Registration No. 333-XXXXX
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PERFORMANCE TECHNOLOGIES, INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 16-1158413
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
205 Indigo Creek Drive
Rochester, New York 14626
(585) 256-0200
(Address, including zip code, and telephone
number, including area code, of
Registrant's principal executive
offices)
Performance Technologies, Incorporated
2001 Stock Option Plan
(Full title of the Plan)
Donald L. Turrell
Chief Executive Officer
Performance Technologies, Incorporated
205 Indigo Creek Drive
Rochester, New York 14626
(585) 256-0200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share(1) price(1) registration fee
Common Stock, par value 1,500,000 $8.285 $12,427,500 $1,144
$.01 per share
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) of the Securities Act of 1933
and based on the high and low prices of the Registrant's Common Stock, par value
$.01 per share, as reported on the Nasdaq National Market System on May 29,
2002.
In addition, pursuant to Rule 416(c) of the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the stock option plan described
herein.
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
December 31, 2001;
(b) the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2002; and
(c) the description of the Registrant's Common Stock, par value $.01 per
share, contained in Item 1 of the Registrant's Registration Statement
on Form 8-A (Registration No. 0-27460), filed with the Securities and
Exchange Commission on December 28, 1995.
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
With respect to indemnification of directors and officers, Section 145
of the Delaware General Corporation Law ("DGCL") provides that a corporation
shall have the power 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 the person 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 the person in connection with such action, suit or proceeding, if
the person acted in good faith and in a manner the person 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 the
person's conduct was unlawful. Under this provision of the DGCL, 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 the
person 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 the person's conduct was unlawful.
Furthermore, the DGCL provides that a corporation shall have the power
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
the person 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 the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery 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
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
The Company's Restated Certificate of Incorporation (the "Certificate
of Incorporation") and By-laws, as amended (the "By-laws") provide for
limitation of the liability of directors to the Company and its stockholders and
for indemnification of directors, officers, employees and agents of the Company,
respectively, to the maximum extent permitted by the DGCL.
The Certificate of Incorporation provides that directors are not liable
to the Company or its stockholders for monetary damages for breaches of
fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) for dividend payments or stock repurchases in violation of
Delaware law, or (d) for any transaction from which the director derived any
improper personal benefit.
The By-laws include provisions by which the Company will indemnify its
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement with respect to threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
the Company as officers, directors or in other capacities, except in relation to
matters with respect to which such persons shall be determined not to have acted
in good faith, lawfully or in the best interests of the Company. With respect to
matters to which the Company's officers, directors, employees, agents or other
representatives are determined to be liable for misconduct or negligence in the
performance of their duties, the By-laws provide for indemnification only to the
extent that the Company determines that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
(4) Instruments defining the rights of security holders, including
indentures
(4.1) Restated Certificate of Incorporation of the Registrant (Exhibit 3.1)1
(4.2) Certificate of Amendment of the Registrant (Exhibit 3.2)2
(4.3) Amended By-laws of the Registrant (Exhibit 3.3)1
(4.4) Form of Common Stock Certificate of the Registrant (Exhibit 4.1)1
*(4.5) Performance Technologies, Incorporated 2001 Stock Option Plan
(5) Opinion re legality
*(5.1) Opinion of Harter, Secrest & Emery LLP
(15) Letter re unaudited interim financial information
Not applicable.
(23) Consents of experts and counsel
*(23.1) Consent of PricewaterhouseCoopers LLP
*(23.2) Consent of Harter, Secrest & Emery LLP [contained in Exhibit
(5.1)]
(24) Power of Attorney
Not applicable
(99) Additional Exhibits
Not applicable
* Exhibit filed with this Registration Statement.
1 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-99684). The exhibit number contained in parenthesis refers to the exhibit
number in such Registration Statement.
2 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 December 31, 1999. The exhibit number contained in parenthesis refers to
the exhibit number in such Annual Report.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes (subject to the provision
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:
(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 therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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 the 31st day of May,
2002.
Performance Technologies, Incorporated
By: /s/Donald L. Turrell
-----------------------------------
Donald L. Turrell
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 indicated and on the 31st day of May, 2002.
Signature Title
/s/ Donald L. Turrell President, Chief Executive Officer
----------------------- and Director
Donald L. Turrell (Principal Executive Officer)
/s/Dorrance W. Lamb Vice President-Finance
----------------------- (Principal Financial Officer and
Dorrance W. Lamb Principal Accounting Officer)
/s/John M. Slusser Chairman of the Board
-----------------------
John M. Slusser
/s/Bernard Kozel Director
-----------------------
Bernard Kozel
/s/Charles E. Maginness Director
-----------------------
Charles E. Maginness
/s/Stuart B. Meisenzahl Director
-----------------------
Stuart B. Meisenzahl
/s/John E. Mooney Director
-----------------------
John E. Mooney
/s/Paul L. Smith Director
-----------------------
Paul L. Smith
/s/Arlen Vanderwel Director
-----------------------
Arlen Vanderwel
EXHIBIT 4.5
PERFORMANCE TECHNOLOGIES, INCORPORATED
2001 STOCK OPTION PLAN
WHEREAS, Performance Technologies, Incorporated (the "Company") adopted the
PERFORMANCE TECHNOLOGIES, INCORPORATED STOCK OPTION PLAN (the "Plan") on May 1,
1986, amended and restated the Plan effective January 1, 1987, amended the Plan
on May 3, 1990, amended and restated the Plan on April 18, 1994, amended the
Plan again on November 14, 1995 and amended and restated the Plan again on
February 9, 2000; and WHEREAS, the Plan expires by its terms on December 31,
2001 and the Company desires to adopt a new stock option plan to replace the
Plan.
NOW, THEREFORE, this 2001 Stock Option Plan is hereby adopted as follows:
1. Purpose. The PERFORMANCE TECHNOLOGIES, INCORPORATED 2001 STOCK
OPTION PLAN (the "2001 Plan") is designed to attract the best available
personnel for positions of substantial responsibility and to furnish additional
incentive to key employees and directors of the Company, upon whose efforts the
successful conduct of the business of the Company largely depends, by
encouraging such individuals 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 shares of Common Stock, $.01 par value per share, of the
Company (the "Shares") which will be identified by the Stock Option Committee of
the Board of Directors of the Company (the "Committee") either as incentive
stock options within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended to date (the "Code") or as non-statutory stock options.
2. Eligibility. The persons eligible to receive options under this Plan
shall be non-employee directors as more fully described in Section 17 hereof
("Outside Participating Directors") and such key employees of the Company as the
Committee shall select from time to time (the " Participants"). Participants
under the Plan shall be eligible to receive stock options as authorized by the
Committee. Outside Participating Directors of the Company shall be eligible to
receive non-statutory stock options pursuant to Sections 17 through 21 of this
2001 Plan. All references in this 2001 Plan to employees or directors of the
Company shall include employees or directors of any parent or subsidiary of the
Company, as those terms are defined in Section 425 of the Code.
3. Stock Subject to Options. Subject to the provisions of Section 9
hereof, options may be granted under this 2001 Plan to purchase, in the
aggregate, not more than 1,500,000 Shares. The Shares may, in the discretion of
the Board of Directors of the Company, consist either in whole or in part of
authorized but unissued Shares or shares held in the treasury of the Company,
and the Shares may, in the discretion of the Committee, become subject to
incentive stock options or non-statutory stock options. 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 this 2001 Plan.
4. Annual Limitation. The aggregate Market Value (as defined in Section
19) of the Shares (determined as of the date the option is granted) with respect
to which incentive stock options are exercisable for the first time by a
Participant during any calendar year (under all incentive stock option plans of
the Company, any parent and any subsidiaries) shall not exceed $100,000.
5. Terms and Conditions of Options. Each option granted by the
Committee or granted pursuant to Sections 17 through 21 of this 2001 Plan shall
be evidenced by a stock option agreement in such form or forms as the Committee
may from time to time prescribe (which agreements need not be identical)
containing provisions consistent with the 2001 Plan, including a provision
prohibiting disposition of any option granted under this 2001 Plan or the Shares
issued on exercise of such option within six months of the date of grant and, in
the discretion of the Committee, any other 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 Participant at any time, with or
without cause, shall in no way be restricted by the existence of this 2001 Plan,
any option granted hereunder, or any stock option agreement relating thereto.
Options shall in all cases further be subject to the following terms and
conditions:
(a) Type of Option and Price. Each option shall state the number of
Shares subject to the option, whether the option is intended to be an incentive
stock option or a non-statutory stock option and the option price. The option
price of any incentive stock option shall equal or exceed the Market Value (as
defined in Section 19) of the Shares with respect to which the incentive stock
option is granted at the time of the granting of the 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% of the total
combined voting power of all classes of stock of the Company or any parent or
subsidiary (a "Ten Percent Stockholder"), the option price shall not be less
than 110% of the Market Value of the Shares with respect to which the option is
granted at the time of the granting of the option to the Ten Percent
Stockholder.
(b) Term. The term of each option granted to a Participant shall be
determined by the Committee, but in no event shall an option be exercisable
either in whole or in part after the expiration of ten years from the date on
which it is granted. Notwithstanding the foregoing, an incentive stock o ption
granted to a Ten Percent Stockholder shall not be exercisable either in whole or
in part after the expiration of five years from the date on which it is granted.
The Committee and a Participant or Outside Participating Director may at any
time by mutual agreement terminate any option granted to such Participant or
Outside Participating Director under the 2001 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.
A Participant or Outside Participating Director may pay for the Shares subject
to the option with cash, a certified check or a bank cashier's check payable to
the order of the Company. Alternatively, at the Company's sole option he may be
permitted to 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 Market Value
on the date of exercise. Certificates representing the Shares purchased by the
Participant or Outside Participating Director shall be issued as soon as
reasonably practicable after the Participant or Outside Participating Director
has complied with the provisions hereof. Pursuant to applicable federal and
state laws, the Company may be required to collect withholding taxes upon the
exercise of a non-statutory option. The Company may require, as a condition to
the exercise of a non-statutory stock option, that the Participant or Outside
Participating Director exercising that option concurrently pay to the Company
the entire amount or a portion of any taxes which the Company is required to
withhold by reason of such exercise, in such amount as the Committee or the
Company in its discretion may determine.
(d) Disposition of Shares. If the option is an incentive stock option,
the Participant cannot transfer Shares acquired upon the exercise of that option
within two years from the date of the grant of the option or within one year
from the date the option is exercised.
6. Non-Assignment. During the lifetime of the Participant or Outside
Participating Director, options granted 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 Participant or Outside Participating Director. In the event
that a Participant or Outside Participating Director shall die while he is an
employee or director of the Company (or within 30 days after the termination of
such directorship or employment) and prior to the complete exercise of options
granted to him under the 2001 Plan, any such remaining options may be exercised
in whole or in part within one year after the date of the Participant's or
Outside Participating Director's death and then only: (i) by the Participant's
or Outside Participating Director's estate or by or on behalf of such person or
persons to whom the Participant's or Outside Participating Director's rights
pass under his Will or the laws of descent and distribution, (ii) to the extent
that the Participant or Outside Participating Director was entitled to exercise
the option at the date of his death, and subject to all of the conditions on
exercise imposed hereby, and (iii) prior to the expiration of the term of the
option.
8. Termination of Employment of a Participant.
(a) Any stock option shall be exercisable, during the lifetime of the
Participant, only while he is an employee of the Company and has been an
employee continuously since the grant of the option, or within 30 days after the
date on which he ceases to be such an employee.
(b) Any option shall be exercisable under this Section 8 only to the
extent that the Participant would have been entitled to exercise the option at
the time of the termination of the employment relationship; and further, no
option shall be exercisable after the expiration of the term thereof. In the
case of a Participant who is permanently and totally disabled (within the
meaning of Section 105(d)(4) of the Code), the 30-day period described in this
Section 8 shall be one year.
(c) For purposes of this Section 8, an employment relationship will be
treated as continuing during the period when a Participant 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 Participant'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
guaranteed either by statute or by contract, the employment relationship will be
deemed to have terminated on the 91st day of such leave.
9. Anti-Dilution Provisions. The aggregate number and kind of Shares
available for options under this 2001 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 Committee for any i ncrease,
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, sale or purchase of Shares by the Company in consideration for money,
services or property).
10. Rights as a Stockholder. The Participant or Outside Participating
Director shall have no rights as a stockholder 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 Participant or Outside Participating Director of a certificate
for the Shares.
11. Investment Purpose. Until such time as this 2001 Plan is registered
with the Securities and Exchange Commission pursuant to applicable provisions of
the Securities Act of 1933, as amended (the "Act"), each written notice by which
a Participant or Outside Participating Director exercises an option shall
contain representations on behalf of the Participant or Outside Participating
Director that he acknowledges that the Company is selling or distributing Shares
to him under a claim of exemption from registration under the Act, as a
transaction not involving any public offering; 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, and the Company shall have received proof satisfactory
to it 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 each certificate for Shares issued under the 2001
Plan a legend to the foregoing effect and such other legends 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. Stockholders Agreement. In the event that at the time of any
exercise of an option the Company is a party to any stockholders agreement or
stock repurchase agreement which by its terms requires any person to become a
party thereto as a precondition to the issuance of any Shares to him, then any
Shares issued hereunder shall be delivered only upon the execution and delivery
by the Participant or Outside Participating Director of such agreement.
13. Adoption, Approval, and Term of Plan. The 2001 Plan was adopted by
the Company's Board of Directors on March 26, 2001 but does not take effect
until approved by the Company's stockholders. The 2001 Plan shall terminate on
May 31, 2011. No termination of the 2001 Plan, whether under the provisions of
this Section 13 or otherwise, shall terminate or otherwise affect options held
by Participants or Outside Participating Directors on the effective date of the
termination of the 2001 Plan.
14. Amendment and Termination of 2001 Plan. The Board of Directors of
the Company, without further approval of the stockholders of the Company, may at
any time suspend or terminate this 2001 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 stockholders of the Company, which would (i) except as
provided in Section 9 hereof, increase the maximum number of Shares which may be
issued with respect to options under this 2001 Plan, (ii) change the eligibility
requirements for individuals entitled to receive options under this 2001 Plan,
(iii) extend the period for granting incentive stock options, or (iv) materially
increase benefits accruing to Participants or Outside Participating Directors
hereunder.
15. Effect of Acquisition, Reorganization or Liquidation. The Board of
Directors or Committee shall provide in any agreement evidencing options granted
hereunder, the extent to which options subject to such agreement shall become
immediately exercisable and remain exercisable until their expiration in
accordance with their respective terms upon the occurrence of either of the
following events:
(i) the first purchase of the Shares pursuant to a tender or exchange
offer which is intended to effect the acquisition of more than 50% of the voting
power of the Company (other than a tender or exchange offer made by the
Company); or
(ii) approval by the Company's stockholders of (A) 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),
(B) a sale or disposition of all or substantially all of the Company's assets,
or (C) a plan of complete liquidation or dissolution of the Company.
16. Administration. This 2001 Plan shall be administered by the
Committee as it may be constituted from time to time. The Committee shall
consist of at least two members of the Board selected by the Board, all of whom
shall be "Non-Employee Directors" as that term is defined and interpreted
pursuant to Rule 16b-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Decisions of the Committee concerning the interpretation
and construction of any provisions of this 2001 Plan or of any option granted
pursuant to this 2001 Plan shall be final. The Company shall effect the grant of
options under this 2001 Plan in accordance with the decisions of the Committee,
which may, from time to time, adopt rules and regulations for carrying out this
2001 Plan. For purposes of this 2001 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 this 2001 Plan, the Committee shall have the authority, in its
discretion and without limitation, to determine the individuals to receive
options, whether an option is intended to be an incentive stock option or a
non-statutory stock option, 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 terms 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 this 2001
Plan.
17. Outside Participating Directors. As of each Grant Date as defined
in Section 18, each member of the Board of Directors who (a) is a "Non-Employee
Director" as that term is defined and interpreted pursuant to Rule 16b-3 under
the Exchange Act and (b) will serve as a member of the Board of Directors
subsequent to the Grant Date is deemed an Outside Participating Director and is
eligible to receive options in accordance with Section 18 below.
18. Grants of Options to Outside Participating Directors.
(a) Grant Dates. On the date of each Annual Meeting of Stockholders
(the "Grant Date"), each Outside Participating Director shall automatically be
granted a non-statutory option to purchase 10,000 Shares.
(b) Election to Decline Option. Any Outside Participating Director may,
by written notice received by the Company prior to the Grant Date of such
Option, elect to decline an Option, in which case such Option shall not be
granted to him; provided, however, that at no time shall the Company pay or
provide to such Outside Participating Director anything of value in lieu of the
declined Option. In addition, any Outside Participating Director may, by written
notice received by the Company prior to the Grant Date of such Option, revoke a
previous election to decline an Option.
19. Exercise Price of Options Granted to Outside Participating
Directors. The price at which each option granted pursuant to Section 18 shall
be exercisable shall be the fair market value per share (the "Market Value") of
the Shares on the Grant Date of such option. For purposes of this 2001 Plan, the
Market Value of the Shares shall be the closing price of the Shares 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 reported on a national securities exchange, Market Value of the Shares shall
mean the Market Value 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 average of the closing bid and asked prices regular way,
as reported by such exchange. 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). If the Shares are not
then reported by Nasdaq or are not reported on a national securities exchange,
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, Market
Value shall be determined by such other reasonable method as is adopted by
resolution of the Board of Directors.
20. Vesting and Expiration of Outside Participating Director Stock
Options. Each option granted to an Outside Participating Director shall vest and
shall become exercisable on the first anniversary of the Grant Date. Each option
shall expire on the fifth anniversary of the Grant Date, and to the extent any
option remains unexercised on such fifth anniversary, it shall be forfeited.
21. Cessation of Service of an Outside Participating Director.
(a) Cessation of Service. An Outside Participating Director's cessation
of service as a member of the Board of Directors for any reason shall not have
any effect on options that have been granted prior to the date of cessation of
service and have vested prior to the date of cessation of service.
Notwithstanding the foregoing, upon the death of an Outside Participating
Director or former Outside Participating Director, all vested options held by
the decedent must be exercised by his legal representative within one year after
the date of death (but in no event after the expiration of the option) or they
shall be forfeited.
(b) Loss of Eligibility. If an Outside Participating Director becomes
an employee of the Company or otherwise no longer satisfies the requirements for
eligibility set forth in Section 17 hereof, then all options 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 formula grants of options pursuant to
Section 17 through Section 21 hereof.
22. Reservation of Shares. The Company shall be under no obligation to
reserve Shares to fill options. The grant of options to individuals 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
individuals hereunder. The Company shall be deemed to have complied with the
terms of this 2001 Plan if, at the time of issuance and delivery pursuant 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 this 2001 Plan, irrespective of the date when such Shares were
authorized. All Participants' and Outside Participating Directors' rights
hereunder are limited to the right to receive Shares of the Company as provided
in this 2001 Plan.
23. Application of Proceeds. The proceeds of the sale of Shares by the
Company under this 2001 Plan will constitute general funds of the Company and
may be used by the Company for any purpose.
24. Gender. As used in this 2001 Plan, masculine pronouns shall be
deemed to include the feminine, and vice versa.
IN WITNESS WHEREOF, the Company has caused this 2001 Stock Option Plan to be
executed this 31st day of May 2001.
PERFORMANCE TECHNOLOGIES, INCORPORATED
By: /s/ Donald L. Turrell
--------------------------------------------
Donald L. Turrell
Chief Executive Officer
EXHIBIT 5.1
Opinion of Harter, Secrest & Emery LLP
May 31, 2002
Performance Technologies, Incorporated
205 Indigo Creek Drive
Rochester, New York 14626
Re: Performance Technologies, Incorporated
Ladies & Gentlemen:
You have requested our opinion in connection with your
Registration Statement on Form S-8, filed under the Securities Act of 1993, as
amended (the "Registration Statement"), with the Securities and Exchange
Commission in respect of the proposed issuance by Performance Technologies,
Incorporation (the "Company") of up to 1,500,000 shares of Common Stock, par
value $.01 per share, of the Company pursuant to the Company's 2001 Stock Option
Plan.
We have examined the following corporate records and
proceedings of the Company in connection with the preparation of this opinion:
its Certificate of Incorporation as amended and restated to date; its By-laws as
currently in force and effect; its minute books, containing minutes and records
of other proceedings of its stockholders and its Board of Directors, from the
date of incorporation to the date hereof; the Registration Statement and the
related exhibits thereto; applicable provisions of the laws of the State of
Delaware; and such other documents and matters as we have 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 Company, 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 Company is validly existing under the laws of the State of Delaware
as of May 30, 2002
2. The Company has the authority to issue an aggregate of 1,500,000 shares
of Common Stock upon the effectiveness of the Registration Statement.
3. The shares of Common Stock to be sold by the Company upon the
effectiveness of the Registration Statement will, when sold and paid for as
described in the Registration Statement, be validly authorized, legally issued
and outstanding, and fully paid and non-assessable.
We hereby consent to being named in the Registration Statement as
attorneys who will, for the Company, pass upon the validity of the issuance of
shares of Common Stock offered thereby, and we hereby consent to the filing of
this opinion as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Harter, Secrest & Emery LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (Registration No. 333-XXXXX) of our report dated February
5, 2002 relating to the financial statements and financial statement schedules
of Performance Technologies, Inc, which appears in Performance Technologies,
Inc's Annual Report on Form 10-K for the year ended December 31, 2001.
PricewaterhouseCoopers LLP
Rochester, New York
May 31, 2002