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As filed with the Securities and Exchange Commission on August 8, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
TRANSMATION, INC.
(Exact name of Registrant as specified in its charter)
Ohio 16-0874418
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 Vantage Point Drive
Rochester, New York 14624
(716) 352-7777
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
Transmation, Inc. Employees' Incentive Stock Option Plan
Transmation, Inc. Amended and Restated Directors' Warrant Plan
Transmation, Inc. Amended and Restated 1993 Stock Option Plan
Transmation, Inc. Directors' Stock Plan
Transmation, Inc. Employees' Stock Purchase Plan
Non-Statutory Stock Option Agreement dated March 11, 1993
between Transmation, Inc. and Thomas R. Crumlish
(Full titles of Plans)
Robert G. Klimasewski
President and Chief Executive Officer
Transmation, Inc.
10 Vantage Point Drive
Rochester, New York 14624
(716) 352-7777
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Calculation of Registration Fee
--------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum offer- maximum
Title of securities Amount to be ing price per aggregate offering Amount of
to be registered registered share(1) price(1) registration fee
--------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value 1,123,100 $6.375 $7,159,763 $2,469
$.50 per share
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(1) Estimated in accordance with Rule 457(c), as of August 4, 1995, solely for the purpose of calculating
the registration fee.
Pursuant to Rule 416, there are also being registered such additional shares of
Common Stock as may become issuable pursuant to anti-dilution provisions of each
of the Plans.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1995;
(b) the description of the Registrant's Common Stock, par value $.50
per share, contained in Item 13 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (Registration No.
2-27910), filed with the Securities and Exchange Commission on
February 29, 1968.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement (and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold) shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article VI of the Registrant's Code of Regulations, as amended, provides
that the Registrant shall indemnify its directors and officers to the fullest
extent authorized by the Ohio General Corporation Law (the "OGCL").
With respect to indemnification of directors and officers, Section 1701.13
of the OGCL provides that a corporation may indemnify or agree to indemnify 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, other than an action by or in the
right of the corporation, 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 or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Under this provision of
the OGCL, the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Furthermore, the OGCL provides that a corporation may indemnify or agree
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor 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 or other
enterprise, against expenses, including attorneys' fees actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of: (i) any claim, issue or matter as
to which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the court of common pleas or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper; or (ii) any action or suit in which
the only liability asserted against a director is pursuant to OGCL Section
1701.95 (relating to unlawful loans, dividends, and distributions of assets).
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibits filed as part of this Registration Statement are listed on the
Index to Exhibits located at page 5 hereof.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, controlling persons of
the Registrant pursuant to the provisions described under Item 6 above, 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 Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudications of such issue.
<PAGE>
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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
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rochester, State of New York, on this 8th day of
August, 1995.
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TRANSMATION, INC.
By: /s/ Robert G. Klimasewski
Robert G. Klimasewski
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
President, Chief Executive August 8, 1995
/s/ Robert G. Klimasewski Officer and Director
Robert G. Klimasewski (Principal Executive
Officer)
Vice President, Finance August 8, 1995
/s/ John A. Misiaszek (Principal Financial Officer
John A. Misiaszek and Principal Accounting
Officer)
_______________________
William J. Berk Director August 8, 1995
_______________________
Angelo J. Chiarella Director August 8, 1995
/s/ Gerald R. Katz Director August 8, 1995
Gerald R. Katz
/s/ Cornelius J. Murphy Director August 8, 1995
Cornelius J. Murphy
/s/ John W. Oberlies Director August 8, 1995
John W. Oberlies
____________________ Director August 8, 1995
Harvey J. Palmer
_____________________ Director August 8, 1995
Arthur M. Richardson
/s/ Philip P. Schulp Director August 8, 1995
Philip P. Schulp
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<PAGE>
INDEX TO EXHIBITS
(4) Instruments defining the rights of security holders, including
indentures
*(a) Articles of Incorporation of the Registrant, as amended
(b) Code of Regulations of the Registrant, as amended (Exhibit 3)1
(c) Specimen stock certificate (Exhibit 4)2
(d) Revolving Credit Agreement between the Registrant and
Manufacturers and Traders Trust Company dated September 13, 1994
(Exhibit 1)3
*(5) Opinion of Harter, Secrest & Emery
(15) Letter re unaudited interim financial information
Not applicable.
(23) Consents of Experts and Counsel
*(a) Consent of Price Waterhouse LLP
*(b) Consent of Harter, Secrest & Emery [contained in Exhibit (5)]
(24) Power of Attorney
Not applicable.
(27) Financial Data Schedule
Not applicable.
(28) Information from reports furnished to State insurance regulatory
authorities
Not applicable.
(99) Additional Exhibits
*(a) Transmation, Inc. Employees' Incentive Stock Option Plan
*(b) Transmation, Inc. Amended and Restated Directors' Warrant Plan
*(c) Transmation, Inc. Amended and Restated 1993 Stock Option Plan
(d) Transmation, Inc. Directors' Stock Plan (Exhibit 10.1)4
*(e) Transmation, Inc. Employees' Stock Purchase Plan
<PAGE>
(f) Non-Statutory Stock Option Agreement dated March 11, 1993 between
Transmation, Inc. and Thomas R. Crumlish (Exhibit 10)5
----------------------------
* Exhibit filed with this Registration Statement.
1 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1988. The exhibit number contained in parenthesis
refers to the exhibit number in such Annual Report on Form 10-K.
2 Exhibit previously filed as part of and is incorporated herein by
reference to Amendment No. 1 to the Registrant's Registration Statement
on Form S-1 (Registration No. 2-27910). The exhibit number contained in
parenthesis refers to the exhibit number in such Registration Statement.
3 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1984. The exhibit number contained in
parenthesis refers to the exhibit number in such Quarterly Report on
Form 10-Q.
4 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1995. The exhibit number contained in parenthesis
refers to the exhibit number in such Annual Report on Form 10-K.
5 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1993. The exhibit number contained in parenthesis
refers to the exhibit number in such Annual Report on Form 10-K.
<PAGE>
Exhibit (4)(a)
ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
The undersigned, a majority of whom are citizens of the United States,
desiring to form a corporation for profit, under the General Corporation Law of
Ohio, do hereby certify:
FIRST: The name of the corporation shall be TRANSMATION, INC.
SECOND: The location of its principal office is to be the City of
Cleveland, Cuyahoga County.
THIRD: The purposes for which it is formed are:
(a) To develop, plan, construct, manufacture, assemble and
market telemetering, sequencing, remote control and
supervisory equipment, instrumentation, and systems for use by
the gas, oil, and other pipeline industries.
(b) To manufacture, produce, assemble, develop, construct,
purchase, or otherwise acquire, hold, operate, lease, license,
sell, assign, transfer, exchange, or otherwise dispose of, and
to invest, trade, import, export, deal in, or deal with goods,
wares, merchandise, machinery, equipment, and other personal
property of every kind and description.
(c) To purchase, acquire, hold, mortgage, pledge, hypothecate,
loan money upon, exchange, sell, lease, and otherwise deal
with personal and real property, or any interest therein, of
every kind and description, and wherever situated.
(d) To acquire all or any part of the stock, good will,
rights, property, and business of any corporation,
association, partnership, firm, trustee, syndicate,
combination, organization, other entity, or individual,
domestic or foreign, heretofore or hereafter engaged in any
business, whether similar to the
<PAGE>
business of this corporation or otherwise; and to pay for the
same in cash or in shares or obligations of the corporation or
otherwise, and to hold, utilize, enjoy, and in any manner
dispose of the whole or any part of the rights and property so
acquired; and to assume in connection therewith any
liabilities of any such corporation, association, partnership,
firm, trustee, syndicate, combination, organization,
individual, or other entity, domestic or foreign, and to
conduct in the State of Ohio and/or in any other state,
territory, locality, or country the whole or any part of the
business thus acquired, provided such business is not
prohibited by the laws of the State of Ohio; and
(e) To apply for, obtain, purchase, take licenses in respect
of, or otherwise acquire, and to hold, own, use, grant
licenses in respect of, manufacture under, sell, assign,
mortgage, pledge, or otherwise dispose of: any and all
inventions, devices, processes, and improvements or
modifications thereof; any and all letters patent of the
United States or of any other country, state, territory, or
locality, and all rights connected therewith or appertaining
thereunto; any and all copyrights granted by the United States
or any other country, state, territory, or locality; and any
and all trademarks, trade names, trade symbols, and other
indications of origin and ownership granted by or recognized
under the laws of the United States or of any other country,
state, territory, or locality.
(f) To borrow money and to make and issue notes, bonds,
debentures, obligations, and evidences of indebtedness of all
kinds, whether secured by mortgage, pledge, or otherwise,
without limit as to amount; and to secure the same by
mortgage, pledge, or otherwise.
(g) To make contracts of every kind and character as may be
necessary or conducive to the accomplishment of any of the
purposes of the corporation.
(h) To do everything necessary or conducive to the
accomplishment and furtherance of the powers set forth herein.
The foregoing objects and purposes shall be construed both as objects
and powers and shall, except where otherwise expressed, be in nowise limited or
restricted by reference to or
<PAGE>
inference from the terms of any other clause in this Article Third or any other
Article of these Articles of Incorporation, but the objects and purposes
specified in each of the foregoing clauses of this Article Third shall be
regarded as independent objects and purposes and shall not be held to limit or
restrict in any way the general powers of the corporation to do any act
permitted by the laws of the State of Ohio.
FOURTH: The maximum number of shares which the corporation is
authorized to have outstanding is three thousand (3,000) shares, all of which
shall be common shares without par value.
FIFTH: The amount of capital with which the corporation shall begin
business is Five Hundred Dollars ($500.00).
SIXTH: The corporation, through its Board of Directors, shall have the
authority and the power to from time to time repurchase any of its outstanding
shares at such price and upon such terms as may be agreed upon between the
corporation and the selling shareholder or shareholders.
IN WITNESS WHEREOF, we have hereunto subscribed our names this 13th day
of March, 1964.
TRANSMATION, INC.
/s/ John C. Little
John C. Little
/s/ Arthur V. N. Brooks
Arthur V. N. Brooks
/s/ John H. Burlingame
John H. Burlingame
(Incorporators)
<PAGE>
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President, and Arnold W. Wehrle, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said corporation entitling them to vote on the proposal
to amend the Amended Articles of Incorporation thereof, as contained in the
following resolution, was duly called and held on the 15th day of March, 1967,
at which meeting a quorum of such shareholders was present in person or by
proxy, and that by the affirmative vote of the holders of shares entitled to
exercise not less than two-thirds of the voting power of the corporation on such
proposal (no greater vote being required by the Articles of Incorporation), the
following resolution was adopted:
RESOLVED, that the Articles of Incorporation of the
Corporation be, and the same hereby are, amended by deleting
in its entirety Article FOURTH thereof and inserting in lieu
thereof a new Article FOURTH reading as follows:
"FOURTH: The maximum number of shares which the
corporation is authorized to have outstanding is 6,000, all of
which shall be Common Shares without par value. No holder of
shares of the corporation of any class shall be entitled as
such, as a matter of right, to subscribe for or purchase
shares of the corporation, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the
corporation, or to which shall be attached or appertain any
warrants or rights entitling the holder thereof to subscribe
for or purchase shares of the corporation, except such rights
of subscription or purchase, if any, for such considerations
and upon such terms and conditions as its Board of Directors
from time to time may determine."
<PAGE>
IN WITNESS WHEREOF, said William J. Berk, President, and Arnold W.
Wehrle, Secretary of Transmation, Inc., acting for and on behalf of said
corporation, have hereunto subscribed their names this 15th day of March, 1967.
By /s/ William J. Berk
William J. Berk, President
By /s/ Arnold W. Wehrle
Arnold W. Wehrle, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President, and Arnold W. Wehrle, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said corporation entitling them to vote on the proposal
to amend the Amended Articles of Incorporation thereof, as contained in the
following resolution, was duly called and held on the 11th day of October, 1967,
at which meeting a quorum of such shareholders was present in person or by
proxy, and that by the affirmative vote of the holders of shares entitled to
exercise not less than two-thirds of the voting power of the corporation on such
proposal (no greater vote being required by the Articles of Incorporation), the
following resolution was adopted:
RESOLVED, that the Articles of Incorporation of the
Corporation be, and the same hereby are, amended by deleting
in its entirety Article FOURTH thereof and inserting in lieu
thereof a new Article FOURTH reading as follows:
"FOURTH: The maximum number of shares which the
Corporation is authorized to have outstanding is 1,000,000,
all of which shall be Common Shares without par value. No
holder of shares of the Corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or
purchase shares of the Corporation, or to purchase or
subscribe for securities convertible into or exchangeable for
shares of the Corporation, or to which shall be attached or
appertain any warrants or rights entitling the holder thereof
to subscribe for or purchase shares of the Corporation, except
such rights of subscription or if any, for such considerations
and upon such terms and conditions as its Board of Directors
from time to time may determine."
<PAGE>
IN WITNESS WHEREOF, said William J. Berk, President, and Arnold W.
Wehrle, Secretary of Transmation, Inc., acting for and on behalf of said
corporation, have hereunto subscribed their names this 20th day of February,
1968.
/s/ William J. Berk
William J. Berk, President
/s/ Arnold W. Wehrle
Arnold W. Wehrle, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President and Arnold W. Wehrle, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said corporation entitling them to vote on the proposal
to amend the Amended Articles of Incorporation thereof, as contained in the
following resolution, was duly called and held on the l9th day of August, 1969,
at which meeting a quorum of such shareholders was present in person or by
proxy, and that by the affirmative vote of the holders of shares entitled to
exercise not less than two-thirds of the voting power of the corporation on such
proposal (no greater vote being required by the Articles of Incorporation), the
following resolution was adopted:
RESOLVED, that the Articles of Incorporation of the
Corporation be, and the same hereby are, amended by deleting
in its entirety Article FOURTH thereof and inserting in lieu
thereof a new Article FOURTH reading as follows:
"FOURTH: The maximum number of shares which the
Corporation is authorized to have outstanding is 1,000,000,
all of which shall be Common Shares with a par value of One
Dollar ($1.00) each. No holder of shares of the Corporation of
any class shall be entitled as such, as a matter of right, to
subscribe for or purchase shares of the Corporation, or to
purchase or subscribe for securities convertible into or
exchangeable for shares of the Corporation, or to which shall
be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares of the
Corporation, except such rights of subscription or purchase,
if any, for such considerations and upon such terms and
conditions as its Board of Directors from time to time may
determine."
<PAGE>
IN WITNESS WHEREOF, said William J. Berk, President, and Arnold W.
Wehrle, Secretary of Transmation, Inc., acting for and on behalf of said
Corporation, have hereunto subscribed their names this 19th day of August, 1969.
/s/ William J. Berk
William J. Berk, President
/s/ Arnold W. Wehrle
Arnold W. Wehrle, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President and John A. Misiaszek, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said corporation entitling them to vote on proposals to
amend the Amended Articles of Incorporation thereof, as contained in the
following resolutions, was duly called and held on the 17th day of August, 1976,
and thereat properly adjourned to September 7, 1976, at which adjourned meeting
a quorum of such shareholders was present in person or by proxy, and that by the
affirmative vote of the holders of shares entitled to exercise not less than
two-thirds of the voting power of the corporation on such proposal (no greater
vote being required by the Articles of Incorporation), the following resolutions
were adopted:
RESOLVED, that the Articles of Incorporation of the
Corporation be, and the same hereby are, amended by deleting
in its entirety Article FOURTH thereof and inserting in lieu
thereof a new Article FOURTH, said new Article FOURTH to read
as follows:
"FOURTH: The maximum number of shares which the
Corporation is authorized to have outstanding is 1,000,000,
all of which shall be Common Shares with a par value of Fifty
Cents ($.50) each. No holder of shares of the Corporation of
any class shall be entitled as such, as a matter of right, to
subscribe for or purchase shares of the Corporation, or to
purchase or subscribe for securities convertible into or
exchangeable for shares of the Corporation, or to which shall
be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares of the
Corporation, except such rights of subscription or purchase,
if any, for such
<PAGE>
considerations and upon such terms and conditions as its Board
of Directors from time to time may determine."
* * * * *
RESOLVED, that the Articles of Incorporation be, and
the same hereby are, amended by adding thereto a new Article,
to be known as Article SEVENTH, and to read as follows:
"SEVENTH: A. Except as otherwise expressly provided in Paragraph D of
this Article Seventh, the affirmative vote of the holders of seventy-five
percent (75%) or more of the outstanding shares of capital stock of the
Corporation entitled to vote thereon, shall be required to authorize:
(i) any merger or consolidation of the Corporation
with or into any other corporation, if the
transaction would otherwise, by law, require a
shareholder vote, or
(ii) any combination with, or majority share
acquisition of any corporation, if the transaction
would otherwise, by law, require a shareholder
vote, or
(iii) any lease, sale, exchange, transfer, or other
disposition of all or substantially all of the assets
of the Corporation to or with any other corporation,
person, or other entity,
if, as of the record date of the determination of shareholders entitled to
notice thereof and to vote thereon, such other corporation, person, or entity is
the beneficial owner, directly or indirectly, of ten percent (10%) or more of
the outstanding shares of capital stock of the Corporation entitled to vote
thereon. Such affirmative vote shall be required notwithstanding the fact that
some lesser percentage may be specified by law or in any agreement with any
national securities exchange or association of securities dealers.
B. For the purposes of this Article Seventh, any corporation, person,
or other entity shall be deemed to be the beneficial owner of any shares of
capital stock of the Corporation (i) which it has the right to acquire pursuant
to any agreement, or upon exercise of conversion rights, warrants, or options,
or otherwise, (ii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of clause (i) above), by any
other corporation, person, or entity with which it or its "affiliate" or
"associate" (as defined below) has any agreement, arrangement, or understanding
for the purpose of acquiring, holding, voting, or disposing of capital stock of
the Corporation or
<PAGE>
which is its "affiliate" or "associate" as those terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934
as in effect on January 1, 1976. For the purposes of this Article Seventh, the
outstanding shares of any class of capital stock of the Corporation shall
include shares deemed owned through the application of clauses (i) and (ii)
above but shall not include any other shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants, or options, or
otherwise.
C. The Board of Directors of this Corporation shall have the power and
duty to determine for the purposes of this Article Seventh, on the basis of
information then known to it, whether (i) any corporation, person, or other
entity beneficially owns ten percent (10%) or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, or is an "affiliate" or an "associate" (as defined above) of another,
and (ii) the memorandum of understanding referred to below is substantially
consistent with the transaction to which it relates. Any such determination by
the Board shall be conclusive and binding for all purposes of this Article
Seventh.
D. The provisions of this Article Seventh shall not apply to (i) any
merger or consolidation of the Corporation with, or any combination with or
majority shares acquisition of, or any sale, lease, exchange or other
disposition of any assets of the Corporation to, any corporation of which a
majority of the outstanding shares of all classes of capital stock entitled to
vote thereon, is owned of record or beneficially by the Corporation and its
subsidiaries; or (ii) any transaction referred to in Paragraph A of this Article
Seventh if the Board of Directors of the Corporation shall by resolution have
approved a memorandum of understanding with such other corporation, person or
other entity with respect to and substantially consistent with such transaction
prior to the time such other corporation, person, or other entity becomes the
owner of ten percent (10%) or more of the outstanding shares of capital stock of
the Corporation entitled to vote thereon.
E. Notwithstanding any other provisions of the Articles of
Incorporation or the Code of Regulations of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, the Articles of
Incorporation or the Code of Regulations of the Corporation), the affirmative
vote of the holders of seventy-five percent (75%) or more of the outstanding
shares of capital stock of the Corporation entitled to vote thereon shall be
required to amend, alter or repeal this Article Seventh."
<PAGE>
IN WITNESS WHEREOF, said William J. Berk, President, and John A.
Misiaszek, Secretary of Transmation, Inc., acting for and on behalf of said
Corporation have hereunto subscribed their names and caused the seal of said
Corporation to be hereunto fixed this 28th day of September, 1976.
/s/ William J. Berk
William J. Berk, President
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President and John A. Misiaszek, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said Corporation entitling them to vote on a proposal
to amend the Amended Articles of Incorporation thereof, as contained in the
following resolution, was duly called and held on the l9th day of August, 1980,
at which meeting a quorum of such shareholders was present in person or by
proxy, and that by the affirmative vote of the holders of shares entitled to
exercise not less than two-thirds of the voting power of the Corporation on such
proposal (no greater vote being required by the Articles of Incorporation), the
following resolution was adopted:
RESOLVED, that Article FOURTH of the Articles of
Incorporation of the Corporation be, and the same hereby is,
amended to increase the maximum number of shares which the
Corporation is authorized to have outstanding from 1,000,000
shares to 3,000,000 shares all of which shall be Common Shares
with a par value of Fifty Cents ($.50) each, Article FOURTH as
amended to read in its entirety as follows:
FOURTH: The maximum number of shares which the
Corporation is authorized to have outstanding is 3,000,000,
all of which shall be Common Shares with a par value of Fifty
Cents ($.50) each. No holder of shares of the Corporation of
any class shall be entitled as such, as a matter of right, to
subscribe for or purchase shares of the Corporation, or to
purchase or subscribe for securities convertible into or
exchangeable for shares of the Corporation, or to which shall
be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares of the
Corporation, except such rights of subscription or purchase,
if any, for such
<PAGE>
considerations and upon such terms and conditions as its Board
of Directors from time to time may determine."
IN WITNESS WHEREOF, said William J. Berk, President and John A.
Misiaszek, Secretary of Transmation, Inc., acting for and on behalf of said
Corporation have hereunto subscribed their names and caused the seal of said
Corporation to be hereunto fixed this l9th day of August, 1980.
/s/ William J. Berk
William J. Berk, President
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
TRANSMATION, INC.
William J. Berk, President, and John A. Misiaszek, Secretary of
Transmation, Inc., an Ohio corporation with its principal office located in
Cleveland, Cuyahoga County, Ohio, do hereby certify that a meeting of the
holders of the shares of said Corporation entitling them to vote on a proposal
to amend the Amended Articles of Incorporation thereof, as contained in the
following resolution, was duly called and held on the 18th day of September,
1984, at which meeting a quorum of such shareholders was present in person or by
proxy, and that by the affirmative vote of the holders of shares entitled to
exercise not less than two-thirds of the voting power of the Corporation on such
proposal (no greater vote being required by the Articles of Incorporation), the
following resolution was adopted:
RESOLVED, that Article FOURTH of the Articles of
Incorporation of the Corporation be, and the same hereby is,
amended to increase the maximum number of shares which the
Corporation is authorized to have outstanding from 3,000,000
shares to 8,000,000 shares all of which shall be Common Shares
with a par value of Fifty Cents ($.50) each, Article FOURTH as
amended to read in its entirety as follows:
FOURTH: The maximum number of shares which the
Corporation is authorized to have outstanding is 8,000,000,
all of which shall be Common Shares with a par value of Fifty
Cents ($.50) each. No holder of shares of the Corporation of
any class shall be entitled as such, as a matter of right, to
subscribe for or purchase shares of the Corporation, or to
purchase or subscribe for securities convertible into or
exchangeable for shares of the Corporation, or to which shall
be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares of the
Corporation, except such rights of subscription or purchase,
if any, for such
<PAGE>
considerations and upon such terms and conditions as its Board
of Directors from time to time may determine."
IN WITNESS WHEREOF, said William J. Berk, President, and John A.
Misiaszek, Secretary of Transmation, Inc., acting for and on behalf of said
Corporation have hereunto subscribed their names and caused the seal of said
Corporation to be hereunto fixed this 14th day of March, 1985.
/s/ William J. Berk
William J. Berk
President
/s/ John A. Misiaszek
John A. Misiaszek
Secretary
<PAGE>
CERTIFICATE OF MERGER
OF
TRANSCAT, INC.
(A Corporation of the State of New York)
INTO
TRANSMATION, INC.
(A Corporation of the State of Ohio)
The Agreement of Merger to which this Certificate is attached, after
having been duly signed and after having been signed on behalf of TRANSCAT,
INC., a corporation of the State of New York, was duly adopted pursuant to Title
17, Section 1701.80 of the Revised Code of Ohio by the affirmative vote of a
majority of the Board of Directors of TRANSMATION, INC., a corporation of the
State of Ohio and the surviving corporation in this Merger (hereinafter called
the "Surviving Corporation"), at a meeting thereof duly called and held on March
26, 1991, without any vote having been taken by the shareholders of the
Surviving Corporation; the Articles and Regulations of the Surviving Corporation
do not require that the Agreement of Merger be adopted by the shareholders or by
the holders of a particular class of shares of the Surviving Corporation.
The Agreement of Merger does not conflict with the Articles or
Regulations of the Surviving Corporation and there is no change to the Articles
or Regulations of the Surviving Corporation. The Agreement of Merger does not
authorize any action which apart from the merger would require adoption by the
shareholders or by the holders of a particular class of shares of the Surviving
Corporation.
The Surviving Corporation is the owner of 100 shares of the common
stock of said
<PAGE>
TRANSCAT, INC. (hereinafter called the "Subsidiary Corporation"), which
constitutes all of each class of the outstanding shares of the Subsidiary
Corporation.
The merger does not involve the issuance or transfer by the Surviving
Corporation to the shareholders of the Subsidiary Corporation of any shares
whatsoever of the Surviving Corporation. There is no change in the directors of
the Surviving Corporation that would require action by the shareholders or by
the holders of a particular class of the Surviving Corporation.
The Agreement of Merger was adopted by action of the Board of Directors
of the Surviving Corporation pursuant to Title 17, Section 1701.80 of the
Revised Code of Ohio, and is the duly adopted agreement and act of the Surviving
Corporation.
Pursuant to Section 907 of the Business Corporation Law of the State of
New York, no vote of the shareholders of the Subsidiary Corporation was required
to adopt the Agreement of Merger. The approval of the Agreement of Merger by the
Board of Directors of the Subsidiary Corporation constituted adoption of the
Agreement of Merger by the Subsidiary Corporation pursuant to and in conformity
with the laws of the State of New York, the State under which laws the
Subsidiary Corporation was incorporated.
TRANSMATION, INC.
By: /s/ William J. Berk
William J. Berk
President
By: /s/ John A. Misiaszek
John A. Misiaszek
Secretary
<PAGE>
TRANSCAT, INC.
By: /s/ William J. Berk
William J. Berk
Chairman of the Board
By: /s/ John A. Misiaszek
John A. Misiaszek
Secretary
<PAGE>
AGREEMENT OF MERGER
MERGING
TRANSCAT, INC.
(A Corporation of the State of New York)
INTO
TRANSMATION, INC.
(A Corporation of the State of Ohio)
FIRST: TRANSMATION, INC., a corporation organized and existing under
the laws of the State of Ohio and owning all of the outstanding shares of the
capital stock of TRANSCAT, INC., a corporation organized and existing under the
laws of the State of New York (hereinafter called the "Subsidiary Corporation"),
and the Subsidiary Corporation agree that the Subsidiary Corporation shall be
and hereby is merged into TRANSMATION, INC. (hereinafter called the "Parent
Corporation"). The terms and conditions of said merger (hereinafter called the
"Merger") and the mode of carrying the same into effect are set forth in this
Agreement of Merger.
SECOND: The Parent Corporation shall survive the Merger, shall continue
its corporate name and shall continue to be governed by the laws of the State of
Ohio, but the separate corporate existence of the Subsidiary Corporation shall
cease forthwith upon the effective date of the Merger.
THIRD: The parties to this Agreement of Merger are TRANSMATION, INC., a
corporation organized on March 19, 1964 and existing under the General
Corporation Laws of the State of Ohio, and TRANSCAT, INC., a corporation
organized on September 13, 1985 and existing under the laws of the State of New
York.
<PAGE>
FOURTH: Upon the effective date of the Merger:
(a) the outstanding shares of the Parent Corporation shall not be
changed in any way by the Merger; and
(b) no cash or other consideration shall be paid for the
outstanding shares of the Subsidiary Corporation in the Merger, and all
certificates representing shares of the Subsidiary Corporation shall be
surrendered and cancelled.
FIFTH: The designation and number of outstanding shares of each class
of capital stock of the Subsidiary Corporation, and the number of shares of each
class owned by the Parent Corporation, are as follows:
<TABLE>
<S> <C>
Name of Number of Shares Number of Shares
Subsidiary Class Outstanding Owned by Parent
TRANSCAT, INC. Common 100 shares 100 shares
</TABLE>
SIXTH: The Articles of Incorporation of the Parent Corporation shall
not be amended by the Merger.
SEVENTH: The Merger shall be effective on the date on which the latest
of the following events shall occur: (a) the filing of a Certificate of Merger
by the Secretary of State of the State of Ohio, and (b) the filing of a
Certificate of Merger by the Department of State of the State of New York, and
(c) the filing of the consent of the New York State Tax Commission to the Merger
with the Department of State of the State of New York.
EIGHTH: The Merger may be abandoned by the Boards of Directors of both
constituent corporations, at any time prior to the filing of a Certificate of
Merger with either the Secretary of State of the State of Ohio or the Department
of State of the State of New York.
<PAGE>
NINTH: This Agreement of Merger was duly approved by the Boards of
Directors of each of the constituent corporations, and duly adopted pursuant to
Section 1701.80 of the Revised Code of Ohio as the act of TRANSMATION, INC., and
duly adopted by TRANSCAT, INC. in compliance with the provisions of the Business
Corporation Law of the State of New York, and the Merger is permitted by the
laws of the State of Ohio and the laws of the State of New York.
IN WITNESS WHEREOF, TRANSMATION, INC., an Ohio corporation, and
TRANSCAT, INC., a New York corporation, the corporations which are the parties
to this Agreement of Merger, pursuant to the authority duly given by their
respective Boards of Directors, have caused this Agreement of Merger to be
executed in their respective corporate names by the President or Chairman of the
Board, and by the Secretary, of each of the constituent corporations, and the
corporate seals to be affixed on this 26th day of March, l991.
TRANSMATION, INC.
By: /s/ William J. Berk
William J. Berk
President
By: /s/ John A. Misiaszek
John A. Misiaszek
Secretary
TRANSCAT, INC.
By: /s/ William J. Berk
William J. Berk
Chairman of the Board
By: /s/ John A. Misiaszek
John A. Misiaszek
Secretary
<PAGE>
Exhibit (5)
August 8, 1995
Transmation, Inc.
10 Vantage Point Drive
Rochester, NY 14624
Re: Transmation, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed this date under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission (the "Registration
Statement"), in respect of an aggregate of 1,123,100 authorized and unissued
shares of the Common Stock, par value $.50 per share (the "Common Stock"), of
Transmation, Inc. (the "Corporation"), which may be issued as follows:
a. upon exercise, after the date hereof, of options heretofore or
hereafter granted under the Transmation, Inc. Amended and Restated 1993 Stock
Option Plan;
b. upon exercise, after the date hereof, of options heretofore granted
under the Transmation, Inc. Employees' Incentive Stock Option Plan;
c. upon exercise, after the date hereof, of options heretofore granted
under the Non- Statutory Stock Option Agreement dated March 11, 1993 between the
Corporation and Thomas R. Crumlish;
d. upon exercise, after the date hereof, of warrants heretofore or
hereafter granted under the Transmation, Inc. Amended and Restated Directors'
Warrant Plan;
e. pursuant to awards made, after the date hereof, under the
Transmation, Inc. Directors' Stock Plan; or
f. pursuant to the Transmation, Inc. Employees' Stock Purchase Plan
(all such documents are herein collectively referred to as the "Plans").
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Articles of
Incorporation, as amended to date; its Code of Regulations as currently in force
and effect; its Minute Books, containing minutes and records of other
proceedings of its shareholders, its Board of Directors and the Compensation and
Benefits Committee and Stock Option Committee of the Board of Directors, from
the date of incorporation to the date hereof; the Plans; the Registration
<PAGE>
Transmation, Inc.
August 8, 1995
Page 2
Statement; applicable provisions of the laws of the State of Ohio; and such
other documents and matters as we deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly
existing under the laws of the State of Ohio.
2. The Corporation has the authority to issue an aggregate of
1,123,100 shares of Common Stock pursuant to the terms of the Plans.
3. The shares of Common Stock to be issued and sold by the
Corporation will, when sold and paid for in accordance with the provisions of
the respective Plans, and the respective stock option agreements and warrant
agreements pursuant to which options and warrants are granted under certain of
the Plans, be validly authorized and legally issued and outstanding, fully paid
and non-assessable.
We hereby consent to be named in the Registration Statement as attorneys
passing upon legal matters in connection with the issuance and sale of the
1,123,100 shares of Common Stock covered thereby, and we hereby consent to the
filing of this opinion as Exhibit (5) to the Registration Statement.
Very truly yours,
/s/ HARTER, SECREST & EMERY
<PAGE>
Exhibit (23)(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 26, 1995 with respect to the
financial statements (including schedule thereto) of Transmation, Inc. for the
three years ended March 31, 1995, appearing on page 16 of the Annual Report on
Form 10-K of Transmation, Inc.
/s/ PRICE WATERHOUSE LLP
Rochester, New York
August 8, 1995
<PAGE>
Exhibit (99)(a)
AMENDMENT NO. 2 TO THE
TRANSMATION, INC.
EMPLOYEES' INCENTIVE STOCK OPTION PLAN
WHEREAS, Transmation, Inc., an Ohio corporation (the "Company"), has
established the Transmation, Inc. Employees' Incentive Stock Option Plan, which
became effective on August 18, 1981 (the "Option Plan"); and
WHEREAS, on August 21, 1984 the shareholders of the Company authorized,
approved and adopted the first amendment to the Option Plan, increasing the
number of shares of the Company's Common Stock available for issuance under the
Option Plan from 200,000 shares to 300,000 shares; and
WHEREAS, on August 21, 1990 the Board of Directors of the Company has
authorized, approved and adopted the further amendment to the Option Plan set
forth herein;
NOW, THEREFORE, the Option Plan is hereby amended further, effective
August 21, 1990, as follows:
1. A new Section 17 is hereby added to the Option Plan, to provide in
its entirety as follows:
"17. Definition of Fair Market Value. As used in this Plan, the
term `fair market value' of the Shares shall mean the last
transaction price of the Shares for the date in question
quoted by NASDAQ."
2. Except as amended hereby, and except as heretofore amended, the
Option Plan shall remain in full force and effect in accordance with its terms.
This Amendment No. 2 to the Transmation, Inc. Employees' Incentive
Stock Option Plan was authorized, approved and adopted by the Board of Directors
of Transmation, Inc. on August 21, 1990.
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
<PAGE>
TRANSMATION, INC.
EMPLOYEES' INCENTIVE STOCK OPTION PLAN
1. Purpose. TRANSMATION, INC. EMPLOYEES' INCENTIVE STOCK OPTION PLAN
(hereinafter referred to as the "Plan") is designed to furnish additional
incentive to key employees of TRANSMATION, INC. (hereinafter referred to as the
"Company"), upon whose efforts the successful conduct of the business of the
Company largely depends, by encouraging such key employees to acquire a
proprietary interest in the Company or to increase the same. This purpose will
be effected through the granting of options to purchase the common stock of the
Company which will be "incentive stock options" within the meaning of Section
422A of the Internal Revenue Code of 1954, as amended to date (hereinafter
referred to as the "Internal Revenue Code").
2. Eligibility. The persons eligible to receive options under this Plan
shall be such key employees of the Company as the Stock Option Committee of the
Board of Directors of the Company (hereinafter referred to as the "Stock Option
Committee") shall select from time to time. Directors who are not otherwise
officers or employees of the Company shall not be eligible to receive options
under the Plan. All references in this Plan to employees of the Company shall
include employees of any parent or subsidiary of the Company, as those terms are
defined in Section 425 of the Internal Revenue Code.
3. Stock Subject to Options. Subject to the provisions of Section 9
hereof, options may be granted under the Plan to purchase in the aggregate not
more than 100,000 shares of the $0.50 par value common stock of the Company
(hereinafter referred to as "Shares"), which Shares may, in the discretion of
the Stock Option Committee, consist either in whole or in part of authorized but
unissued Shares or Shares held in the treasury of the Company.
<PAGE>
Any Shares subject to an option which for any reason expires or is terminated
unexercised as to such Shares shall continue to be available for options under
the Plan.
4. Annual Limitation. The aggregate fair market value (determined as of
the time the option is granted) of the Shares for which any employee may be
granted options in any calendar year (under all incentive stock option plans of
the Company, any parent and any subsidiaries) shall not exceed $100,000 plus any
unused limit carryover to such year, as computed under Section 422A(c)(4) of the
Internal Revenue Code.
5. Terms and Conditions of Options. Each option granted by the Stock
Option Committee pursuant to this Plan shall be evidenced by a stock option
agreement containing provisions consistent with the Plan, including in the
discretion of the Stock Option Committee, a waiting period following the grant
of the option during which all or any part may not be exercised. The right of
the Company to terminate the employment of the optionee at any time, with or
without cause, shall in no way be restricted by such agreement. Options shall
further be subject to the following terms and conditions:
(a) Price. Each option shall state the number of Shares subject
to the option and the option price, which shall be not less than the
fair market value of the Shares with respect to which the option is
granted at the time of the granting of the option. If an option is
granted to any person who would, after the grant of such option, be
deemed to own stock possessing more than ten (10) percent of the total
combined voting power of all classes of stock of the Company or its
parent or subsidiary (hereinafter referred to as a "Ten Percent
Shareholder"), the option price shall be not less than one hundred ten
(110) percent of the fair market value of the Shares with
<PAGE>
respect to which the option is granted at the time of the granting of
the option to the Ten Percent Shareholder.
(b) Term. The term of each option shall be determined by the
Stock Option Committee, but in no event shall an option be exercisable
either in whole or in part after the expiration of ten (10) years from
the date on which it is granted. In no event shall an option granted to
a Ten Percent Shareholder be exercisable either in whole or in part
after the expiration of five (5) years from the date on which it is
granted. The Stock Option Committee and an optionee may at any time by
mutual agreement terminate any option granted to such optionee under the
Plan.
(c) Exercise. Each option, or any installment thereof, shall be
exercised, whether in whole or in part, by giving written notice to the
Company at its principal office, specifying the number of Shares
purchased and the purchase price being paid, and accompanied by the
payment of the purchase price. An optionee may pay for the Shares
subject to the option with cash, a certified check or a bank check
payable to the order of the Company. Alternatively, he may pay for the
Shares, in whole or in part, by the delivery of Shares already owned by
him which will be accepted in exchange at their value on the date of
exercise. Certificates representing the Shares purchased by the optionee
shall be issued as soon as practicable after the optionee has complied
with the provisions hereof. No option may be exercised in whole or in
part while there is outstanding (within the meaning of Section
422A(c)(7) of the Internal Revenue Code) any incentive stock option (as
defined in Section 422A of the Internal Revenue Code) which was granted
to the optionee prior to the grant of such option, to purchase stock
<PAGE>
in the Company, its parent or subsidiary (at the time of the granting of
such option) or a predecessor corporation of any of such corporations.
6. Non-Assignment. During the lifetime of the optionee, options issued
hereunder shall be exercisable only by him and shall not be assignable or
transferable by him, whether voluntarily or by operation of law or otherwise,
and no other person shall acquire any rights therein.
7. Death of Optionee. In the event that an optionee shall die while he
is an employee of the Company (or within three (3) months after the termination
of such employment) and prior to the complete exercise of options granted to him
under the Plan, any such remaining option may be exercised in whole or in part
within one (1) year after the date of the optionee's death and then only: (i) by
the optionee's estate or by or on behalf of such person or persons to whom the
optionee's rights pass under his Will or the laws of descent and distribution,
(ii) to the extent that the optionee was entitled to exercise the option or
right at the date of his death, and (iii) prior to the expiration of the term of
the option.
8. Termination of Employment. An option shall be exercisable, during the
lifetime of the employee to whom it is granted, only while he is an employee of
the Company and has been an employee continuously since the grant of the option,
or within three (3) months after the date on which he ceases to be such an
employee, to the extent that he would have been entitled to exercise the option
at the time of such termination of employment; provided, however, that no option
shall be exercisable after the expiration of the term thereof. In the case of an
employee who is permanently and totally disabled (within the meaning of Section
105(d)(4) of the Internal Revenue Code), the three-month period described in the
preceding sentence shall be one year. For purposes of this subsection, an
employment relationship will
<PAGE>
be treated as continuing during the period when an optionee is on military duty,
sick leave or other bona fide leave of absence if the period of such leave does
not exceed ninety (90) days, or, if longer, so long as a statute or contract
guarantees the optionee's right to re-employment with the Company. When the
period of leave exceeds ninety (90) days and the individual's right to
re-employment is not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the ninety-first (91st) day of
such leave.
9. Anti-Dilution Provisions. The aggregate number and kind of Shares
available for options under the Plan, the number and kind of Shares subject to
any outstanding option and the option price of each outstanding option, shall be
proportionately adjusted by the Stock Option Committee for any increase,
decrease or change in the total outstanding Shares of the Company resulting from
a stock dividend, recapitalization, merger, consolidation, split-up,
combination, exchange of Shares or similar transaction (but not by reason of the
issuance or purchase of Shares by the Company in consideration for money,
services or property).
10. Rights as a Shareholder. The optionee shall have no rights as a
Shareholder with respect to the Shares purchased by him pursuant to the exercise
of an option until the date of the issuance to him of a certificate of stock
representing such Shares. No adjustment shall be made for dividends or for
distributions of any other kind with respect to Shares for which the record date
is prior to the date of the issuance to the optionee of a certificate for the
Shares.
11. Investment Purpose. Each written notice by which an optionee
exercises an option shall contain representations on behalf of the optionee that
he acknowledges that the Company is selling or distributing Shares to him under
a claim of exemption from registration under the Securities Act of 1933 as
amended (hereinafter referred to as the
<PAGE>
"Act"), as a transaction not involving any public offering; that he represents
and warrants that he is acquiring such Shares with a view to investment and not
with a view to distribution or resale; and that he agrees not to make any sale
or other distribution or disposition of such Shares unless (i) a registration
statement with respect to such Shares shall be effective under the Act, together
with proof satisfactory to the Company that there has been compliance with
applicable state law, or (ii) the Company shall have received an opinion of
counsel satisfactory to it that no violation of the Act or applicable state law
will be involved in such transfer. The Company shall include on any certificate
for Shares issued under the Plan such legend restricting the transfer thereof as
it may deem appropriate to comply with any requirement established by law or by
the rules of any stock exchange.
12. Term of the Plan. The Plan shall take effect on August 18, 1981, if
adopted by the Board of Directors of the Company on or before that date, and
shall remain in effect until all Shares subject to issuance hereunder have been
purchased pursuant to options granted under the Plan, provided that all options
and rights under the Plan must be granted within ten (10) years from the earlier
of the date that the Plan is adopted or the date that it is approved by the
shareholders of the Company.
13. Amendment and Termination of Plan. The Board of Directors of the
Company, without further approval of the shareholders of the Company, may at any
time suspend or terminate the Plan or may amend it from time to time in any
manner; provided, however, that no amendment shall be effective without prior
approval of the shareholders of the Company which would (i) except as provided
in Section 9 hereof, increase the maximum number of Shares which may be issued
under the Plan, (ii) change the eligibility
<PAGE>
requirements for individuals entitled to receive options under the Plan, or
(iii) extend the period for granting options.
14. Administration. The Plan shall be administered by the Stock Option
Committee and decisions of the Stock Option Committee concerning the
interpretation and construction of any provisions of the Plan or of any option
granted pursuant to the Plan shall be final. The Company shall effect the grant
of options under the Plan in accordance with the decisions of the Stock Option
Committee, which may, from time to time, adopt rules and regulations for
carrying out the Plan. For purposes of the Plan, an option shall be deemed to be
granted when the written agreement for the same is signed on behalf of the
Company by its duly authorized officer or representative. Subject to the express
provisions of the Plan, the Stock Option Committee shall have the authority, in
its discretion and without limitation: to determine the individuals to receive
options, the times when such individuals shall receive such options, the number
of Shares to be subject to each option, the term of each option, the date when
each option shall become exercisable, whether an option shall be exercisable in
whole or in part in installments, the number of Shares to be subject to each
installment, the date each installment shall become exercisable, the term of
each installment and the option price of each option; to accelerate the date of
exercise of any option or installment thereof; and to make all other
determinations necessary or advisable for administering the Plan.
15. Reservation of Shares. The Company shall be under no obligation to
reserve Shares to fill options. The grant of options to employees hereunder
shall not be construed to constitute the establishment of a trust of such Shares
and no particular Shares shall be identified as optioned and reserved for
employees hereunder. The Company shall be deemed to have complied with the terms
of the Plan if, at the time of issuance and delivery pursuant
<PAGE>
to the exercise of an option, it has a sufficient number of Shares authorized
and unissued or in its treasury which may then be appropriated and issued for
purposes of the Plan, irrespective of the date when such Shares were authorized.
16. Application of Proceeds. The proceeds of the sale of Shares by the
Company under the Plan will constitute general funds of the Company and may be
used by the Company for any purpose.
<PAGE>
Exhibit (99)(b)
TRANSMATION, INC.
AMENDED AND RESTATED DIRECTORS' WARRANT PLAN
The Transmation, Inc. Directors' Warrant Plan, effective August 21, 1984
and amended and restated effective August 15, 1995 (this "Plan") is established
to attract, retain and compensate highly qualified individuals who are not
employees of Transmation, Inc., an Ohio corporation (the "Company"), or any of
its subsidiaries, for their service as members of the Board of Directors of the
Company (the "Board of Directors"), and to enable them to increase their
ownership of the Company's Common Stock, par value $.50 per share (the "Common
Stock"). As used herein, the term "Shares" shall mean the Common Stock or such
other securities, if any, as may result from an adjustment under Section 10.
1. Eligibility. Each member of the Board of Directors (including any
member elected after the effective date of this Plan) who (a) is not an employee
of the Company or any of its subsidiaries and (b) is a member of the Board of
Directors on a "Grant Date" (as hereinafter defined) (each, a "Participating
Director"), is eligible to participate in this Plan.
2. Warrants. All warrants granted under this Plan ("Warrants") shall be
non-statutory warrants to purchase Shares.
3. Shares Available. Subject to adjustment as provided by Section 10,
the total number of Shares that may be issued pursuant to Warrants granted
hereunder shall not exceed 100,000. Shares subject to Warrants may be either
authorized but unissued shares or shares that were once issued and subsequently
reacquired by the Company. If any Warrant is surrendered before exercise, or
lapses without exercise, or for any other reason ceases to be exercisable, in
whole or in part, the Shares reserved for the unexercised portion thereof shall
continue to be available for the grant of Warrants hereunder.
4. Grants of Warrants.
(a) Grants of Warrants. On each of the following dates, each
Participating Director shall automatically be granted a Warrant to purchase
2,000 Shares: the day next following conclusion of the Company's 1995 Annual
Meeting of Shareholders (the "1995 Grant Date"), the day next following
conclusion of the Company's 1996 Annual Meeting of Shareholders (the "1996 Grant
Date"), and the day next following conclusion of the Company's 1997 Annual
Meeting of Shareholders (the "1997 Grant Date") (each, a "Grant Date").
(b) Election to Decline Warrant. Any Participating Director may,
by written notice received by the Company prior to the Grant Date of such
Warrant, elect to decline a Warrant, in which case such Warrant shall not be
granted to him; provided, however, that at no time shall the Company pay or
provide to such Participating Director anything of value in lieu of the declined
Warrant. In addition, any Participating Director may, by written notice received
by the Company prior to the Grant Date of such Warrant, revoke a previous
election to decline a Warrant.
<PAGE>
(c) Expiration of Warrants. Subject to earlier expiration as
provided by Section 7, each Warrant shall expire on the fifth anniversary of its
Grant Date, and to the extent any Warrant remains unexercised on such fifth
anniversary, it shall be forfeited.
5. Exercise Price. The price at which each Warrant shall be exercisable
shall be the fair market value per share (the "Market Value") of the Shares on
the Grant Date of such Warrant. For purposes of this Plan, the Market Value of
the Shares shall be the closing price of the Shares on the principal national
securities exchange on which the Shares are then listed or admitted to trading
(if the Shares are then listed or admitted to trading on any national securities
exchange), and the closing price shall be the last reported sale price regular
way or, in case no such sale takes place on such date, the last reported sale
price, regular way, so reported on the immediately preceding day on which a sale
takes place. If the Shares are not then so listed on a national securities
exchange, the Market Value of the Shares on any date shall be the closing price
(the last reported sale price regular way) in the over-the-counter market as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("Nasdaq"), if the closing price of the Shares is then reported
by Nasdaq. If the closing price of the Shares is not then reported by Nasdaq,
the Market Value of the Shares on any date shall be deemed to be the mean
between the representative closing bid and asked prices of the Shares in the
over-the-counter market as reported by Nasdaq. If the Shares are not then
reported by Nasdaq, the Market Value of the Shares on any date shall be as
furnished by any member of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose. If no member of the
National Association of Securities Dealers, Inc. furnishes quotes with respect
to the Shares, the Market Value shall be determined by such other reasonable
method as is adopted by resolution of the Board of Directors.
6. Vesting. Subject to prior expiration as provided by this Plan, each
Warrant shall vest and become exercisable over a four-year period, as set forth
in this Section 6.
(a) Warrants Granted on 1995 Grant Date. Each Warrant granted on
the 1995 Grant Date shall vest and become exercisable as follows:
(i) a Warrant to purchase 500 Shares shall first become
exercisable on the date, if any, after the 1995 Grant Date on
which the Market Value of the Common Stock shall have equaled or
exceeded $7.00 per share for any 20 of 30 consecutive trading
days;
(ii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1996 on which the Market Value of the Common Stock shall have
equaled or exceeded $12.00 per share for any 20 of 30 consecutive
trading days;
(iii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1997 on which the Market Value of the Common Stock shall have
equaled or exceeded $16.00 per share for any 20 of 30 consecutive
trading days; and
<PAGE>
(iv) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1998 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days.
(b) Warrants Granted on 1996 Grant Date. Each Warrant granted on
the 1996 Grant Date shall vest and become exercisable as follows:
(i) a Warrant to purchase 500 Shares shall first become
exercisable on the date, if any, after the 1996 Grant Date on
which the Market Value of the Common Stock shall have equaled or
exceeded $12.00 per share for any 20 of 30 consecutive trading
days;
(ii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1997 on which the Market Value of the Common Stock shall have
equaled or exceeded $16.00 per share for any 20 of 30 consecutive
trading days;
(iii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1998 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days; and
(iv) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1999 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days.
(c) Warrants Granted on 1997 Grant Date. Each Warrant granted on
the 1997 Grant Date shall vest and become exercisable as follows:
(i) a Warrant to purchase 500 Shares shall first become
exercisable on the date, if any, after the 1997 Grant Date on
which the Market Value of the Common Stock shall have equaled or
exceeded $16.00 per share for any 20 of 30 consecutive trading
days;
(ii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1998 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days;
(iii) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
1999 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days; and
<PAGE>
(iv) an additional Warrant to purchase 500 Shares shall
first become exercisable on the date, if any, after January 1,
2000 on which the Market Value of the Common Stock shall have
equaled or exceeded $20.00 per share for any 20 of 30 consecutive
trading days.
7. Early Expiration of Warrants.
(a) Cessation of Service. Upon a Participating Director's
cessation of service as a member of the Board of Directors for any reason other
than his death, all outstanding Warrants then held by him (whether or not
currently exercisable) shall, on the date of such cessation of service, expire
and be of no further force or effect.
(b) Death. Upon the death of a Participating Director while
serving as a member of the Board of Directors, only those Warrants (or portions
thereof) that have vested by the date of death shall thereafter be exercisable
by his legal representative, and such Warrants must be exercised within 90 days
after the date of death (but in no event after the expiration of the Warrant),
whereupon all such Warrants shall expire and be of no further force or effect.
8. Loss of Eligibility. If a Participating Director becomes an employee
of the Company or any of its subsidiaries, then all Warrants already granted to
him hereunder shall continue in full force and effect, in accordance with their
original terms, for so long as he remains a member of the Board of Directors,
but he shall be entitled to no further grants of Warrants hereunder.
9. Method of Exercise. A Warrant shall be exercised by written notice to
the Company specifying the number of whole Shares to be purchased and
accompanied by full payment, in cash, for such Shares. A Warrant, to the extent
otherwise exercisable, may be exercised in whole or in part, provided that no
Warrant may be exercised for less than one whole Share. Upon determining that
compliance with this Plan has occurred, including compliance with such
reasonable requirements as the Company may impose pursuant to Section 11, the
Company shall issue certificates for the Shares purchased.
10. Adjustment Provisions. In the event (but only in the event)
that:
(a) in connection with a merger or consolidation of the Company
or a sale by the Company of all or a part of its assets, the outstanding
Shares are exchanged for a different number or class of shares of stock
or other securities of the Company, or for shares of the stock or other
securities of any other entity; or
(b) new, different or additional shares or other securities of
the Company or of another entity are received by the holders of
Shares; or
(c) any dividend in the form of stock is paid to the holders of
Shares, or any stock split or reverse split pertaining to the Shares is
effected;
<PAGE>
then appropriate adjustments shall be made to:
(i) the number and kind of shares or other securities that may be
issued upon exercise of Warrants not yet granted (including the numbers
of shares set forth in Sections 3 and 4(a));
(ii) the exercise price per share to be paid upon exercise of
each outstanding Warrant; and
(iii) the number and kind of shares or other securities covered
by each outstanding Warrant.
11. Taxes; Compliance with Laws.
(a) Taxes. The Company, if necessary or desirable, may pay or
withhold the amount of any tax attributable to any Shares deliverable under this
Plan, and the Company may defer making delivery until it is reimbursed or
indemnified to its satisfaction for that tax.
(b) Securities Laws Compliance. Each grant of a Warrant
hereunder, and (unless a Registration Statement with respect thereto shall then
be effective under the Securities Act of 1933, as amended (the "1933 Act")) each
issuance of Shares upon exercise of a Warrant, shall be conditioned upon the
Company's prior receipt of a duly executed letter of investment intent, in form
and content satisfactory to counsel for the Company, of the Warrant holder that
such Warrant and such Shares are being acquired by such Warrant holder solely
for investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of selling, transferring or
disposing of the same. Any Shares acquired by the Warrant holder upon exercise
of the Warrant may not thereafter be offered for sale, sold or otherwise
transferred unless (i) a Registration Statement with respect thereto shall then
be effective under the 1933 Act, and the Company shall have been furnished with
proof satisfactory to it that such Warrant holder has complied with applicable
state securities laws, or (ii) the Company shall have received an opinion of
counsel in form and substance satisfactory to counsel for the Company that the
proposed offer for sale, sale or transfer is exempt from the registration
requirements of the 1933 Act and the Shares may otherwise be transferred in
compliance with the 1933 Act and in compliance with any other applicable law,
including all applicable state securities laws; and the Company may withhold
transfer, registration and delivery of such securities until one of the
foregoing conditions shall have been met. Unless a Registration Statement with
respect thereto shall then be effective under the 1933 Act, each certificate
representing Shares issued upon exercise of a Warrant shall bear an appropriate
legend reflecting the foregoing. Warrants are exercisable, and Shares can be
delivered under this Plan, only in compliance with all applicable federal and
state laws and the rules of all stock exchanges or trading markets on which the
Shares are listed or traded at any time. A Warrant may not be exercised, and
Shares may not be issued under any Warrant, until the Company has obtained the
necessary consent or approval (if any) of every regulatory body, federal or
state, having jurisdiction over such matters as the Company deems advisable.
<PAGE>
12. Administration and Amendment of Plan. This Plan shall be
administered by the Board of Directors. This Plan may be terminated or amended
by the Board of Directors as it deems advisable; provided, however, that any
amendment that changes the timing of the grant of Warrants, the eligibility
requirements for Participating Directors, the method of determining the exercise
price of Warrants, the vesting schedule or expiration dates of Warrants, or the
number of Shares subject to Warrants, shall not be made more frequently than
every six months unless otherwise necessary to comply with the Internal Revenue
Code of 1986, as amended, the Employee Retirement Income Security Act of 1974,
as amended, or any regulations thereunder. In addition, the shareholders of the
Company must approve any amendment that would materially (a) increase the
benefits accruing to Participating Directors under this Plan, (b) increase
(other than pursuant to Section 10) the number of securities that may be issued
under this Plan, or (c) modify the requirements as to eligibility for
participation in the Plan. No amendment of this Plan may revoke or alter in a
manner adverse to a Participating Director any Warrants then outstanding.
13. Non-Transferability. No Warrant granted under this Plan is
transferable other than by will or the laws of descent and distribution. During
a Participating Director's lifetime, a Warrant may be exercised only by him.
14. No Additional Rights. Except as provided in this Plan, no
Participating Director shall have any claim or right to be granted a Warrant
under this Plan. Neither this Plan nor any action taken hereunder shall be
construed as giving any person any right to continue to serve as a member of the
Board of Directors. No person, estate or other entity shall have any rights as a
shareholder of the Company with respect to Shares subject to Warrants until a
certificate for such Shares has been delivered to the person exercising the
Warrant in accordance with the terms of this Plan.
15. Warrant Certificates. Each Warrant shall be evidenced by a written
warrant certificate which sets forth (a) the number of Shares subject to the
Warrant, (b) the exercise price, (c) the vesting schedule of the Warrant, (d)
the expiration date of the Warrant, and (e) such additional provisions, not
inconsistent with the Plan, as the Board of Directors may prescribe.
16. Rule 16b-3 Qualification. Some or all of the Warrants granted under
this Plan are intended to qualify under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended.
17. In General. As used herein, the masculine pronoun shall include the
feminine and the neuter, and the singular shall include the plural, as
appropriate to the context. As used herein, the term "Section" means the
appropriate Section of this Plan.
18. Effective Date. This Plan shall become effective immediately upon
its due ratification by the shareholders of the Company.
* * * * * *
<PAGE>
The foregoing Transmation, Inc. Amended and Restated Directors' Warrant
Plan was duly adopted by the Board of Directors of Transmation, Inc. on June 6,
1995.
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
<PAGE>
Exhibit (99)(c)
TRANSMATION, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
1. PURPOSE.
The Transmation, Inc. 1993 Stock Option Plan, effective June 15, 1993,
amended and restated effective January 17, 1995, and again amended and restated
effective June 6, 1995 (the "Plan"), is designed to create an incentive for
executive and other employees of Transmation, Inc., an Ohio corporation (the
"Company"), and its subsidiaries, to remain in the employ of the Company and its
subsidiaries and to contribute to their success by providing the opportunity for
stock ownership. The Company may grant under the Plan both incentive stock
options within the meaning of Section 422 of the Internal Revenue Code
("Incentive Stock Options") and stock options that do not qualify for treatment
as Incentive Stock Options ("Nonstatutory Stock Options"). Unless expressly
provided to the contrary, all references herein to "Options" include both
Incentive Stock Options and Nonstatutory Stock Options.
2. ADMINISTRATION.
(a) The Plan shall be administered by a committee (the "Stock Option
Committee") comprised of the members of the Compensation and Benefits Committee
of the Board of Directors of the Company (the "Compensation and Benefits
Committee"), which shall be comprised of two or more members of the Board of
Directors of the Company. The Stock Option Committee shall be a subcommittee of
the Compensation and Benefits Committee.
(b) Each member of the Stock Option Committee and each member of the
Compensation and Benefits Committee shall be a disinterested director of the
Company within the meaning of Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and at no time shall a
director serve on the Stock Option Committee or the Compensation and Benefits
Committee if he has been granted or awarded Options under the Plan at any time
during the one year prior to his service on such Committee, or during such
service.
(c) Subject to the express provisions of the Plan (including without
limitation the provisions of Section 8(b)), the Stock Option Committee shall
have the authority, in its discretion and without limitation:
(i) to determine the individuals to whom Options are granted,
whether an Option is intended to be an Incentive Stock Option or a
Nonstatutory Stock Option, the times when such individuals shall be
granted Options, the number of shares to be subject to each Option, the
term of each Option, the date when each Option shall become exercisable,
whether an Option shall be exercisable in whole or in part in
installments, the number of shares to be subject to each installment,
the date each installment shall become exercisable, the term of each
installment, and the option price of each Option; and
<PAGE>
(ii) to make all other determinations necessary or advisable for
administering the Plan;
provided, however, that notwithstanding any other provision of the Plan to the
contrary, all actions of the Stock Option Committee, including without
limitation the granting of Options under the Plan, shall be subject to the
approval of the Compensation and Benefits Committee, and any action taken by
the Stock Option Committee without such approval shall be null and void and of
no effect.
(d) The Stock Option Committee shall act by majority vote. Subject to
the proviso contained in Section 2(c), the decision of the Stock Option
Committee on any question concerning or involving the interpretation or
administration of the Plan shall, as between the Company and Option holders, be
final and conclusive. The Stock Option Committee and the Compensation and
Benefits Committee may consult with counsel, who may be counsel for the Company,
and shall not incur any liability for any action taken in good faith in reliance
upon the advice of counsel.
3. ELIGIBILITY.
(a) Participants in the Plan shall be selected by the Stock Option
Committee from among the full-time employees of the Company, including those who
are also directors or officers thereof. An employee on leave of absence may be
considered as still in the employ of the Company for purposes of eligibility for
participation in the Plan. All references in this Plan to employees of the
Company shall include employees of any parent or subsidiary of the Company, as
those terms are defined in Section 424 of the Internal Revenue Code.
(b) The right of the Company to terminate the employment of a Plan
participant at any time, with or without cause, shall in no way be restricted by
the existence of the Plan, any Option granted hereunder, or any stock option
agreement relating thereto.
4. NUMBER OF SHARES.
Subject to the provisions of Section 5, the total number of shares of
the Company's common stock, par value $.50 per share (the "Common Stock"), which
may be issued under Options granted pursuant to the Plan shall not exceed
400,000. Shares subject to the Plan may be either authorized but unissued shares
or shares that were once issued and subsequently reacquired by the Company. If
any Option is surrendered before exercise, or lapses without exercise, or for
any other reason ceases to be exercisable, the shares reserved therefor shall
continue to be available for the grant of Options under the Plan. The Plan shall
terminate on June 14, 2003, or the earlier dissolution of the Company, and no
Option shall be granted after such date.
<PAGE>
5. ADJUSTMENT PROVISIONS.
In the event that:
(a) in connection with a merger or consolidation of the Company
or a sale by the Company of all or a part of its assets, the outstanding
shares of Common Stock are exchanged for a different number or class of
shares of stock or other securities of the Company, or for shares of the
stock or other securities of any other entity; or
(b) new, different or additional shares or other securities of
the Company or of another entity are received by the holders of Common
Stock, whether by way of recapitalization or otherwise; or
(c) any dividend in the form of stock is made to the holders of
Common Stock, or any stock split or reverse split pertaining to Common
Stock is effected;
then the Stock Option Committee shall make the appropriate adjustment to:
(i) the number and kind of shares or other securities that may be
issued upon exercise of Options yet to be granted;
(ii) the option price per share to be paid upon exercise of each
outstanding Option; and
(iii) the number and kind of shares or other securities covered
by each outstanding Option.
6. ANNUAL LIMITATION ON INCENTIVE STOCK OPTIONS.
The aggregate fair market value (determined as of the date the Option is
granted) of the shares with respect to which Incentive Stock Options are
exercisable for the first time by a grantee during any calendar year (under all
plans of the Company and any parent and subsidiaries of the Company) shall not
exceed $100,000.
7. OPTION PRICE.
(a) For purposes of the Plan, the term "Grant Date" shall mean the date
on which the grant of an Option is duly authorized by the Stock Option Committee
and approved by the Compensation and Benefits Committee. The option price at
which an Option shall be exercisable shall be at least the fair market value per
share of the Common Stock on the Grant Date of such Option. However, if an
Incentive Stock Option is granted to any person who would, after the grant of
such Option, be deemed to own stock possessing more than 10 percent of the total
combined voting power of all classes of stock of the Company, or of any parent
or subsidiary of the Company (a "Ten Percent Shareholder"), the option price
shall be not less than 110 percent of the fair market value per share of the
Common Stock on the Grant Date of such Option.
<PAGE>
(b) For purposes of the Plan, the fair market value per share of the
Common Stock on any date ("Fair Market Value") shall be the closing price of the
Common Stock on the principal national securities exchange on which the Common
Stock is then listed or admitted to trading, and the closing price shall be the
last reported sale price regular way or, if no sale takes place on such date,
the average of the closing bid and closing asked prices regular way, as reported
by such exchange. If the Common Stock is not then so listed or admitted to
trading on a national securities exchange, then Fair Market Value shall be the
closing price of the Common Stock in the over-the-counter market as reported by
the National Association of Securities Dealers Automated Quotation System
("NASDAQ"), and the closing price shall be the last reported sale price regular
way or, if no sale takes place on such date, the average of the closing bid and
closing asked prices regular way, as reported by NASDAQ. If the Common Stock
closing price is not then reported by NASDAQ, then Fair Market Value shall be
the mean between the representative closing bid and closing asked prices of the
Common Stock in the over-the-counter market as reported by NASDAQ. If the Common
Stock bid and asked prices are not then reported by NASDAQ, then Fair Market
Value shall be the quote furnished by any member of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose. If no member of the National Association of Securities Dealers, Inc.
then furnishes quotes with respect to the Common Stock, then Fair Market Value
shall be determined by resolution of the Company's Board of Directors.
Notwithstanding the foregoing provisions of this Section 7(b), if the Board of
Directors shall at any time determine that it is impracticable to apply the
foregoing methods of determining Fair Market Value, then the Board of Directors
is hereby empowered to adopt any other reasonable method for such purpose.
8. TERM OF OPTIONS; EXERCISABILITY.
(a) Subject to the provisions of Section 18, the term of each Option
shall be determined by the Stock Option Committee, but in no event shall an
Option be exercisable, either in whole or in part, after the expiration of ten
years from the Grant Date of such Option. Notwithstanding the foregoing, an
Incentive Stock Option granted to a Ten Percent Shareholder shall not be
exercisable, either in whole or in part, after the expiration of five years from
the Grant Date of such Option. The Stock Option Committee and an Option holder
may at any time by mutual agreement terminate any Option held by such Option
holder.
(b) Subject to prior expiration or termination as provided by the Plan,
each Option shall vest and become exercisable over a four-year period, as set
forth in this Section 8(b).
(i) Each Option, if any, granted during the 1995 calendar year
shall vest and become exercisable as follows:
(A) 25 percent of the Option shall first become
exercisable on the date, if any, after the Grant Date on which
Fair Market Value shall have equaled or exceeded $7.00 per share
for any 20 of 30 consecutive trading days;
<PAGE>
(B) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1996 on
which Fair Market Value shall have equaled or exceeded $12.00 per
share for any 20 of 30 consecutive trading days;
(C) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1997 on
which Fair Market Value shall have equaled or exceeded $16.00 per
share for any 20 of 30 consecutive trading days; and
(D) the balance of the Option shall first become
exercisable on the date, if any, after January 1, 1998 on which
Fair Market Value shall have equaled or exceeded $20.00 per share
for any 20 of 30 consecutive trading days.
(ii) Each Option, if any, granted during the 1996 calendar year
shall vest and become exercisable as follows:
(A) 25 percent of the Option shall first become
exercisable on the date, if any, after the Grant Date on which
Fair Market Value shall have equaled or exceeded $12.00 per share
for any 20 of 30 consecutive trading days;
(B) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1997 on
which Fair Market Value shall have equaled or exceeded $16.00 per
share for any 20 of 30 consecutive trading days;
(C) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1998 on
which Fair Market Value shall have equaled or exceeded $20.00 per
share for any 20 of 30 consecutive trading days; and
(D) the balance of the Option shall first become
exercisable on the date, if any, after January 1, 1999 on which
Fair Market Value shall have equaled or exceeded $20.00 per share
for any 20 of 30 consecutive trading days.
(iii) Each Option, if any, granted during the 1997 calendar year
shall vest and become exercisable as follows:
(A) 25 percent of the Option shall first become
exercisable on the date, if any, after the Grant Date on which
Fair Market Value shall have equaled or exceeded $16.00 per share
for any 20 of 30 consecutive trading days;
(B) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1998 on
which Fair Market Value shall have equaled or exceeded $20.00 per
share for any 20 of 30 consecutive trading days;
(C) an additional 25 percent of the Option shall first
become exercisable on the date, if any, after January 1, 1999 on
which Fair Market Value shall have equaled or exceeded $20.00 per
share for any 20 of 30 consecutive trading days; and
(D) the balance of the Option shall first become
exercisable on the date, if any, after January 1, 2000 on which
Fair Market Value shall have equaled or exceeded $20.00 per share
for any 20 of 30 consecutive trading days.
9. STOCK OPTION AGREEMENTS.
Each Option shall be evidenced by a written agreement which sets forth:
(a) the number of shares subject to the Option; (b) the option price; (c) the
vesting schedule of the Option; (d) the expiration date of the Option; (e) the
method of payment on exercise of the Option; (f) whether the Option is an
Incentive Stock Option or a Nonstatutory Stock Option; and (g) such additional
provisions, not inconsistent with the Plan, as the Stock Option Committee may
prescribe.
10. EXERCISE OF OPTIONS.
(a) Each Option, or any installment thereof, shall be exercised, whether
in whole or in part, by giving written notice to the Company at its principal
office, specifying the number of shares of Common Stock being purchased and the
purchase price being paid, and accompanied by payment in full of the purchase
price.
(b) An Option holder shall pay for the shares subject to the Option by
one or any combination of the following methods, as determined by the Stock
Option Committee on the Grant Date of the Option: (i) in cash, (ii) by delivery
of shares of Common Stock already owned by the Option holder, or (iii) by the
Company withholding shares of Common Stock that would otherwise be delivered to
the Option holder upon such exercise of the Option. Any shares of Common Stock
that are so delivered or withheld to pay the option price shall be valued at
Fair Market Value on the date of such Option exercise.
(c) The exercise of an Option shall be conditioned upon the Option
holder making arrangements satisfactory to the Stock Option Committee for the
payment to the Company of the amount of all taxes required by any governmental
authority to be withheld and paid over by the Company to the governmental
authority on account of the exercise. The payment of such withholding taxes to
the Company shall be made by one or any combination of the following methods, as
determined by the Stock Option Committee on the Grant Date of the Option: (i) in
cash, or (ii) by the Company withholding such taxes from any other compensation
owed to the Option holder by the Company or any of its subsidiaries.
11. NON-ASSIGNMENT.
Each Option by its terms shall provide that it is not transferable by
the grantee otherwise than by will or the laws of descent and distribution, and
that during the lifetime of the grantee, it is exercisable only by him.
<PAGE>
12. DEATH OF GRANTEE.
In the event that a grantee shall die (i) while he is an employee of the
Company, or within three months after termination of such employment, and (ii)
prior to the complete exercise of Options granted to him under the Plan, then
any such remaining Options with exercise periods outstanding may be exercised,
in whole or in part, within one year after the date of the grantee's death and
then only:
(a) by the grantee's estate or by such person(s) to whom the
grantee's rights hereunder shall have passed under his will or the laws
of descent and distribution;
(b) to the extent that the grantee was entitled to exercise the
Option on the date of his death, and subject to all of the conditions
on exercise imposed hereby; and
(c) prior to the expiration of the term of the Option.
13. TERMINATION OF EMPLOYMENT.
(a) During the lifetime of a grantee, an Option shall be exercisable
only while he is an employee of the Company and has been an employee
continuously since the Grant Date of the Option, or within three months after
the date on which he ceases to be such an employee for any reason; provided,
however, that in the case of a grantee who is permanently and totally disabled
(within the meaning of Section 22(e)(3) of the Internal Revenue Code), such
three-month period shall instead be one year.
(b) Any Option that is exercisable after termination of employment, as
provided by Section 13(a), shall be exercisable only to the extent that the
grantee would have been entitled to exercise the Option on the date of
termination of employment; and further, no Option shall be exercisable after the
expiration of the term thereof.
(c) For purposes of this Section 13, an employment relationship shall be
treated as continuing during the period when a grantee is on military duty, sick
leave or other bona fide leave of absence if the period of such leave does not
exceed 90 days or, if longer, so long as a statute or contract guarantees the
grantee's right to re-employment with the Company. When the period of leave
exceeds 90 days and the individual's right to re-employment is not so
guaranteed, the employment relationship shall be deemed to have terminated on
the 91st day of such leave.
14. ADDITIONAL REQUIREMENTS.
Each grant of an Option under the Plan, and (unless a Registration
Statement with respect thereto shall then be effective under the Securities Act
of 1933, as amended (the "Securities Act")) each issuance of shares of Common
Stock upon exercise of an Option, shall be conditioned upon the Company's prior
receipt of a duly executed letter of investment intent, in form and content
satisfactory to counsel for the Company, of the Option holder that such Option
and such shares are being acquired by such holder solely for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor
with any present
<PAGE>
intention of selling, transferring or disposing of the same. Any shares of
Common Stock acquired by the holder upon exercise of the Option may not
thereafter be offered for sale, sold or otherwise transferred unless (a) a
Registration Statement with respect thereto shall then be effective under the
Securities Act, and the Company shall have been furnished with proof
satisfactory to it that such holder has complied with applicable state
securities laws, or (b) the Company shall have received an opinion of counsel in
form and substance satisfactory to counsel for the Company that the proposed
offer for sale, sale or transfer is exempt from the registration requirements of
the Securities Act and may otherwise be transferred in compliance with the
Securities Act and in compliance with any other applicable law, including all
applicable state securities laws; and the Company may withhold transfer,
registration and delivery of such securities until one of the foregoing
conditions shall have been met.
15. LISTING AND REGISTRATION.
The Company, in its discretion, may postpone the issuance and delivery
of shares upon any exercise of an Option until completion of such stock exchange
listing, or registration or other qualification of such shares under any state
or federal law, rule or regulation, as the Company may consider appropriate; and
may require any person exercising an Option to make such representations and
furnish such information as it considers appropriate in connection with the
issuance of the shares in compliance with applicable law, including without
limitation federal or state laws regulating the sale or issuance of securities.
Notwithstanding the foregoing, the Company shall be under no obligation
whatsoever to list, register or otherwise qualify any shares subject to Options
under the Plan.
16. RIGHTS AS A SHAREHOLDER.
No Option holder shall have any rights as a shareholder with respect to
the shares of Common Stock purchased by him pursuant to the exercise of an
Option until the date of the issuance to him of a stock certificate representing
such shares. No adjustment shall be made for dividends or for distributions of
any other kind with respect to shares for which the record date is prior to the
date of the issuance to the Option holder of a certificate for the shares.
17. EFFECT OF ACQUISITION, REORGANIZATION OR LIQUIDATION.
Notwithstanding any provision to the contrary in this Plan or in any
agreement evidencing Options granted hereunder, all Options with exercise
periods then currently outstanding shall become immediately exercisable in full
and remain exercisable until their expiration in accordance with their
respective terms upon the occurrence of either of the following events:
(a) the first purchase of shares pursuant to a tender or exchange
offer which is intended to effect the acquisition of more than 50
percent of the voting power of the Company (other than a tender or
exchange offer made by the Company); or
<PAGE>
(b) approval by the Company's shareholders of: (i) a merger or
consolidation of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the surviving
corporation and which does not result in any reclassification or
reorganization of the shares), (ii) a sale or disposition of all or
substantially all of the Company's assets, or (iii) a plan of complete
liquidation or dissolution of the Company.
18. CONDITIONAL OPTIONS.
Prior to approval and ratification of the Plan by the shareholders of
the Company, the Stock Option Committee may grant "Conditional Options" under
the Plan. In addition, in the event that any amendment to the Plan requires
approval and ratification by the shareholders, then prior to such approval and
ratification the Stock Option Committee may grant Conditional Options under the
Plan. Conditional Options may be granted under the Plan only under the following
conditions: (a) a Conditional Option shall be clearly identified as a
Conditional Option; (b) the grant of a Conditional Option shall be expressly
conditioned upon the approval and ratification of the Plan (or of the amendment
to the Plan, as the case may be) by the shareholders of the Company; (c) such
shareholder approval and ratification shall occur no later than the Annual
Meeting of Shareholders of the Company next following the effective date of the
Plan (or of the amendment to the Plan, as the case may be); and (d)
not-withstanding any other provision of the Plan, no holder of a Conditional
Option shall have any right to exercise such Option prior to such approval and
ratification of the Plan (or of the amendment to the Plan, as the case may be)
by the shareholders. Notwithstanding any other provision of the Plan, prior to
approval and ratification of the Plan (or of the amendment to the Plan, as the
case may be) by the shareholders of the Company, no holder of a Condition-al
Option shall have any right to sell, assign, transfer, pledge or encumber the
Conditional Option, or the shares underlying the Conditional Option, except by
will or the laws of descent and distribution (unless, in the case of a holder
who is subject to the provisions of Section 16 of the Exchange Act, transfer by
will or the laws of descent and distribution would cause the Option to fail to
satisfy the requirements of a conditional option under Rule 16b-3 promulgated
under the Exchange Act). If the shareholders of the Company fail to approve and
ratify the Plan (or the amendment to the Plan, as the case may be) at such
Annual Meeting of Shareholders, then all Conditional Options granted hereunder
conditioned upon such approval and ratification shall be automatically cancelled
and shall immediately become null and void.
19. AMENDMENT OF PLAN.
The Plan may be amended at any time by the Board of Directors, provided
that (except for amendments made pursuant to Section 5) no amendment made
without the approval and ratification of the shareholders of the Company shall
increase the total number of shares which may be issued under Options granted
pursuant to the Plan, reduce the minimum option price, extend the latest date
upon which Options may be granted or shall be exercisable, change the class of
employees eligible to be granted Options, reduce the Fair Market Value
requirements for exercisability set forth in Section 8(b), or otherwise
materially increase the benefits accruing to participants under the Plan.
<PAGE>
20. NO RESERVATION OF SHARES.
The Company shall be under no obligation to reserve shares of Common
Stock or other securities to satisfy the exercise of Options. The grant of
Options hereunder shall not be construed as constituting the establishment of a
trust of such shares, and no particular shares shall be identified as optioned
or reserved for issuance hereunder. The Company shall have complied with the
terms of the Plan if, at the time of its delivery of shares upon the exercise of
any Option, it has a sufficient number of shares authorized and unissued, or
issued and held in its treasury, which may then be delivered under the Plan,
irrespective of the date on which such shares were authorized.
21. APPLICATION OF PROCEEDS.
The proceeds of the sale of shares of Common Stock by the Company under
the Plan will constitute general funds of the Company and may be used by the
Company for any purpose.
22. RULE 16B-3 QUALIFICATION.
Some or all of the Options granted under the Plan are intended to
qualify under Rule 16b-3 promulgated under the Exchange Act.
23. IN GENERAL.
(a) As used herein, the masculine pronoun shall include the feminine and
the neuter, as appropriate to the context.
(b) As used herein, the term "Section" shall mean the appropriate
Section of the Plan.
* * * * *
The foregoing Transmation, Inc. Amended and Restated 1993 Stock Option Plan was
duly adopted by the Board of Directors of Transmation, Inc. on June 6, 1995.
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
<PAGE>
Exhibit (99)(e)
TRANSMATION, INC.
EMPLOYEES' STOCK PURCHASE PLAN
1. Purpose and Effect of Plan
The purpose of the Plan is to secure for the Company and its
shareholders the benefits of the incentive inherent in the ownership of Common
Stock by present and future employees of the Company and certain of its
subsidiaries. The Plan is intended to conform with the provisions of Rule 16b-3
promulgated under the Act and the terms of Code section 423.
2. Definitions
Where indicated by initial capital letters, the following terms shall
have the following respective meanings:
(a) Act: the Securities Exchange Act of 1934, as amended.
(b) Base Compensation: the regular earnings of an Eligible Employee,
including (if any) overtime, bonuses and salary reduction contributions pursuant
to elections under a plan subject to Code sections 125 or 401(k).
(c) Board: the Board of Directors of the Company.
(d) Code: the Internal Revenue Code of 1986, as amended, or any
subsequently enacted federal revenue law. A reference to a particular section of
the Code shall include a reference to any regulations issued under the section
and to the corresponding section of any subsequently enacted federal revenue
law.
(e) Committee: the committee established pursuant to Section 4 to be
responsible for the general administration of the Plan.
(f) Common Stock: the Company's Common Stock, par value $.50 per share.
(g) Company: Transmation, Inc. and any successor by merger,
consolidation or otherwise.
(h) Custodian: the custodian appointed by the Board to maintain the
Investment Accounts established in accordance with Section 9, which custodian
may be the Company itself, any employee of the Company or any third party so
appointed.
(i) Designated Subsidiary: each subsidiary of the Company, now owned or
hereafter created or acquired, which the Board in its sole discretion hereafter
designates as a participating employer under the Plan.
(j) Eligible Employee: any employee of the Company or of any
Designated Subsidiary who meets the eligibility requirements of Section 5.
<PAGE>
(k) Enrollment Form: the form filed with the Committee authorizing
payroll deductions pursuant to Section 6.
(l) Fair Market Value: the last reported per share sale price, regular
way, of the Common Stock as reported by Nasdaq on the date in question or, if
the Common Stock shall not have traded on Nasdaq on such date, the last reported
per share sale price, regular way, so reported on the immediately preceding day
on which the Common Stock so traded.
(m) Investment Account: the account established for each Participating
Employee to hold Common Stock purchased under the Plan in accordance with
Section 9.
(n) Investment Date: the last business day of each calendar month on
which shares of Common Stock are or could be traded on Nasdaq.
(o) Issuance Dates: the dates on or about which certificates
representing shares of Common Stock held in the Investment Accounts shall be
issued to each Participating Employee. Unless or until changed by the Board, the
Issuance Dates shall be March 31 and September 30 of each year.
(p) Nasdaq: the Nasdaq Stock Market.
(q) Participating Employee: an Eligible Employee who elects to
participate in the Plan by filing an Enrollment Form in accordance with Section
6.
(r) Payroll Deduction Account: the account established for each
Participating Employee to hold payroll deductions in accordance with Section 6.
(s) Plan: the Transmation, Inc. Employees' Stock Purchase Plan as set
forth herein and as amended from time to time.
(t) Purchase Price: the price for each share of Common Stock purchased
under the Plan, which shall be 85% of the Fair Market Value of the Common Stock
on the applicable Investment Date.
3. Shares Subject to the Plan
Subject to the provisions of Section 12, the total number of shares of
Common Stock that may be purchased under the Plan shall not exceed 450,000.
Shares subject to the Plan may be either authorized but unissued shares or
shares that were once issued and subsequently reacquired by the Company.
4. Administration of the Plan
(a) The Plan shall be administered by the Committee, which shall be
appointed by the Board and shall be comprised of two or more members of the
Board. Each member of the Committee shall be a disinterested director of the
Company within the meaning of
<PAGE>
Rule 16b-3 promulgated under the Act. The Committee shall be the Stock Option
Committee under the Transmation, Inc. Amended and Restated 1993 Stock Option
Plan unless the Board shall appoint another committee to administer the Plan.
(b) Subject to the express provisions of the Plan, the Committee shall
have the authority to take any and all actions necessary to implement the Plan
and to interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to it, and to make all other determinations necessary or advisable in
administering the Plan. All of such determinations shall be final and binding
upon all persons. A quorum of the Committee shall consist of a majority of its
members and the Committee may act by vote of a majority of its members at a
meeting at which a quorum is present, or without a meeting by a written consent
to the action taken signed by all members of the Committee. The Committee may
request advice or assistance or employ such other persons as are necessary for
proper administration of the Plan.
5. Eligible Employees
Any employee of the Company or of any Designated Subsidiary (a) whose
customary employment is for more than 20 hours per week, and (b) who has been
employed for one year or more, shall be an Eligible Employee eligible to
participate in the Plan.
6. Election to Participate
(a) An Eligible Employee may become a Participating Employee effective
on the first day of any calendar month coincident with or following the date he
becomes an Eligible Employee by filing with the Committee, in care of the Vice
President-Human Resources of the Company, an Enrollment Form authorizing
specified regular payroll deductions from his Base Compensation. Such regular
payroll deductions shall not exceed 10 percent of his Base Compensation for any
pay period. All such regular payroll deductions shall be credited to the Payroll
Deduction Account that the Company has established in the name of the
Participating Employee.
(b) A Participating Employee may increase or decrease the amount of his
regular payroll deduction by filing a new Enrollment Form to be effective as of
the first day of the next following calendar month.
(c) A Participating Employee may at any time, by filing a new Enrollment
Form so stating, withdraw from the Plan and cease to be a Participating
Employee. An employee who has ceased to be a Participating Employee may not
again become a Participating Employee for six months.
(d) In all cases, Enrollment Forms must be filed with the Committee, in
care of the Vice President-Human Resources of the Company, at least ten days
before the beginning of a calendar month to be effective for that month, unless
a shorter period of time is prescribed by the Committee. An Enrollment Form not
filed within the prescribed filing period shall be effective on the first day of
the next following calendar month.
<PAGE>
7. Purchase of Shares
Each Participating Employee having eligible funds in his Payroll
Deduction Account on an Investment Date shall be deemed, without any further
action, to have purchased from the Company the number of whole shares of Common
Stock that the eligible funds in his Payroll Deduction Account could purchase at
the Purchase Price on that Investment Date. Under no circumstances shall
fractional shares be purchased under the Plan. All whole shares so purchased
shall be maintained by the Custodian, as provided in Section 9, in a separate
Investment Account for each Participating Employee. Expenses incurred in the
purchase of shares and the expenses of the Custodian shall be paid by the
Company.
8. Limitation on Purchases
(a) No Participating Employee may purchase during any one calendar year
under the Plan (or under any other plan qualified under Code section 423) shares
of Common Stock having an aggregate Fair Market Value (determined by reference
to the Fair Market Value on each Investment Date) in excess of $25,000. The
purpose of this limitation is to comply with Code section 423(b)(8).
(b) A Participating Employee's Payroll Deduction Account may not be used
to purchase Common Stock on any Investment Date to the extent that after such
purchase the Participating Employee would own (or be considered as owning within
the meaning of Code section 424(d)) 5 percent or more of the shares of Common
Stock then outstanding. For this purpose, Common Stock that the Participating
Employee may purchase under any outstanding option shall be treated as owned by
such Participating Employee. As of the first Investment Date on which this
Section 8(b) limits a Participating Employee's ability to purchase Common Stock,
he shall cease to be a Participating Employee.
9. Investment Accounts; Stock Certificates
(a) The Custodian shall maintain an Investment Account for each
Participating Employee. All shares purchased under the Plan by a Participating
Employee shall, until the next Issuance Date, be uncertificated shares credited
to his Investment Account. The Participating Employee (or, if he so indicates on
his Enrollment Form, the Participating Employee jointly with one other person
with right of survivorship) shall have all of the rights of a shareholder of the
Company with respect to the shares held in his Investment Account as of the
Investment Date on which such shares were purchased.
(b) On or about each Issuance Date, the Custodian shall direct the
Company's transfer agent to issue in the name of each Participating Employee
(or, if he so indicates on his Enrollment Form, in the name of such
Participating Employee jointly with one other person with right of survivorship)
a stock certificate representing the whole shares of Common Stock then credited
to his Investment Account. Notwithstanding the foregoing, if on any Issuance
Date the Company does not have a currently effective Registration Statement on
Form S-8 under the Securities Act of 1933, as amended, covering the shares
subject to the Plan, then the Custodian may postpone the issuance of such stock
certificates until such Registration Statement is effective.
<PAGE>
(c) As a condition of participation in the Plan, each Participating
Employee agrees to notify the Company if he sells or otherwise disposes of any
Common Stock purchased by him under the Plan within two years of the Investment
Date on which such shares were purchased.
10. Termination of Employment; Death
In the event of the death or termination of the employment of a
Participating Employee for any reason, or if a Participating Employee ceases to
be such, then no further purchases of shares shall be made by him under the
Plan. In such event, the amount remaining in the Participating Employee's
Payroll Deduction Account shall be promptly refunded to him (or to his estate),
and on or about the next following Issuance Date a certificate shall be issued,
as provided in Section 9, representing the whole shares then credited to his
Investment Account.
11. Rights Not Transferable
Except as expressly provided in Sections 9(b) and 10, neither payroll
deductions credited to a Participating Employee's Payroll Deduction Account, nor
any rights with regard to participation in the Plan, nor the right to be issued
shares of Common Stock under the Plan shall be transferable in any way by a
Participating Employee.
12. Change in Capital Structure
(a) In the event of a stock dividend, stock split or combination of
shares, recapitalization or merger in which the Company is the surviving
corporation, or other change in the Company's capital stock applicable to all
shareholders generally, the number and kind of shares of stock or other
securities of the Company to be subject to the Plan, the maximum number of
authorized but unissued shares or other securities that may be delivered under
the Plan, and other relevant provisions shall be appropriately adjusted by the
Committee, whose determination shall be binding on all persons.
(b) If the Company is a party to a consolidation or a merger in which
the Company is not the surviving corporation, a transaction that results in the
acquisition of substantially all of the Company's outstanding stock by a single
person or entity, or a sale or transfer of substantially all of the Company's
assets, the Committee may take such actions with respect to the Plan as the
Committee deems appropriate.
(c) Notwithstanding anything in the Plan to the contrary, the Committee
may take the foregoing actions without the consent of any Participating
Employee, and the Committee's determination shall be conclusive and binding on
all persons for all purposes.
13. Amendment of the Plan
The Board may at any time, or from time to time, amend the Plan in any
respect; provided, however, that the shareholders of the Company must approve
any amendment that would materially (a) increase the benefits accruing to
Participating Employees under the
<PAGE>
Plan, (b) increase (other than pursuant to Section 12) the number of securities
that may be issued under the Plan, or (c) modify the requirements as to
eligibility for participation in the Plan. The Board's designation of a
Designated Subsidiary shall not be deemed to be an amendment of the Plan.
14. Termination of the Plan
The Plan and all rights of employees hereunder to purchase shares shall
terminate:
(a) on the Investment Date that Participating Employees become entitled
to purchase a number of shares greater than the number of shares remaining
available for purchase hereunder; or
(b) on any date in the discretion of the Board.
In the event that the Plan terminates under the circumstances described in "(a)"
above, the shares remaining available for purchase as of the termination date
shall be purchased by Participating Employees on a pro rata basis. Upon any
termination of the Plan, the amounts remaining in each Participating Employee's
Payroll Deduction Account shall be promptly refunded to him, and on or about the
next following Issuance Date certificates shall be issued, as provided in
Section 9, representing the whole shares then credited to each Participating
Employee's Investment Account.
15. Government and Other Regulations
The Plan, and the grant and exercise of rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or government agency as may, in the opinion of counsel for the
Company, be required.
16. Effective Date of the Plan
Subject to due approval of the Plan by the shareholders of the Company,
the Plan shall become effective on October 1, 1995.
17. In General
As used herein, the masculine pronoun shall include the feminine and the
neuter, and the singular shall include the plural, as appropriate to the
context. As used herein, the capitalized term "Section" means the appropriate
Section of the Plan.
* * * * *
<PAGE>
The foregoing Transmation, Inc. Employees' Stock Purchase Plan was duly
adopted by the Board of Directors of Transmation, Inc. on June 6, 1995.
/s/ John A. Misiaszek
John A. Misiaszek, Secretary
