-----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, PMiq/8vTpBw9qifNCv/auSSITlB8+Yy0qCv8FGqAECL4sFLoQQQU++718pFFQnnr 1NxO4ifrOPerqOBzRKuPzQ== 0001072613-04-000076.txt : 20040122 0001072613-04-000076.hdr.sgml : 20040122 20040122163757 ACCESSION NUMBER: 0001072613-04-000076 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040122 EFFECTIVENESS DATE: 20040122 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOLITRON DEVICES INC CENTRAL INDEX KEY: 0000091668 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 221684144 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-112102 FILM NUMBER: 04537766 BUSINESS ADDRESS: STREET 1: 3301 ELECTRONICS WAY CITY: WEST PALM BEACH STATE: FL ZIP: 33407 BUSINESS PHONE: 4078484311 S-8 1 forms-8_12418.txt SOLITRON DEVICES, INC. FORM S-8 As filed with the Securities and Exchange Commission on January 22, 2004 Registration No. 333-______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------- SOLITRON DEVICES, INC. (Exact Name of Registrant as Specified in Its Charter) ------------- Delaware (State or Other Jurisdiction of Incorporation or Organization) 22-1684144 (I.R.S. Employer Identification No.) 3301 Electronics Way West Palm Beach, Florida 33407 (Address of Principal Executive Offices) (Zip Code) SOLITRON DEVICES, INC. 2000 STOCK OPTION PLAN (Full Title of the Plan) ------------- Shevach Saraf Chairman, President, Chief Executive Officer, Treasurer and Chief Financial Officer 3301 Electronics Way West Palm Beach, Florida 33407 (Name and Address of Agent For Service) (561) 848-4311 (Telephone Number, Including Area Code, of Agent For Service) Copy to: Teddy Klinghoffer, Esq. Akerman Senterfitt One Southeast Third Avenue, 28th Floor Miami, Florida 33131 (305) 374-5600 (305) 374-5095 (Fax) -------------
Calculation of Registration Fee - ------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Title of Each Class of Amount To Be Offering Price Aggregate Offering Amount Of Registration Securities To Be Registered Registered (1) Per Share (2) Price Fee (2) - -------------------------------- ---------------- ------------------ -------------------- ------------------------ Common Stock, $0.01 par value 700,000 shares $1.15 $805,000 $65.12 - ------------------------------------------------------------------------------------------------------------------
- ----------- (1) This Registration Statement shall also cover any additional shares of common stock which become issuable under the 2000 Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of Solitron Devices, Inc.'s outstanding shares of common stock. (2) Calculated solely for the purpose of this offering under Rule 457(h) of the Securities Act of 1933 on the basis of the average high and low prices reported on the over-the-counter bulletin board on January 21, 2004. ================================================================================ Part I Information Required in the Section 10(a) Prospectus The documents containing the information specified in Part I of this Registration Statement will be sent or given to all persons who participate in our 2000 Stock Option Plan (the "2000 Plan") as specified by Rule 428(b)(1) of the Securities Act. These documents are not required to be filed with the Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, 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 with the Commission by us are incorporated by reference herein: Commission Filing (File No. 001-04978) Period Covered or Date of Filing - -------------------------------------- -------------------------------- Annual Report on Form 10-KSB............. Fiscal Year ended February 28, 2003 Quarterly Reports on Form 10-QSB......... Quarters ended May 31, 2003, August 31, 2003 and November 30, 2003 Current Reports on Form 8-K.............. None Description of our common stock contained in Registration Statement on Form 8-A and any amendment or report filed for the purpose of updating such description................ June 20, 1991, as amended on June 20, 2001 All subsequent documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934..... After the date of this prospectus Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law (the "DGCL") permits the Company to indemnify any person who is or was a director, officer, employee and agent, or is or was serving at the request of the Company as a director, officer, employee or agent of another company, partnership, joint venture, trust or other enterprise (each an "Insider") against liability for each such Insider's acts taken in his or her capacity as an Insider in a civil action, suit or proceeding if such actions were taken in good faith and in a manner which the Insider reasonably believed to be in or not opposed to the best interests of the Company, and in a criminal action, suit or proceeding, if the Insider had no reasonable cause to believe his or her conduct was unlawful, including under certain circumstances, suits by or in the right of the Company for any expenses, including attorneys' fees, judgments, fines and amounts paid in settlements and for any liabilities which the Insider may have incurred in consequence of such action, suit or proceeding under conditions stated in said Section 145. The Company's Certificate of Incorporation and By-Laws provide that the Company shall indemnify its directors and officers to the fullest extent authorized by applicable law. As permitted by Section 102(b)(7) of the DGCL, Article 14 of the Company's Certificate of Incorporation provides that a director of the Company will not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability resulting from acts or omissions (i) constituting a breach of the director's duty of loyalty to the Company or its stockholders, (ii) not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) giving rise to liability under Section 174 of the DGCL, as amended, which concerns unlawful payments of dividends, stock purchases or redemption, or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Bylaws permit the Company to secure insurance on behalf of any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise for any expense, judgment, fine or amounts paid in settlement of or incurred by any such person in connection with such indemnification obligations to the fullest extent permitted by applicable law. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits Exhibit No. Exhibits - ----------- -------- 5.1 Opinion of Akerman Senterfitt regarding the legality of the common stock being registered. 10.7 Solitron Devices, Inc. 2000 Stock Option Plan. 23.1 Consent of independent certified public accountants, Berkovits, Lago & Company LLP. 23.2 Consent of Akerman Senterfitt (included in Exhibit 5.1). 24.1 Power of Attorney of certain directors and officers of Solitron Devices (set forth on the signature page of this Registration Statement). 2 Item 9. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection 3 with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of West Palm Beach, State of Florida, on this 22nd day of January, 2004. SOLITRON DEVICES, INC. By: /s/ Shevach Saraf ------------------------------------ Shevach Saraf Chairman, President, Chief Executive Officer, Treasurer and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Shevach Saraf his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, in connection with the registrant's Registration Statement on Form S-8 under the Securities Act of 1933, including to sign the Registration Statement in the name and on behalf of the registrant or on behalf of the undersigned as a director or officer of the registrant, and any and all amendments or supplements to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, 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 intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof. ------------ 5 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Shevach Saraf Chairman, President, Chief January 22, 2004 - --------------------------- Executive Officer, Treasurer Shevach Saraf and Chief Financial Officer /s/ Jacob Davis Director January 22, 2004 - --------------------------- Jacob Davis /s/ Joseph Schlig Director January 22, 2004 - --------------------------- Joseph Schlig 6 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 5.1 Opinion of Akerman Senterfitt regarding the legality of the common stock being registered. 10.7 Solitron Devices, Inc. 2000 Stock Option Plan. 23.1 Consent of independent certified public accountants, Berkovits, Lago & Company LLP. 7 EX-5.1 3 exh5-1_12418.txt OPINION OF AKERMAN SENTERFITT EXHIBIT 5.1 ----------- Opinion of Akerman Senterfitt regarding the legality of the common stock being registered January 22, 2004 Solitron Devices, Inc. 3301 Electronics Way West Palm Beach, FL 33407 Ladies and Gentlemen: We have acted as counsel to Solitron Devices, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act"). Such Registration Statement relates to the registration by the Company of 700,000 shares (the "Shares") of the Company's common stock, $.01 par value per share, issuable pursuant to the Company's 2000 Stock Option Plan (the "2000 Plan"). In connection with the Registration Statement, we have examined, considered and relied upon copies of the following documents: (1) the Company's Certificate of Incorporation and Bylaws, (2) the 2000 Plan, and (3) such other documents and instruments that we have deemed necessary for the expression of the opinions contained herein. In our examination of the aforesaid documents, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents, the authenticity of all documents submitted to us as originals and the conformity to the original documents of all copies. Based upon the foregoing examination, we are of the opinion that the Shares have been duly authorized and, when issued, will be 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 such consent, we do not thereby admit that we are included within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder. Very truly yours, AKERMAN SENTERFITT /s/ Akerman Senterfitt EX-10.7 4 exh10-7_12418.txt 2000 STOCK OPTION PLAN EXHIBIT 10.7 ------------ SOLITRON DEVICES, INC. 2000 STOCK OPTION PLAN 1. ESTABLISHMENT, EFFECTIVE DATE AND TERM SOLITRON DEVICES, INC., a Delaware corporation ("SOLITRON") hereby establishes the "Solitron Devices, Inc. 2000 Stock Option Plan" (the "Plan"). The effective date of the Plan shall be July 10, 2000 (the "Effective Date"), which is the date that the Plan was approved and adopted by the Board of Directors of Solitron (the "Board"). Unless earlier terminated pursuant to Section 16 hereof, the Plan shall terminate on July 9, 2010. 2. PURPOSE The purpose of the Plan is to advance the interests of Solitron by providing Eligible Individuals (as defined in Section 6 below) with an opportunity to acquire or increase a proprietary interest in Solitron, which thereby will create a stronger incentive to expend maximum effort for the growth and success of Solitron and Solitron's subsidiaries, and will encourage such individuals to remain in the employ of Solitron or one or more of its subsidiaries. 3. TYPE OF OPTIONS Each stock option granted under the Plan (an "Option") shall a non-qualified stock option which is not intended to meet the requirements of Section 422 of the Code 4. ADMINISTRATION (a) Board. The Plan shall be administered by the Board, which shall have the full power and authority to take all actions, and to make all determinations required or provided for under the Plan or any Option granted or Option Agreement (as defined in Section 8 below) entered into under the Plan and all such other actions and determinations not inconsistent with the specific terms and provisions of the Plan deemed by the Board to be necessary or appropriate to the administration of the Plan or any Option granted or Option Agreement entered into hereunder. The Board may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Option Agreement in the manner and to the extent it shall deem expedient to carry the Plan into effect and shall be the sole and final judge of such expediency. All such actions and determinations shall be by the affirmative vote of a majority of the members of the Board present at a meeting at which any issue relating to the Plan is properly raised for consideration or without a meeting by written consent of the Board executed in accordance with Solitron's Articles of Incorporation and By-Laws and applicable law. The interpretation and construction by the Board of any provision of the Plan or of any Option granted or Option Agreement entered into hereunder shall be final and conclusive. (b) Committees. The Board may, in its discretion, from time to time appoint one or more committees (the "Committees"). Where appropriate, any reference to the Board in this Plan or an Option Agreement shall also mean such Committees as appointed by the Board. The Board shall appoint a committee consisting of not less than two members of the Board, none of whom shall be an officer or other salaried employee of Solitron, any "subsidiary corporation" of Solitron as defined in Section 424 of the Code (a "Subsidiary") or any "parent corporation" of Solitron as defined in Section 424 of the Code (a "Parent") (Solitron, Parent and Subsidiary are collectively referred to as the "Company"), and each of whom shall qualify in all respects as a "non-employee director" and an "outside director" as defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and an "outside director" for purposes of Section 162(m) of the Code (the "Outside Director Committee"). The Board, in its sole discretion, may provide that the role of the Committees shall be limited to making recommendations to the Board concerning any determinations to be made and actions to be taken by the Board pursuant to or with respect to the Plan, or the Board may delegate to the Committees such powers and authorities related to the administration of the Plan, as set forth in Section 4(a) above, as the Board shall determine, consistent with the Articles of Incorporation and By-Laws of Solitron and applicable law. The Board may remove members, add members, and fill vacancies on the Committees from time to time, all in accordance with Solitron's Articles of Incorporation and By-Laws, and with applicable law. The majority vote of a Committee, or acts reduced to or approved in writing by a majority of the members of a Committee, shall be the valid acts of the Committee. (c) No Liability. No member of the Board or of the Committees shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted or Option Agreement entered into hereunder. (d) Delegation to the Committees. In the event that the Plan or any Option granted or Option Agreement entered into hereunder provides for any action to be taken by or determination to be made by the Board, such action may be taken by or such determination may be made by a Committee if the power and authority to do so has been delegated to such Committee by the Board as provided for in Section 4(b) above. Unless otherwise expressly determined by the Board, any such action or determination by a Committee shall be final and conclusive. 5. COMMON STOCK The capital stock of Solitron that may be issued pursuant to Options granted under the Plan shall be shares of common stock, par value of $0.01 per share, of Solitron (the "Common Stock"), which shares may be treasury shares or authorized but unissued shares. The total number of shares of Common Stock that may be issued pursuant to Options granted under the Plan shall be seven hundred thousand (700,000) shares, subject to adjustment as provided in Section 17 below. If any Option expires, terminates, or is terminated or canceled for any reason prior to exercise in full, the shares of Common Stock that were subject to the unexercised portion of such Option shall be available for future Options granted under the Plan. 6. ELIGIBILITY Options may be granted under the Plan to (i) any employee, officer, or director (employee and non-employee directors) of the Company, and (ii) any independent contractor or consultant performing services for the Company as determined by the Board from time to time on the basis of their importance to the business of Solitron (collectively, "Eligible Individuals"). An individual may hold more than one Option, subject to such restrictions as are provided herein. 7. GRANT OF OPTIONS Subject to the terms and conditions of the Plan, the Board may, at any time and from time to time, prior to the date of termination of the Plan, grant to such Eligible Individuals as the Board may determine ("Optionees"), Options to purchase such number of shares of Common Stock on such terms and conditions as the Board may determine. The date on which the Board approves the grant of an Option (or such later date as is specified by the Board) shall be considered the date on which such Option is granted. Any Option granted to a "covered employee" as defined in Section 162(m)(3) of the Code ("Covered Employee") shall be made by the Outside Director Committee. The maximum number of shares of Common Stock subject to Options that may be granted during any calendar year under the Plan to any Covered Employee shall be two hundred thousand (200,000). 8. OPTION AGREEMENTS All Options granted pursuant to the Plan shall be evidenced by written agreements ("Option Agreements"), to be executed by Solitron and by the Optionee, in such form or forms as the Board shall from time to time determine. Option Agreements covering Options granted from time to time or at the same time need not contain similar provisions; provided, however, that all such Option Agreements shall comply with all terms of the Plan. 9. OPTION PRICE The purchase price of each share of Common Stock subject to an Option (the "Option Price") shall be fixed by the Board and stated in each Option Agreement. 10. TERM AND VESTING OF OPTIONS (a) Option Period. Subject to the provisions of Section 13 hereof, each Option granted under the Plan shall terminate and all rights to purchase shares thereunder shall cease upon the expiration of ten (10) years from the date such Option is granted, or on such date prior thereto as may be fixed by the Board and stated in the Option Agreement relating to such Option. Notwithstanding the foregoing, the Board may in its discretion, at any time prior to the expiration or termination of any Option, extend the term of any such Option for such additional period as the Board in its discretion may determine; provided, however, that in no event shall the aggregate option period with respect to any Option, including the initial term of such Option and any extensions thereof, exceed (10) years. (b) Vesting Each Option Agreement will specify the vesting schedule applicable to Options. Notwithstanding the foregoing, the Board may in its discretion provide that any vesting requirement or other such limitation on the exercise of an Option may be rescinded, modified or waived by the Board, in its sole discretion, at any time and from time to time after the date of grant of such Option, so as to accelerate the time at which the Option may be exercised. 11. MANNER OF EXERCISE AND PAYMENT (a) Exercise. An Option that is exercisable hereunder may be exercised by delivery to Solitron on any business day, at its principal office, addressed to the attention of the Stock Option Administrator, of written notice of exercise, which notice shall specify the number of shares with respect to which the Option is being exercised, and shall be accompanied by payment in full of the Option Price of the shares for which the Option is being exercised, by one or more of the methods provided below. The minimum number of shares of Common Stock with respect to which an Option may be exercised, in whole or in part, at any time shall be the lesser of one hundred (100) shares or the maximum number of shares available for purchase under the Option at the time of exercise. (b) Payment. Payment of the Option Price for the shares of Common Stock purchased pursuant to the exercise of an Option shall be made (i) in cash or in cash equivalents; (ii) to the extent permitted by applicable law and agreed to by the Board in its sole and absolute discretion, through the tender to Solitron of shares of Common Stock, which shares shall be valued, for purposes of determining the extent to which the Option Price has been paid thereby, at their fair market value (determined in the manner described below) on the date of exercise; (iii) to the extent permitted by applicable law and agreed to by the Board in its sole and absolute discretion, by delivering a written direction to Solitron that the Option be exercised pursuant to a "cashless" exercise/sale procedure (pursuant to which funds to pay for exercise of the Option are delivered Solitron by a broker upon receipt of stock certificates from Solitron) or a "cashless" exercise/loan procedure (pursuant to which the Optionees would obtain a margin loan from a broker to fund the exercise) through a licensed broker acceptable to Solitron whereby the stock certificate or certificates for the shares of Common Stock for which the Option is exercised will be delivered to such broker as the agent for the individual exercising the Option and the broker will deliver to Solitron cash (or cash equivalents acceptable to Solitron) equal to the Option Price for the shares of Common Stock purchased pursuant to the exercise of the Option plus the amount (if any) of federal and other taxes that Solitron may, in its judgment, be required to withhold with respect to the exercise of the Option; (iv) to the extent permitted by applicable law and agreed to by the Board in its sole and absolute discretion, by the delivery of a promissory note of the Optionee to Solitron on such terms as the Board shall specify in its sole and absolute discretion; or (v) by a combination of the methods described in clauses (i), (ii), (iii) and (iv). If the Common Stock is then listed on any national securities exchange, the fair market value shall be the closing price of a share of Common Stock on such exchange on the last trading day immediately prior to the date of grant. If the Common Stock is not listed on any such exchange, the fair market value shall be determined in good faith by the Board. Payment in full of the Option Price need not accompany the written notice of exercise if the Option is exercised pursuant to the "cashless" exercise/sale procedure described above. An attempt to exercise any Option granted hereunder other than as set forth above shall be invalid and of no force and effect. (c) Issuance of Certificates. Promptly after the exercise of an Option, the individual exercising the Option shall be entitled to the issuance of a certificate or certificates evidencing his ownership of such shares of Common Stock. An individual holding or exercising an Option shall have none of the rights of a stockholder until the shares of Common Stock covered thereby are fully paid and issued to him and, except as provided in Section 17 below, no adjustment shall be made for dividends or other rights for which the record date is prior to the date of such issuance. 12. TRANSFERABILITY OF OPTIONS Unless otherwise permitted by the Board in its sole and absolute discretion, no Option shall be assignable or transferable by the Optionee to whom it is granted, other than by will or the laws of descent and distribution. 13. TERMINATION OF EMPLOYMENT, DEATH, OR DISABILITY (a) General. Unless otherwise provided in an Option Agreement, upon the termination of the employment or other service of an Optionee with Company, other than by reason of Cause (as defined below), death or "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code) of such Optionee, any Option granted to such Optionee which has vested as of the date upon which the termination occurs shall be exercisable for a period not to exceed thirty (30) days after such termination. Upon such termination the Optionee's unvested Options shall expire and the Optionee shall have no further right to purchase shares of Common Stock pursuant to such unvested Option. Notwithstanding the provisions of this Section 13, the Board may provide, in its discretion, that following the termination of employment or service of an Optionee with Company (for any reason), an Optionee may exercise an Option, in whole or in part, at any time subsequent to such termination of employment or service and prior to termination of the Option pursuant to Section 10(a) above, either subject to or without regard to any vesting or other limitation on exercise imposed pursuant to Section 10(b) above. Unless otherwise determined by the Board, temporary absence from employment or service because of illness, vacation, approved leaves of absence, military service and transfer of employment shall not constitute a termination of employment or service with the Company. (b) Cause. Upon termination of the employment or other service of an Optionee with the Company for Cause, any Option granted to the Optionee shall expire immediately and the Optionee shall have no further right to purchase shares of Common Stock pursuant to such Options. For purposes of the Plan, "Cause" means (i) failure or refusal of the Optionee to perform the duties and responsibilities that the Company requires to be performed by him, (ii) gross negligence or willful misconduct by the Optionee in the performance of his duties, (iii) commission by the Optionee of an act of dishonesty affecting the Company, or the commission of an act constituting common law fraud or a felony, or (iv) the Optionee's commission of an act (other than the good faith exercise of his business judgment in the exercise of his responsibilities) resulting in material damages to the Company. Notwithstanding the above, if an Optionee and the Company have entered into an employment or consulting agreement which defines the term "Cause" for purposes of such employment or consulting agreement, "Cause" shall be defined pursuant to the definition in such employment agreement with respect to such Optionee's Options. The Board shall determine whether Cause exists for purposes of this Plan. (c) Death or Disability. If an Optionee's employment or service with the Company terminates by reason of death or "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code), any Option granted to such Optionee which has vested as of the date upon which the termination occurs shall be exercisable for a period not to exceed one (1) year after such termination. Upon such termination, the Optionee's unvested Options shall expire and the Optionee (and his or her beneficiaries) shall have no further right to purchase shares of Common Stock pursuant to such unvested Option. In the event the Optionee's employment is terminated by reason of death, any vested Options held by such Optionee at the date of such Optionee's death may be exercised, in whole or in part, by the Optionee's estate, the devisee named in the Optionee's valid last will and testament or the Optionee's heir at law who inherits the Option any portion of the Option. 14. USE OF PROCEEDS The proceeds received by Solitron from the sale of Common Stock pursuant to Options granted under the Plan shall constitute general funds of Solitron. 15. REQUIREMENTS OF LAW (a) Violations of Law. The Company shall not be required to sell or issue any shares of Common Stock under any Option if the sale or issuance of such shares would constitute a violation by the individual exercising the Option or the Company of any provisions of any law or regulation of any governmental authority, including without limitation any federal or state securities laws or regulations. Any determination in this connection by the Board shall be final, binding, and conclusive. The Company shall not be obligated to take any affirmative action in order to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. (b) Registration. At the time of any exercise of any Option, the Company may, if it shall determine it necessary or desirable for any reason, require the Optionee (or his or her heirs, legatees or legal representative, as the case may be), as a condition to the exercise thereof, to deliver to the Company a written representation of present intention to purchase the shares for their own account as an investment and not with a view to, or for sale in connection with, the distribution of such shares, except in compliance with applicable federal and state securities laws with respect thereto. In the event such representation is required to be delivered, an appropriate legend may be placed upon each certificate delivered to the Optionee (or his or her heirs, legatees or legal representative, as the case may be) upon his or her exercise of part or all of the Option and a stop transfer order may be placed with the transfer agent. Each Option shall also be subject to the requirement that, if at any time the Company determines, in its discretion, that the listing, registration or qualification of the shares subject to the Option upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of or in connection with, the issuance or purchase of the shares thereunder, the Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to Company in its sole discretion. The Company shall not be obligated to take any affirmative action in order to cause the exercisability or vesting of an Option or to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. (c) Withholding. The Board may make such provisions and take such steps as it may deem necessary or appropriate for the withholding of any taxes that the Company is required by any law or regulation of any governmental authority, whether federal, state or local, domestic or foreign, to withhold in connection with the exercise of any Option, including, but not limited to: (i) the withholding of delivery of shares of Common Stock upon exercise of Options until the holder reimburses the Company for the amount the Company is required to withhold with respect to such taxes, (ii) the canceling of any number of shares of Common Stock issuable upon exercise of such Options in an amount sufficient to reimburse the Company for the amount it is required to so withhold, (iii) withholding the amount due from any such person's wages or compensation due to such person, or (iv) requiring the Optionee to pay the Company cash in the amount the Company is required to withhold with respect to such taxes. (d) Governing Law. This Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. 16. AMENDMENT AND TERMINATION OF THE PLAN The Board may, at any time and from time to time, amend, suspend or terminate the Plan as to any shares of Common Stock as to which Options have not been granted; provided, however, that the approval by a majority of the votes present and entitled to vote at a duly held meeting of the stockholders of Solitron at which a quorum representing a majority of all outstanding voting stock is, either in person or by proxy, present and voting on the amendment, or by written consent in accordance with applicable state law and the Articles of Incorporation and By-Laws of Solitron shall be required for any amendment if approval of such amendment is necessary to comply with federal or state law or with the rules of any stock exchange or automated quotation system on which the Common Stock may be listed or traded. Except as permitted under Section 17 hereof, no amendment, suspension or termination of the Plan shall, without the consent of the holder of the Option, alter or impair rights or obligations under any Option theretofore granted under the Plan. 17. RECAPITALIZATION, REORGANIZATIONS, CHANGE IN CONTROL AND OTHER CORPORATE EVENTS (a) Recapitalization. If the outstanding shares of Common Stock are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of Solitron by reason of any recapitalization, reclassification, reorganization (other than as described in Section 17(b) below), stock split, reverse split, combination of shares, exchange of shares, stock dividend or other distribution payable in capital stock of Solitron, or other increase or decrease in such shares effected without receipt of consideration by Solitron, occurring after the Effective Date, an appropriate and proportionate adjustment shall be made by the Board (i) in the aggregate number and kind of shares of Common Stock available under the Plan, (ii) in the number and kind of shares of Common Stock issuable upon exercise of outstanding Options granted under the Plan, and (iii) in the Option Price per share of outstanding Options granted under the Plan. (b) Reorganization. Unless otherwise provided in an Option Agreement, in the event of a Reorganization (as defined below) of Solitron, the Board may in its sole and absolute discretion, provide on a case by case basis that some or all outstanding Options may become immediately exercisable, without regard to any limitation on exercise imposed pursuant to Section 10(b). In the event of a Reorganization of Solitron, the Board may, in its sole and absolute discretion, provide on a case by case basis that Options shall terminate upon a Reorganization, provided however, that Optionee shall have the right, immediately prior to the occurrence of such Reorganization and during such reasonable period as the Board in its sole discretion shall determine and designate, to exercise any vested Option in whole or in part. In the event that the Board does not terminate an Option upon a Reorganization of Solitron, then each outstanding Option shall upon exercise thereafter entitle the holder thereof to such number of shares of Common Stock or other securities or property to which a holder of shares of Common Stock would have been entitled to upon such Reorganization. For purposes of this Plan a "Reorganization" of an entity shall be deemed to occur if such entity is a party to a merger, consolidation, reorganization, or other business combination with one or more entities in which said entity is not the surviving entity, if such entity disposes of substantially all of its assets, or if such entity is a party to a spin-off, split-off, split-up or similar transaction; provided, however, that the transaction shall not be a Reorganization if Solitron, any Parent or any Subsidiary is the surviving entity. (c) Change in Control. Unless otherwise provided in an Option Agreement, in the event of a Change in Control (as defined below) of Solitron, the Board may, in its sole and absolute discretion, provide on a case by case basis that some or all outstanding Options may become immediately exercisable, without regard to any limitation on exercise imposed pursuant to Section 10(b). In the event of a Change in Control of Solitron, the Board may, in its sole and absolute discretion, provide on a case by case basis that Options shall terminate, provided however, that Optionee shall have the right for a reasonable period as the Board in its sole discretion shall determine and designate, to exercise any vested Option in whole or in part. For purposes of the Plan, a "Change in Control" shall be deemed to occur if any person shall acquire direct or indirect beneficial ownership (whether as a result of stock ownership, revocable or irrevocable proxies or otherwise) of securities of an entity, pursuant to one or more transactions, such that after consummation and as a result of such transaction, such person has direct or indirect beneficial ownership of 50% or more of the total combined voting power with respect to the election of directors of the issued and outstanding securities of Solitron. For purposes of the Plan, a "person" shall mean any person, corporation, partnership, joint venture or other entity or any group (as such term is defined for purposes of Section 13(d) of the Exchange Act), other than a Parent or Subsidiary, "beneficial ownership" shall be determined in accordance with Rule 13d-3 under the Exchange Act. (d) Change in Status of Parent or Subsidiary. Unless otherwise provided in an Option Agreement, in the event of a Change in Control or Reorganization of a Parent or Subsidiary, or in the event that a Parent or Subsidiary ceases to be a Parent or Subsidiary as defined in Section 424 of the Code, the Board may, in its sole and absolute discretion, (i) provide on a case by case basis that some or all outstanding Options held by an optionee employed by or performing service for such Parent or Subsidiary may become immediately exercisable, without regard to any limitation on exercise imposed pursuant to Section 10(b) and/or (ii) treat the employment or other services of an Optionee employed by such Parent or Subsidiary as terminated (and such Optionee shall have the right to exercise his or her Options in accordance with Section 13(a) of the Plan) if such Optionee is not employed by Solitron or any Parent or Subsidiary immediately after such event. (e) Dissolution or Liquidation. Upon the dissolution or liquidation of Solitron, the Plan and all Options outstanding hereunder shall terminate. In the event of any termination of the Plan under this Section 17(e), each individual holding an Option shall have the right, immediately prior to the occurrence of such termination and during such reasonable period as the Board in its sole discretion shall determine and designate, to exercise such Option in whole or in part, whether or not such Option was otherwise exercisable at the time such termination occurs and without regard to any vesting or other limitation on exercise imposed pursuant to Section 10(b) above. (f) Adjustments. Adjustments under this Section 17 related to stock or securities of Solitron shall be made by the Board, whose determination in that respect shall be final, binding, and conclusive. No fractional shares of Common Stock or units of other securities shall be issued pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward to the nearest whole share or unit. (g) No Limitations. The grant of an Option pursuant to the Plan shall not affect or limit in any way the right or power of Solitron to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, consolidate, dissolve or liquidate, or to sell or transfer all or any part of its business or assets. 18. DISCLAIMER OF RIGHTS No provision in the Plan or in any Option granted or Option Agreement entered into pursuant to the Plan shall be construed to confer upon any individual the right to remain in the employ of the Company or to interfere in any way with the right and authority of the Company either to increase or decrease the compensation of any individual, including any Option holder, at any time, or to terminate any employment or other relationship between any individual and the Company. A holder of an Option shall not be deemed for any purpose to be a stockholder of Solitron with respect to such Option except to the extent that such Option shall have been exercised with respect thereto and, in addition, a stock certificate shall have been issued theretofore and delivered to the holder. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as expressly provided in Section 17 hereof. 19. NONEXCLUSIVITY OF THE PLAN The adoption of the Plan shall not be construed as creating any limitations upon the right and authority of the Board to adopt such other incentive compensation arrangements (which arrangements may be applicable either generally to a class or classes of individuals or specifically to a particular individual or individuals) as the Board in its discretion determines desirable, including, without limitation, the granting of stock options or stock appreciation rights other than under the Plan. 20. SEVERABILITY If any provision of the Plan or any Option Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction. 21. NOTICES Any communication or notice required or permitted to be given under the Plan shall be in writing, and mailed by registered or certified mail or delivered by hand, if to Solitron, to its principal place of business, attention: Stock Option Administrator, and if to the holder of an Option, to the address as appearing on the records of the Company. EX-23.1 5 exh23-1_12418.txt CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in Solitron Devices, Inc. 2000 Stock Option Plan's Registration Statement on Form S-8 of our report dated April 29, 2003, relating to the financial statements of Solitron Devices, Inc. included in its Form 10-KSB for the year ended February 28, 2003, filed with the Securities and Exchange Commission and to all references to our firm included in this Registration Statement. /s/ Berkovits, Lago & Company, LLP - ------------------------------------ Berkovits, Lago & Company, LLP Plantation Florida January 15, 2004 -----END PRIVACY-ENHANCED MESSAGE-----