As Filed With the Securities and Exchange Commission on February 17, 2004
Registration No.333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SONO-TEK CORPORATION
(Exact name of registrant as specified in its charter)
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NEW YORK 14-1568099
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
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2012 Rt. 9W 12547
Milton, NY
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(Address of Principal Executive Offices) (Zip Code)
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SONO-TEK CORPORATION1993 STOCK INCENTIVE PLAN, AS AMENDED
SONO-TEK CORPORATION 2003 STOCK INCENTIVE PLAN
(Full titles of the plans)
Dr. Christopher L. Coccio
Chief Executive Officer and President
Sono-Tek Corporation
2012 Rt. 9W
Milton, New York 12547
(Name and address of agent for service)
(845) 795-2020
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
----------------------- ------------ -------------- ------------- -----------
Title of Securities Amount to be Proposed Proposed Amount of
Registered Maximum Maximum Registration
Registered Offering Price Aggregate Fee
per share Offering Price
-------------------- -------------------- -------- ------------ --------------
Common Stock, $.01 1,052,562 shares(1) $.31(2) $321,486 $41.34
-------------------- -------------------- -------- ------------ --------------
Common Stock, $.01 1,500,000 shares(3) $.68(4) $1,100,000 $129.24
-------------------- -------------------- -------- ------------ --------------
Total 2,552,562 shares $170.58
-------------------- -------------------- --------- ------------ --------------
(1) Represents shares issuable upon exercise of options previously granted and
currently outstanding under the Sono-Tek Corporation 1993 Stock Incentive Plan,
as amended (the "1993 Plan").
(2) Represents the weighted average exercise prices of the options referred to
in (1) above.
(3) Represents shares available for future grants under the Sono-Tek Corporation
2003 Stock Incentive Plan.
(4) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, based on the
closing stock price of the Common Stock on February 12, 2004, as reported on
theNASD Electronic Bulletin Board
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
The following documents filed by the Registrant with the Commission
are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
February 28, 2003;
(b) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended May 31, 2003;
(c) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended August 31, 2003;
(d) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended November 30, 2003;
(e) The Registrant's Current Report on Form 8-K filed with the Commission on
June 19, 2003.
(f) The description of the Registrant's Common Stock, par value $.01 per share,
contained in the Registrant's Registration Statement on Form 8-A dated July 10,
1987.
(g) The description of the Registrant's Common Stock, par value $.01 per share,
contained in Amendment No. 1 to the Registrant's Registration Statement on Form
8-A dated July 27, 1998.
(h) The description of the Registrant's Common Stock, par value $.01 per share,
contained in Amendment No. 2 to the Registrant's Registration Statement on Form
8-A dated February 23, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents. The Registrant expressly
excludes from such incorporation information furnished pursuant to Item 9 or
Item 12 of any Current Report on Form 8-K, and the Audit Committee Report, the
Report of the Compensation Committee, and the Performance Graph contained in any
proxy statement filed by the Registrant pursuant to Section 14 of the Securities
Exchange Act of 1934, subsequent to the date of filing of this Registration
Statement and before the termination of the offering of the securities covered
by this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The By-Laws of the Registrant (Article IX) provide the following:
"Section 1 - Directors and Officers:
The Corporation shall, to the fullest extent permitted by applicable law
as the same exists or may hereafter be in effect, indemnify any person
who is or was made or threatened to be made a party to or is involved in
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by
or in the right of the Corporation to procure a judgment in its favor and
an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or any other entity, which any director or officer
of the Corporation is serving, has served or has agreed to serve in any
capacity at the request of the Corporation, by reason of the fact that
such person or such person's testator or intestate is or was or has
agreed to become a director or officer of the Corporation, or is or was
serving or has agreed to serve such other corporation, partnership, joint
venture, trust, employee benefit plan or other entity in any capacity,
against judgments, fines, amounts paid or to be paid in settlement, taxes
or penalties, and costs, charges and expenses, including attorneys' fees,
incurred in connection with such action or proceeding or any appeal
therein; provided, however, that no indemnification shall be provided to
any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his or her acts were committed
in bad faith or were the result of active and deliberate dishonesty and,
in either case, were material to the cause of action so adjudicated, or
(ii) he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Section 2 - Non-Exclusivity:
Nothing contained in this Article IX shall limit the right to
indemnification and advancement of expenses to which any person would be
entitled by law in the absence of this Article, or shall be deemed
exclusive of any other rights to which such person seeking
indemnification or advancement of expenses may have or hereafter may be
entitled under law, any provision of the Certificate of Incorporation, or
By-Laws, any agreement approved by the Board of Directors, or a
resolution of shareholders or directors; and the adoption of any such
resolution or entering into of any such agreement approved by the Board
of Directors is hereby authorized.
Section 3 - Continuity of Rights.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article IX shall (i) apply with respect to acts or
omissions occurring prior to the adoption of this Article IX to the
fullest extent permitted by law, and (ii) survive the full or partial
repeal or restrictive amendment hereof with respect to events occurring
prior thereto."
Article Six of the Registrant's Certificate of Incorporation provides the
following:
"(6) The Corporation may, to the fullest extent permitted by Sections 721
through 726 of the Business Corporation Law of New York, indemnify any
and all directors and officers whom it shall have power to indemnify
under the said sections from and against any and all of the expenses,
liabilities or other matters referred to in or covered by such sections,
and the indemnification provided for herein shall not be deemed exclusive
of any other rights to which the persons so indemnified may be entitled
under any By-law, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as
to action in another capacity by holding such office, and shall continue
as to a person who has ceased to be a director or officer and shall inure
to the benefit of the heirs, executors and administrators of such
person."
Article Seven of the Registrant's Certificate of Incorporation provides the
following:
"(7) No director of the Corporation shall be personally liable to the
Corporation or shareholders for damages for any breach of duty as a
director; provided that this Article (7) shall neither eliminate nor
limit liability: (a) if judgment or other final adjudication adverse to
such director establishes that his or her acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation of law or
that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that his or her
acts violated Section 719 of the Business Corporation law; or (b) for any
act or omission prior to the effectiveness of this Article (7). Any
repeal of or modification to the provisions of this Article (7) shall not
adversely affect any right or protection of a director of the Corporation
existing pursuant to this Article (7) immediately prior to such repeal or
modification."
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
3.1 Certificate of Incorporation of the Registrant dated March 21, 1975.
3.2 Certificate of Amendment of the Certificate of Incorporation of the
Registrantfiled November 20, 1978.
3.3 Certificate of Amendment of the Certificate of Incorporation of the
Registrant filed August 18, 1986.
3.4 Certificate of Amendment of the Certificate of Incorporation of the
Registrant filed September 17, 1986.
3.5 Certificate of Amendment of the Certificate of Incorporation of the
Registrant filed August 31,1989.
3.6 Certificate of Amendment to the Certificate of Incorporation of the
Registrant filed December 15, 1989.
3.7 Certificate of Change of the Registrant filed March 23, 1994.
3.8 Certificate of Amendment of the Certificate of Incorporation of the
Registrant filed May 3, 1994.
3.9 Certificate of Amendment of the Certificate of Incorporation of the
Registrant filed November 9, 1999.
3.10 By-laws of the Company as amended June 26, 1998.
4.1 Sono-Tek Corporation 1993 Stock Incentive Plan, as amended.
4.2 Sono-Tek Corporation 2003 Stock Incentive Plan.
4.3 Form of Incentive Stock Option Agreement.
5.1 Opinion of David M. Henkoff, Esq.
23.1 Consent of Radin, Glass & Co., LLP.
23.2 Consent of David M. Henkoff, Esq. (included in Exhibit 5.1).
24.1 Powers of Attorney (included herein).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (l) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered 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 of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to any arrangement, provision 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 of 1933 and is, therefore, unenforceable. In the event
that 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 of 1933 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 Town of Milton, New York, on February 13, 2004.
SONO-TEK CORPORATION
By: /S/ Dr. Christopher L. Coccio
-----------------------------
Dr. Christopher L. Coccio,
Chief Executive Officer and President
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Sono-Tek Corporation, a New York corporation, which is filing a
Registration Statement on Form S-8 with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, as amended, hereby
constitute and appoint Christopher L. Coccio and Dr. Harvey L. Berger and each
of them their true and lawful attorney-in-fact and agent, with full power and
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any or all
pre-effective and post-effective amendments to the Registration Statement, and
all other documents in connection therewith to be filed with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all interests and
purposes as each of them might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
-------------------------- --------------------------- -------------------------
Signature Title Date
-------------------------- --------------------------- -------------------------
-------------------------- --------------------------- -------------------------
/S/Christopher L. Coccio CEO, President and Director
------------------------ (Pricipal executive and February 12, 2004
Dr. Christpher L. Coccio accounting officer)
-------------------------- --------------------------- ------------------------
-------------------------- --------------------------- ------------------------
/s/ Samuel Schwartz Chairman and Director February 12, 2004
------------------------
Samuel Schwartz
-------------------------- --------------------------- ------------------------
-------------------------- --------------------------- ------------------------
/s/ Harvey L. Berger Director February 12, 2004
--------------------
Dr. Harvey L. Berger
-------------------------- --------------------------- ------------------------
-------------------------- --------------------------- ------------------------
/s/ Donald F. Mowbray Director February 12, 2004
---------------------
Dr. Donald F. Mowbray
-------------------------- --------------------------- ------------------------
Exhibit 3.1
CERTIFICATE OF INCOPORATION OF
SONO-TEK CORPORATION
Under Section 402 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the proposed corporation is:
SONO-TEK CORPORATION
(2) The purposed or purposes for which this corporation is formed, are as
follows, to wit:
To engage in the business of manufacturing, designing, creating,
compounding, developing, formulating, investing, patenting, owning, acquiring,
producing, processing, constructing, storing, applying, assembling, adapting,
conducting, operating, using, preparing for market, exhibiting, distributing,
installing, buying, selling, disposing, leasing, renting, mortgaging,
exploiting, licensing, exchanging, reconstructing, repairing, importing,
exporting, and generally dealing in and with household and industrial fuel
combustion systems including but not limited to all kinds of burners, furnaces,
fuel atomizers, stoves, boilers, engines, fuel delivery systems, heating
devices, lighting devices, refrigerating devices, devices for producing and
furnishing gases, heat, light, cold, power, or electricity, and all other kinds
of mechanical and electrical machines, devices, and appliances and all kinds of
materials, supplies, accessories, equipment, devices, or other things used for
any of the foregoing, or in any other way thereto relating, and any and all
other kinds of machinery, appliances, devices, supplies, and articles.
To acquire such property, real and personal, as may be necessary to the
conduct of such business.
The powers, rights and privileges provided in this Certificate of
Incorporation are not to be deemed to be in limitation of similar, other, or
additional powers, rights and privileges granted or permitted to a corporation
by the Business Corporation Law, it being intended that this Corporation shall
have the right to engage in such similar activities as like corporations may
lawfully engage in under the Business Corporation Law of the State of New York,
as now in effect, or as hereafter promulgated.
To do every thing necessary, suitable or proper for the accomplishment,
attainment or furtherance of, to do every other act or thing incidental to,
appurtenant to, growing out of or connected with, the purposes, objects or
powers set forth in this Certificate of Incorporation, whether alone or in
association with others; to possess all the rights, powers and privileges now or
hereafter conferred by the laws of the State of New York upon a corporation
organized under the laws of the State of New York and, in general, to carry on
any of the activities and to do any of the things herein set forth to the same
extent and as fully as a natural person or partnership might or could do,
provide, that nothing herein set forth shall be construed as authorizing the
Corporation to possess any purpose, object, or power, or to do any act or thing
forbidden by law to a Corporation organized under the laws of the State of New
York.
(3) The office of the corporation is to be located in the City of Poughkeepsie,
County of Dutchess, State of New York.
(4) The aggregate number of shares which the corporation shall have the
authority to issue is Two Hundred (200) shares all of which are to be without
par value.
(5) The Secretary of State is designated as agent of the corporation upon whom
process against it may be served. The post office address to which this
Secretary of State shall mail a copy of any process against the corporation
served upon him is
C/O The Sono-Tek Corporation
272 Mill Street
Poughkeepsie, New York 12602
The undersigned incorporator is of the age of eighteen years or over.
IN WITNESS WHEREODF, this certificate has been subscribed this 21st.day
of March, 1975 by the undersigned who affirms that the statements made herein
are true under the penalties of perjury.
Carl Levine /S/ Carl Levine
313 Main Street ---------------
Poughkeepsie, NY 12601
Exhibit 3.2
CERTIFICATE OF AMENDMENT
Of the
CERTIFICATE OF INCORPORATION
Of
SONO-TEK CORPORATION
Under Section 805 of the
Business Corporation Law
We, Carl Levine and Harvey Lewis Berger, respectively the President and
Secretary of Sono-Tek Corporation, a New York Corporation, do hereby certify as
follows:
1. The name of the corporation is Sono-Tek Corporation.
2. The Certificate of Incorporation of the corporation was filed by the
Department of State on March 21, 1975.
3. Article Four of the Certificate of Incorporation of the corporation,
which provides for the aggregate number of shares which the corporation shall
have the authority to issue, is amended hereby to read as follows:
"(4) The aggregate number of shares of all classes which the Corporation
shall have authority to issue is 2,000,000 common shares of the par value of
$.01 per share."
4. Each of the 200 issued shares of the corporation, no par value, is hereby
changed into 4,250 common shares of the par value of $.01 each, or an aggregate
of 850,000 common shares of the par value of $.01.
5. The foregoing amendment of the Certificate of Incorporation of the
corporation was authorized by the written consent of the holders of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, the President and Secretary of Sono-Tek Corporation have
signed this Certificate of Amendment this 19th day of November, 1978.
/S/ Carl Levine
Carl Levine
President
/S/Harvey Lewis Berger
Harvey Lewis Berger
Secretary
STATE OF NEW YORK)
: ss.:
County of Dutchess)
CARL LEVINE, being first duly sworn, deposes and says that he is the
President of Sono-Tek Corporation, that he has read the foregoing certificate
and knows the contents thereof, and that the statements contained therein are
true.
/S/ Carl Levine
---------------
Carl Levine
Sworn to before me this 14th day of November, 1978
/S/ Kathleen S. Thoben
Notary Public
Exhibit 3.3
CERTIFICATE OF AMENDMENT
Of the
CERTIFICATE OF INCORPORATION
Of
SONO-TEK CORPORATION
Under Section 802 of the
Business Corporation Law
We, HARVEY BERGER, and MURRAY LEVINE, respectively the President and
Secretary of Sono-Tek Corporation, a New York Corporation, do hereby certify as
follows:
1. The name of the corporation is SONO-TEK CORPORATION.
2. The Certificate of Incorporation of the corporation was filed by the
Department of State on March 21, 1975.
3. Article Four of the Certificate of Incorporation of the corporation, which
provides for the aggregate number of shares which the corporation shall have the
authority to issue, is amended hereby to read as follows:
"(4) The aggregate number of shares of all classes which the Corporation shall
have authority to issue is four million (4,00,000) common shares of the par
value of $.01 per share."
4. None of the issued and outstanding shares of the corporation shall be changed
as a result of this amendment.
5. The foregoing amendment of the Certificate of Incorporation of the
corporation was authorized by the vote of all of the Directors the corporation,
followed by the vote of the holders of a majority of the outstanding shares
entitled to vote on an amendment to the Certificate of Incorporation at a
meeting of shareholders.
IN WITNESS WHEREOF, the President and Secretary of SONO-TEK CORPORATION have
signed this Certificate of Amendment this 15th day of August, 1986, and affirms
that the statements contained herein are true under the penalties of perjury/
/S/ Harvey Berger
-----------------
HARVEY BERGER,
President
/S/ Murray Levine
-----------------
MURRAY LEVINE,
Secretary
Exhibit 3.4
CERTIFICATE OF AMENDMENT
Of
CERTIFICATE OF INCORPORATION
Of
SONO-TEK CORPORATION
(Under Section 805 of the Business Corporation Law)
We the undersigned, CARL LEVINE and MURRAY LEVINE, respectively the
Chairman of the Board and the Secretary of SONO-TEK CORPORATION, a New York
corporation, do hereby certify as follows:
1. The name of the Corporation is SONO-TEK CORPORATION.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on March 21, 1975.
3. The Certificate of Incorporation as heretofore amended is hereby further
amended as authorized by Section 801 of the Business Corporation Law to effect
the following amendments:
a. To increase the total number of shares of common stock which the Corporation
is authorized to issue, and to eliminate and release the pre-emptive rights of
the holders of shares of the common stock of the Corporation, by amending
Article Four of the Certificate of Incorporation of the Corporation, which
provides for the shares which the corporation shall have the authority to issue,
to read as follows:
"(4) The aggregate number of shares of all classes which the Corporation shall
have authority to issue is six million (6,000,000) common shares of the par
value of $0.01 per share. No holder of any share of the Corporation shall,
because of his ownership of shares, have a pre-emptive or other right to
purchase, subscribe for, or take any part of any shares or any part of the
notes, debentures, bonds or other securities convertible into or carrying
options or warrants to purchase shares of the Corporation issued, or sold by the
Corporation."
b. To provide for indemnification of directors and officers as authorized by
Sections 721 through 726 of the Business Corporation Law, by adding a new
Article Six is added to the Certificate of Incorporation to read as follows:
"(6) The Corporation may, to the fullest extent permitted by Sections 721
through 726 of the Business Corporation Law of New York, indemnify any and all
directors and officers whom it shall have power to indemnify under the said
sections from and against any and all of the expenses, liabilities or other
matters referred to in or covered by such sections, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
the persons so indemnified may-be entitled under any By-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity by holding such office,
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person."
4. The foregoing Amendments of the Certificate of Incorporation of the
Corporation were authorized by the Board of Directors, followed by affirmative
vote of a majority of all outstanding shares entitled to vote at a Meeting of
Shareholders duly called and held on September 12, 1986.
IN WITNESS WHEREOF, the Chairman of the Board and Secretary of SONO-TEK
CORPORATION have signed this Certificate of Amendment this 16th day of
September, 1986 and we affirm that statements made herein are true under the
penalties of perjury.
/S/ Carl Levine
---------------
Carl Levine
Chairman of the Board
/S/ Murray Levine
-----------------
Murray Levine
Secretary
Exhibit 3.5
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCOPORATION
OF
SONO-TEK CORPORATION
Under Section 805 of the
Business Corporation Law
We, HARVEY BERGER and JOSEPHINE CLARKE, respectively the President and
Secretary of Sono-Tek Corporation (the "Corporation"), a New York Corporation,
do hereby certify as follows:
1. The name of the Corporation is SONO-TEK CORPORATION.
2. The Certificate of Incorporation of the corporation was filed by the
Department of State on March 21, 1975. 3. The Certificate of Incorporation as
heretofore amended is hereby further amended to limit the liability of directors
by adding a new Article Seven to the Certificate of Incorporation of the
Corporation, to read as follows:
"(7) No director of the Corporation shall be personally liable to the
Corporation or shareholders for damages for any breach of duty as a director,
provided that this Article (7) shall neither eliminate nor limit liability: (a)
if a judgment or other final adjudication adverse to such director establishes
that his or her acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law or that he or she personally gained in
fact not legally entitled or that his or her acts violated Section 719 of the
Business Corporation law, or (b) for any act or omission prior to the
effectiveness of this Article (7). Any repeal of or modification to the
provisions of this Article (7) shall not adversely affect any right or
protection of a director of the Corporation existing pursuant to this Article
(7) immediately prior to such repeal or modification".
4. The foregoing amendment of the Certificate of Incorporation of the
Corporation was authorized by the vote of all of the Directors of the
Corporation, followed by the vote of the holders of a majority of the
outstanding shares entitled to vote on an amendment of the Certificate of
Incorporation at a meeting of shareholders duly called and held on September
16,1988.
IN WITNESS WHEREOF, the President and Secretary of SONO-TEK CORPORATION have
signed this Certificate of Amendment this 29th day of August, 1989, and affirms
that the statements contained herein are true under the penalties of perjury.
/S/ Harvey L. Berger
---------------------
Harvey L. Berger, President
/S/ Josephine Clarke
--------------------
Josephine Clarke, Secretary
Exhibit 3.6
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SONO-TEK CORPORATION
Under Section 805 of the
Business Corporation Law
We, HARVEY BERGER and JOSEPHINE CLARKE, respectively the President and
Secretary of Sono-Tek Corporation (the "Corporation"), a New York Corporation,
do hereby certify as follows:
1. The name of the Corporation is SONO-TEK CORPORATION.
2. The Certificate of Incorporation of the corporation was filed by the
Department of State on March 21, 1975. 3. The Certificate of Incorporation, as
heretofore amended, is hereby further amended to provide for the classification
of the board of directors of the Corporation by adding a new Article Eight to
the Certificate of Incorporation of the Corporation, to read as follows:
(8): The business of the Corporation shall be managed under the direction of
Board of Directors in accordance with the following:
(a) The Board shall consist of six directors, unless and until otherwise
determined by vote of a majority of the entire board of directors (whether or
not there exist any vacancies in previously authorized directorships at the time
such resolution is presented to the Board for adoption).
(b) The directors shall be divided into two classes, designated Class I and
Class II. All classes shall be as nearly equal in number as possible, and no
class shall include less than three directors. The terms of office of the
directors initially classified shall be as follows: at the 1989 annual meeting
of shareholders, Class I directors shall be elected for a one-year term expiring
at the next annual meeting of shareholders and Class II directors for a two-year
term expiring at the second succeeding annual meeting of shareholders. At each
annual meeting of shareholders after such initial classification, directors to
replace those whose terms expire at such annual meeting shall be elected to hold
office until the second succeeding annual meeting. Each director shall hold
office until the expiration of his term and until his successor is elected and
qualified or until his earlier death, resignation or removal.
(c) A director elected to fill a vacancy shall be elected to hold office for a
term expiring at the next meeting of shareholders at which the election of
directors is in the regular order of business and until his successor has been
elected and qualified.
(d) If the number of directors is changed, (1) any newly created directorships
or any decrease in directorships shall be so apportioned among the classes as to
make all classes as nearly equal in number as possible; and (2) when the number
of directors is increased by the Board and any newly created directorships are
filled by the Board, there shall be no classification of the additional
directors until the next annual meeting of shareholders.
(e) Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason may be filled only
by vote of the Board. If the number of directors then in office is less than a
quorum, such newly created directorships and vacancies may be filled by a
majority of the directors then in office.
(f) Any director may be removed for cause by action of the Board. Any director
may also be removed for cause (but not without cause) by the affirmative vote of
the holders of at least two-thirds of the outstanding shares entitled to vote
thereon.
(g) The provisions of this Article (8) may be altered, amended or repealed, and
any provision inconsistent herewith may be adopted, only by the affirmative vote
of the holders of at least two-thirds of all outstanding shares entitled to vote
thereon.
4. The foregoing amendment to the Certificate of Incorporation of the
Corporation was authorized by the vote of all of the Directors of the
Corporation, followed by the vote of the holders of a majority of the
outstanding shares entitled to vote on an amendment to the Certificate of
Incorporation at a meeting of shareholders duly called and held on October
19,1989.
IN WITNESS WHEREOF, the President and Secretary of SONO-TEK CORPORATION have
signed this Certificate of Amendment this 1st day of November 1989, and affirms
that the statements contained herein are true under the penalties of perjury.
/S/ Harvey L. Berger
--------------------
Harvey L. Berger, President
/S/ Josephine Clarke
--------------------
Josephine Clarke, Secretary
Exhibit 3.7
CERTIFICATE OF CHANGE
OF
SONO-TEK CORPORATION
Under Section 805-A of the
Business Corporation Law
WE, the undersigned, SAMUEL SCHWARTZ and JOY DeNITTO, being
respectively the Chairman of the Board and Secretary of Sono-Tek Corporation
(the "Corporation"), a New York Corporation, do hereby certify as follows:
1. The name of the Corporation is Sono-Tek Corporation.
2. The Certificate of Incorporation of said Corporation was filed by the
Department of State on March 21, 1975.
3. The following was duly authorized by the Board of Directors of said
Corporation:
(a) To change the location of the Corporation's office in New York from the City
of Poughkeepsie, County of Dutchess, to the Town of Milton, County of Ulster,
State of New York; and
(b) To change the post office address to which the Secretary of State shall mail
a copy of any process in any action or proceeding against the Corporation which
may be served upon him or her from c/o The Sono-Tek Corporation, 272 Mill
Street, Poughkeepsie, New York 12602, to:
Sono-Tek Corporation 2012 Route 9W, Building 3 Milton, New York 12547.
IN WITNESS WHEREOF, we have signed this Certificate of Change on the
16th day of March, 1994, and we affirm that the statements contained herein are
true under the penalties of perjury.
/S/ Samuel Schwartz
--------------------
Samuel Schwartz,
Chairman of the Board
/S/ Joy DeNitto
--------------------
Joy DeNitto,
Secretary
Exhibit 3.8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SONO-TEK CORPORATION
Under Section 805 of the
Business Corporation Law
We, the undersigned, SAMUEL SCHWARTZ and JOY DeNITTO, being
respectively the Chairman of the Board and Secretary of Sono-Tek Corporation, a
New York Corporation, do hereby certify as follows:
1. The name of the corporation is SONO-TEK CORPORATION.
2. The Certificate of Incorporation of said corporation was filed by the
Department of State on March 21, 1975.
3. Article Four of the Certificate of Incorporation of the corporation, as
heretofore amended, which provides for the aggregate number of shares which the
corporation shall have the authority to issue and for the elimination of
preemptive rights, is hereby further amended to increase the total number of
shares of common stock which the corporation is authorized to issue, by amending
Article Four of the Certificate of Incorporation of the corporation to read as
follows:
" (4) The aggregate number of shares of all classes which the Corporation shall
have authority to issue is twelve million (12,000,000) common shares of the par
value of $0.01 per share. No holder of any share of the Corporation shall,
because of his ownership of shares, have a pre-emptive or other right to
purchase, subscribe for, or take any part of any shares or any part of the
notes, debentures, bonds or other securities convertible into or carry options
or warrants to purchase shares of the Corporation issued, optioned or sold by
the Corporation."
4. None of the issued and outstanding shares of the corporation shall be changed
as a result of this amendment.
5. The foregoing amendment of the Certificate of Incorporation of the
corporation was authorized by vote of the Board of Directors, followed by the
affirmative vote of the holders of a majority of all outstanding shares entitled
to vote thereon at a Meeting of Shareholders duly called and held on November
16, 1993.
IN WITNESS WHEREOF, the Chairman of the Board and Secretary of SONO-TEK
CORPORATION have signed this Certificate of Amendment this 21st day of April,
1994, and we affirm that the statements contained herein are true under the
penalties of perjury.
/S/ Samuel Schwartz
-------------------
Samuel Schwartz,
Chairman of the Board
/S/ Joy DeNitto
----------------------
Joy DeNitto
Secretary
Exhibit 3.9
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
SONO-TEK CORPORATION
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
1. The name of the corporation is SONO-TEK CORPORATION.
2. The certificate of incorporation of said corporation was filed by the
Department of State on the 21st day of March 1975.
3. (a) The certificate of incorporation is amended to increase the number of
authorized shares of the corporation.
(b) To effect the foregoing, Article Four of the Certificate of Incorporation is
amended to read as follows:
(4) THE AGGREGATE NUMBER OF SHARES OF ALL CLASSES WHICH THE CORPORATION SHALL
HAVE AUTHORITY TO ISSUE IS TWENTY-FIVE MILLION (25,000,000) COMMON SHARES, PAR
VALUE $0.01 PER SHARE. NO HOLDER OF ANY SHARE OF THE CORPORATION SHALL, BECAUSE
OF HIS OWNERSHIP OF SHARES, HAVE A PRE-EMPTIVE OR OTHER RIGHT TO PURCHASE,
SUBSCRIBE FOR, OR TAKE ANY PART OF ANY SHARES OR ANY PART OF THE NOTES,
DEBENTRURES, BONDS OR OTHER SECURITIES CONVERTIBLE INTO OR CARRYING OPTIONS OR
WARRANTS TO PURCHASE SHARES OF THE CORPORATION ISSUED, OPTIONED OR SOLD BY THE
CORPORATION
4. The amendment was authorized by the vote of all the directors of the
Corporation, followed by the vote of the holders of a majority of the
outstanding shares entitled to vote on an amendment to the Certificate of
Incorporation at the annual meeting of shareholders on September 30, 1999.
/S/ James L. Kehoe
Name: James Kehoe
Title: Chief Executive Officer
Exhibit 3.10
BY-LAWS
OF
SONO-TEK CORPORATION, AS AMENDED June 26, 1998
ARTICLE I - OFFICES
The office of the Corporation shall be located in the City, County and State
designated in the Certificate of Incorporation or Certificate of Change. The
Corporation may also maintain offices at such other places within or without the
United States as the Board of Directors may, from time to time, determine.
ARTICLE II - MEETING OF SHAREHOLDERS
Section 1 - Annual Meetings:
The annual meeting of the shareholders of the Corporation shall be held within
seven months after the close of the fiscal year of the Corporation, for the
purpose of electing directors, and transacting such other business as may
properly come before the meeting.
Section 2 - Special Meetings:
Special meetings of the shareholders may be called at any time by the Board of
Directors or by the Chief Executive Officer (CEO), and shall be called by the
CEO or the Secretary at the written request of the holders of ten per cent (10%)
of the shares then outstanding and entitled to vote thereat, or as otherwise
required under the provisions of the Business Corporation Law.
Section 3 - Place of Meetings:
All meetings of shareholders shall be held at the principal office of the
Corporation, or at such other places within or without the State of New York as
shall be designated in the notices or waivers of notice of such meetings.
Section 4 - Notice of Meetings:
(a) Written notice of each meeting of shareholders, whether annual or special,
stating the time when and place where it is to be held, shall be given either
personally or by first class mail, not fewer than ten nor more than sixty days
before the date of the meeting, provided, however, that a copy of such notice
may be given by third class mail not fewer than twenty-four nor more than sixty
days before the date of the meeting, to each shareholder of record entitled to
vote at such meeting, and to any other shareholder to whom the giving of notice
may be required by law.
(b) Notice of any meeting need not be given to any person who may become a
shareholder of record after the mailing of such notice and prior to the meeting,
or to any shareholder who attends such meeting, in person or by proxy, or to any
shareholder who, in person or by proxy, submits a signed waiver of notice either
before or after such meeting. Notice of any adjourned meeting of shareholders
need not be given, unless otherwise required by statute.
Section 5 - Quorum:
(a) Except as otherwise provided herein, or by statute, or in the Certificate of
Incorporation (such Certificate and any amendments thereof being hereinafter
collectively referred to as the "Certificate of Incorporation"), at all meetings
of shareholders of the Corporation, the presence at the commencement of such
meetings in person or by proxy of shareholders holding of record a majority of
the total number of shares of the Corporation, then issued and outstanding and
entitled to vote, shall be necessary and sufficient to constitute a quorum for
the transaction of any business. The withdrawal of any shareholder after the
commencement of a meeting shall have no effect on the existence of a quorum,
after a quorum has been established at such meeting.
(b) Despite the absence of a quorum at any annual or special meeting of
shareholders, the shareholders, by a majority of the votes cast by the holders
of shares entitled to vote thereon, may adjourn the meeting. At any such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called if a quorum
had been present.
Section 6 - Voting:
(a) Except as otherwise provided by statute or by the Certificate of
Incorporation, any corporate action, other than the election of directors to be
taken by vote of the shareholders, shall be authorized by a majority of votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon.
(b) Except as otherwise provided by statute or by the Certificate of
Incorporation, at each meeting of shareholders, each holder of record of stock
of the Corporation entitled to vote thereat, shall be entitled to one vote for
each share of stock registered in his name on the books of the Corporation.
(c) Each shareholder entitled to vote or to express consent or dissent without a
meeting, may do so by proxy; provided, however, that the instrument authorizing
such proxy to act shall have been executed in writing by the shareholder
himself, or by his attorney-in-fact thereunto duly authorized in writing. No
proxy shall be valid after the expiration of eleven months from the date of its
execution, unless the persons executing it shall have specified therein the
length of time it is to continue in force. Such instrument shall be exhibited to
the Secretary at the meeting and shall be filed with the records of the
Corporation.
(d) Any resolution in writing, signed by all of the shareholders entitled to
vote thereon, shall be and constitute action by such shareholders to the effect
therein expressed, with the same force and effect as if the same had been duly
passed by unanimous vote at a duly called meeting of shareholders and such
resolution so signed shall be inserted in the Minute Book of the Corporation
under its proper date.
ARTICLE III - BOARD OF DIRECTORS
Section 1 - Number, Election and Term of Office:
(a) The number of the Directors of the Corporation shall be six (6), unless
otherwise determined by vote of a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships
at the time such resolution is presented to the Board for adoption). The number
of directors shall not be less than three.
(b) Except as may otherwise be provided herein or in the Certificate of
Incorporation, the members of the Board of Directors of the Corporation, who
need not be shareholders, shall be elected by a plurality of the votes cast at a
meeting of shareholders by the holders of shares entitled to vote in the
election.
(c) The directors shall be divided into two classes, designated Class I and
Class II. All classes shall be as nearly equal in number as possible, and no
class shall include less than three directors. The terms of office of the
directors initially classified shall be as follows: at the 1989 annual meeting
of shareholders, Class I Directors shall be elected for a one-year term expiring
at the next annual meeting of shareholders and Class II Directors for a two-year
term expiring at the second succeeding annual meeting of shareholders. At each
annual meeting of shareholders after such initial classification, directors to
replace those whose terms expire at such annual meeting shall be elected to hold
office until the second succeeding annual meeting. Each director shall hold
office until the expiration of his term and until his successor is elected and
qualified or until his earlier death, resignation or removal. If the number of
directors is changed, (i) any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly as equal as possible, and (ii) when the number of directors is
increased by the Board of Directors and any newly created directorships are
filled by the Board, there shall be no classification of the additional
directors until the next annual meeting of shareholders.
Section 2 - Duties and Powers:
The Board of Directors shall be responsible for the control and management of
the affairs, property and interests of the Corporation, and may exercise all
powers of the Corporation, except as are in the Certificate of Incorporation or
by statute expressly conferred upon or reserved to the shareholders.
Section 3 - Annual and Regular Meetings; Notice:
(a) A regular annual meeting of the Board of Directors shall be held immediately
following the annual meeting of the shareholders at the place of such annual
meeting of shareholders. (b) The Board of Directors, from time to time, may
provide by resolution for the holding of other regular meetings of the Board of
Directors, and may fix the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors shall not be
required to be given and, if given, need not specify the purpose of the meeting;
provided, however, that in case the Board of Directors shall fix or change the
time or place of any regular meeting, notice of such action shall be given to
each director who shall not have been present at the meeting at which such
action was taken within the time limited, and in the manner set forth in
paragraph (b) of Section 4 of this Article III, with respect to special
meetings, unless such notice shall be waived in the manner set forth in
paragraph (c) of such Section 4.
Section 4 - Special Meetings; Notice:
(a) Special meetings of the Board of Directors shall be held whenever called by
the CEO or by one of the directors, at such time and place as may be specified
in the respective notices or waivers of notice thereof.
(b) Notice of special meetings shall be mailed directly to each director,
addressed to him at his residence or usual place of business, at least five (5)
days before the day on which the meeting is to be held, or shall be sent to him
at such place by FAX or E-mail, or shall be delivered to him personally or given
to him orally, not later than the day before the day on which the meeting is to
be held. A notice, or waiver of notice, except as required by Section 8 of this
Article III, need not specify the purpose of the meeting.
(c) Notice of any special meeting shall not be required to be given to any
director who shall attend such meeting without protesting prior thereto or at
its commencement, the lack of notice to him, or who submits a signed waiver of
notice, whether before or after the meeting. Notice of any adjourned meeting
shall not be required to be given.
Section 5 - Chairman:
At all meetings of the Board of Directors, the Chairman of the Board, if any and
if present, shall preside. If there shall be no Chairman, or he shall be absent,
then the CEO shall preside, and in his absence, a Chairman chosen by the
directors shall preside.
Section 6 - Quorum and Adjournments:
(a) At all meetings of the Board of Directors, the presence of a majority of the
entire Board shall be necessary and sufficient to constitute a quorum for the
transaction of business, except as otherwise provided by law, by the Certificate
of Incorporation, or by these By-Laws.
(b) A majority of the directors present at the time and place of any regular or
special meeting, although less than a quorum, may adjourn the same from time to
time without notice, until a quorum shall be present.
Section 7 - Manner of Acting:
(a) At all meetings of the Board of Directors, each director present shall have
one vote, irrespective of the number of shares of stock, if any, which he may
hold.
(b) Except as otherwise provided by statute, by the Certificate of
Incorporation, or these By-Laws, the action of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. Any action authorized, in writing by all of the directors
entitled to vote thereon and filed with the minutes of the Corporation shall be
the act of the Board of Directors with the same force and effect as if the same
had been passed by unanimous vote at a duly called meeting of the Board.
Section 8 - Newly Created Directorships and Vacancies:
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board of Directors for any reason may
be filled only by vote of the Board. If the number of directors then in office
is less than a quorum, such newly created directorships and vacancies may be
filled by a majority of the directors then in office. A director elected to fill
a vacancy, however caused, shall be elected to hold office for a term expiring
at the next meeting of shareholders at which the election of directors is in the
regular order of business and until his successor has been elected and
qualified.
Section 9 - Resignations:
Any director may resign at any time by giving written notice to the Board of
Directors, the CEO or the Secretary of the Corporation. Unless otherwise
specified in such written notice, such resignation shall take effect upon
receipt thereof by the Board of Directors or such officer, and the acceptance of
such resignation shall not be necessary to make it effective.
Section 10 - Removal:
Except as prohibited by law, any or all of the directors may be removed for
cause by the affirmative vote of the holders of at least two-thirds of the
outstanding shares entitled to vote thereon. Any or all of the directors also
may be removed for cause by action of the Board.
Section 11 - Salary:
No stated salary shall be paid to directors, as such, for their services, but by
resolution of the Board of Directors a fixed sum and expenses of attendance, if
any, may be allowed for attendance at each regular or special meeting of the
Board; provided, however, that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 12 - Contracts:
(a) No contract or other transaction between this Corporation and any other
corporation shall be impaired, affected or invalidated, nor shall any director
be liable in any way by reason of the fact that any one or more of the directors
of this Corporation is or are interested in, or is a director or officer, or are
directors or officers of such other corporation, provided that such facts are
disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be a party to or may be
interested in any contract or transaction of this Corporation, and no director
shall be liable in any way by reason of such interest, provided that the fact of
such interest be disclosed or made known to the Board of Directors, and provided
that the Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be counted
in determining the presence of a quorum at such meeting. This Section shall not
be construed to impair or invalidate or in any way affect any contract or other
transaction which would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
Section 13 - Committees:
The Board of Directors, by resolution adopted by a majority of the entire Board,
may from time to time designate from among its members an executive committee
and such other committees, and alternate members thereof, as they deem
desirable, each consisting of two or more members, with such powers and
authority (to the extent permitted by law) as may be provided in such
resolution. Each such committee shall serve at the pleasure of the Board.
ARTICLE IV - OFFICERS
Section 1 - Number, Qualifications, Election and Term of Offices:
(a) The officers of the Corporation shall consist of a President, a Secretary, a
Treasurer, and such other officers, including a Chairman of the Board of
Directors, a Chief Executive Officer, a Chief Operating Officer and one or more
Vice Presidents, as the Board of Directors may from time to time deem advisable.
Any officer other than the Chairman of the Board of Directors may be, but is not
required to be, a director of the Corporation. Any two or more offices may be
held by the same person.
(b) The officers of the Corporation shall be elected by the Board of Directors
at the regular annual meeting of the Board following the annual meeting of
shareholders.
(c) Each officer shall hold office until the annual meeting of the Board of
Directors next succeeding his election, and until his successor shall have been
elected and qualified, or until his death, resignation or removal.
Section 2 - Resignation:
Any officer may resign at any time by giving written notice of such resignation
to the Board of Directors, or to the CEO or the Secretary of the Corporation.
Unless otherwise specified in such written notice, such resignation shall take
effect upon receipt thereof by the Board of Directors or by such officer, and
the acceptance of such resignation shall not be necessary to make it effective.
Section 3 - Removal:
Any officer may be removed, either with or without cause, and a successor
elected by the Board at any time.
Section 4 - Vacancies:
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the term by the Board of Directors.
Section 5 - Duties of Officers:
Officers of the Corporation shall, unless otherwise provided by the Board of
Directors, each have such powers and duties as generally pertain to their
respective offices as well as such powers and duties as may be set forth in
these By-Laws, or may from time to time be specifically conferred or imposed by
the Board of Directors.
Section 6 - Sureties and Bonds:
In case the Board of Directors shall so require, any officer, employee or agent
of the Corporation shall execute to the Corporation a bond in such sum, and with
such surety or sureties as the Board of Directors may direct, conditioned upon
the faithful performance of his duties to the Corporation, including
responsibility for negligence and for the accounting for all property, funds or
securities of the Corporation which may come into his hands.
Section 7 - Shares of Other Corporations:
Whenever the Corporation is the holder of shares of any other corporation, any
right or power of the Corporation as such shareholder (including the attendance,
acting and voting at shareholders' meetings and execution of waivers, consents,
proxies or other instruments) may be exercised on behalf of the Corporation by
the CEO, the President, or such other person as the Board of Directors may
authorize.
ARTICLE V - SHARES OF STOCK
Section 1 - Certificate of Stock:
(a) The certificates representing shares of the Corporation shall be in such
form as shall be adopted by the Board of Directors, and shall be numbered and
registered in the order issued. They shall bear the holder's name and the number
of shares, and shall be signed by (i) the Chairman of the Board or the CEO or
the President, and (ii) the Secretary or Treasurer, or any Assistant Secretary
or Assistant Treasurer, and may bear the corporate seal.
(b) No certificate representing shares shall be issued until the full amount of
consideration therefor has been paid, except as otherwise permitted by law.
(c) The Board of Directors may authorize the issuance of certificates for
fractions of a share which shall entitle the holder to exercise voting rights,
receive dividends and participate in liquidating distributions, in proportion to
the fractional holdings; or it may authorize the payment in cash of the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined; or it may authorize the issuance, subject to such
conditions as may be permitted by law, of scrip in registered or bearer form
over the signature of an officer or agent of the Corporation, exchangeable as
therein provided for full shares, but such scrip shall not entitle the holder to
any rights of a shareholder, except as therein provided.
Section 2 - Lost or Destroyed Certificates:
The holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any loss or destruction of the certificate
representing the same. The Corporation may issue a new certificate in the place
of any certificate theretofore issued by it, alleged to have been lost or
destroyed. On production of such evidence of loss or destruction as the Board of
Directors in its discretion may require, the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the Corporation a bond in such sum as the Board may
direct, and with such surety or sureties as may be satisfactory to the Board, to
indemnify the Corporation against any claims, loss, liability or damage it may
suffer on account of the issuance of the new certificate. A new certificate may
be issued without requiring any such evidence or bond when, in the judgment of
the Board of Directors, it is proper so to do.
Section 3 - Transfers of Shares:
(a) Transfers of shares of the Corporation shall be made on the share records of
the Corporation only by the holder of record thereof, in person or by his duly
authorized attorney, upon surrender for cancellation of the certificate or
certificates representing such shares, with an assignment or power of transfer
endorsed thereon or delivered therewith, duly executed, with such proof of the
authenticity of the signature and of authority to transfer and of payment of
transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record of any share
or shares as the absolute owner thereof for all purposes and, accordingly, shall
not be bound to recognize any legal, equitable or other claim to, or interest
in, such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise expressly
provided by law.
Section 4 - Record Date:
In lieu of closing the share records of the Corporation, the Board of Directors
may fix, in advance, a date not exceeding sixty days, nor less than ten days, as
the record date for the determination of shareholders entitled to receive notice
of, or to vote at, any meeting of shareholders, or to consent to any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividends, or allotment of any rights, or for the purpose
of any other action. If no record date is fixed, the record date for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if no notice is given, the day on which the
meeting is held; the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of shareholders
of record entitled to notice of or to vote at any meeting of shareholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date for the
adjourned meeting.
ARTICLE VI - DIVIDENDS
Subject to applicable law, dividends may be declared and paid out of any funds
available therefor, as often, in such amounts, and at such time or times as the
Board of Directors may determine.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of Directors from
time to time, subject to applicable law.
ARTICLE VIII - CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved from time
to time by the Board of Directors.
ARTICLE IX - INDEMNIFICATION
Section 1 - Directors and Officers:
The Corporation shall, to the fullest extent permitted by applicable law as the
same exists or may hereafter be in effect, indemnify any person who is or was
made or threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Corporation to procure a judgment in its favor and an action by or in the right
of any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or any other entity,
which any director or officer of the Corporation is serving, has served or has
agreed to serve in any capacity at the request of the Corporation, by reason of
the fact that such person or such person's testator or intestate is or was or
has agreed to become a director or officer of the Corporation, or is or was
serving or has agreed to serve such other corporation, partnership, joint
venture, trust, employee benefit plan or other entity in any capacity, against
judgments, fines, amounts paid or to be paid in settlement, taxes or penalties,
and costs, charges and expenses, including attorneys' fees, incurred in
connection with such action or proceeding or any appeal therein; provided,
however, that no indemnification shall be provided to any such person if a
judgment or other final adjudication adverse to the director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, or (ii) he or she personally gained in fact
a financial profit or other advantage to which he or she was not legally
entitled.
Section 2 - Non-Exclusivity:
Nothing contained in this Article IX shall limit the right to indemnification
and advancement of expenses to which any person would be entitled by law in the
absence of this Article, or shall be deemed exclusive of any other rights to
which such person seeking indemnification or advancement of expenses may have or
hereafter may be entitled under law, any provision of the Certificate of
Incorporation, or By-Laws, any agreement approved by the Board of Directors, or
a resolution of shareholders or directors; and the adoption of any such
resolution or entering into of any such agreement approved by the Board of
Directors is hereby authorized.
Section 3 - Continuity of Rights.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article IX shall (i) apply with respect to acts or omissions occurring
prior to the adoption of this Article IX to the fullest extent permitted by law,
and (ii) survive the full or partial repeal or restrictive amendment hereof with
respect to events occurring prior thereto.
ARTICLE X - AMENDMENTS
Section 1 - By Shareholders:
All By-Laws of the Corporation shall be subject to alteration or repeal, and new
By-Laws may be made, by a majority of the votes of the shares at the time
entitled to vote in the election of any directors.
Section 2 - By Directors:
The Board of Directors shall have power to make, adopt, alter, amend and repeal,
from time to time, By-Laws of the Corporation; provided, however, that the
shareholders entitled to vote with respect thereto as in this Article X
above-provided may alter, amend or repeal By-Laws made by the Board of
Directors, except that the Board of Directors shall have no power to change the
quorum for meetings of shareholders or of the Board of Directors, or to change
any provisions of the By-Laws with respect to the removal of directors or the
filling of vacancies in the Board resulting from the removal by the
shareholders. If any By-Law regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of directors,
the By-Law so adopted, amended or repealed, together with a concise statement of
the changes made.
Exhibit 4.1
SONO-TEK CORPORATION 1993 STOCK INCENTIVE PLAN
OCTOBER 12, 1993 AS AMENDED SEPTEMBER 30, 1999
1. OBJECTIVE OF THE PLAN.
The purpose of this 1993 Stock Incentive Plan [the "Plan"] is to enable Sono-Tek
Corporation [the "Company" or "Sono-Tek"] to compete successfully in attracting,
motivating, and retaining employees, directors, and consultants with outstanding
abilities by making it possible for them to purchase shares of Sono-Tek's Common
Stock on terms which will give them a more direct and continuing interest in the
future success of the Company's business.
This Plan is intended to establish a policy of encouraging ownership of the
Company's Common Stock by employees, directors, and consultants of Sono-Tek and
of providing incentives for them to put forth maximum efforts for it's
successful operations. By extending to such individuals the opportunity to
acquire proprietary interests in Sono-Tek and to participate in its success, the
Plan may be expected to benefit Sono-Tek and its shareholders by making it
possible for Sono-Tek to attract and retain the best available talent and by
rewarding such individuals for their part in increasing the value of the
Company's stock.
2. DEFINITIONS.
As used herein, the following terms have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
2.1 "Award" shall mean Options granted pursuant to this Plan.
2.2 "Award Agreement" shall mean the agreement between the Award Recipient and
Sono-Tek setting forth the terms and conditions of an Award.
2.3 "Award Recipient" shall mean an individual who receives an Award pursuant to
this Plan.
2.4 "Board" and "Board of Directors" shall mean the board of directors of
Sono-Tek.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.6 "Common Stock" shall mean shares of the common stock of Sono-Tek with a par
value of $.0l.
2.7 "Company" means Sono-Tek Corporation, a New York corporation with its
principal offices at 2012 Route 9W, Bldg. 3, Milton, New York 12547.
2.8 "Continuous Employment" shall mean continuous regular employment by
Sono-Tek.
56
A leave of absence granted in accordance with Sono-Tek's usual procedure which
does not operate to interrupt continuous employment for other benefits granted
by Sono-Tek shall not be considered a termination of employment nor an
interruption of Continuous Employment hereunder, and an employee who is granted
such a leave of absence shall be considered to be continuously employed during
the period of such leave; provided, that if regulations under the Code or an
amendment to the Code shall establish a more restrictive definition, of a leave
of absence, such definition shall be substituted herein.
2.9 "Non-Employee Director" shall mean any director who is not an employee of
the Company.
2.10 "Consultant" shall mean any individual or organization retained by the
Company to provide consulting services.
2.11 "Incentive Stock Options" shall mean those Options granted hereunder as,
and intended to be, Incentive Stock Options as defined in, and which by their
terms comply with, the requirements for such options set out in Section 422 of
the Code, and Treasury Regulations issued pursuant thereto.
2.12 "Non-Qualified Stock Options" shall mean those Options granted hereunder
which are not Incentive Stock Options as described in paragraph 2.11.
2.13 "Option" shall mean an option to purchase Common Stock granted pursuant to
the provisions of this Plan.
2.14 "Ten Percent Shareholder" shall mean an individual who owns, within the
meaning of Section 422 (b) (6) of the Code, stock possessing more than (1 0%)
percent of the total combined voting power of all classes of stock of Sono-Tek.
3. STOCK RESERVED FOR THE PLAN.
One million five hundred thousand (1,500,000) shares of the authorized but
unissued Common Stock are reserved for issue and may be issued pursuant to
Awards under the Plan.
In lieu of such unissued shares, Sono-Tek may, in its discretion, transfer, on
the exercise of Options, reacquired shares or shares bought in the market for
the purposes of the Plan, provided that (subject to the provisions of paragraph
13) the total number of shares which may be granted or sold pursuant to Awards
granted under the Plan shall not exceed 1,500,000.
If any Awards granted under the Plan shall for any reason terminate or expire
without having been exercised, the Common Stock not issued under such Awards
shall be available again for the purposes of the Plan.
4. ADMINISTRATION OF THE PLAN.
4.1 The Board of Directors shall administer the Plan. The Board shall have full
authority in its discretion, but subject to the express Provisions of the Plan,
to determine: the individuals to whom, and the time or times at which, Awards
shall be granted; the number of shares to be covered by each Award; the purchase
price of the Common Stock covered by each Option; whether Options shall be of
the Incentive Stock Option type, or the Non-Qualified Stock Option type, or
both. The Board shall further have full authority at its discretion to interpret
the Plan; to prescribe, amend and rescind rules and regulations relating to it;
to determine the terms (which need not be identical) of Award Agreements
executed and delivered under the Plan, including such terms and provisions as
shall be requisite in the judgement of the Board to conform to any change in any
law or regulation applicable thereto; and to make all other determinations
deemed necessary or advisable for the administration of the Plan. The Board's
determination on the foregoing matters shall be conclusive.
4.2 Notwithstanding the provisions of paragraph 4.1, the selection of officers
and directors for participation in the Plan and decisions concerning the timing,
pricing and amount of an Award may, at any time and from time to time, be
delegated by the Board of Directors to a committee (the "Committee"). The
Committee shall be not less than two directors and shall be comprised solely of
Non-Employee Directors, as defined by Rule 16b-3(b)(3)(i) of the Securities
Exchange Act of 1934 ("1934 Act"), or any successor definition adopted by the
Securities Exchange Commission, and who shall each also qualify as an Outside
Director for purposes of Section 162(m) of the Code. Any vacancy occurring on
the Committee may be filled by appointment by the Board. The Board at its
discretion may from time to time appoint members to the Committee in
substitution of members previously appointed, may remove members of the
Committee and may fill vacancies, however caused, in the Committee."
5. ELIGIBILITY; FACTORS TO BE CONSIDERED IN GRANTING AWARDS.
5.1 Incentive Stock Options or Non-Qualified Stock Options may be granted to any
person who, at the time the Award is granted, is regularly employed by the
Company or any "subsidiary corporation" of the Company, as that term is defined
by section 424(f) of the Code, as may now or hereafter exist. A member of the
Board of Directors of the Company who is not also a regular, salaried employee
of Sono-Tek, will not be eligible to receive Incentive Stock Options. Further,
no Incentive Stock Options may be granted hereunder to an individual who,
immediately after such Option is granted, is a Ten Percent Shareholder, unless
(i) the option price is at least 110% of the fair market value of such stock on
the date of grant and (ii) the Option may not be exercised more than 5 years
after the date of grant. In determining the employees to whom Awards shall be
granted, the number of shares of Common Stock to be covered by each Award, the
term of any Option, and whether any such Option shall be an Incentive Stock
Option, a Non-Qualified Stock Option, or both, the Board or committee, as the
case may be, shall take into account the duties of the respective employees,
their present and potential contributions to the success of Sono-Tek and such
other factors as they shall deem relevant in connection with accomplishing the
purpose of the Plan. An employee who has been granted an Award may be granted
and hold an additional Award or Awards if the Board or committee so determines.
5.2 Non-Qualified Stock Options may be granted to Non-Employee Directors,
Consultants to the Company and employees of affiliates of the Company. In
determining the Non-Employee Directors, Consultants and employees of affiliates
to whom Awards shall be granted, and the term and the number of shares of Common
Stock to be covered by each Award, the Board or committee shall take into
account the duties of such individuals, their contribution to the Success of the
Company, and other such factors as they shall deem relevant in connection with
accomplishing the purpose of the Plan. Such individuals or organizations may be
granted and hold an additional Award or Awards if the Board or committee so
determines.
6. OPTION PRICES.
The purchase price of Common Stock covered by each Option shall be determined by
the Board or committee, as the case may be, but shall not be less than 100% (or
110% in the case of an Incentive Stock Option granted to a Ten Percent
Shareholder) of the fair market value of the Common Stock at the time the Option
is granted. The fair market value shall mean the simple average of the high and
low sales prices of the Common Stock as reported in the report of composite
transactions (or other source designated by the Board or committee) on the date
on which the Option is granted.
7. TERM OF OPTIONS.
The term of each Option shall be for such period as the Board shall determine,
but not more than ten years (or 5 years in the case of an Incentive Stock Option
granted to a Ten Percent Shareholder) from the date of granting thereof, and
shall be subject to earlier termination as hereinafter provided. If the original
term of any Option is less than ten years (or 5 years in the case of an Option
granted to a Ten Percent Shareholder) from the date of granting, the Option,
prior to its expiration, may be amended, with the approval of the Board and the
employee, to extend the term so that the term as amended is not more than ten
years (or 5 years in the case of an Incentive Stock Option granted to a Ten
Percent Shareholder) from the original date of granting of such Option. To the
extent not otherwise prohibited by law, such extension shall not constitute the
grant of a new Option and the purchase price specified in such Option need not
be increased.
8. EXERCISE OF OPTIONS.
8.1 In the case of Awards granted to employees, each Option shall provide that
it may be exercised as to forty-five percent of the total number of shares
covered by such Option on or after the date on which the employee shall have
completed at least one year of Continuous Employment after the Option was
granted, and as to an additional thirty-five percent of the total number of
shares covered by such Option on or after the date on which the employee shall
have completed at least two years of Continuous Employment after the Option was
granted, and as to the final twenty percent of the total number of shares
covered by such Option on or after the date on which the employee shall have
completed at least three years of Continuous Employment after the Option was
granted, so that upon completion of the third year of such Continuous Employment
after granting the Option, the holder will have become entitled to purchase the
entire number of shares covered by the Option; provided that the Board shall
have authority to vary in advance of grant and from time to time after grant,
the period of Continuous Employment which shall be required for the exercise of
Options granted hereunder.
8.2 In the case of Awards granted to Non-Employee Directors each such Option
shall provide that it may be exercised as to one-half the total number of shares
covered by such Option on or after the date in which the Non-Employee Director
shall have completed at least one year of service after the Option was granted
and as to the remainder of the total number of shares covered by such option on
or after the date of which such Non-Employee Director will have completed at
least two years of continued service, provided that the Board shall have the
authority to vary in advance of grant and from time to time after grant the
period of service which shall be required for the exercise of Options granted
hereunder.
8.3 In the case of Awards granted to Consultants, each such Option shall provide
that it may be exercised as to one-half of the total number of shares covered by
such Option one year on or after the date the Option was granted and as to the
remainder of the total number of shares covered by such Option, two years after
the date the Option was granted. The Board shall have the authority to vary in
advance of grant and from time to time after grant the exercise period of such
grant.
8.4 Unless otherwise provided in the Award Agreement, a holder of an Option may
purchase all or from time to time any part of, the shares for which the right to
purchase has accrued to him in accordance with the terms of this paragraph;
provided, however, that an Option shall not be exercised as to fewer than 50
shares, or all the remaining shares covered by the Option, if fewer than 50, at
any one time. The purchase price of the shares as to which an Option shall be
exercised shall be paid in full at the time of exercise. at the election of the
holder of an Option (i) in cash or currency of the United States of America, or
by certified check made payable to the Company in U.S. dollars, (ii) by
tendering to Sono-Tek shares of the Company's Common Stock, then owned at least
six months by him, having a fair market value equal to the cash exercise price
applicable to the purchase price of the shares as to which an Option is being
exercised, or (iii) partly in cash or certified check and partly in shares of
Sono-Tek's Common Stock valued at fair market value. Such fair market value
shall be determined as of the close of the business day immediately preceding
the day on which the Option is exercised, in the manner set forth in paragraph
6. Fractional shares of Common Stock will not be issued. Notwithstanding the
foregoing, the Board shall have the right to modify, amend or cancel the
provisions of clauses (ii) and (iii) above at any time upon prior notice to the
holders of Options. Except as provided in paragraphs 10 and 11 hereof, no Option
may be exercised at any time unless the holder thereof is then a regular
employee of Sono-Tek or any Subsidiary. The holder of an Option shall have none
of the rights of a stockholder with respect to the shares subject to option
until such shares shall have been registered upon the exercise of the Option on
the transfer books of the Company in the name of the person or persons
exercising the Option.
8.5 Notwithstanding any other provision of this Plan or any Option granted
hereunder, any Option granted hereunder and then out-standing shall become
immediately exercisable in full (i) in the event a tender offer or exchange
offer is made by any "person" within the meaning of Section 14 (d) of the
Securities Exchange Act of 1934 (the "Act") or (ii) in the event of a Change in
Control; provided that, if in the opinion of counsel to Sono-Tek the immediate
exercisability of such Option, when taken into consideration with all other
"parachute payments" as defined in Section 280G of the Code, would result in an
"excess parachute payment" as defined in such section, such Option shall not
become immediately exercisable except as and to the extent the Board in its
discretion otherwise determines. For purposes of this Section, a "Change in
Control" shall have occurred if (i) any "person" within the meaning of Section
14 (d) of the Act other than a holder of any Common Stock or Preferred Stock of
the Company on the date this Plan is approved by the Board becomes the
"beneficial owner" as defined in Rule 13d-3 thereunder, directly or indirectly,
of more than 25% of Sono-Tek's Common Stock, (ii) during any two-year period,
individuals who constitute the Board of Directors of Sono-Tek (the "Incumbent
Board") as of the beginning of the period cease for any reason to constitute at
least a majority thereof, provided that any person becoming a member of the
Board of Directors during such period whose election or nomination for election
by Sono-Tek's stockholders was approved by a vote of at least three-quarters of
the Incumbent Board (either by a specific vote or by approval of the proxy
statement of Sono-Tek in which such person is named as a nominee for the Board
of Directors without objection to such nomination) shall be, for purposes of
this clause (ii), considered as though such person were a member of the
Incumbent Board, or (iii) the approval by Sono-Tek's stock holders of the sale
of all or substantially all of the assets of Sono-Tek. The Board may adopt such
procedures as to notice and exercise as may be necessary to effectuate the
acceleration of the exercisability of Options as described above.
8.6 The aggregate fair market value (determined as of the date the Option is
granted) of the stock with respect to which Incentive Stock Options granted
under the Plan and all other stock option plans of Sono-Tek are exercisable for
the first time by any specific individual during any calendar year shall not
exceed $100,000.
9. NONTRANSFERABILITY OF OPTIONS
An Option granted under the Plan shall not be transferable otherwise than by
will or the laws of descent and distribution, and an Option may be exercised,
during the lifetime of the employee, only by him or her.
10. TERMINATION OF EMPLOYMENT
10.1 If an employee receiving an Option shall at any time not be an employee of
Sono-Tek, the Option shall at once terminate, except as provided hereinafter in
this paragraph. In the event that the employment of an employee to whom an
Option has been granted under the Plan shall be terminated (other than
termination by the Company for cause as determined by the Board, or by reason of
retirement, disability or death) such Option may, subject to the provisions of
paragraphs "8" and "11", be exercised, to the extent that the employee was
entitled to do so at the date of termination of his or her employment, at any
time within sixty (60) days after such termination, but in no event after the
expiration of the term of the Option. Options granted under the Plan shall not
be affected by any change of duties or position so long as the holder continues
to be an employee of Sono-Tek.
10.2 If a Non-Employee Director awarded an Option shall at any time cease to be
a Director of the Company, the Option shall at once terminate, except as
provided hereinafter in this paragraph. In the event the Non-Employee Director
awarded an Option under the Plan shall be terminated (other than termination by
the Company for cause as determined by the Board, or by reason of retirement,
disability, or death) such Option may, subject to the provisions of paragraphs
"8" and "11", be exercised, to the extent that the Director was entitled to do
so at the date of termination of his or her service, at any time within six
months after such termination, but in no event after the expiration of the term
of the Option.
10.3 An Option granted to a Consultant may, subject to the provisions of
paragraphs "8", and "11" be exercised, to the extent that the Consultant was
entitled to do so at the date of the termination of his or her consulting
services, at any time within one year after such termination, but in no event
after the expiration of the term of the Option.
11. RETIREMENT, DISABILITY OR DEATH OF EMPLOYEE.
If an employee to whom an Option has been granted under the Plan shall retire
from Sono-Tek at normal retirement date pursuant to any pension plan provided by
Sono-Tek, or if such retirement is earlier than the employee's normal retirement
date, and such retirement is with the prior consent of Sono-Tek, or if an
employee is totally and permanently disabled, such Option may be exercised,
notwithstanding the provisions of paragraphs "8" and "10" hereof, in full
without regard to the period of Continuous Employment after the Option was
granted at any time (a) in the case of an Incentive Stock Option within 90 days
after such retirement or disability retirement, but in no event after the
expiration of the term of the Option or (b) in the case of a Non-Qualified Stock
Option within 5 years after such retirement or disability retirement, but in no
event after the expiration of the term of the Option.
If a person to whom an Option has been granted under the Plan shall die while he
or she is employed by or in the service of Sono-Tek, such Option may be
exercised, subject to the provisions of paragraph "8", to the extent that such
person was entitled to do so at the date of his death, by his executor or
administrator or other person at the time entitled by law to such person's
rights under the Option, at any time within such period, not exceeding one year
after his or her death, as shall be prescribed in the Award Agreement, but in no
event after the expiration of the term of the Option.
12. NO LOANS TO HOLDERS OF OPTIONS.
Neither Sono-Tek, nor any company with which it is affiliated may directly or
indirectly lend money to any person for the purpose of assisting him or her to
acquire or carry shares of the Common Stock issued upon the exercise of Options
granted under the Plan.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Notwithstanding any other provision of the Plan, the Award Agreements may
contain such provisions as the Board shall determine for the adjustment of the
number and class of shares covered by each outstanding Award, the option prices
and the minimum numbers of shares as to which Awards shall be exercisable at any
one time in the event of changes in the outstanding Common Stock by reason of
stock dividends, split-ups, spin-offs, recapitalizations, mergers,
consolidations, combinations or exchanges of shares and the like; and, in the
event of any such change in the outstanding Common Stock, the aggregate number
and class of shares available under the Plan and the maximum number of shares as
to which Awards may be granted to any employee shall be appropriately adjusted.
14. SHARE WITHHOLDING.
With respect to any Award, the Board may, in its discretion and subject to such
rules as the Board may adopt, permit the employee to satisfy, in whole or in
part, any withholding tax obligation which may arise in connection with an Award
by election to have Sono-Tek withhold Common Stock having a fair market value
(calculated in accordance with paragraph "6" on the date the amount of
withholding tax is determined) equal to the amount of the withholding tax.
15. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in the Plan or in any Award granted or Award Agreement entered into
pursuant to the Plan shall confer upon any employee the right to continue in the
employ of Sono-Tek or interfere with the right of Sono-Tek to terminate his or
her employment at any time.
16. TIME OF GRANTING AWARDS.
Nothing contained in the Plan or in any resolution to be adopted by the holders
of voting stock of Sono-Tek shall constitute the granting of any Award
hereunder. An Award pursuant to the Plan shall be deemed to have been granted on
the date on which the name of the recipient and the terms of the Award are
determined by the Board.
17. TERMINATION AND AMENDMENT OF THE PLAN.
Unless the Plan shall have been terminated as hereinafter provided, no Award
shall be granted hereunder after October 12, 2003. The Board of Directors of
Sono-Tek may at any time prior to that date terminate the Plan or make such
modification or amendment of the Plan as it shall deem advisable; provided,
however, that no amendment may be made, without the approval by the holders of
voting, stock of Sono-Tek, except as provided in paragraph 13 hereof, which
would (i) increase the maximum number of shares for which Awards may be granted
under the Plan, (ii) change the manner of determining the minimum option prices,
(iii) extend the period during which an Award may be granted or an Option
exercised, or (iv) amend the requirements as to the class of persons eligible to
receive Awards. No termination, modification, or amendment of the Plan or of any
Award under the Plan, may, without the consent of the person to whom an Award
shall theretofore have been granted, adversely affect the rights of such person
under such Award.
18. GOVERNMENT REGULATIONS.
The Plan and the granting and exercising of Awards thereunder, and the
obligation of Sono-Tek to issue, sell and deliver shares, as applicable, under
such Awards, shall be subject to all applicable laws, rules and regulations. In
particular, and without limiting the generality of the foregoing, as a condition
to the exercise of any Award, the Company may require the holder of an Option to
deliver to the Company (i) a written certificate of the holder (or his personal
representative, as the case may be) to the effect that he is purchasing such
shares for investment and not with a view to the sale or distribution of any
such shares and (ii) such other certificates, representations and agreements of
the holder (or his personal representative, as the case may be) as may be
required under the Plan or as the Company shall also require in order that the
Company may be reasonably assured that the issuance, delivery, and disposition
of such shares are being and will be effected in compliance with the Securities
Act of 1933, as amended (the "Act"), the Rules and Regulations thereunder, other
applicable law, and the rules of each stock exchange upon which the shares of
Common Stock are listed, if any; provided, however, that if the offer and sale
of shares of Common Stock upon exercise of Options granted under the Plan is
registered under the Act, the holder (or his personal representative, as the
case may be) need not furnish the certificate described in clause (i) of this
sentence. Certificates evidencing shares of Common Stock issued upon exercise of
the Option may contain such legends reflecting any restrictions upon sale or
transfer as in the view of counsel to the Company may be necessary to the lawful
and proper issuance of such certificates.
19. SHAREHOLDER APPROVAL.
The Plan shall become effective upon adoption by the Board. The Plan shall be
subject to approval by the affirmative vote of the holders of a majority of all
outstanding shares of capital stock of the Company entitled to vote thereon
within one (1) year before or after adoption of the Plan by the Board. In the
event such shareholder approval is withheld or otherwise not received within the
given time period, the Plan and all options which may have been granted
thereunder shall become null and void.
Exhibit 4.2
SONO-TEK CORPORATION 2003 STOCK INCENTIVE PLAN
MAY 20, 2003
1. OBJECTIVE OF THE PLAN.
The purpose of this 2003 Stock Incentive Plan [the "Plan"] is to enable Sono-Tek
Corporation [the "Company" or "Sono-Tek"] to compete successfully in attracting,
motivating, and retaining employees, directors, and consultants with outstanding
abilities by making it possible for them to purchase shares of Sono-Tek's Common
Stock on terms which will give them a more direct and continuing interest in the
future success of the Company's business.
This Plan is intended to establish a policy of encouraging ownership of the
Company's Common Stock by employees, directors, and consultants of Sono-Tek and
providing incentives for them to put forth maximum efforts for its successful
operations. By extending to such individuals the opportunity to acquire
proprietary interests in Sono-Tek and to participate in its success, the Plan
may be expected to benefit Sono-Tek and its shareholders by making it possible
for Sono-Tek to attract and retain the best available talent and by rewarding
such individuals for their part in increasing the value of the Company's stock.
2. DEFINITIONS.
As used herein, the following terms have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
2.1 "Award" shall mean Options granted pursuant to this Plan.
2.2 "Award Agreement" shall mean the agreement between the Award Recipient and
Sono-Tek setting forth the terms and conditions of an Award.
2.3 "Award Recipient" shall mean an individual who receives an Award pursuant to
this Plan.
2.4 "Board" and "Board of Directors" shall mean the board of directors of
Sono-Tek.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.6 "Common Stock" shall mean shares of the common stock of Sono-Tek with a par
value of $.0l.
2.7 "Company" means Sono-Tek Corporation, a New York corporation with its
principal offices at 2012 Route 9W, Bldg. 3, Milton, New York 12547.
2.8 "Continuous Employment" shall mean continuous regular employment by
Sono-Tek. A leave of absence granted in accordance with Sono-Tek's usual
procedure which does not operate to interrupt continuous employment for other
benefits granted by Sono-Tek shall not be considered a termination of employment
nor an interruption of Continuous Employment hereunder, and an employee who is
granted such a leave of absence shall be considered to be continuously employed
during the period of such leave; provided, that if regulations under the Code or
an amendment to the Code shall establish a more restrictive definition, of a
leave of absence, such definition shall be substituted herein.
2.9 "Non-Employee Director" shall mean any director who is not an employee of
the Company.
2.10 "Consultant" shall mean any individual or organization retained by the
Company to provide consulting services.
2.11 "Incentive Stock Options" shall mean those Options granted hereunder as,
and intended to be, Incentive Stock Options as defined in, and which by their
terms comply with, the requirements for such options set out in Section 422 of
the Code, and Treasury Regulations issued pursuant thereto.
2.12 "Non-Qualified Stock Options" shall mean those Options granted hereunder
which are not Incentive Stock Options as described in paragraph 2.11.
2.13 "Option" shall mean an option to purchase Common Stock granted pursuant to
the provisions of this Plan.
2.14 "Ten Percent Shareholder" shall mean an individual who owns, within the
meaning of Section 422 (b) (6) of the Code, stock possessing more than (10%)
percent of the total combined voting power of all classes of stock of Sono-Tek.
3. STOCK RESERVED FOR THE PLAN.
One million, five hundred thousand (1,500,000) shares of the authorized but
unissued Common Stock are reserved for issue and may be issued pursuant to
Awards under the Plan.
In lieu of such unissued shares, Sono-Tek may, in its discretion, transfer, on
the exercise of Options, reacquired shares or shares bought in the market for
the purposes of the Plan, provided that (subject to the provisions of paragraph
13) the total number of shares which may be granted or sold pursuant to Awards
granted under the Plan shall not exceed 1,500,000.
If any Awards granted under the Plan shall for any reason terminate or expire
without having been exercised, the Common Stock not issued under such Awards
shall be available again for the purposes of the Plan.
4. ADMINISTRATION OF THE PLAN.
4.1 The Board of Directors shall administer the Plan. The Board shall have full
authority in its discretion, but subject to the express Provisions of the Plan,
to determine: the individuals to whom, and the time or times at which, Awards
shall be granted; the number of shares to be covered by each Award; the purchase
price of the Common Stock covered by each Option; whether Options shall be of
the Incentive Stock Option type, or the Non-Qualified Stock Option type, or
both; and vesting schedule. The Board shall further have full authority at its
discretion to interpret the Plan; to prescribe, amend and rescind rules and
regulations relating to it; to determine the terms (which need not be identical)
of Award Agreements executed and delivered under the Plan, including such terms
and provisions as shall be requisite in the judgement of the Board to conform to
any change in any law or regulation applicable thereto; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Board's determination on the foregoing matters shall be conclusive.
4.2 Notwithstanding the provisions of paragraph 4.1, the selection of officers
and directors for participation in the Plan and decisions concerning the timing,
pricing and amount of an Award may, at any time and from time to time, be
delegated by the Board of Directors to a committee (the "Committee"). The
Committee shall be not less than two directors and shall be comprised solely of
Non-Employee Directors, as defined by Rule 16b-3(b)(3)(i) of the Securities
Exchange Act of 1934 ("1934 Act"), or any successor definition adopted by the
Securities Exchange Commission, and who shall each also qualify as an Outside
Director for purposes of Section 162(m) of the Code. Any vacancy occurring on
the Committee may be filled by appointment by the Board. The Board at its
discretion may from time to time appoint members to the Committee in
substitution of members previously appointed, may remove members of the
Committee and may fill vacancies, however caused, in the Committee."
5. ELIGIBILITY; FACTORS TO BE CONSIDERED IN GRANTING AWARDS.
5.1 Incentive Stock Options or Non-Qualified Stock Options may be granted to any
person who, at the time the Award is granted, is a regular, salaried employee
(which term shall include officers and Directors who are regular, salaried
employees) of Sono-Tek. A member of the Board of Directors of the Company who is
not also a regular, salaried employee of Sono-Tek, will not be eligible to
receive Incentive Stock Options. Further, no Incentive Stock Options may be
granted hereunder to an individual who, immediately after such Option is
granted, is a Ten Percent Shareholder, unless (i) the option price is at least
110% of the fair market value of such stock on the date of grant and (ii) the
Option may not be exercised more than 5 years after the date of grant. In
determining the employees to whom Awards shall be granted, the number of shares
of Common Stock to be covered by each Award, the term of any Option, and whether
any such Option shall be an Incentive Stock Option, a Non-Qualified Stock
Option, or both, the Board or committee, as the case may be, shall take into
account the duties of the respective employees, their present and potential
contributions to the success of Sono-Tek and such other factors as they shall
deem relevant in connection with accomplishing the purpose of the Plan. An
employee who has been granted an Award may be granted and hold an additional
Award or Awards if the Board or committee so determines.
5.2 Non-Qualified Stock Options may be granted to Non-Employee Directors and
Consultants to the Company. In determining the Non-Employee Directors and
Consultants to whom Awards shall be granted, and the term and the number of
shares of Common Stock to be covered by each Award, the Board or committee shall
take into account the duties of such individuals, their contributions to the
success of the Company, and other such factors as they shall deem relevant in
connection with accomplishing the purpose of the Plan. Such individuals or
organizations may be granted and hold an additional Award or Awards if the Board
or committee so determines.
6. OPTION PRICES.
The purchase price of Common Stock covered by each Option shall be determined by
the Board or committee, as the case may be, but shall not be less than 100% (or
110% in the case of an Incentive Stock Option granted to a Ten Percent
Shareholder) of the fair market value of the Common Stock at the time the Option
is granted. The fair market value shall mean the simple average of the high and
low sales prices of the Common Stock as reported in the report of composite
transactions (or other source designated by the Board or committee) on the date
on which the Option is granted.
7. TERM OF OPTIONS.
The term of each Option shall be for such period as the Board shall determine,
but not more than ten years (or five years in the case of an Incentive Stock
Option granted to a Ten Percent Shareholder) from the date of granting thereof,
and shall be subject to earlier termination as hereinafter provided. If the
original term of any Option is less than ten years (or five years in the case of
an Option granted to a Ten Percent Shareholder) from the date of granting, the
Option, prior to its expiration, may be amended, with the approval of the Board
and the employee, to extend the term so that the term as amended is not more
than ten years (or five years in the case of an Incentive Stock Option granted
to a Ten Percent Shareholder) from the original date of granting of such Option.
To the extent not otherwise prohibited by law, such extension shall not
constitute the grant of a new Option and the purchase price specified in such
Option need not be increased.
8. EXERCISE OF OPTIONS.
8.1 In the case of Awards granted to employees, each Option shall provide that
it may be exercised as to forty-five percent of the total number of shares
covered by such Option on or after the date on which the employee shall have
completed at least one year of Continuous Employment after the Option was
granted, and as to an additional thirty-five percent of the total number of
shares covered by such Option on or after the date on which the employee shall
have completed at least two years of Continuous Employment after the Option was
granted, and as to the final twenty percent of the total number of shares
covered by such Option on or after the date on which the employee shall have
completed at least three years of Continuous Employment after the Option was
granted, so that upon completion of the third year of such Continuous Employment
after granting the Option, the holder will have become entitled to purchase the
entire number of shares covered by the Option; provided that the Board shall
have authority to vary in advance of grant and from time to time after grant,
the period of Continuous Employment which shall be required for the exercise of
Options granted hereunder.
8.2 In the case of Awards granted to Non-Employee Directors each such Option
shall provide that it may be exercised as to one-half the total number of shares
covered by such Option on or after the date in which the Non-Employee Director
shall have completed at least one year of service after the Option was granted
and as to the remainder of the total number of shares covered by such option on
or after the date of which such Non-Employee Director will have completed at
least two years of continued service, provided that the Board shall have the
authority to vary in advance of grant and from time to time after grant the
period of service which shall be required for the exercise of Options granted
hereunder.
8.3 In the case of Awards granted to Consultants, each such Option shall provide
that it may be exercised as to one-half of the total number of shares covered by
such Option one year on or after the date the Option was granted and as to the
remainder of the total number of shares covered by such Option, two years after
the date the Option was granted, provided that the Board shall have the
authority to vary in advance of grant and from time to time after grant the
exercise period of such grant.
8.4 Unless otherwise provided in the Award Agreement, a holder of an Option may
purchase all or from time to time any part of, the shares for which the right to
purchase has accrued to him in accordance with the terms of this paragraph;
provided, however, that an Option shall not be exercised as to fewer than 50
shares, or all the remaining shares covered by the Option, if fewer than 50, at
any one time. The purchase price of the shares as to which an Option shall be
exercised shall be paid in full at the time of exercise. at the election of the
holder of an Option (i) in cash or currency of the United States of America, or
by certified check made payable to the Company in U.S. dollars, (ii) by
tendering to Sono-Tek shares of the Company's Common Stock, then owned at least
six months by him, having a fair market value equal to the cash exercise price
applicable to the purchase price of the shares as to which an Option is being
exercised, or (iii) partly in cash or certified check and partly in shares of
Sono-Tek's Common Stock valued at fair market value. Such fair market value
shall be determined as of the close of the business day immediately preceding
the day on which the Option is exercised, in the manner set forth in paragraph
6. Fractional shares of Common Stock will not be issued. Notwithstanding the
foregoing, the Board shall have the right to modify, amend or cancel the
provisions of clauses (ii) and (iii) above at any time upon prior notice to the
holders of Options. Except as provided in paragraphs 10 and 11 hereof, no Option
may be exercised at any time unless the holder thereof is then a regular
employee of Sono-Tek or any Subsidiary. The holder of an Option shall have none
of the rights of a stockholder with respect to the shares subject to option
until such shares shall have been registered upon the exercise of the Option on
the transfer books of the Company in the name of the person or persons
exercising the Option.
8.5 Notwithstanding any other provision of this Plan or any Option granted
hereunder, any Option granted hereunder and then outstanding shall become
immediately exercisable in full (i) in the event a tender offer or exchange
offer is made by any "person" within the meaning of Section 14 (d) of the
Securities Exchange Act of 1934 (the "Act") or (ii) in the event of a Change in
Control; provided that, if in the opinion of counsel to Sono-Tek the immediate
exercisability of such Option, when taken into consideration with all other
"parachute payments" as defined in Section 280G of the Code, would result in an
"excess parachute payment" as defined in such section, such Option shall not
become immediately exercisable except as and to the extent the Board in its
discretion otherwise determines. For purposes of this Section, a "Change in
Control" shall have occurred if (i) any "person" within the meaning of Section
14 (d) of the Act other than a holder of any Common Stock or Preferred Stock of
the Company on the date this Plan is approved by the Board becomes the
"beneficial owner" as defined in Rule 13d-3 thereunder, directly or indirectly,
of more than 25% of Sono-Tek's Common Stock, (ii) during any two-year period,
individuals who constitute the Board of Directors of Sono-Tek (the "Incumbent
Board") as of the beginning of the period cease for any reason to constitute at
least a majority thereof, provided that any person becoming a member of the
Board of Directors during such period whose election or nomination for election
by Sono-Tek's stockholders was approved by a vote of at least three-quarters of
the Incumbent Board (either by a specific vote or by approval of the proxy
statement of Sono-Tek in which such person is named as a nominee for the Board
of Directors without objection to such nomination) shall be, for purposes of
this clause (ii), considered as though such person were a member of the
Incumbent Board, or (iii) the approval by Sono-Tek's stockholders of the sale of
all or substantially all of the assets of Sono-Tek. The Board may adopt such
procedures as to notice and exercise as may be necessary to effectuate the
acceleration of the exercisability of Options as described above.
8.6 The aggregate fair market value (determined as of the date the Option is
granted) of the stock with respect to which Incentive Stock Options granted
under the Plan and all other stock option plans of Sono-Tek are exercisable for
the first time by any specific individual during any calendar year shall not
exceed $100,000.
9. NONTRANSFERABILITY OF OPTIONS
An Option granted under the Plan shall not be transferable otherwise than by
will or the laws of descent and distribution, and an Option may be exercised,
during the lifetime of the employee, only by him or her.
10. TERMINATION OF EMPLOYMENT
10.1 If an employee receiving an Option shall at any time not be an employee of
Sono-Tek, the Option shall at once terminate, except as provided hereinafter in
this paragraph. In the event that the employment of an employee to whom an
Option has been granted under the Plan shall be terminated (other than
termination by the Company for cause as determined by the Board, or by reason of
retirement, disability or death) such Option may, subject to the provisions of
paragraphs "8" and "11", be exercised, to the extent that the employee was
entitled to do so at the date of termination of his or her employment, at any
time within sixty (60) days after such termination, but in no event after the
expiration of the term of the Option. Options granted under the Plan shall not
be affected by any change of duties or position so long as the holder continues
to be an employee of Sono-Tek.
10.2 If a Non-Employee Director awarded an Option shall at any time cease to be
a Director of the Company, the Option shall at once terminate, except as
provided hereinafter in this paragraph. In the event the Non-Employee Director
awarded an Option under the Plan shall be terminated (other than termination by
the Company for cause as determined by the Board, or by reason of retirement,
disability, or death) such Option may, subject to the provisions of paragraphs
"8" and "11", be exercised, to the extent that the Director was entitled to do
so at the date of termination of his or her service, at any time within six
months after such termination, but in no event after the expiration of the term
of the Option.
10.3 An Option granted to a Consultant may, subject to the provisions of
paragraphs "8", and "11" be exercised, to the extent that the Consultant was
entitled to do so at the date of the termination of his or her consulting
services, at any time within one year after such termination, but in no event
after the expiration of the term of the Option.
11. RETIREMENT, DISABILITY OR DEATH OF EMPLOYEE.
If an employee to whom an Option has been granted under the Plan shall retire
from Sono-Tek at normal retirement date pursuant to any pension plan provided by
Sono-Tek, or if such retirement is earlier than the employee's normal retirement
date, and such retirement is with the prior consent of Sono-Tek, or if an
employee is totally and permanently disabled, such Option may be exercised,
notwithstanding the provisions of paragraphs "8" and "10" hereof, in full
without regard to the period of Continuous Employment after the Option was
granted at any time (a) in the case of an Incentive Stock Option within 90 days
after such retirement or disability retirement, but in no event after the
expiration of the term of the Option or (b) in the case of a Non-Qualified Stock
Option within 5 years after such retirement or disability retirement, but in no
event after the expiration of the term of the Option.
If a person to whom an Option has been granted under the Plan shall die while he
or she is employed by or in the service of Sono-Tek, such Option may be
exercised, subject to the provisions of paragraph "8", to the extent that such
person was entitled to do so at the date of his death, by his executor or
administrator or other person at the time entitled by law to such person's
rights under the Option, at any time within such period, not exceeding one year
after his or her death, as shall be prescribed in the Award Agreement, but in no
event after the expiration of the term of the Option.
12. NO LOANS TO HOLDERS OF OPTIONS.
Neither Sono-Tek, nor any company with which it is affiliated may directly or
indirectly lend money to any person for the purpose of assisting him or her to
acquire or carry shares of the Common Stock issued upon the exercise of Options
granted under the Plan.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Notwithstanding any other provision of the Plan, the Award Agreements may
contain such provisions as the Board shall determine for the adjustment of the
number and class of shares covered by each outstanding Award, the option prices
and the minimum numbers of shares as to which Awards shall be exercisable at any
one time in the event of changes in the outstanding Common Stock by reason of
stock dividends, split-ups, spin-offs, recapitalizations, mergers,
consolidations, combinations or exchanges of shares and the like; and, in the
event of any such change in the outstanding Common Stock, the aggregate number
and class of shares available under the Plan and the maximum number of shares as
to which Awards may be granted to any employee shall be appropriately adjusted.
14. SHARE WITHHOLDING.
With respect to any Award, the Board may, in its discretion and subject to such
rules as the Board may adopt, permit the employee to satisfy, in whole or in
part, any withholding tax obligation which may arise in connection with an Award
by election to have Sono-Tek withhold Common Stock having a fair market value
(calculated in accordance with paragraph "6" on the date the amount of
withholding tax is determined) equal to the amount of the withholding tax.
15. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in the Plan or in any Award granted or Award Agreement entered into
pursuant to the Plan shall confer upon any employee the right to continue in the
employ of Sono-Tek or interfere with the right of Sono-Tek to terminate his or
her employment at any time.
16. TIME OF GRANTING AWARDS.
Nothing contained in the Plan or in any resolution to be adopted by the holders
of voting stock of Sono-Tek shall constitute the granting of any Award
hereunder. An Award pursuant to the Plan shall be deemed to have been granted on
the date on which the name of the recipient and the terms of the Award are
determined by the Board.
17. TERMINATION AND AMENDMENT OF THE PLAN.
Unless the Plan shall have been terminated as hereinafter provided, no Award
shall be granted hereunder after May 20, 2013. The Board of Directors of
Sono-Tek may at any time prior to that date terminate the Plan or make such
modification or amendment of the Plan as it shall deem advisable; provided,
however, that no amendment may be made, without the approval by the holders of a
majority of voting stock of Sono-Tek, except as provided in paragraph 13 hereof,
which would (i) increase the maximum number of shares for which Awards may be
granted under the Plan, (ii) change the manner of determining the minimum option
prices, (iii) extend the period during which an Award may be granted or an
Option exercised, or (iv) amend the requirements as to the class of persons
eligible to receive Awards. No termination, modification, or amendment of the
Plan or of any Award under the Plan, may, without the consent of the person to
whom an Award shall theretofore have been granted, adversely affect the rights
of such person under such Award.
18. GOVERNMENT REGULATIONS.
The Plan and the granting and exercising of Awards thereunder, and the
obligation of Sono-Tek to issue, sell and deliver shares, as applicable, under
such Awards, shall be subject to all applicable laws, rules and regulations. In
particular, and without limiting the generality of the foregoing, as a condition
to the exercise of any Award, the Company may require the holder of an Option to
deliver to the Company (i) a written certificate of the holder (or his personal
representative, as the case may be) to the effect that he is purchasing such
shares for investment and not with a view to the sale or distribution of any
such shares and (ii) such other certificates, representations and agreements of
the holder (or his personal representative, as the case may be) as may be
required under the Plan or as the Company shall also require in order that the
Company may be reasonably assured that the issuance, delivery, and disposition
of such shares are being and will be effected in compliance with the Securities
Act of 1933, as amended (the "Act"), the Rules and Regulations thereunder, other
applicable law, and the rules of each stock exchange upon which the shares of
Common Stock are listed, if any; provided, however, that if the offer and sale
of shares of Common Stock upon exercise of Options granted under the Plan is
registered under the Act, the holder (or his personal representative, as the
case may be) need not furnish the certificate described in clause (i) of this
sentence. Certificates evidencing shares of Common Stock issued upon exercise of
the Option may contain such legends reflecting any restrictions upon sale or
transfer as in the view of counsel to the Company may be necessary to the lawful
and proper issuance of such certificates.
19. SHAREHOLDER APPROVAL.
The Plan shall become effective upon adoption by the Board. The Plan shall be
subject to approval by the affirmative vote of the holders of a majority of all
outstanding shares of capital stock of the Company entitled to vote thereon
within one (1) year before or after adoption of the Plan by the Board. In the
event such shareholder approval is withheld or otherwise not received within the
given time period, the Plan and all options which may have been granted
thereunder shall become null and void.
Exhibit 4.3
SONO-TEK CORPORATION
INCENTIVE STOCK OPTION AGREEMENT UNDER 1993 STOCK INCENTIVE PLAN
THIS AGREEMENT, made as of <>, by and between Sono-Tek
Corporation, a New York corporation with its principal office at 2012 Route 9W,
Building 3, Milton, NY 12547 (the "Company") and <> <>, residing at
<>, <>, <> <>, an employee (the "Optionee") of the
Company as defined in the 1993 Stock Incentive Plan as amended (the "Plan").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company is of the opinion that
the interests of the Company will be advanced by recognizing employees of
outstanding abilities by making it possible for them to purchase shares of the
Company's Common Stock on terms which will give them a more direct and
continuing interest in the future success of the Company's business;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Subject and pursuant to all terms and conditions of the Plan, a copy
of which is annexed hereto as Exhibit A and made a part hereof as though set
forth fully herein, the Company agrees to and does hereby grant to the Optionee
the right and option (the "Option") to purchase all or any part of an aggregate
of <> shares of common stock of the Company, par value $.01 per share
("Common Stock") to be issued as provided in the Plan at the price of <>
per share, subject to adjustment as provided in paragraph 13 of the Plan. If
there should be any conflict between provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan shall control.
2. The Option may not be exercised more than ten (10) years from the
date of grant of this Option and may be exercised during such term only in
accordance with the terms and provisions of the Plan and the terms and
provisions contained herein.
3. The Option is intended to qualify as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code").
4. The Option may be exercised prior to the tenth anniversary of the
date of grant (the "Expiration Date") in installments of not less than 500
shares, unless the Optionee's aggregate number of exercisable Options is for
less than 500 shares, then the Optionee must exercise all remaining shares of
the Option. Each Option shall be exercisable during the respective installment
periods set forth in the Table of Exercise below. The right of exercise shall be
cumulative so that if the Option is not exercised to the maximum extent
permissible during any initial exercise period, it shall be exercisable, in
whole or in part, with respect to all shares not so purchased at any time prior
to the Expiration Date or the earlier termination of the Option.
TABLE OF EXERCISE
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5. The Option granted in this Option Agreement may be exercised in
whole or in part as provided in the Plan by the Optionee's delivering or mailing
to the Company written notice of exercise in the form prescribed by the Board or
by a Committee appointed by the Board to administer the Plan, if any, duly
signed by the Optionee. Such exercise shall be effective upon (a) receipt of
written notice by the Company and (b) payment in full to the Company of the
purchase price upon the exercise of the Option. The Option may not be exercised
if the issuance of shares of Common Stock upon such exercise would constitute a
violation of any applicable Federal or State securities or other law or
regulation.
6. The Company shall deliver, or cause to be delivered, to the Optionee
(or his personal representative, as the case may be) stock certificates for the
number of shares of Common Stock with respect to which the Option is being
exercised, against receipt of payment therefor in full by cash or certified
check (or equivalent form of cash payment as agreed to by the Company) and
delivery of (i) a written certificate of the Optionee (or his personal
representative, as the case may be) to the effect that he is purchasing such
shares for investment and not with a view to the sale or distribution of any
such shares and (ii) such other certificates, representations and agreements of
the Optionee (or his personal representative, as the case may be) as may be
required under the Plan or as the Company shall also require in order that the
Company be reasonably assured that the issuance, delivery and disposition of
such shares are being and will be effected in compliance with the Securities Act
of 1933, as amended (the "Act"), the Rules and Regulations thereunder, other
applicable law, and the rules of each stock exchange upon which the shares of
Common Stock are listed, if any; provided, however, that if the offer and sale
of shares of Common Stock upon exercise of options granted under the Plan is
registered under the Act, the Optionee (or his personal representative, as the
case may be) need not furnish the certificate described in clause (i) of this
sentence. Certificates evidencing shares of Common Stock issued upon exercise of
the Option may contain such legends reflecting any restrictions upon sale or
transfer as in the view of counsel to the Company may be necessary to the lawful
and proper issuance of such certificates. If outstanding shares of the same
class as the shares subject to the option shall be listed on any stock exchange,
the Company shall not be obligated to deliver any shares until such shares have
been listed (or authorized for listing upon official notice of issuance) on each
such stock exchange. The Company shall use its best efforts to effect such
listing. Delivery of the shares of Common Stock may be made at the office of the
Company or at the office of a transfer agent appointed for the transfer of
shares of Common Stock.
7. In addition to and in furtherance of the provisions of the Plan, the
following terms and conditions shall apply to the exercise of the Option:
(a) As this option is, and is intended to be, an Incentive Stock Option
under the Internal Revenue Code of 1986, as amended, in no event shall the
exercise price of the Option be less than 100% of the fair market value of the
shares of Common Stock subject to the Option on the date hereof.
(b) The Option shall not be transferable otherwise than by will or by
the laws of descent and distribution. The Option shall not be subject, in whole
or in part, to attachment, execution or levy of any kind.
(c) The Option shall expire and all rights thereunder shall end at the
expiration of such period (which the Board has set at ten years) after the date
hereof as fixed by the Board, subject in all cases to earlier expiration as
provided in subsections (d) and (e) of this Section 7 in the event of
termination of employment or death.
(d) During the lifetime of the Optionee, the Option shall be
exercisable only by the employee and only while continuously employed by the
Company, except that the Option can be exercised (i) within three months after
the employee retires pursuant to any pension plan provided by Sono-Tek or if
such retirement is earlier than the employee's normal retirement date and such
retirement is with the prior consent of Sono-Tek, or (ii) if disabled (within
the meaning of Section 22 (e) (3) of the Code), within one year of such
disability, or (iii) within 60 days of termination (other than termination for
cause), but, in any case, not later than the end of the period fixed by the
Board in accordance with the provisions of subsection (c) of this Section if and
to the extent the Option was exercisable by him on the last day of such
employment or the last day before his disability began, as the case may be.
Notwithstanding the foregoing, in the event that the Optionee shall be
terminated for cause, all rights as to any outstanding unexercised and unexpired
options or portions thereof shall immediately terminate.
(e) If the Optionee dies within a period during which the Option could
have been exercised by him, the Option may be exercised within 12 months after
his death or such shorter period as the Board may determine (but not later than
the end of the period fixed by the Board in accordance with the provisions of
subsection (c) of this Section 7) by those entitled under his will or the laws
of descent and distribution (the "Recipients"), but only if and to the extent
the Option was exercisable by him immediately prior to his death.
(f) As this is an Incentive Stock Option, in no event shall the
Optionee, immediately after the Option is granted, own capital stock of the
Company or a Subsidiary possessing more than 10% of the total combined voting
power value of all classes of capital stock of the Company, unless the option
price at the time such Incentive Stock Option is granted is at least 110% of the
fair market value of the shares of common stock subject to the Incentive Stock
Option, and this Incentive Stock Option is not exercisable by its terms after
the expiration of five years from the date of grant.
8. The Optionee hereby agrees that if at any time the Company registers
any of its securities under the Act (other than pursuant to a registration
statement on form S-8 or similar or successor form) (a "Public Offering"), and
the representative of the underwriters involved in such registration requires
that the Optionee agree not to sell or otherwise transfer or dispose of his
Option Shares (a "Lock-up Agreement"), then the Optionee shall enter into such a
Lock-up Agreement in such form and on such terms as shall be approved by the
Board of Directors of the Company, which form and terms shall be similar to the
forms and terms of any other Lock-up Agreements entered into by the executive
officers of the Company in connection with such registration.
9. Neither the Optionee nor his legal representative shall be, nor have
any of the rights or privileges of, a shareholder of the Company in respect of
any of the shares of Common Stock issuable upon the exercise of this Option,
unless and until certificates representing such shares shall have been issued
and delivered to the Optionee (or his legal representative).
10. The Option may not be transferred in any manner otherwise than by
will or the laws of descent or distribution and may be exercised during the
lifetime of the Optionee only by him. The terms of this Option shall be binding
upon the Executors, administrators, heirs, successors and assigns of the
Optionee.
Dated as of: <>
Sono-Tek Corporation
2012 Route 9W, Building 3
Milton, NY 12547 ATTEST:
By: _______________
Christopher L. Coccio
Chief Executive Officer
The Optionee hereby acknowledges receipt of a copy of the Plan, and
represents that he is familiar with the terms and provisions thereof and the
terms and provisions of this Option Agreement, including, but not limited to,
the terms and provisions of Section 8 hereof, and the Optionee hereby accepts
Option subject to all the terms and provisions thereof and herein. The Optionee
hereby agrees to accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors, upon any questions arising under the
Plan. The Optionee hereby authorizes the Company to withhold, in accordance with
applicable law, from any compensation payable to him, any taxes required to be
withheld by federal, state or local law as a result of the exercise of the
Option.
Dated as of: ____________________ By: ____________________
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Exhibit 5.1
(Letterhead of David M. Henkoff, Esq.)
February 12, 2004
Sono-Tek Corporation
2012 Route 9W
Milton, New York 12547
Attention: Board of Directors
Re: Registration Statement on Form S-8
Gentlemen:
I have acted as counsel to Sono-Tek Corporation, a New York corporation
(the "Company"), in connection with the filing by the Company with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration of an aggregate of 2,552,562
shares of Common Stock of the Company, par value $.01 per share ("Common
Stock"), underlying options ("Options") which have been or may be granted under
the Sono-Tek Corporation 1993 Stock Incentive Plan and the Sono-Tek Corporation
2003 Stock Incentive Plan (the "Plans").
In connection with this opinion, I have examined originals, or copies
certified or otherwise identified to my satisfaction, of the Certificate of
Incorporation of the Company, as amended, the By-Laws of the Company, as
amended, the minutes and other records of the proceedings of the Board of
Directors and of the stockholders of the Company, the Plans and such other
documents, corporate and public records, agreements, and certificates of
officers of the Company and of public and other officials, and I have considered
such questions of law, as I have deemed necessary as a basis for the opinions
hereinafter expressed. In such examination I have assumed the genuineness of all
signatures and the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents submitted to me as
certified or photostatic copies. As to any facts material to this opinion, I
have relied upon statements and representations of officers and other
representatives of the Company.
Based on and subject to the foregoing, I hereby advise you that, in my
opinion, the issuance of shares of Common Stock upon exercise of any Options in
accordance with the provisions and subject to the conditions set forth in the
agreements pursuant to which the Options were granted (the "Option Agreements")
has been duly authorized and, when the consideration for such shares shall have
been received by the Company and shares shall be issued pursuant to such Options
in accordance with the terms and subject to the conditions set forth in the
Option Agreements, such shares of Common Stock will be legally issued, fully
paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my firm in the Company's
Registration Statement on Form S-8. In giving this consent, I do not hereby
admit that I am included in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ David M. Henkoff
--------------------
David M. Henkoff
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors and Stockholders
of Sono-tek Corporation
We have issued our report dated May 2, 2003, relating to the financial
statements of Sono-tek Corporation for each of the years ended February 28, 2003
and February 28, 2002 appearing in the Company's Form 10-KSB. Such reports have
been incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in this Registration Statement on Form S-8 of the
aforementioned reports.
/s/Radin, Glass & Co., LLP
--------------------------
Certified Public Accountants
New York, New York
February 12, 2004
Exhibit 23.2
Consent of David M. Henkoff, Esq. (included in Exhibit 5.1)
Exhibit 24.1
Power of Attorney (include herein).