-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D5IF7KLug5v7cLCMc64uUqsBj0VwGLYEvViWSK/wFLkJUglrSvMVPHY5AGZlIwFT /JRaG8c/dKjsGBlhnM//gA== 0001188112-03-000866.txt : 20031121 0001188112-03-000866.hdr.sgml : 20031121 20031121110845 ACCESSION NUMBER: 0001188112-03-000866 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20031121 EFFECTIVENESS DATE: 20031121 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACETO CORP CENTRAL INDEX KEY: 0000002034 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-CHEMICALS & ALLIED PRODUCTS [5160] IRS NUMBER: 111720520 STATE OF INCORPORATION: NY FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-110653 FILM NUMBER: 031017026 BUSINESS ADDRESS: STREET 1: ONE HOLLOW LANE CITY: LAKE SUCCESS STATE: NY ZIP: 11042 BUSINESS PHONE: 5166276000 MAIL ADDRESS: STREET 1: ONE HOLLOW LANE CITY: LAKE SUCCESS STATE: NY ZIP: 11042 FORMER COMPANY: FORMER CONFORMED NAME: ACETO CHEMICAL CO INC DATE OF NAME CHANGE: 19851203 S-8 1 ts8.txt S-8 AS FILED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 2003 REGISTRATION STATEMENT NO. 333-__________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ACETO CORPORATION ----------------- (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) NEW YORK -------- (STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) 11-1720520 ---------- (I.R.S. EMPLOYER IDENTIFICATION NO.) ONE HOLLOW LANE LAKE SUCCESS, NY 11042 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) ACETO CORPORATION 2002 STOCK OPTION PLAN (FULL TITLE OF THE PLAN) LEONARD S. SCHWARTZ PRESIDENT AND CHIEF EXECUTIVE OFFICER ACETO CORPORATION ONE HOLLOW LANE LAKE SUCCESS, NY 11042 (516) 627-6000 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) COPIES TO: HANK GRACIN, ESQ. LEHMAN & EILEN LLP 50 CHARLES LINDBERGH BLVD., SUITE 505 UNIONDALE, NEW YORK 11553 (516) 222-0888
CALCULATION OF REGISTRATION FEE ===================================== =============== =================== ======================== ================= PROPOSED TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION (1) PER SHARE(2) PRICE FEE(3) - ------------------------------------- --------------- ------------------- ------------------------ ----------------- Common Stock, par value $.01, under the 2002 Stock Option Plan 500,000 $17.70 $8,850,000 $814.20 - ------------------------------------- --------------- ------------------- ------------------------ -----------------
(1) Represents shares issuable upon exercise of options granted or available for grant under the 2002 Stock Option Plan of Aceto Corporation, a New York Corporation (the "Registrant"). Each option entitles the holder thereof to purchase one share of the Registrant's common stock, par value $.01 per share. Pursuant to Rule 416, the amount registered hereby includes an indeterminable number of shares of the Registrant's common stock which may become issuable pursuant to the anti-dilution provisions of the plan. (2) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h) and (c) under the Securities Act of 1933, as amended (the "Act"), and represents the average of the high and low sales prices of the Registrant's common stock as reported on the Nasdaq National Market on November 17, 2003. (3) The amount of registration fee is $92.00 per one million in accordance with Section 6(b) of the 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 United States Securities and Exchange Commission are incorporated by reference in this registration statement. (a) Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 2003, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended. (b) Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2003. (c) The description of the Registrant's Common Stock contained in its registration statement on Form S-1 (Registration No. 2-18989) filed with the Commission on January 17, 1962, including amendments thereto. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which deregisters all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Our Certificate of Incorporation eliminates the personal liability of our directors to the fullest extent permitted by Section 402(b) of New York State's Business Corporation Law. Our By-Laws further provide that we will indemnify our officers and directors to the fullest extent permitted by law. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. Item 8. EXHIBITS Exhibit Number Description of Document ------ -------------------------------------------------- 4.1 2002 Stock Option Plan(1) 5.1 Opinion of Lehman & Eilen LLP(1) 15.1 Letter of KPMG LLP re: Unaudited Interim Financial Information(1) 23.1 Consent of KPMG LLP(1) 23.4 Consent of Lehman & Eilen LLP (included in Exhibit 5.1 hereto). - ----------------------------- (1) Filed with this Registration Statement Item 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the 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 this 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 and controlling persons of the Registrant, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Lake Success, New York, on the 20th day of November, 2003. ACETO CORPORATION /s/ Leonard S. Schwartz ----------------------- LEONARD S. SCHWARTZ Chairman, Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the date indicated. Signature Date /s/ Leonard S. Schwartz November 20, 2003 - ----------------------------- Name: LEONARD S. SCHWARTZ Title: Chairman, Chief Executive Officer and President (Principal Executive Officer) /s/ Doug Roth November 20, 2003 - ----------------------------- Name: DOUG ROTH Title: Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Samuel I. Hendler November 20, 2003 - ----------------------------- Name: SAMUEL I. HENDLER Title: Director /s/ Robert A. Wiesen November 20, 2003 - ----------------------------- Name: ROBERT A. WIESEN Title: Director /s/ Stanley H. Fischer November 20, 2003 - ----------------------------- Name: STANLEY H. FISCHER Title: Director /s/ Albert L/ Eilender November 20, 2003 - ----------------------------- Name: ALBERT L. EILENDER Title: Director /s/ Ira S. Kallem November 20, 2003 - ----------------------------- Name: IRA S. KALLEM Title: Director /s/ Hans C. Noetzli November 20, 2003 - ----------------------------- Name: HANS C. NOETZLI Title: Director INDEX TO EXHIBITS Exhibit Number Description of Document ------ ------------------------------------------------ 4.1 2002 Stock Option Plan(1) 5.1 Opinion of Lehman & Eilen LLP(1) 15.1 Letter of KPMG LLP re: unaudited interim financial information(1) 23.1 Consent of KPMG LLP (1) 23.4 Consent of Lehman & Eilen LLP (included in Exhibit 5.1 hereto). - ----------------------------- (1) Filed with this Registration Statement EX-4.1 3 tex4_1-1187.txt EX-4.1 Exhibit 4.1 ACETO CORPORATION 2002 STOCK OPTION PLAN SECTION 1. PURPOSE. Aceto Corporation ("Aceto" or the "Company") hereby establishes the Aceto Corporation 2002 Stock Option Plan. The purposes of the Aceto Corporation 2002 Stock Option Plan (the "Plan"), are to attract, retain and motivate Eligible Participants, as defined below, to compensate them for their contributions to the Company's growth and profit and to encourage them to own the Company's common stock, thereby promoting the interests of the Company and its stockholders. SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have the meanings set forth below: "Affiliate" shall mean (i) any entity that, directly or indirectly, is controlled by the Company; (ii) a subsidiary of the Company; and (iii) any entity in which the Company has a significant equity or business interest, in each case as determined by the Board. "Award" shall mean any Option, Restricted Stock Award, or other stock-based Award. "Award Agreement" shall mean any written instrument or document evidencing any Award, which may, but need not be, executed by an Eligible Participant. "Board" shall mean the Board of Directors of the Company. "Change in Control" shall be deemed to have occurred if: (i) any "person" as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company,) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the voting power of the Company's then outstanding securities; (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board of Directors; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 20% of the combined voting power of the Company's then outstanding securities shall not constitute a change in Control of the Company; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. If any of the events enumerated in clauses (i) through (iv) occur the Board shall determine the effective date of the Change in Control resulting therefrom, for purposes of the Plan. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder. "Committee" shall mean a committee of the Board designated by the Board to make recommendations to the Board with regard to Awards. Until otherwise determined by the Board, the Executive Committee of the Board (which serves as the Executive Compensation Committee) shall be the Committee under the Plan. "Common Stock" shall mean shares of the Company's common stock, $.01 par value. "Eligible Participant" shall mean an employee of the Company or any Affiliate. Such term shall also mean any non-employee director, adviser, consultant or independent contractor to the Company or any Affiliate, and any reference to employment or termination of employment under the Plan shall be deemed to apply to such director, adviser, consultant or independent contractor, for the purpose of the Plan only, as if the services of such person constitute employment services. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Executive Officer" shall mean, at any time, an individual who is an executive officer of the Company within the meaning of Exchange Act Rule 3b-7 promulgated and interpreted by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time, or who is an officer of the Company within the meaning of Exchange Act Rule 16a-1(f) as promulgated and interpreted by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time. "Fair Market Value" of a share of the Company's Common Stock for any purpose on a particular date shall be the last reported sale price per share of Common Stock on the principal stock exchange on which the Common Stock is traded, or if such exchange was closed on such day, or if it was open but no such sale took place on such day, then on the preceding day that the Common Stock was traded on such exchange. "Incentive Stock Option" shall mean an Option which meets the requirements of Section 422 of the Code. "Non-Qualified Stock Option" shall mean an Option which does not meet the requirements of Section 422 of the Code. "Option" shall mean an Incentive Stock Option or Non-Qualified Stock Option. "Participant" shall mean any Eligible Participant selected by the Board to receive an Award under the Plan. "Person" shall mean any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity. "QDRO" shall mean a domestic relations order meeting such requirements as the Committee shall determine, in its sole discretion. "Restricted Stock" shall mean any Share granted under Section 7 of the Plan. "SEC" shall mean the Securities and Exchange Commission or any successor thereto and shall include the staff thereof. "Shares" shall mean shares of the Common Stock, $ .01 par value, of the Company. SECTION 3. ADMINISTRATION. (a) AUTHORITY OF COMMITTEE. The Committee shall, subject to the terms of the Plan and applicable law, make recommendations to the Board with regard to (i) designation of Participants; (ii) the type or types of Awards to be granted to an Eligible Participant; (iii) the number of Shares to be covered by Awards; (iv) terms and conditions of Awards; and (v) unless otherwise expressly provided in the Plan, designations, determination, interpretations, and suggested decisions with respect to the Plan or any Award. (b) AUTHORITY OF BOARD. All Awards under the Plan shall be made by the Board, which shall have full authority to accept, reject or modify any recommendations of the Committee. All designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Board, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder. SECTION 4. SHARES AVAILABLE FOR AWARDS. (a) SHARES AVAILABLE. Subject to adjustment as provided in Section 4(b), the number of Shares with respect to which Awards may be granted under the Plan shall be five hundred thousand (500,000). If, after the effective date of the Plan, any Shares covered by an Award granted under the Plan are forfeited, or if such an Award terminates or is canceled without the delivery of shares, then the Shares covered by such Award, or the number of Shares otherwise counted against the aggregate number of Shares with respect to which Awards may be granted, to the extent of any such forfeiture, termination or cancellation, shall again become Shares with respect to which Awards may be granted. In the event that any Option or other Award granted hereunder is exercised through the delivery of Shares or in the event that withholding tax liabilities arising from such Award are satisfied by the withholding of Shares by the Company, the number of Shares available for Awards under the Plan shall be increased by the number of Shares so surrendered or withheld. (b) ADJUSTMENTS. In the event that any dividend (other than regular dividends) or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares, or other similar corporate transaction or event affects the Shares such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then adjustment shall be made, in such manner as shall be equitable, of (i) the number of Shares with respect to which Awards may be granted, (ii) the number of Shares subject to outstanding Awards, and (iii) the grant or exercise price with respect to any Award, provided, that with respect to any Award no such adjustment shall be made to the extent that such adjustment would be inconsistent with the Plan's meeting the requirements of Section 162(m) of the Code, as from time to time amended. (c) Sources of Shares Deliverable under Awards. Any Shares delivered pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares or of treasury Shares. SECTION 5. ELIGIBILITY. Any employee (including an officer, Executive Officer or director) of the Company or any Affiliate, including any non-employee director, advisor, consultant or independent contractor to the Company or any Affiliate, shall be an Eligible Participant. To the extent the Board deems it necessary, appropriate or desirable to comply with foreign law or practice and to further the purpose of this Plan, the Board may, without amending this Plan, (i) establish rules applicable to Awards granted to Participants who are foreign nationals, are employed outside the United States, or both, including rules that differ from those set forth in this Plan, and (ii) grant Awards to such Participants in accordance with those rules. SECTION 6. STOCK OPTIONS - TERMS AND CONDITIONS. All Options granted under the Plan shall be either Incentive Stock Options or Non-Qualified Stock Options and shall be evidenced by Award Agreements which shall be subject to applicable provisions of the Plan and such other provisions as they may contain including: (a) PRICE. The exercise price per Share shall not be less than 100% of the Fair Market Value of a Share on the date of Award. (b) PERIOD. The Board, upon recommendation of the Committee may establish the term of any Option award under the Plan, provided, however, that an Option shall expire no later than 10 years from the date of Award, and may not be exercisable less than six months from the date it is granted. (c) TIME OF EXERCISE. The Board, upon recommendation of the Committee, may grant Options to Participants with vesting schedules based on the Company's publicly traded share price exceeding predetermined levels for designated periods of time, and/or the passage of time, such that the Option becomes fully exercisable in a series of installments. The Board, upon recommendation of the Committee, may also establish other conditions of exercise and may accelerate the exercisability of any Option granted to a Participant under the Plan. (d) PAYMENT. No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the option price in cash, or its equivalent, or by exchanging Shares owned by the optionee (which are not the subject of any pledge or other security interest), or by a combination of the foregoing, provided that the combined value of all cash and cash equivalents and the Fair Market Value of any such Shares so tendered to the Company as of the date of such tender is at least equal to such option price. (e) EXERCISE. An Option, or portion thereof, shall be exercised by delivery of a written notice of exercise to the Company. A Participant shall not have any of the rights or privileges of the holder of Common Stock until such time as Shares of Common Stock are issued or transferred to the Participant. (f) RESTRICTIONS ON INCENTIVE STOCK OPTIONS. The aggregate Fair Market Value (determined as of the Grant Date) of shares of Common Stock with respect to which all Incentive Stock Options first become exercisable by any grantee in any calendar year under this or another plan of the Company and its Affiliates may not exceed $100,000 or such other amount as may be permitted from time to time under Section 422 of the Code. To the extent that such aggregate Fair Market Value shall exceed $100,000, or other applicable amount, such Options (taking Options into account in the order in which they were granted) shall be treated as Non-Qualified Stock Options. In such case, the corporation may designate the shares of Common Stock that are to be treated as stock acquired pursuant to the exercise of any Incentive Stock Option by issuing a separate certificate for such shares and identifying the certificate as Incentive Stock Option shares in the stock transfer records of the Company. The exercise price of any Incentive Stock Option granted to a grantee who owns (within the meaning of Section 422(b)(6) of the Code, after the application of the attribution rules in Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of shares of the Corporation or its Parent or Subsidiary corporations (within the meaning of Sections 422 and 424 of the Code) shall be not less than 110% of the Fair Market Value of the Common Stock on the grant date and the term of such Option shall not exceed five years. (g) OTHER TERMS AND CONDITIONS. Options may contain such other provisions, not inconsistent with the provisions of the Plan, as the Committee shall determine appropriate from time to time. No Option shall be an Incentive Stock Option unless so designated by the Committee at the time of grant or in the Grant Agreement evidencing such Option. SECTION 7. RESTRICTED STOCK (a) GRANT BY COMPANY. The Board, upon recommendation of the Committee, shall have authority to determine the Participants to whom Shares of Restricted Stock (including Premium Shares, as defined below) shall be granted, the number of Shares of Restricted Stock to be granted to each Participant, and the other terms and conditions of such Awards. (b) PARTICIPANT ELECTION. Each Participant may elect Restricted Stock in lieu of a portion of any annual cash bonus earned by such Participant up to 20% of such annual cash bonus. Such election is a one-time election to be made annually during a Trading Window, as defined in the Company's Trading Policy, with the right to amend the election in writing up to a maximum of two times per fiscal year during Trading Windows only. Such Restricted Stock will vest ratably over a period of years as determined by the Board. Such Restricted Stock may have a premium in shares (the "Premium Shares") greater than the portion of the bonus to be paid in Restricted Shares, as determined by the Board, which Premium Shares shall be delivered to the Participant when the Award is fully vested, provided that the Participant is in the employ of the Company when vesting occurs. (c) TRANSFER RESTRICTIONS. The Company shall deliver certificates for Restricted Shares to the Participant or the Participant's legal representative upon the lapse of all restrictions applicable to such shares of Restricted Stock. (d) PAYMENT. Each share of Restricted Stock shall be paid in Shares, upon the lapse of the restrictions applicable thereto, or otherwise in accordance with the applicable Award Agreement. (e) RIGHTS OF OWNERSHIP. The Participant shall have all rights of ownership to the Restricted Stock, including voting rights, dividends and other distributions paid on or in respect of any Shares of Restricted Stock, except for rights of transfer, which shall not exist until vesting has occurred. SECTION 8. TERMINATION OF EMPLOYMENT. (a) In the event a Participant (other than a Non-Employee Director) shall cease to be employed by the Corporation while he is holding one or more Options, each outstanding Option which is exercisable on the date of such termination shall expire at the earlier of the expiration of its term or one year, unless the Board determines otherwise. Unless otherwise determined by the Board, any portion of an Option held by a Participant (other than a Non-Employee Director) that is not exercisable on the date such Participant's employment terminates shall expire as of such termination date. (b) RESTRICTED STOCK. In the event of a Participant's retirement, permanent and total disability, or death, or in cases of special circumstances, the Board may, when it finds that a waiver would be in the best interest of the Company, waive in whole or in part, any or all remaining restrictions with respect to such Participant's entitlement to shares of Restricted Stock, including any Premium Shares. In the event of a Participant's death while in the employ of the Company, any or all remaining restrictions with respect to such Participant's entitlement to shares of restricted stock shall be deemed waived by the Board. SECTION 9. TERMINATION OF SERVICE AS A DIRECTOR. (a) In the event a Director shall cease to serve as a Director of the Corporation while he or she is holding one or more Options, each outstanding Option which is exercisable as of the date of such termination shall expire at the earlier of the expiration of its term or one year, unless the Board determines otherwise. Unless otherwise determined by the Board, any portion of an Option held by a Director which has not become exercisable as of the date a Director ceases to serve as a Director of the Corporation shall terminate as of such date. SECTION 10. CHANGE IN CONTROL. Notwithstanding any other provision of the Plan to the contrary, upon a Change in Control all outstanding Awards shall vest, become immediately exercisable or payable and have all restrictions lifted as may apply to the type of Award. SECTION 11. AMENDMENT AND TERMINATION. (a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided that no such amendment, alteration, suspension discontinuation or termination shall be made without stockholder approval to: increase the number of shares issuable; reduce the exercise price or otherwise reprice an Option, whether previously granted or to be granted, or extend the termination period of the Plan. The Board, however, may not amend or terminate the Plan without a Participant's consent insofar as it would adversely affect a Participant's rights to previously granted Awards. (b) CANCELLATION. Any Award granted hereunder may be canceled with the approval and agreement of the Participant in consideration of a cash payment or alternative Award made to the holder of such canceled Award equal in value to the Fair Market Value of such canceled Award. SECTION 12. GENERAL PROVISIONS (a) NONTRANSFERABILITY. No Award shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant, except by will or the laws of descent and distribution or pursuant to a QDRO. (b) NO RIGHTS TO AWARDS. No Participant or other Person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards. The terms and conditions of Awards need not be the same with respect to each recipient. (c) SHARE CERTIFICATES. All certificates for Shares or other securities of the Company delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Board may deem advisable under the Plan or the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares or other securities are then listed, and any applicable Federal or state laws, and a legend or legends may be put on any such certificates to make appropriate reference to such restrictions. (d) WITHHOLDING. A Participant may be required to pay to the Company and the Company shall have the right and is hereby authorized to withhold from any Award, from any payment due or transfer made under any Award or under the Plan or from any compensation or other amount owing to a Participant the amount (in cash, or Shares), of any applicable withholding taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. (e) AWARD AGREEMENTS. Each Award hereunder shall be evidenced by an Award Agreement that shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto. (f) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Affiliate. Further, the Company or an Affiliate may at any time dismiss a Participant from employment, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in any Award Agreement. (g) RIGHTS AS STOCKHOLDER. No holder of an Award of stock options or beneficiary of any such Award shall have any rights as a stockholder with respect to such options until he or she has exercised such option and become the holder of Shares. In connection with each grant of Restricted Stock hereunder, the applicable Award shall be entitled to the rights of a stockholder in respect of such Restricted Stock, except for such transfer restrictions as may be applicable thereto. (h) GOVERNING LAW. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan and any Award Agreement shall be determined in accordance with the laws of the State of New York. (i) SEVERABILITY. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any applicable law, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Board, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect. (j) OTHER LAWS. The Company may refuse to issue or transfer any Shares or other consideration under an Award if, it determines that the issuance or transfer of such shares might violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder, or beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless the Board has determined that any such offer, if made, would be in compliance with all applicable requirements of the U.S. federal securities laws any other laws to which such offer, if made, would be subject. (k) NO TRUST FUND CREATED. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other Person. To the extent that any Person acquires rights pursuant to an Award, such rights shall be no greater than the rights of any unsecured general creditor of the Company. (l) NO OBLIGATION TO EXERCISE OPTIONS. The granting of an Option shall impose no obligation upon the Participant to exercise such Option. (m) PLAN EXPENSES. Any expenses of administering this Plan shall be borne by the Company. (n) NO WARRANTY OF TAX EFFECT. Except as may be contained in any Award Agreement, no opinion shall be deemed to be expressed or warranties made as to the effect of foreign, federal, state, or local tax on any Awards. SECTION 13. RESTATEMENT OF SHARE OWNERSHIP GUIDELINES. (a) APPLICABILITY. The Board established the one-time Share ownership guidelines in connection with its adoption of the Company's 1998 Omnibus Equity Award Plan. These guidelines are restated in paragraph 13 (d) below. These guidelines are applicable to the Chief Executive Officer of the Company ("CEO") and to managerial Participants designated by the Board (together, "Designated Participants"). (b) MEASUREMENT. Share ownership guidelines are in terms of the Fair Market Value of Shares to be owned relative to the positions held and the base salaries of the Designated Participants. Ownership levels and guidelines will be reviewed (and if advisable modified) by the Board (upon recommendation of the Committee) periodically, based on internal reports and overall operations of the Company. (c) TARGETED LEVELS. Designated Participants will either from inception of the Company's 1998 Omnibus Equity Award Plan or commencement of employment have five years to reach the targeted guideline levels of Share ownership set forth in Paragraph 13 (d) below (except, that if a Designated Participant's Base Salary is increased from under $100,000 to $100,000 or more, such Participant will have only three years from the date of the increase in Base Salary to reach the targeted guideline level of share ownership), which levels can be changed, modified, or suspended by the Board. Restricted Stock awarded to a Participant shall be included in calculating Shares owned. (d) GUIDELINES. The one-time share ownership guidelines are as follows: (i) The CEO shall at all times own Shares with a Fair Market Value equal to two times his or her Base Salary. (ii) All other Designated Participants with a Base Salary of less than $100,000 shall at all times own Shares with a Fair Market Value equal to one-half his or her Base Salary. (iii) All other Designated Participants with a Base Salary of $100,000 or more shall at all times own Shares with a Fair Market Value equal to his or her Base Salary. SECTION 14. EFFECTIVE DATE; TERMINATION DATE The Plan is effective as of September 5, 2002, the date on which the Plan was adopted by the Board, subject to approval of the shareholders within twelve months of such date. Unless previously terminated, the Plan shall terminate on the close of business on September 5, 2012, ten years from its effective date. Subject to other applicable provisions of the Plan, all Options granted under the Plan prior to termination of the Plan shall remain in effect until such Options have been satisfied or terminated in accordance with the Plan and the terms of such Options. EX-5.1 4 tex5_1-1187.txt EX-5.1 Exhibit 5.1 LEHMAN & EILEN LLP 50 Charles Lindbergh Blvd. Suite 505 Uniondale, NY 11553 (516)222-0888 November 20, 2003 The Board of Directors Aceto Corporation One Hollow Lane Lake Success, NY 11042 Re: Registration Statement on Form S-8 Gentlemen: We are counsel to Aceto Corporation, a New York Corporation (the "Company"), in connection with the filing by the Company with the Unites States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of a registration statement on Form S-8 (the "Registration Statement") relating to 500,000 shares (the "Shares") of the Company's common stock, par value $.01, issuable upon the exercise of options granted pursuant to the Company's 2002 Stock Option Plan (the "2002 Plan"). We have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the Certificate of Incorporation and By-Laws of the Company, as each is currently in effect, the Registration Statement, the 2002 Plan, resolutions of the Board of Directors of the Company relating to the adoption of the 2002 Plan and the proposed registration and issuance of the Shares and such other corporate documents and records and other certificates, and we have made such investigations of law as we have deemed necessary or appropriate in order to render the opinions hereinafter set forth. In our examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. Based upon and subject to the foregoing, we are of the opinion that the Shares to be issued upon exercise of any options duly granted pursuant to the terms of the 2002 Plan have been duly and validly authorized and, when the Shares have been paid for in accordance with the terms of the 2002 Plan, such Shares will be duly and validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, LEHMAN & EILEN LLP By: /s/ Hank Gracin --------------- Hank Gracin, Partner EX-15.1 5 tex15_1-1187.txt EX-15.1 Exhibit 15. 1 INDEPENDENT AUDITORS' AWARENESS LETTER November 20, 2003 The Board of Directors Aceto Corporation Lake Success, New York Re: REGISTRATION STATEMENT FOR ACETO CORPORTION ON FORM S-8 DATED NOVEMBER 20, 2003 With respect to the subject registration statement, we acknowledge our awareness of the use therein of our report dated November 12, 2003 related to our review of interim financial information. Pursuant to Rule 436 under the Securities Act of 1933 (the "Act"), such report is not considered part of a registration statement prepared or certified by an accountant, or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Act. /s/ KPMG LLP Melville, New York EX-23.1 6 tex23_1-1187.txt EX-23.1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Aceto Corporation: We consent to the use of our report dated August 26, 2003, with respect to the consolidated balance sheets of Aceto Corporation and subsidiaries as of June 30, 2003 and 2002, and the related consolidated statements of income, shareholders' equity and comprehensive income (loss), cash flows and the related financial statement schedule for each of the years in the three-year period ended June 30, 2003, incorporated herein by reference. Our report contains an explanatory paragraph indicating that the Company adopted Statement of Financial Accounting Standards (Statement) No. 141, "Business Combinations" and Statement No. 142, "Goodwill and Other Intangible Assets", as of July 1, 2002. /s/ KPMG LLP Melville, New York November 20, 2003 -----END PRIVACY-ENHANCED MESSAGE-----