in any calendar year under
all incentive stock option plans of the Corporation shall not exceed $100,000
plus any unused limit carryover (as defined in the Code) to such year.
Medium and Time of Payment.
The option price shall be payable in cash or by means of
unrestricted shares of the Corporation's Capital Stock or any combination
thereof upon the exercise of the option. Payment in currency or by check, bank
draft, cashier's check or postal money order shall be considered
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payment in Cash. In the event of payment in the Corporation's Capital Stock,
the shares used in payment of the purchase price shall be taken at the fair
market value thereof.
Term and Exercise of Options.
No option shall be exercisable either in whole or in part
prior to twenty four (24) months from the date it is granted. Each option
shall be exercisable two (2) years after the date of grant. Each option must
be fully exercised five (5) years after the date of grant. An option may be
exercised in part prior to its expiration date. During the lifetime of the
optionee, the option shall be exercisable only by him and shall not be
assignable or transferable other then by will or the laws of descent and
distribution. No option shall be exercisable after the expiration of five (5)
years from the date it is granted.
Prior Outstanding Option.
No incentive stock option issued hereunder shall be
exercisable by the optionee if such optionee has any prior incentive stock
option outstanding. An incentive stock option shall be treated as outstanding
until such option is exercise in full or expires by reason of lapse of time.
Termination of Employment Except Death.
In the event that an optionee shall cease to be employed by
the Corporation or its subsidiaries for any reason other than his death,
disability or retirement with consent of the Corporation, all options held by
him pursuant to the Plan which are exercisable but which have not previously
been exercised at the date of such termination shall terminate immediately and
become void and of no effect, provided, however, that the Committee shall have
the right to extend the exercise period not in excess of three months following
the date of termination of optionee's employment unless it expires within the
three month period. If the termination is due to disability, or to retirement
with the consent of the Corporation, such disabled or retiring optionee shall
have the right to exercise his options which have not previously been exercised
at the date of such termination of employment at any time within three months
after such termination, subject to the condition that no option shall be
exercisable after the expiration of five
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(5) years from the date it is granted. Whether termination of employment is
due to disability or is to be considered a retirement with the consent of the
Corporation shall be determined by the Committee, which determination shall be
final and conclusive.
Authorized leaves of absence or absence for military service
shall not constitute termination of employment for the purpose of the Plan.
Death of Optionee and Transfer of Option.
If the optionee shall die, either while in the employ of the
Corporation, or within a period of three (3) months after termination of
employment as a result of disability, or retirement with the consent of the
Committee, and shall not have fully exercised an option which is exercisable at
such time, the option may be exercised by the optionee's executors or
administrators or by any person or persons who shall have acquired the option
from the optionee directly by bequest or inheritance. In no event, however,
shall the option be exercisable more than five (5) years after the date such
option is granted, or more then (3) three months after the optionee's demise.
In the event an option is transferred to an optionee's executors or
administrators, to the distributees of the estate, or to a person to whom such
right devolves by reason of the optionee's death, then the option shall be
nontransferable by the optionee's executor or administrator or by such person,
except that the option may be distributed by the optionee's estate entitled
thereto.
Recapitalization.
Subject to any required action by the stockholders, the number
of shares of Capital Stock covered by each outstanding option, and the price
per share thereof in each such option, shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Capital Stock of the
Corporation resulting from a subdivision or consolidation of shares or the
payment of a stock dividend (but only on the Capital Stock) or any other
increase or decrease in the number of such shares affected without receipt of
consideration by the Corporation.
Subject to any required action by the stockholders, if the
Corporation shall be the
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surviving Corporation in any merger or consolidation, each outstanding option
shall pertain to and apply to the securities to which a holder of the number of
shares of Capital Stock subject to the option would have been entitled. A
dissolution or liquidation of the Corporation or a merger or consolidation in
which the Corporation is not the surviving Corporation shall cause each
outstanding option to terminate upon the payment of the difference, if any,
between the exercise price per share of each share covered by the option and
the fair market value of such stock on the date of dissolution, liquidation,
merger, or consolidation as if the option had been exercised on such date.
In the event of a change in Capital Stock of the Corporation
as presently constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any such change shall be deemed
to be the Capital Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock
or securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, provided that
each option granted pursuant to this Plan shall not be adjusted in a manner
that causes the option to fail to continue to qualify as an incentive stock
option within the meaning of Section 422A of the Internal Revenue Code of
1954, as amended.
Except as hereinbefore expressly provided in this Article 5 (h), the
optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or stock of another corporation. Any issue by the Corporation of shares of
stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Capital Stock subject to the
option.
The grant of an option pursuant to the Plan shall not affect
in any way the right or
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power of the Corporation to make adjustments, reclassification reorganizations
or changes of its capital or business structure or to merge or consolidate or
to dissolve, liquidate or sell, or transfer all or any part of its business or
assets.
Rights as a Stockholder.
An optionee or a transferee of an option shall have no rights
as stockholder with respect to any shares covered by his option until the date
issuance of a stock certificate to him for such shares. No adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Article 5 (h) hereof.
Modification, Extension and Renewal of Options.
Subject to the terms of the Plan and the limitations of the
Plan contained in Article 5 (e), the Committee may modify, extend or renew
outstanding option granted under the Plan, or accept the surrender of
outstanding options (to the extent not theretofore exercised) and authorize the
granting of new options in substitution therefore (to the extent not heretofore
exercised). The Committee shall not, however modify any outstanding options so
as to specify a lower price or accept the surrender of outstanding options and
authorize the granting of new options in substitution therefore specifying a
lower price. Notwithstanding the foregoing, however, no modification of an
option shall, without the consent of the optionee, alter or impair any rights
or obligations under any option heretofore granted under the Plan.
Restrictions Affecting Stock Purchased.
Since the shares of stock purchased upon exercise of the
options will not be registered, transfer of such shares will also be restricted
under federal and state securities laws. The shares may not be transferred
unless registered under the applicable securities laws or unless an exemption
from the registration requirements is available. The certificates evidencing
the shares purchased will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE
"SECURITIES") HAVE BEEN (I) ACQUIRED FOR INVESTMENT: (II)
ISSUED AND SOLD IN RELIANCE UPON
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THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
ALABAMA (THE "ACT") PROVIDED BY ALABAMA CODE OF 1975 SECTION
8-6-11 AND (III) ISSUED AND SOLD IN RELIANCE UPON THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
(THE "1933 ACT"). THE SECURITIES CANNOT BE OFFERED FOR SALE,
SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE
ACT OR THE 1933 ACT ARE IN EFFECT WITH REGARD THERETO OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
Due to the absence of any public or other market for the sale of the stock and
because of the restrictions on transfer of the stock a purchaser of the stock
may be required to retain his stock indefinitely. In the event the optionee
receives an offer of purchase from a third party with respect to such Capital
Stock which he desires to accept, the optionee shall first offer the shares for
sale to the Corporation at a price and on such terms as the optionee may
determine. The optionee shall give the Corporation thirty days' prior written
notice of such price and terms at which the optionee is willing to sell the
shares of Capital Stock. During such thirty day period the Corporation shall
have the right to accept the optionee's offer of sale. If, however, the
Corporation notifies the optionee that it does not elect to exercise its right
of first refusal herein granted, or if the Corporation does not exercise such
right of first refusal by giving written notice thereof to the optionee within
such thirty day period, then the optionee shall be free to sell the shares of
Capital Stock to any third party, but at a price no lower then the price quoted
the Corporation. If the optionee does not sell the shares within ninety days
after the notice of sale was given to the Corporation, then the optionee shall
be required to reoffer the shares to the Corporation in accordance with the
procedure outlined above. The term of this right of first refusal shall be for
five (5) years from the date the Capital Stock is acquired by exercise of an
option pursuant to this Plan.
Unless the Corporation otherwise consents in writing, or
unless the optionee offers the shares for sale to the Corporation pursuant to
the first right of refusal described above, the
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optionee shall not transfer by gift or otherwise the shares of Capital Stock
acquired pursuant to the exercise of an option granted under this Plan for a
period of five years following the date of such acquisition. In the event of
the death of an optionee, the shares of Capital Stock owned by him and acquired
pursuant to the exercise of an option under this Plan may pass by bequest of
intestate succession without first offering such shares for sale to the
Corporation under the first right of refusal described above. However, any
such transferee of the share Capital Stock taken by reason of the optionee's
death, shall take such shares subject to the Corporation's first right of
refusal.
The certificate evidencing the shares of Capital Stock
acquired by optionee pursuant to the exercise of an option granted under the
Plan shall bear following restrictive legend:
"THE HOLDER OF THESE SHARES MAY NOT TRANSFER THEM WITHOUT
FIRST OFFERING TO SELL THEM TO THE CORPORATION FOR THE SAME
TERMS OFFERED TO HOLDER BY ANY OTHER PARTY."
Other Provisions.
The option agreements authorized under the Plan shall contain
such other provisions, including, without limitation, restrictions upon the
exercise of the option as the Committee shall deem advisable. Any such option
agreement shall contain limitations and restrictions upon the exercise of the
option as shall be necessary in order that such option will be an "incentive
stock option" as defined in Section 422A of the Internal Revenue Code of 1954.
It shall be permissible for the Committee to adopt the terms and conditions
applicable to the options granted hereunder by reference this Plan in the
notice of grant provided a copy of the Plan is furnished the optionee or
attached to such notice.
TERM OF PLAN.
Options may be granted pursuant to the Plan from time to time within a
period of seven (7) years commencing November 1, 1989 and ending October 31,
1996.
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INDEMNIFICATIONS OF COMMITTEE.
In addition to such other rights of indemnification as they may have
as directors or as members of the Committee, the members of the Committee shall
be indemnified by the Corporation against the reasonable expenses, including
attorney's fees, actual and necessarily incurred in connection with the defense
of any action, suit proceeding, or in connection with any appeal therein, to
which they or any of the may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any option granted
thereunder, and against all amounts paid by the in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such Committee member is
liable for negligence or misconduct in the performance of his duties; provided
that with sixty (60) days after institution of any such action, suit or
proceeding a Committee member shall in writing offer the Corporation the
opportunity, at its own expense, handle and defend the same.
AMENDMENT OF THE PLAN.
The Board of Directors of the Corporation may, insofar as permitted by
law, from time to time, with respect to any shares at the time not subject to
options suspend or discontinue the Plan or revise or amend it in any respect
whatsoever without approval of the stockholders, however, no such revision or
amendment shall change the number of shares subject to the Plan, change the
designation of the class of employees eligible to receive options, extend the
term of the Plan, decrease the price at which options may be granted, or remove
the administration of the Plan from the Committee. Furthermore, the Plan may
not, without the approval of the stockholders, be amended in any manner that
will cause options issued under it to fail to meet the requirements of
incentive stock options as defined in Section 422A of the Internal Revenue
Code of 1954.
APPLICATION OF FUNDS.
The proceeds received by the Corporation from the sale of Capital Stock
pursuant to
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options will be used for general corporate purposes.
NO OBLIGATION TO EXERCISE OPTION.
The granting of an option shall impose no obligation upon the optionee
to exercise such option.
APPROVAL OF STOCKHOLDERS.
The Plan shall not take affect until approved by the holders of a
majority of the outstanding shares of Capital Stock of the Corporation, which
approval must occur within the period beginning six (6) months before and
ending six (6) months after the date the Plan is adopted by the Board of
Directors.
