<PAGE> 1
As filed with the Securities and Exchange Commission on July 27, 1999
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
CYBEX COMPUTER PRODUCTS CORPORATION
(Exact name of registrant as specified in its charter)
------------------
ALABAMA 63-0801728
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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4991 CORPORATE DRIVE
HUNTSVILLE, ALABAMA 35805
(Address of Principal Executive Offices) (Zip Code)
------------------
CYBEX COMPUTER PRODUCTS CORPORATION
1998 EMPLOYEE STOCK INCENTIVE PLAN
(Full Title of the Plan)
------------------
STEPHEN F. THORNTON
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
4991 CORPORATE DRIVE
HUNTSVILLE, ALABAMA 35805
(256) 430-4000
(Name, address 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
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<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 (1) SHARE PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 448,250 shares $18.39 (2) $ 8,243,318 $2,292
Common Stock, $.001 par value 676,750 shares $28.00 (3) $18,949,000 $5,268
Total 1,125,000 shares $7,560
=======================================================================================================================
</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
two subtotals.
(2) 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.
(3) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h), on the basis of the price of securities of the same
class, as determined in accordance with Rule 457(c), using the average of the
high and low prices reported on the Nasdaq National Market tier of The Nasdaq
Stock Market for the Common Stock on July 20, 1999, which was $28.00 per
share.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
NOTE: THE DOCUMENT(S) CONTAINING THE EMPLOYEE BENEFIT PLAN INFORMATION
REQUIRED BY ITEM 1 OF FORM S-8 AND THE STATEMENT OF AVAILABILITY OF REGISTRANT
INFORMATION AND ANY OTHER INFORMATION REQUIRED BY ITEM 2 OF FORM S-8 WILL BE
SENT OR GIVEN TO PARTICIPANTS AS SPECIFIED BY RULE 428 UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). IN ACCORDANCE WITH RULE 428 AND THE
REQUIREMENTS OF PART I OF FORM S-8, SUCH DOCUMENTS ARE NOT BEING FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") EITHER AS PART OF THIS
REGISTRATION STATEMENT OR AS PROSPECTUSES OR PROSPECTUS SUPPLEMENTS PURSUANT TO
RULE 424 UNDER THE SECURITIES ACT. THE REGISTRANT SHALL MAINTAIN A FILE OF SUCH
DOCUMENTS IN ACCORDANCE WITH THE PROVISIONS OF RULE 428. UPON REQUEST, THE
REGISTRANT SHALL FURNISH TO THE COMMISSION OR ITS STAFF A COPY OR COPIES OF ALL
OF THE DOCUMENTS INCLUDED IN SUCH FILE.
2
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Cybex Computer Products Corporation (the "Company") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's latest annual report on Form 10-K for the fiscal
year ended March 31, 1999, as filed with the Commission on June 23, 1999
pursuant to Section 13(a) and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) The description of the Company's common stock, par value $.001
per share, set forth under the caption "Description of Capital Stock," beginning
on page 40 of the Company's Registration Statement on Form S-1 (Registration No.
33-93124) filed with the Commission on June 6, 1995, as amended.
(c) All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of 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 registration statement except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND 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 action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the
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<PAGE> 5
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, partner, trustee, 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 the best interests of the corporation and, in all other cases,
in or at least not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, such person had no reasonable
cause to believe his conduct was unlawful. A corporation may not indemnify a
director, officer, employee or agent of the corporation (i) in connection with a
proceeding by or in the right of the corporation in which such person was
adjudged liable to the corporation, or (ii) in connection with any other
proceeding charging improper personal benefit to such person in which such
person was adjudged liable on the basis that personal benefit was improperly
received by him or her.
Pursuant to Sections 10-2B-8.52 and 10-2B-8.56 of the ABCA, a
corporation is required to indemnify a director or officer who was successful,
on the merits or otherwise, in the defense of any proceeding, or of any claim,
issue or matter in such proceeding, where he or she was a party because he or
she is or was a director or officer of the corporation, against reasonable
expenses incurred in connection therewith, notwithstanding that he or she was
not successful on any other claim, issue or matter in any such proceeding.
The Amended and Restated Articles of Incorporation of the Company
contain provisions that have the effect of requiring the Company to indemnify
any person who is or was a director, officer, employee or agent of the Company
to the extent permitted by Sections 10-2B-8.51 and 8.52 of the ABCA.
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 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, whether or not the corporation
would have power to indemnify him or her against the same liability under
Sections 10-2B-8.51 or 10-2B-8.52.
The Company maintains Directors' and Officers' liability insurance
which covers the directors and officers of the Company for certain actions taken
in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the
Company, incorporated by reference to Exhibit No. 3.1 to
Amendment No. 1 to Registration Statement No. 33-93124.
</TABLE>
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<TABLE>
<S> <C>
4.2 Amended and Restated By-Laws of the Company,
incorporated by reference to Exhibit No. 3.2 to
Amendment No. 1 to Registration Statement No. 33-93124.
5 Opinion of Sirote & Permutt, P.C. re: legality of shares
23.1 Consent of PricewaterhouseCoopers LLP
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 Cybex Computer Products Corporation 1998 Employee Stock
Incentive 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 securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 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
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<PAGE> 7
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 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 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 the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
6
<PAGE> 8
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 this 23rd day of
July, 1999.
CYBEX COMPUTER PRODUCTS CORPORATION
By: /s/ STEPHEN F. THORNTON
-------------------------------------------
Stephen F. Thornton
Chairman of the Board, President and
Chief Executive Officer
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<PAGE> 9
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 and July 23, 1999
- ------------------------------------------ Chief Executive Officer (Principal
Stephen F. Thornton Executive Officer)
/s/ DOUGLAS E. PRITCHETT Senior Vice President of Finance and July 23, 1999
- ------------------------------------------ Chief Financial Officer (Principal
Douglas E. Pritchett Financial and Accounting Officer)
/s/ DOYLE C. WEEKS Executive Vice President, Group July 23, 1999
- ------------------------------------------ Operations and Business Development,
Doyle C. Weeks and Director
/s/ REMIGIUS G. SHATAS Executive Vice President - Special July 23, 1999
- ------------------------------------------ Projects, Secretary and Director
Remigius G. Shatas
Director
- ------------------------------------------
Oscar L. Pierce
/s/ DAVID S. BUTLER Director July 23, 1999
- ------------------------------------------
David S. Butler
/s/ JOHN R. COOPER Director July 23, 1999
- ------------------------------------------
John R. Cooper
</TABLE>
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<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit No. 3.1 to Amendment No.
1 to Registration Statement No. 33-93124.
4.2 Amended and Restated By-Laws of the Company, incorporated by
reference to Exhibit No. 3.2 to Amendment No. 1 to
Registration Statement No. 33-93124.
5 Opinion of Sirote & Permutt, P.C. re: legality of shares
23.1 Consent of PricewaterhouseCoopers LLP
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 Cybex Computer Products Corporation 1998 Employee Stock
Incentive Plan
</TABLE>
<PAGE> 1
EXHIBIT 5
(LETTERHEAD OF SIROTE & PERMUTT, P.C.)
July 27, 1999
Cybex Computer Products Corporation
4991 Corporate Drive
Huntsville, Alabama 35805
Re: Registration Statement on Form S-8
Registration No. 333-
Gentlemen:
We have acted as counsel to Cybex Computer Products
Corporation, an Alabama corporation (the "Company"), 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 under the
Securities Act of 1933, as amended (the "Act"), on July 27, 1999, for the
registration of up to 1,125,000 shares (the "Shares") of Common Stock, par value
$.001 per share, of the Company to be issued pursuant to the Company's 1998
Employee Stock Incentive Plan (the "Incentive Plan"). At your request, this
opinion is being furnished to you for filing as Exhibit 5 to the Registration
Statement.
In connection with the opinions expressed herein, 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, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of the opinion
that:
1. Following due authorization of a particular award
under the Plan by the Compensation Committee of the Board of Directors of the
Company as provided in the Plan, the Shares issuable pursuant to such award will
have been duly authorized by all necessary corporate action on the part of the
Company.
2. Upon issuance and delivery of such Shares from time
to time pursuant to the terms of such award for the consideration established by
the Compensation Committee, such Shares will be validly issued, fully paid and
nonassessable.
The foregoing opinions are limited to the laws of the State of Alabama,
and we do not express any opinion herein concerning any other law.
Very truly yours,
/s/ SIROTE & PERMUTT, P.C.
SIROTE & PERMUTT, P.C.
1
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement of
Cybex Computer Products Corporation on form S-8 of our reports dated May 3,
1999, on our audits of the consolidated financial statements and financial
statement schedule of Cybex Computer Products Corporation as of March 31, 1998
and 1999, and for each of the three years in the period ended March 31, 1999.
/s/PricewaterhouseCoopers LLP
Birmingham, Alabama
July 27, 1999
1
<PAGE> 1
EXHIBIT 99
CYBEX COMPUTER PRODUCTS CORPORATION
1998 EMPLOYEE STOCK INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The purpose of the 1998 Employee Stock Incentive Plan of Cybex Computer
Products Corporation (the "Company") is to:
(a) promote the interests of the Company and its stockholders by
strengthening the Company's ability to attract, motivate and retain employees of
training, experience and ability;
(b) furnish incentives to individuals chosen to receive options
because they are considered capable of responding by improving operations and
increasing profits or otherwise add value to the Company;
(c) provide a means to encourage stock ownership and proprietary
interest in the Company to valued employees of the Company upon whose judgment,
initiative, and efforts the continued financial success and growth of the
business of the Company largely depend.
2. DEFINITIONS.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means the Compensation Committee of the Board as
shall be appointed by the Board from time to time. The Committee shall consist
of three or more members of the Board, at least two of whom shall not be
Employees of the Company.
(d) "Common Stock" means the $.001 par value Common Stock of the
Company.
(e) "Company" means Cybex Computer Products Corporation.
(f) "Eligible Person" means any employee of the Company or of any
of its present or future Subsidiaries.
(g) "Fair Market Value" means the closing price of a share of
Common Stock on the Nasdaq Stock Market or, if the Common Stock is not then
listed on the Nasdaq Stock Market, on any stock exchange on which the Common
Stock is then listed on the date as of which fair market value is to be
determined or, if the Common Stock is not then listed on any stock exchange a
price on which the Committee and Participant can agree upon.
(h) "Incentive Award" means an Option, Incentive Stock Award, or
cash bonus award granted under the Plan.
<PAGE> 2
(i) "Incentive Stock Award" means a right to the grant or
purchase, at a price determined by the Committee, of Common Stock of the Company
which is nontransferable and subject to substantial risk or forfeiture until
specific conditions are met. Conditions may be based on continuing employment or
achievement of preestablished financial objectives or both.
(j) "Option" means any nonqualified or nonstatutory stock option
and any incentive stock option granted pursuant to Section 422 of the Code.
(k) "Participant" means any Eligible Person selected to
participate in an Incentive Award pursuant to Section 5.
(l) "Plan" means the 1998 Employee Stock Incentive Plan as set
forth herein, which may be further amended from time to time.
(m) "Subsidiary" means any corporation, partnership, joint venture
or other entity during any period in which at least a fifty percent voting or
profits interest is owned, directly or indirectly, by the Company, or an entity
that is a successor to the Company.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN.
(a) Number of Shares. Subject to the provisions of Section 3.(c)
and Section 12 of the Plan, the aggregate number of shares of Common Stock that
may be issued or transferred or exercised pursuant to Incentive Awards under the
Plan will not exceed seven hundred fifty thousand (750,000) shares of Common
Stock.
(b) Issued or Unissued Shares. The shares of Common Stock to be
delivered under the Plan will be made available, at the discretion of the Board
or the Committee, either from authorized but unissued shares of Common Stock or
from previously issued shares of Common Stock reacquired by the Company,
including shares purchased on the open market.
(c) Forfeited Awards. If any Incentive Award is forfeited or
expires before exercise or delivery of the shares of Common Stock for any
reason, such Incentive Award will no longer be charged against the limitations
provided for in Section 3.(a) and may again be made subject to Incentive Awards.
4. ADMINISTRATION OF THE PLAN.
(a) Committee. The authority to control and manage the operation
and administration of the Plan shall be vested in the Committee. The Committee
has and may exercise such powers and authority of the Board as may be necessary
or appropriate for the Committee to carry out its functions as described in the
Plan.
(b) Powers of Committee. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(i) The Committee has the authority and discretion to
select from among the Eligible Employees those persons who shall receive
Incentive Awards, to determine the time or times of receipt, to determine the
types of Incentive Awards and the number of shares covered by the Incentive
Awards,
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<PAGE> 3
to establish the terms, conditions, performance criteria, restrictions, and
other provisions of such Incentive Awards.
(ii) Subject to the provisions of the Plan, the Committee
will have the authority and discretion to determine the extent to which
Incentive Awards under the Plan will be structured to conform to the
requirements applicable to performance-based compensation as described in
Section 162(m) of the Code, and to take such action, establish such procedures
and impose such restrictions at the time such Incentive Awards are granted as
the Committee determines to be necessary or appropriate to conform to such
requirements.
(iii) The Committee will have the authority and discretion
to establish terms and conditions of Incentive Awards as the Committee
determines to be necessary or appropriate to conform to applicable requirements
or practices of jurisdictions outside of the United States.
(iv) The Committee has authority to interpret the Plan,
and to determine the terms and provisions of the respective Incentive Awards
agreements and to make all other determinations necessary or advisable for Plan
administration.
(v) The Committee has authority to prescribe, amend, and
rescind rules and regulations relating to the Plan.
(vi) All interpretations, determinations, and actions by
the Committee will be final, conclusive, and binding upon all parties.
(c) No Liability. No member of the Board or the Committee will be
liable for any action or determination made in good faith by the Board or the
Committee with respect to the Plan or any Incentive Award under it.
5. ELIGIBILITY.
All employees of the Company or any Subsidiary shall be Eligible
Persons under the Plan. The Committee has authority, in its sole discretion, to
determine and designate from time to time those Eligible Persons who are to be
granted Incentive Awards, and the type and amount of Incentive Award to be
granted. Each Incentive Award will be evidenced by a written instrument and may
include any other terms and conditions consistent with the Plan, as the
Committee may determine.
6. 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 nonqualified stock option ("NQO") or an
incentive stock option ("ISO"). Failure of the grantee to execute an Option
Agreement shall not void or invalidate the grant of an Option; but the Option
may not be exercised, however, until the Option Agreement is executed.
3
<PAGE> 4
7. ANNUAL $100,000 LIMITATION IN 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 ISOs 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 covered by the ISOs when the ISOs were granted. To
the extent that the aggregate Fair Market Value of the Common Stock with respect
to which ISOs are exercisable for the first time by the Participant during any
calendar year (under all plans of the Company) exceeds $100,000, such Options
shall be treated as NQOs, to the extent required by Section 422 of the Code. 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.
8. ADVANCE APPROVALS.
The Board may approve the grant of Options to persons who are expected
to become Eligible Persons, but are not Eligible Persons at the date of
approval. In such cases, the Option shall be deemed granted, without further
approval, on the date the grantee becomes an Eligible Person, and must satisfy
all requirements of this Plan for Options granted on that date.
9. TERMS AND CONDITIONS OF STOCK OPTIONS.
(a) Designation. Each Option shall be designated as an ISO or a
NQO and shall be subject to the terms and conditions set forth in this Section
9. ISOs shall also be subject to the terms and conditions set forth in Section
10.
(b) 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 8 in the case of advance approvals).
(c) Exercise Price. Except as provided in Section 10 hereof, the
exercise price of Common Stock under each Option will be determined by the
Committee, and may not be less than eighty-five percent (85%) of the Fair Market
Value of the Common Stock on the date of the grant.
(d) Exercise. Options granted hereunder may be exercised as
determined by the Committee, provided, however, that notwithstanding any other
provision to the contrary contained in the Plan, each Option granted under this
Plan will expire not later than ten (10) years from the Date of Grant.
(e) Payment of Exercise Price. Except as set forth below, upon the
exercise of an Option, the purchase price will be payable in full in cash, or,
in the discretion of the Committee, by the assignment and delivery to the
Company of shares of Common Stock owned by the Participant. Any shares so
assigned and delivered to the Company in payment or partial payment of the
exercise price will be valued at their Fair Market Value on the exercise date.
The Committee may, in its discretion and upon the request of the Participant,
permit the Participant to elect to pay the exercise price upon the exercise of
an Option by authorizing a third party to sell shares of Common Stock (or a
sufficient portion of the shares) acquired upon exercise of the Option and remit
to the Company a sufficient portion of the sale proceeds to pay the
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entire exercise price and any tax withholding resulting from such exercise. No
payment by an assignment of shares, or by the sale by a third party as described
above, will be allowed unless such payments are allowed under applicable
requirements of Federal and state tax, securities and other laws, rules and
regulations and by any regulatory authority having jurisdiction.
(f) No Fractional Shares. No fractional shares will be issued
pursuant to the exercise of an Option nor will any cash payment be made in lieu
of fractional shares.
(g) Other Provisions of the Option Agreement. 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.
(h) Tax Withholding. If requested by the Company, 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, a
Participant 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 Participant to the Company at the time the amount of such
taxes is determined in order to pay the amount of such tax obligations.
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 Participant 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.
(i) Cash Award. At the time a Participant exercises an Option, the
Committee may grant a cash bonus award in such amount as the Committee may
determine. The Committee may make such a determination at the time of grant or
exercise. The cash bonus award may be subject to any condition imposed by the
Committee, including a reservation of the right to revoke a cash bonus award at
any time before it is paid.
10. 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 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 stock covered by the ISO 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), 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.
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(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 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 Participant, 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. 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.
11. TERMS AND CONDITIONS OF INCENTIVE STOCK AWARDS.
(a) General Conditions. All shares of Incentive Stock Awards
granted or sold pursuant to the Plan will be subject to the following
conditions:
(i) The shares may not be sold, transferred or otherwise
alienated or hypothecated until the restrictions are removed or expire.
(ii) The Committee may require the Participant to enter
into an agreement providing that the certificates representing Incentive Stock
Awards granted or sold pursuant to the Plan will remain in the physical custody
of the Company until all restrictions are removed or expire.
(iii) Each certificate representing Incentive Stock Awards
granted pursuant to the Plan will bear a legend making appropriate reference to
the restrictions imposed.
(iv) The Committee may impose other conditions on any
shares granted or sold pursuant to the Plan as it may deem advisable, including,
without limitations, restrictions under the Securities Act of 1933, as amended,
under the requirements of any stock exchange upon which such shares or shares of
the same class are then listed and under any blue sky or other securities laws
applicable to such shares.
(b) Lapse of Restrictions. The restrictions imposed under
subparagraph (a) above upon Incentive Stock Awards will lapse in accordance with
a schedule or other conditions as determined by the Committee, subject to the
provisions of Section 14.(e) hereof.
(c) Rights as a Stockholder. Subject to the provisions of
subparagraph (a) above and Section 11(c) hereof, the holder will have all rights
of a stockholder with respect to the Incentive Stock Awards granted or sold,
including the right to vote the shares and receive all dividends and other
distributions paid or made with respect thereto.
(d) Payment for Incentive Stock Awards. Except as set forth below,
the purchase price (if any) for shares of Incentive Stock Awards will be payable
in full in cash; or by the assignment and delivery to
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the Company of shares of Common Stock owned by the holder of the Incentive Stock
Awards. Any shares so assigned and delivered to the Company in payment or
partial payment of the purchase price will be valued at their Fair Market Value
on the purchase date. The Committee may, in its discretion and upon request of
the holder, permit the holder to elect to pay the exercise price of the
Incentive Stock Award by authorizing a third party to sell shares of Common
Stock (or a sufficient portion of the shares) acquired upon exercise of the
Incentive Stock Award and remit to the Company a sufficient portion of the sale
proceeds to pay the entire exercise price and any tax withholding resulting from
such exercise. No payment by an assignment of shares or by the sale by a third
party as described above, will be allowed unless such payments are allowed under
applicable requirements of Federal and state tax, securities and other laws,
rules and regulations and by any regulatory authority having jurisdiction.
12. ADJUSTMENT PROVISIONS.
(a) Adjustments. Subject to Section 12.(b) hereof, if the
outstanding shares of Common Stock of the Company are increased, decreased, or
exchanged for a different number or kind of shares or other securities, or if
additional shares or new or different shares or other securities are distributed
with respect to such shares of Common Stock or other securities, through merger,
consolidation, sale of all or substantially all of the property of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other distribution with respect to such shares of Common
Stock, or other securities an appropriate and proportionate adjustment may be
made in (i) the maximum number and kind of shares provided in Section 3, (ii)
the number and kind of shares or other securities subject to the then
outstanding Incentive Awards, and (iii) the price for each share or other unit
of any other securities subject to then outstanding Incentive Awards without
change in the aggregate purchase price or value as to which such Incentive
Awards remain exercisable or subject to restrictions.
(b) Merger, Etc. Despite the provisions of Section 12.(a), upon
dissolution or liquidation of the Company or upon a reorganization, merger, or
consolidation of the Company with one or more corporations as a result of which
the Company is not the surviving Corporation, or upon the sale of all or
substantially all of the property of the Company, all Incentive Awards then
outstanding under the Plan will be fully vested and exercisable and all
restrictions will immediately cease, unless provisions are made in connection
with such transaction for the continuance of the Plan and assumption or the
substitution for such Incentive Awards of new incentive awards covering the
stock of a successor employer corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices.
(c) Decisions by Committee. Adjustments under Sections 12.(a) and
12.(b) will be made by the Committee, whose determination as to what adjustments
will be made and the extent thereof will be final, binding, and conclusive. No
fractional interest will be issued under the Plan on account of any such
adjustments.
(d) Takeover Bids. In the event of pending or threatened takeover
bid or tender offer and pursuant to which 10% or more of the outstanding
securities of the Company is acquired, whether or not deemed a tender offer
under applicable state or Federal laws, or in the event that any person makes
any filing under section 13(d) or 14(d) of the Securities Exchange Act of 1934
with respect to the Company, the Committee may in its sole discretion, without
obtaining stockholder approval, at the time of any one or more of the following
actions to the extent permitted in Section 14 with respect to all Eligible
Persons and Participants:
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(i) Accelerate the exercise dates of any outstanding
Option, or make all outstanding Options fully vested and exercisable;
(ii) Determine all or any portion of conditions associated
with an Incentive Stock Award have been met;
(iii) Grant a cash bonus award to any of the holders of
outstanding Options;
(iv) Pay cash to any or all Option holders in exchange for
the cancellation of their outstanding Options;
(v) Make any other adjustments or amendments to the plan
and outstanding Incentive Awards and substitute new Incentive Awards.
13. GENERAL PROVISIONS.
(a) Limitation on Implied Rights. Nothing in the Plan or in any
instrument executed pursuant to the Plan will confer upon any Participant any
right to continue as an employee or any of its Subsidiaries or affect the right
of the Company to terminate the employment of any Participant at any time with
or without cause. No Participant and no beneficiary or other person claiming
under or through such Participant will have any right, title or interest in or
to any shares of Common Stock allocated or reserved under the Plan or subject to
any Incentive Award, except as to such shares of Common Stock, if any, that have
been issued or transferred to such Participant.
(b) Compliance with Security Laws. No shares of Common Stock will
be issued or transferred pursuant to an Incentive Award unless and until all
then-applicable requirements imposed by Federal and state securities laws, rules
and regulations and by any regulatory agencies having jurisdiction, and by any
stock exchanges upon which the Common Stock may be listed have been fully met.
As a condition precedent to the issuance of shares pursuant to the grant or
exercise of an Incentive Award, the Company may require the Participant to take
any reasonable action to meet such requirements.
(c) Power to Withhold Taxes. The Company may make such provisions
as it deems appropriate to withhold any taxes the Company determines it is
required to withhold in connection with any Incentive Award.
(d) No Assignment. No Incentive Award and no right under the Plan,
contingent or otherwise, will be assignable or subject to any encumbrance,
pledge or charge of any nature except that, under such rules and regulations as
the Company may establish pursuant to the terms of the Plan, a beneficiary may
be designated with respect to an Incentive Award in the event of death of a
Participant. If such beneficiary is the executor or administrator of the estate
of the Participant, any rights with respect to such Incentive Award may be
transferred to the person or persons or entity (including a trust) entitled
thereto under the will of the holder of such Incentive Award.
(e) Participant Loans. The Company may make a loan to a
Participant who is a full-time employee in connection with (i) the exercise of
an Option in an amount not to exceed the aggregate exercise price of the Option
being exercised and the grossed up amount of any Federal and state taxes payable
in connection with such exercise for the purpose of assisting such Participant
to exercise such Option, and (ii) the vesting of an Incentive Stock Award in an
amount equal to the grossed up amount of any Federal
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and state taxes payable as a result of such vesting. Any such loan may be
secured by shares of Common Stock or other collateral deemed adequate by the
Committee and will comply in all respects with all applicable laws and
regulations. The Committee may adopt policies regarding eligibility for such
loans, the maximum amounts thereof and any terms and conditions not specified in
the Plan upon which such loans will be made. In no event will the interest rate
be less than the minimum rate established by the Internal Revenue Service for
the purpose of the purchase and sale of property.
(f) Substitution of New Options. The Committee may cancel, with
the consent of the Participant, all or a portion of any Option granted under the
Plan to be conditioned upon the granting to the Participant a new Option for the
same or a different number of shares as the Option surrendered, or may require
such voluntary surrender as a condition to a grant of a new Option to such
Participant. Such Option shall be exercisable at the price, during the period,
and in accordance with any other terms or conditions specified by the Committee
at the time the new Option is granted, all determined in accordance with the
provisions of the Plan without regard to the price, period of exercise, or any
other terms or conditions of the Option surrendered.
(g) Cancellation of Options. The forms of Options granted under
the Plan may contain such other provisions as the Committee may deem advisable.
Without limiting the foregoing and if so authorized by the Committee, the
Company may, with the consent of the Participant, and at any time or from time
to time, cancel all or a portion of any Option granted under the Plan then
subject to exercise and discharge its obligation in respect of the Option either
by payment to the Participant of an amount of cash equal to the excess, if any,
of the Fair Market Value, at such time, of the shares subject to the portion of
the Option so canceled over the aggregate purchase price specified in the Option
covering such shares, or by issuance or transfer to the Participant of shares of
Common Stock with a Fair Market Value, at such time, equal to any such excess,
or by a combination of cash and shares. Upon any such payment of cash or
issuance of shares, (i) there shall be charged against the aggregate limitations
set forth in Section 3(a) a number of shares equal to the number of shares so
issued plus the number of shares purchasable with the amount of any cash paid to
the Participant on the basis of the Fair Market Value as of the date of payment,
and (ii) the number of shares subject to the portion of the Option so canceled,
less the number of shares so charged against such limitations, shall thereafter
be available for other grants.
14. AMENDMENT AND TERMINATION.
(a) General. The Committee will have the power, in its discretion,
to amend, suspend or terminate the Plan at any time. No such amendment will,
without approval of the stockholders of the Company, except as provided in
Section 12 of the Plan:
(i) Change the class of persons eligible to receive
Incentive Awards under the Plan;
(ii) Materially increase the benefits accruing to Eligible
Persons under the Plan;
(iii) Increase the number of shares of Common Stock subject
to the Plan; or
(iv) Transfer the administration of the Plan to any person
who is not a disinterested person under the Securities Exchange Act of 1934.
(b) Modifications. The Committee may, with the consent of a
Participant, make such modifications in the terms and conditions of an Incentive
Award agreement as it deems advisable.
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(c) Consent of Participant Required. No amendment, suspension or
termination of the Plan will, without the consent of the Participant, alter,
terminate impair or adversely affect any right or obligation under any Incentive
Award previously granted under the Plan.
(d) Termination of Incentive Award. An Incentive Award held by a
person who was an Eligible Person at the time such Option was granted will
expire immediately if and when the Participant ceases to be an Eligible Person,
except as follows:
(i) If the employment of a Participant is terminated by
the Company or any Subsidiary other than for cause, for which the Company will
be the sole judge, the Options will expire eight months thereafter unless by
their terms they expire sooner. During said period, the Options may be exercised
in accordance with their terms, but only to the extent exercisable on the date
of termination of employment.
(ii) If a Participant retires at normal retirement age or
retires with the consent of the Company or any Subsidiary at an earlier date,
the Options of the Participant will expire, subject to the provisions of Section
9.(d) hereof, three years thereafter unless by their terms they expire sooner.
During said period, the Options may be exercised in accordance with their terms,
but only to the extent exercisable on the date of retirement.
(iii) If the Participant dies or becomes permanently and
totally disabled while employed by the Company, the Options of the Participant
will expire, subject to the provision of Section 9.(d) hereof, three years after
the date of death or permanent and total disability unless by their terms they
expire sooner. If the Participant dies or becomes permanently and totally
disabled within the eight months referred to in paragraph (i) above, the Options
will expire, subject to the provision of Section 9.(d) hereof, one year after
the date of death or permanent and total disability, unless by their terms they
expire sooner. If the Participant dies or becomes permanently and totally
disabled within the three-year period referred to in subparagraph (ii) above,
the Options will expire, subject to the provisions of Section 9.(d) hereof, upon
the later of three years after retirement or one year after the date of death or
permanent and total disability, unless by their terms they expire sooner.
(e) Leave of Absence. The Committee may in its sole discretion
determine, (i) with respect to an Incentive Award, that any Participant who is
on leave of absence for any reason will be considered as still in the employ of
the Company, provided that rights to such Incentive Award during a leave of
absence will be limited to the extent to which such right was earned or vested
at the commencement of such leave of absence, or (ii) with respect to any
Options of any Participant who is retiring at normal retirement age or with the
consent of the Company or any subsidiary thereof at an earlier age, that the
Options of such Participant will accelerate and become fully exercisable on a
date specified by the Committee which is not later than the effective date of
such retirement.
15. EFFECTIVE DATE OF PLAN AND DURATION OF PLAN.
This Plan will become effective upon adoption by the Board and the
holders of a majority of the outstanding shares at a meeting of stockholders of
the Company. Unless previously terminated, the Plan will terminate on April 27,
2008.
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