-----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, OOriZCW4lRYAulrkSYItoAbhcJNQHV4iU+X+ot+yVBCHjDYMmv2KnoWKws2BIffA n+37xCQvvAJ6QpYicH075Q== 0000950130-98-005656.txt : 19981126 0000950130-98-005656.hdr.sgml : 19981126 ACCESSION NUMBER: 0000950130-98-005656 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19981125 GROUP MEMBERS: BERSHAD STEPHEN W GROUP MEMBERS: SWB HOLDING CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AXSYS TECHNOLOGIES INC CENTRAL INDEX KEY: 0000206030 STANDARD INDUSTRIAL CLASSIFICATION: MOTORS & GENERATORS [3621] IRS NUMBER: 111962029 STATE OF INCORPORATION: DE FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-06258 FILM NUMBER: 98758903 BUSINESS ADDRESS: STREET 1: 910 SYLVAN AVE CITY: ENGLEWOOD CLIFFS STATE: NJ ZIP: 07632 BUSINESS PHONE: 2018711500 MAIL ADDRESS: STREET 2: 910 SYLVAN AVE CITY: ENGLEWOOD CLIFFS STATE: NJ ZIP: 07632 FORMER COMPANY: FORMER CONFORMED NAME: VERNITRON CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BERSHAD STEPHEN W CENTRAL INDEX KEY: 0000923910 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O AXSYS TECHNOLOGIES INC STREET 2: 645 MADISON AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2125935374 MAIL ADDRESS: STREET 1: C/O AXSYS TECHNOLOGIES INC STREET 2: 645 MADISON AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 AMD.3 TO GENERAL STATEMENT OF BENEFICIAL OWNERSHIP SCHEDULE 13D (Rule 13d-101) Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and Amendments Thereto Filed Pursuant to Rule 13d-2(a) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* Axsys Technologies, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 054615 10 9 - -------------------------------------------------------------------------------- (CUSIP Number) Stephen W. Bershad Axsys Technologies, Inc. 910 Sylvan Avenue, Suite 180 Englewood Cliffs, NJ 07632 (201) 871-1500 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 20, 1998 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [_] Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
- ------------------------ ----------------------- CUSIP No. 054615 10 9 13D Page 2 of 7 Pages ------------- --- --- - ------------------------ ----------------------- - ------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Stephen W. Bershad - ------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (SEE INSTRUCTIONS) (b) [X] - ------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) PF, OO - ------------------------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [_] - ------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ------------------------------------------------------------------------------------------------- SOLE VOTING POWER NUMBER OF 7 1,259,691 (See Item 5) SHARES ---------------------------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 -0- (See Item 5) OWNED BY ---------------------------------------------------------------------------- SOLE DISPOSITIVE POWER EACH 9 1,259,691 (See Item 5) REPORTING ---------------------------------------------------------------------------- SHARED DISPOSITIVE POWER PERSON WITH 10 -0- (See Item 5) - ------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,259,691 (See Item 5) - ------------------------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] (SEE INSTRUCTIONS) - ------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 31.4 (See Item 5) - ------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - -------------------------------------------------------------------------------------------------
- ------------------------ ----------------------- CUSIP No. 054615 10 9 13D Page 3 of 7 Pages ------------- --- --- - ------------------------ ----------------------- - ------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) SWB Holding Corporation - ------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (SEE INSTRUCTIONS) (b) [X] - ------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) PF, OO - ------------------------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [_] - ------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------------------------- SOLE VOTING POWER NUMBER OF 7 590,764 (See Item 5) SHARES ---------------------------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 -0- (See Item 5) OWNED BY ---------------------------------------------------------------------------- SOLE DISPOSITIVE POWER EACH 9 590,764 (See Item 5) REPORTING ---------------------------------------------------------------------------- SHARED DISPOSITIVE POWER PERSON WITH 10 -0- (See Item 5) - ------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 590,764 (See Item 5) - ------------------------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] (SEE INSTRUCTIONS) - ------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.8 (See Item 5) - ------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO - -------------------------------------------------------------------------------------------------
AMENDMENT NO. 3 TO SCHEDULE 13D The Reporting Persons hereby amend and restate their Statement on Schedule 13D filed on May 17, 1994, as amended (the "Original Statement"), with respect to the Common Stock, par value $.01 per share ("Common Stock"), of Axsys Technologies, Inc. (formerly known as Vernitron Corporation), a Delaware corporation (the "Company"), as set forth in this Amendment No. 3. The Cusip Number of the Common Stock is 054615 10 9. Prior to the change in name of the Company from Vernitron Corporation to Axsys Technologies, Inc. and a one-for- five reverse stock split of the Common Stock, effective July 25, 1996, the Cusip Number was 924359300. Item 1. Security and Issuer. - ------ ------------------- The class of equity securities to which this Statement on Schedule 13D (the "Statement") relates is the Common Stock, par value $.01 per share of Axsys Technologies, Inc., a Delaware corporation. The address of the principal executive offices of the Company is 910 Sylvan Avenue, Englewood Cliffs, New Jersey, 07632. Item 2. Identity and Background. - ------ ----------------------- This Statement is being filed by each of Stephen W. Bershad and SWB Holding Corporation, a Delaware corporation ("Holding"). The business address of each of Mr. Bershad and Holding is 910 Sylvan Avenue, Englewood Cliffs, New Jersey, 07632. All of the capital stock of Holding is owned by Mr. Bershad. Mr. Bershad is Chairman and Chief Executive Officer of the Company and sole director, President and Treasurer of Holding, which was formed by Mr. Bershad for the purpose of owning Mr. Bershad's investment in the Company. Each of the Reporting Persons is a United States citizen. Neither of the Reporting Persons has during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors, if any), or (b) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. - ------ ------------------------------------------------- The Reporting Persons have previously filed with the Securities and Exchange Commission a Statement on Schedule 13G, dated February 13, 1992, as amended, reporting beneficial ownership of an aggregate of 2,351,086 shares of Common Stock (the "Shares"). The Shares were purchased from Mr. Bershad's personal funds. On May 7, 1994, the Board of Directors of the Company (the "Board of Directors") approved a refinancing of the Company's senior secured indebtedness and, in connection therewith, approved, subject to certain conditions, a rights offering (the "Rights Offering"), pursuant to which holders of its Common Stock would be offered the right to subscribe for and purchase shares of Common Stock at $0.34 per share up to a number of shares having a maximum aggregate offering price of $2,500,000, or 7,352,042 shares of Common Stock. On such date, at the request of the Company, Mr. Bershad and the Company entered into an agreement (the "Standby Purchase Agreement") pursuant to which Mr. Bershad agreed to subscribe for and purchase his pro rata amount of the shares of Common Stock not purchased by other holders, up to a maximum aggregate number of 3,676,471 shares (the "Additional Shares"). The foregoing description of the Standby Purchase Agreement is qualified in its entirety by reference to the terms of the Standby Purchase Agreement, filed as Exhibit 1 to the Original Statement. On June 20, 1994, Mr. Bershad acquired beneficial ownership of an additional 3,334,072 shares of Common Stock pursuant to the Rights Offering, including 1,732,274 shares of Common Stock acquired directly by Holding pursuant to the Rights Offering, for an aggregate purchase price of $1,133,585. The Additional Shares were purchased from Mr. Bershad's personal funds. On July 25, 1996, the Company effected a one-for-five reverse stock split of the Common Stock. On March 17, 1997, Mr. Bershad acquired beneficial ownership of an additional 111,780 shares of Common Stock by tendering shares of Preferred Stock of the Company beneficially owned by him to the Company pursuant to the Company's exchange offer (the "Exchange Offer") made to holders of Preferred Stock pursuant to an Offering Circular, dated February 13, 1997. Pursuant to the Exchange Offer, the Company exchanged on March 17, 1997 newly issued shares of Common Stock for outstanding shares of Preferred Stock at the rate of .75 shares of Common Stock for each outstanding share of Preferred Stock. Financing for the Merger Transaction (as defined in Item 4) is expected to be supplied primarily by senior secured bank borrowings, with the balance, if any, expected to be provided through a combination of debt and/or equity securities. Stephen W. Bershad has had preliminary discussions with various financing sources regarding the availability and possible terms of any such borrowings and securities; however no definitive determination has been made, or agreement entered into, with respect to the terms of the financing for the Merger Transaction. In addition, as of the date of this Amendment No. 3 to Schedule 13D, no Reporting Person has received any legally binding commitment to finance the Merger Transaction. Item 4. Purpose of Transaction. - ------ ---------------------- The information set forth in response to Item 3 of this Statement is incorporated herein by reference. On November 20, 1998, Mr. Bershad made a proposal (the "Proposal") to the Board of Directors to acquire all of the shares of Common Stock not currently owned by the Reporting Persons (the "Public Shares"). The transaction (the "Merger Transaction") would be structured as a cash merger in which each holder of Public Shares would receive $15.00 per share, or an aggregate of approximately $43.0 million, based on the number of Public Shares outstanding as of December 31, 1997. Upon the completion of the Merger Transaction, the Common Stock would cease to be quoted on the Nasdaq National Market and would be deregistered under the Securities Exchange Act of 1934, as amended. The letter from Mr. Bershad to the Board of Directors, dated November 20, 1998, containing the Proposal is attached hereto as Exhibit 3. Page 4 of 7 The Proposal is subject to customary terms and conditions, including (i) execution and delivery of a definitive agreement with the Company with respect to the Merger Transaction, (ii) approval of the Merger Transaction by a special committee of the Company's Board of Directors (the "Special Committee"), the Company's Board of Directors and its shareholders, (iii) receipt of satisfactory financing for the Merger Transaction, (iv) receipt of a fairness opinion from the financial advisor to the Special Committee that indicates that the Merger Transaction is fair from a financial point of view to the holders of Public Shares and (v) the expiration of any applicable waiting period under the Hart- Scott-Rodino Antitrust Improvements Act of 1976. The Company has agreed to reimburse Mr. Bershad for his expenses incurred in pursuing the Proposal. A copy of the agreement relating to such expense reimbursement is attached hereto as Exhibit 4. Mr. Bershad has reserved the right to amend or withdraw the Proposal at any time in his discretion. A copy of the press release issued by the Company on November 20, 1998 relating to the Proposal is attached hereto as Exhibit 5. Except as set forth herein, neither of the Reporting Persons has any plan or proposal which relates to or would result in any of the transactions set forth in Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. - ------ ------------------------------------ The Reporting Persons may be deemed a group within the meaning of Rule 13d-5 under the Exchange Act and, therefore, each Reporting Person may be deemed to be the beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act, of all of the shares of Common Stock beneficially owned by each member of such group, or an aggregate of 1,259,691 shares of Common Stock (the "Shares"), representing (based on the 4,001,188 shares of Common Stock which were issued and outstanding on October 6, 1998 and the portion of options to purchase shares of Common Stock held by any of the Reporting Persons which were then exercisable or become exercisable within 60 days after the date hereof (consisting of a total of 10,880 shares)) approximately 31.4% of the total of the outstanding shares of Common Stock and such portion of such options. The Shares consist of: (i) 590,764 shares of Common Stock owned directly by Holding; (ii) 658,047 shares of Common Stock owned directly by Mr. Bershad and (iii) 10,880 shares subject to options granted under the Company's Long-Term Stock Incentive Plan to Mr. Bershad which are currently exercisable or become exercisable within 60 days after the date hereof. Mr. Bershad may be deemed to beneficially own the shares held by Holding specified in (i) above by virtue of his ownership of 100% of the common stock of Holding. Attached hereto as Exhibits 6, 7, 8 and 9 are Incentive Stock Option Agreements covering the options to purchase Common Stock granted to Mr. Bershad under the Company's Long-Term Stock Incentive Plan. Except as described in this Statement, none of the Reporting Persons has engaged in any transaction in shares of Common Stock in the past 60 days. Item 6. Contracts, Arrangements, Understandings or Relationships with respect - ------ --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- Except as described in this Statement or in the Exhibits to this Statement, none of the Reporting Persons is a party to any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of the company. Item 7. Material To Be Filed as Exhibits. - ------ -------------------------------- The following documents are included in this Statement as Exhibits hereto: 3. Letter, dated November 20, 1998, from Stephen W. Bershad to the Company. 4. Expense Reimbursement Agreement, dated November 24, 1998, between Stephen W. Bershad and the Company. 5. Press release issued by the Company, dated November 20, 1998. 6. Incentive Stock Option Agreement, dated as of October 19, 1994, between Stephen W. Bershad and the Company. 7. Long-Term Stock Incentive Plan Committee Resolution, dated February 11, 1996, amending Incentive Stock Option Agreement, dated as of September 30, 1991, between Stephen W. Bershad and the Company. 8. Incentive Stock Option Agreement, dated as of February 12, 1997, between Stephen W. Bershad and the Company. Page 5 of 7 9. Incentive Stock Option Agreement, dated as of February 27, 1998, between Stephen W. Bershad and the Company. 10. Joint Filing Agreement, dated November 20, 1998, between Stephen W. Bershad and SWB Holding Corporation. Page 6 of 7 SIGNATURES After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this Statement is true, complete and correct. Dated: November 24, 1998 ________________________________________ Stephen W. Bershad SWB Holding Corporation By: ___________________________________ Stephen W. Bershad President Page 7 of 7 Exhibit Index -------------
Exhibit Description Page No. ------- ----------- -------- 3. Letter, dated November 20, 1998, from Stephen W. Bershad to the Company. 4. Expense Reimbursement Agreement, dated November 24, 1998, between Stephen W. Bershad and the Company. 5. Press release issued by the Company, dated November 20, 1998. 6. Incentive Stock Option Agreement, dated as of October 19, 1994, between Stephen W. Bershad and the Company. 7. Long-Term Stock Incentive Plan Committee Resolution, dated February 11, 1996, amending Incentive Stock Option Agreement, dated as of September 30, 1991, between Stephen W. Bershad and the Company. 8. Incentive Stock Option Agreement, dated as of February 12, 1997, between Stephen W. Bershad and the Company. 9. Incentive Stock Option Agreement, dated as of February 27, 1998, between Stephen W. Bershad and the Company. 10. Joint Filing Agreement, dated November 23, 1998, between Stephen W. Bershad and SWB Holding Corporation.
EX-3 2 LETTER DATED 11-20-98 FROM STEPHEN W. BERSHAD EXHIBIT 3 STEPHEN W. BERSHAD 910 Sylvan Avenue ENGLEWOOD CLIFFS, NEW JERSEY 07632 November 20, 1998 Board of Directors of Axsys Technologies, Inc. Gentlemen: I am pleased to submit a proposal to acquire all of the outstanding shares of Common Stock of Axsys Technologies, Inc. (the "Company") that I do not currently directly or indirectly own (the "Public Shares"). The transaction would be structured as a cash merger in which each holder of Public Shares would receive $15.00 per share, or an aggregate of approximately $43.0 million, based on the number of Public Shares outstanding as of December 31, 1997. Upon the completion of the transaction, the Common Stock would cease to be quoted on the Nasdaq National Market and would be deregistered under the Securities Exchange Act of 1934, as amended. As you are aware, I have been a substantial shareholder in the Company since 1986 and currently hold, directly or indirectly, an aggregate of 1,248,811 shares, representing approximately 31% of the outstanding shares of Common Stock. I remain firmly committed to the Company's long-term strategy to become an increasingly focused precision measurement and positioning company. However, I believe that factors affecting the trading market for the Common Stock, such as the Company's limited float and resulting absence of a substantial trading market, as well as market conditions affecting small capitalization stocks generally, have prevented holders of Public Shares from recognizing adequate value for the Public Shares. The proposed transaction would offer what I believe is an attractive, and fair, opportunity for holders of Public Shares to realize cash value for their investment in the Company at a substantial premium over the recent trading prices of the Public Shares. The per share price of $15.00 represents a premium of 38% over the closing market price on Friday, November 20, 1998 of $10-7/8 per share. Consummation of the acquisition would be subject to customary terms and conditions, including (i) execution and delivery of a definitive agreement with the Company with respect to the transaction, (ii) approval of the transaction by a special committee of the Company's Board of Directors (the "Special Committee"), the Company's Board of Directors and its shareholders, (iii) receipt of satisfactory financing for the transaction, (iv) receipt of a fairness opinion from the financial advisor to the Special Committee that indicates that the proposed transaction is fair from a financial point of view to the holders November 12, 1998 - - Page 2 - of Public Shares and (v) the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. I am confident, based on conversations with financing sources familiar with the Company and the proposed transaction, that financing for the transaction will be available on satisfactory terms. My willingness to proceed with the negotiation of the proposed transaction is conditioned upon reaching an agreement with the Company for the reimbursement of transaction expenses. I look forward to working with you and the advisors to the Special Committee to complete this transaction and hope you will give this proposal your prompt attention. I reserve the right to amend or withdraw this proposal at any time in my discretion. Sincerely, /s/ Stephen W. Bershad EX-4 3 EXPENSE REIMBURSEMENT AGREEMENT DATED 11-24-98 EXHIBIT 4 EXPENSE REIMBURSEMENT AGREEMENT THIS EXPENSE REIMBURSEMENT AGREEMENT, dated as of November 24, 1998 (this "Agreement"), by and between Axsys Technologies, Inc. (the "Company") and Stephen W. Bershad. WHEREAS, the Board of Directors of the Company (the "Board") has received a proposal (the "Proposal") from Mr. Bershad, the Chairman and Chief Executive Officer of the Company and the beneficial owner of approximately 31% of the outstanding shares of Common Stock of the Company, for the acquisition by Mr. Bershad, or an entity controlled by him, of all of the outstanding shares of Common Stock of the Company not beneficially owned by him for $15.00 per share payable in cash; and WHEREAS, Mr. Bershad has indicated that his willingness to proceed with the transactions contemplated by the Proposal is conditioned upon the agreement of the Company to reimburse Mr. Bershad for all costs and expenses, including reasonable legal fees and expenses, incurred by him in proceeding with the Proposal. WHEREAS, the Board believes that it is in the interests of the Company and its shareholders for Mr. Bershad to proceed with the Proposal; and WHEREAS, the Board in its entirety and, in addition, the members of the Board constituting the Special Committee for purposes of reviewing the Proposal, has authorized and empowered the officers of the Company to cause the Company to enter into this agreement with Mr. Bershad providing for the payment or reimbursement of all costs and expenses as provided herein: NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows. The Company hereby agrees to pay, or reimburse Mr. Bershad for the payment of, all costs and expenses, including reasonable legal fees and expenses, incurred by or on behalf of Mr. Bershad in connection with the Proposal and the transactions contemplated thereby; provided that in no event shall the Company be obligated to pay an aggregate amount in excess of $300,000 hereunder. The payments to be made or reimbursed hereunder shall be made promptly by the Company upon receipt by the Company of evidence of the incurrence of such expenses, such evidence to be reasonably satisfactory to the Company. This Agreement and the obligations of the parties hereunder shall terminate on the earlier of (i) the date Mr. Bershad advises the Company in writing of the abandonment of the transactions contemplated by the Proposal (subject to the Company's obligation to pay any and all expenses provided for hereunder and incurred by or on behalf of Mr. Bershad in connection with the Proposal up to and including the date of such abandonment) and (ii) the execution of a definitive agreement relating to the transactions contemplated by the Proposal. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have caused this Expense Reimbursement Agreement to be duly executed and delivered as of the 24th day of November, 1998 /s/ Stephen W. Bershad _________________________________________ Stephen W. Bershad AXSYS TECHNOLOGIES, INC. By: /s/ David L. Concannon ____________________________________ David L. Concannon Vice President EX-5 4 PRESS RELEASE DATED 11-20-98 EXHIBIT 5 FOR IMMEDIATE RELEASE Contact: David L. Concannon General Counsel Axsys Technologies, Inc. 201/871-7756 dlc@axsys.com ------------- www.axsys.com ------------- AXSYS TECHNOLOGIES RECEIVES ACQUISITION PROPOSAL Englewood Cliffs, NJ, November 20, 1998 -- Axsys Technologies, Inc. (Nasdaq: AXYS) today announced that its Board of Directors has formed a Special Committee, consisting of Anthony J. Fiorelli, Jr. and Eliot M. Fried, to evaluate a proposal it has received from Stephen W. Bershad, the Chairman and Chief Executive Officer of the Company and the beneficial owner of approximately 31% of the outstanding shares of Common Stock of the Company, for the acquisition by Mr. Bershad, or an entity to be formed by him, of all of the outstanding shares of Common Stock of the Company for $15.00 per share payable in cash. The proposal represents an approximate 38% premium over Friday's closing stock price of $10-7/8. The Special Committee will retain independent investment banking advisers and legal counsel to advise it on the fairness of the offer to the shareholders of the Company other than Mr. Bershad and an entity controlled by Mr. Bershad. The proposal is subject to, among other things, (1) the execution and delivery of a definitive acquisition agreement, (2) receipt of a fairness opinion from the financial adviser to the Special Committee of the Board, (3) receipt of satisfactory financing for the transaction, (4) approval of the proposed transaction by the Special Committee of the Board, the full Board of Directors and the Company's Stockholders (5) the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. There can be no assurance that a definitive acquisition agreement will be executed and delivered or that the proposed transaction will be consummated. Axsys Technologies, Inc. supplies micro-positioning and precision optical products for a variety of markets, including defense, space, digital imaging and electronics capital equipment. The company also produces interconnect devices and distributes precision ball bearings for industrial, consumer and other commercial applications. For more information, contact Axsys Technologies, Inc., 910 Sylvan Avenue, Suite 180, Englewood Cliffs, NJ 07632. (201) 871-1500, FAX (201) 871-7750; web: www.axsys.com ------------- EX-6 5 INCENTIVE STOCK OPTION AGREEMENT DATED 10-19-94 EXHIBIT 6 INCENTIVE STOCK OPTION AGREEMENT -------------------------------- AGREEMENT, dated as of October 19, 1994, by and between Vernitron Corporation, a Delaware corporation (the "Company"), and Stephen W. Bershad, an employee of the Company ("Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its $0.01 par value Common Stock (the "Common Stock"); and WHEREAS, the Company wishes to carry out the Vernitron Corporation Long-Term Stock Incentive Plan (the "Plan"); and WHEREAS, the Stock Incentive Plan Committee of the Company's Board of Directors (the "Committee"), appointed to administer the Plan, has determined that it would be in the best interests of the Company and its shareholders to grant the Option provided for herein to the Optionee as an incentive for increased efforts during his employment with the Company, and has advised the Company thereof and instructed the undersigned officers to issue said Option; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS;PLAN ---------------- Section 1.1 - Definitions - ----------- ----------- Unless otherwise defined herein, capitalized terms used herein shall have their respective meanings specified in the Plan. As used herein, "Cause" means engaging in conduct which is intended in fact to be injurious to the Company or any Subsidiary, monetarily or otherwise, the commission of a felony, or extended absenteeism by Optionee other than for illness, permitted vacation, authorized leaves of absence or Disability. Section 1.2 - Plan - ----------- ---- The terms of the Plan are hereby incorporated by reference and made a part of this Agreement. ARTICLE II GRANT OF OPTION --------------- Section 2.1 - Grant of Option - ----------- --------------- Pursuant to the provisions of the Plan, for good and valuable consideration, on the date hereof the Company hereby irrevocably grants to the Optionee the option to purchase any part or all of an aggregate of the number of shares set forth on the signature page hereof of Common Stock upon the terms and subject to the conditions set forth in this Agreement and the Plan (the "Option"). The Option is intended by the parties hereto to be an Incentive Stock Option. Section 2.2 - Purchase Price - ----------- -------------- The purchase price of the shares of Common Stock covered by the Option shall be $0.83 per share, without commission or other charge. Section 2.3 - Consideration to Company - ----------- ------------------------ In consideration of the granting of this Option by the Company, the Optionee agrees to render faithful and efficient services to the Company. Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at any time for any reason whatsoever, with or without Cause. ARTICLE III PERIOD OF EXERCISABILITY ------------------------ Section 3.1 - Commencement of Exercisability - ----------- ------------------------------ Subject to Section 3.2 hereof and the Plan, the Option shall be and become exercisable as set forth on the signature page hereof Section 3.2 - Expiration of Option - ----------- -------------------- The Option may not be exercised to any extent by anyone after the first to occur of the following events: (a) October 18, 1999 (b) In the event that Optionee ceases to be employed by the Company or any Subsidiary, any outstanding Option held by Optionee shall terminate as follows: (1) If the Optionee's termination of employment is due to his death or Disability, the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of one (1) year following such termination of employment, and shall thereafter terminate; (2) If the Optionee's termination of employment is by the Company or a Subsidiary for Cause, the Option shall terminate on the date of the Optionee's termination of employment; -2- (3) (x) If the Optionee's termination of employment is by the Company or any Subsidiary for any other reason (including an Optionee's ceasing to be employed by a Subsidiary as a result of the sale of such Subsidiary or an interest in such Subsidiary), the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of ninety (90) days following such termination of employment, and shall thereafter terminate; and (y) If the Optionee's termination of employment is by the Optionee (other than as set forth in paragraph (1) above), the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of ten (10) days following such termination of employment and shall thereafter terminate; and (4) If the Optionee's employment terminates due to Disability (as described in paragraph (1) above) or under circumstances described in paragraph (3) above, and the Optionee dies prior to the permissible period of exercise for any outstanding Option then held by the Optionee, the Option (to the extent exercisable at the time of the Optionee's death) shall be exercisable for a period of one (1) year following the Optionee's termination of employment, and shall thereafter terminate. Section 3.3 - Tax Treatment - ----------- ------------- The Optionee acknowledges that, to obtain the tax benefits associated with incentive stock options, the Optionee must make no disposition of the shares acquired upon exercise of the Option within two (2) years from the date the Option was granted or within one (1) year from the date such shares are transferred to the Optionee. ARTICLE IV EXERCISE OF OPTION ------------------ Section 4.1 - Person Eligible to Exercise - ----------- --------------------------- During the lifetime of the Optionee, only he may exercise the Option or any portion thereof. After the death of the Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. Section 4.2 - Partial Exercise - ----------- ---------------- Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that each partial exercise shall be for whole shares only. -3- Section 4.3 - Manner of Exercise - ----------- ------------------ The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company (the "Secretary") of all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion, stating that the Option or portion is thereby exercised upon delivery of such notice; (b) (i) Full payment for the shares in cash with respect to which such Option or portion is exercised; or (ii) With the consent of the Comrnittee, shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate purchase price of the shares with respect to which such Option or portion is exercised; or (iii) Any combination of the consideration provided in the foregoing subparagraphs (i) and (ii); and (c) A bona fide written representation signed by the Optionee or other person then entitled to exercise such Option or portion, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of this subsection (c) and the agreement referred to in the first sentence of this subsection (c); provided, however, that such legend shall not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares; and (d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Section 4.4 - Conditions to Issuance of Stock Certificates - ----------- -------------------------------------------- The shares of stock deliverable upon the exercise of the Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of the Option or portion thereofprior to fulfillment of all of the following conditions: -4- (a) The admission of such shares to listing on all stock exchanges on which such class of stock is then listed; and (b) The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable; and (c) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable. ARTICLE V MISCELLANEOUS ------------- Section 5.1 - Administration - ----------- -------------- The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Option. Section 5.2 - Option Not Transferable - ----------- ----------------------- Neither the Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Shares to Be Reserved - ----------- --------------------- The Company shall at all times during the term of the Option reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. -5- Section 5.4 - Notices - ----------- ------- Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given upon receipt, if personally delivered, or on the fifth business day after the day when enclosed in a properly sealed envelope addressed as aforesaid, deposited (with postage prepaid) in a post office regularly maintained by the United States Postal Service. Section 5.5 - Titles - ----------- ------ Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. Section 5.6 - Notification of Disposition - ----------- --------------------------- The Optionee shall within ten days give notice to the Company of any disposition or other transfer of any shares of stock acquired under this Agreement if such disposition or transfer is made (a) within two (2) years from the date of granting the Option with respect to such shares or (b) within one (1) year after the transfer of such shares to him, and deliver to the Company any amount of federal, state or local income tax withholding required by law. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Optionee in such disposition or other transfer. Section 5.7 - Amendment - ----------- --------- Whether or not any amendment hereof would constitute a modification under Section 425(h)(3) of the Code, this Option Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.9 - Governing Law - ----------- ------------- The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. -6- IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. /s/ Stephen W. Bershad -------------------------- Stephen W. Bershad VERNITRON CORPORATION By: /s/ Stephen W. Bershad ---------------------- Stephen W. Bershad Stephen W. Bershad - ------------------- Optionee 16 Brownell Howland Road. Santa Fe, NM 87501 - -------------------------------------------- Address Optionee's Taxpayer Identification Number: ###-##-#### - ------------ Number of Shares Subject to Option: 21,000 ------ Number of Shares Date ---------------- ---- Exercisability: Up to 8,400 shares Any time after October 18, 1995 and prior to expiration Up to an additional 6,300 Any time after October 18, 1996 shares and prior to expiration Up to an additional 6,300 Any time after October 18, 1997 shares and prior to expiration -7- EX-7 6 LONG TERM STOCK INCENTIVE PLAN DATED 2-11-96 EXHIBIT 7 ACTION BY WRITTEN CONSENT OF THE LONG-TERM STOCK INCENTIVE PLAN COMMITTEE The undersigned, constituting the sole member of the Long-Term Stock Incentive Plan Committee (the "Committee") of the Board of Directors of Axsys Technologies, Inc. a Delaware corporation (the "Company"), does hereby consent to the adoption of the resolutions hereinbelow set forth. WHEREAS, an option (the "Option") to acquire 8,400 shares (the "Option Shares") of common stock of the Company was granted by the Committee as of September 30, 1991, to Stephen W. Bershad (the "Optionee") at an exercise price of $4.15 per share and having an original term ending on September 29, 1996 WHEREAS, it was the intention of the Committee and the Company prior to September 29, 1996 that the Option continue for a term longer than five years; and WHEREAS, under the terms of the Company's Long-Term Stock Incentive Plan (the "Plan"), the Committee has the power to exercise such powers and to perform such acts as it deems necessary and advisable to promote the best interests of the Company with respect to the Plan. BE IT RESOLVED, that (i) the Committee hereby gives effect to its intention to extend the term of the Option until September 29, 2001, (ii) the Option be exercisable as to 40% of the Option Shares at any time after September 29, 1997, as to an additional 30% of the Option Shares at any time after September 29, 1998 and as to an additional 30% of the Option Shares at any time after September 29, 1999, and (iii) all other terms and conditions of the Option shall remain in full force and effect without modification. WHEREAS, the Committee believes it is in the best interests of the Company to grant to each employee and director of the Company listed on Annex A hereto (collectively, the "Grantees") an Incentive Stock Option under the Plan (a "New Option") to acquire the number of shares of Common Stock of the Company set forth opposite each such Grantee's name on Annex A hereto; and WHEREAS the closing bid price per share of Common Stock on February 11, 1997, as reported on the NASDAQ National Market, was $15 per share (the "Closing Per Share Price"). BE IT RESOLVED, that the Committee hereby grants to each Grantee a New Option, to acquire the number of shares of Common Stock set forth opposite his name on Annex A hereto, on substantially the terms set forth in the form of option agreement previously authorized under the Plan, having an exercise price per share equal to the Closing Per Share Price and a term of ten years; provided that the New Option granted to Mr. Bershad shall have a term of five years and an exercise price equal to 110% of the Closing Per Share Price; and provided further that the New Options granted to Messrs. Fiorelli and Fried shall vest immediately. IN WITNESS WHEREOF, the undersigned has executed this Consent as of the 11th day of February, 1997. /s/ Anthony J. Fiorelli, Jr. ____________________________ Anthony J. Fiorelli, Jr. EX-8 7 INCENTIVE STOCK OPTION AGREEMENT DATED 02-12-97 EXHIBIT 8 INCENTIVE STOCK OPTION AGREEMENT -------------------------------- AGREEMENT, dated as of February 12, 1997, by and between Axsys Technologies, Inc., a Delaware corporation (the "Company"), and Stephen W. Bershad, an employee of the Company ("Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its $0.01 par value Common Stock (the "Common Stock"); and WHEREAS, the Company wishes to carry out the Axsys Technologies, Inc. Long-Term Stock Incentive Plan (the "Plan"); and WHEREAS, the Stock Incentive Plan Committee of the Company's Board of Directors (the "Committee"), appointed to administer the Plan, has determined that it would be in the best interests of the Company and its shareholders to grant the Option provided for herein to the Optionee as an incentive for increased efforts during his employment with the Company, and has advised the Company thereof and instructed the undersigned officers to issue said Option; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS; PLAN ----------------- Section 1.1 - Definitions - ----------- ----------- Unless otherwise defined herein, capitalized terms used herein shall have their respective meanings specified in the Plan. As used herein, "Cause" means engaging in conduct which is intended in fact to be injurious to the Company or any Subsidiary, monetarily or otherwise, the commission of a felony, or extended absenteeism by Optionee other than for illness, permitted vacation, authorized leaves of absence or Disability. Section 1.2 - Plan - ----------- ---- The terms of the Plan are hereby incorporated by reference and made a part of this Agreement. ARTICLE II GRANT OF OPTION --------------- Section 2.1 - Grant of Option - ----------- --------------- Pursuant to the provisions of the Plan, for good and valuable consideration, on the date hereof the Company hereby irrevocably grants to the Optionee the option to purchase any part or all of an aggregate of the number of shares set forth on the signature page hereof of Common Stock upon the terrns and subject to the conditions set forth in this Agreement and the Plan (the "Option"). The Option is intended by the parties hereto to be an Incentive Stock Option. Section 2.2 - Purchase Price - ----------- -------------- The purchase price of the shares of Common Stock covered by the Option shall be $16.50 per share, without commission or other charge. Section 2.3 - Consideration to Company - ----------- ------------------------ In consideration of the granting of this Option by the Company, the Optionee agrees to render faithful and efficient services to the Company. Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at any time for any reason whatsoever, with or without Cause. ARTICLE III PERIOD OF EXERCISABILITY ------------------------ Section 3.1 - Commencement of Exercisability - ----------- ------------------------------ Subject to Section 3.2 hereof and the Plan, the Option shall be and become exercisable as set forth on the signature page hereof. Section 3.2 - Expiration of Option - ----------- -------------------- The Option may not be exercised to any extent by anyone after the first to occur of the following events: (a) February 12, 2002 (b) In the event that Optionee ceases to be employed by the Company or any Subsidiary, any outstanding Option held by Optionee shall terminate as follows: (1) If the Optionee's termination of employment is due to his death or Disability, the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of one (1) year following such termination of employment, and shall thereafter terminate; (2) If the Optionee's termination of employment is by the Company or a Subsidiary for Cause, the Option shall terminate on the date of the Optionee's termination of employment: -2 - (3) (x) If the Optionee's termination of employment is by the Company or any Subsidiary for any other reason (including an Optionee's ceasing to be employed by a Subsidiary as a result of the sale of such Subsidiary or an interest in such Subsidiary), the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of ninety (90) days following such termination of employment, and shall thereafter terminate; and (y) If the Optionee's termination of employment is by the Optionee (other than as set forth in paragraph (1) above), the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of ten (10) days following such termination of employment and shall thereafter terminate; and (4) If the Optionee's employment terminates due to Disability (as described in paragraph (1) above) or under circumstances described in paragraph (3) above, and the Optionee dies prior to the permissible period of exercise for any outstanding Option then held by the Optionee, the Option (to the extent exercisable at the time of the Optionee's death) shall be exercisable for a period of one (1) year following the Optionee's termination of employment, and shall thereafter terminate. Section 3.3 - Tax Treatment - ----------- ------------- The Optionee acknowledges that, to obtain the tax benefits associated with incentive stock options, the Optionee must make no disposition of the shares acquired upon exercise of the Option within two (2) years from the date the Option was granted or within one (1) year from the date such shares are transferred to the Optionee. ARTICLE IV EXERCISE OF OPTION ------------------ Section 4.1 - Person Eligible to Exercise - ----------- --------------------------- During the lifetime of the Optionee, only he may exercise the Option or any portion thereof. After the death of the Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. Section 4.2 - Partial Exercise - ----------- ---------------- Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that each partial exercise shall be for whole shares only. -3- Section 4.3 - Manner of Exercise - ----------- ------------------ The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company (the "Secretary") of all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion, stating that the Option or portion is thereby exercised upon delivery of such notice; (b) (i) Full payment for the shares in cash with respect to which such Option or portion is exercised; or (ii) With the consent of the Committee, shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate purchase price of the shares with respect to which such Option or portion is exercised; or (iii) Any combination of the consideration provided in the foregoing subparagraphs (i) and (ii); and (c) A bona fide written representation signed by the Optionee or other person then entitled to exercise such Option or portion, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of this subsection (c) and the agreement referred to in the first sentence of this subsection (c); provided, however, that such legend shall not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares; and (d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Section 4.4 - Conditions to Issuance of Stock Certificates - ----------- -------------------------------------------- The shares of stock deliverable upon the exercise of the Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of the Option or portion thereof prior to fulfillment of all of the following conditions: -4- (a) The admission of such shares to listing on all stock exchanges on which such class of stock is then listed; and (b) The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable; and (c) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion determine to be necessary or advisable. ARTICLE V MISCELLANEOUS ------------- Section 5.1 - Administration - ----------- -------------- The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Option. Section 5.2 - Option Not Transferable - ----------- ----------------------- Neither the Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Shares to Be Reserved - ----------- --------------------- The Company shall at all times during the term of the Option reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. -5- Section 5.4 - Notices - ----------- ------- Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given upon receipt, if personally delivered, or on the fifth business day after the day when enclosed in a properly sealed envelope addressed as aforesaid, deposited (with postage prepaid) in a post office regularly maintained by the United States Postal Service. Section 5.5 - Titles - ----------- ------ Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. Section 5.6 - Notification of Disposition - ----------- --------------------------- The Optionee shall within ten days give notice to the Company of any disposition or other transfer of any shares of stock acquired under this Agreement if such disposition or transfer is made (a) within two (2) years from the date of granting the Option with respect to such shares or (b) within one (1) year after the transfer of such shares to him, and deliver to the Company any amount of federal, state or local income tax withholding required by law. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Optionee in such disposition or other transfer. Section 5.7 - Amendment - ----------- --------- Whether or not any amendment hereof would constitute a modification under Section 425(h)(3) of the Code, this Option Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.9 - Governing Law - ----------- ------------- The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. -6- IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. /s/ Stephen W. Bershad ______________________________ STEPHEN W. BERSHAD AXSYS TECHNOLOGIES, INC. By: /s/ Elliot N. Konopko ___________________________ Stephen W. Bershad - ------------------ Optionee 16 Brownell Howland Road, Santa Fe, NM 87501 - -------------------------------------------- Address Optionee's Taxpayer Identification Number: ###-##-#### - --------------------------- Number of Shares Subject to Option: 2.000 ----- Number of Shares Date ---------------- ---- Exercisability: Up to 800 shares Any time after February 11, 1998 and prior to expiration Up to an additional 600 Any time after February 11, 1999 shares and prior to expiration Up to an additional 600 Any time after February 11, 2000 shares and prior to expiration -7- EX-9 8 INCENTIVE STOCK OPTION AGREEMENT DATED 02-27-98 EXHIBIT 9 INCENTIVE STOCK OPTION AGREEMENT -------------------------------- AGREEMENT, dated as of February 27, 1998, by and between Axsys Technologies, Inc., a Delaware corporation (the "Company"), and Stephen W. Bershad, an employee of the Company ("Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its $0.01 par value Common Stock (the "Common Stock"); and WHEREAS, the Company wishes to carry out the Axsys Technologies, Inc. Long-Term Stock Incentive Plan (the "Plan"); and WHEREAS, the Stock Incentive Plan Committee of the Company's Board of Directors (the "Committee"), appointed to administer the Plan, has determined that it would be in the best interests of the Company and its shareholders to grant the Option provided for herein to the Optionee as an incentive for increased efforts during his employment with the Company, and has advised the Company thereof and instructed the undersigned officers to issue said Option; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS; PLAN ----------------- Section 1.1 - Definitions - ----------- ----------- Unless otherwise defined herein, capitalized terms used herein shall have their respective meanings specified in the Plan. Section 1.2 - Plan - ----------- ---- The terms of the Plan are hereby incorporated by reference and made a part of this Agreement. ARTICLE II GRANT OF OPTION --------------- Section 2.1 - Grant of Option - ----------- --------------- Pursuant to the provisions of the Plan, for good and valuable consideration, on the date hereof the Company hereby irrevocably grants to the Optionee the option to purchase any part or all of an aggregate of the number of shares set forth on the signature page hereof of Common Stock upon the terms and subject to the conditions set forth in this Agreement and the Plan (the "Option"). The Option is intended by the parties hereto to be an Incentive Stock Option. Section 2.2 - Purchase Price - ----------- -------------- The purchase price of the shares of Common Stock covered by the Option shall be $28.256 per share, without commission or other charge. Section 2.3 - Consideration to Company - ----------- ------------------------ In consideration of the granting of this Option by the Company, the Optionee agrees to render faithful and efficient services to the Company. Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at any time for any reason whatsoever, with or without Cause. ARTICLE III PERIOD OF EXERCISABLITY ------------------------ Section 3.1 - Vesting and Excercisability - ----------- -------------------------- Subject to Section 3.2 hereof and the Plan, the Option shall vest in accordance with the number of shares delineated in the "Exercisability" table on the signature page hereof, and shall be and become exercisable as set forth in such table. All such vesting and exercisability limitations shall be waived, however, in the event of a "Change in Control". A "Change in Control" shall mean the consummation of any of the following events: (a) any merger or consolidation of the Company with or into another corporation other than a merger or consolidation in which (i) the Company is the surviving corporation and which does not result in any capital reorganization or reclassification or other change of the then outstanding shares of the Company's stock; or (ii) the Company shareholders own immediately after such merger or consolidation at least 50% of the combined voting power of the surviving corporation, and in either case, in which a majority of the board of directors of the surviving corporation consists of individuals who were members of the Company's Board of Directors immediately prior to such merger or consolidation, or (b) the liquidation or dissolution of the Company, or (c) the sale to a third party of all or substantially all of the assets of the Company pursuant to a plan of liquidation or otherwise, or (d) the acquisition by a third party of more than fifty percent (50%) of the then outstanding voting shares of the Company. Section 3.2 - Expiration of Option - ----------- -------------------- The Option may not be exercised to any extent by anyone after the first to occur of the following events: (a) February 28, 2003 (b) In the event that Optionee ceases to be employed by the Company or any Subsidiary, any outstanding Option held by Optionee shall terminate as follows: -2- (1) If the Optionee's termination of employment is due to death, Disability or retirement, vesting and exercisability limitations are waived and the Option shall be exercisable, in the case of death or Disability, for a period of one (1) year, and in the case of retirement, for ninety (90) days, following such termination of employment, and shall thereafter terminate; (2) If the Optionee's termination of employment is by the Company or a Subsidiary for Cause, the Option shall terminate on the date of the Optionee's termination of employment, provided vested Options remain exercisable for thirty (30) days; (3) (x) If the Optionee's termination of employment is by the Company or any Subsidiary for any other reason (including an Optionee's ceasing to be employed by a Subsidiary as a result of the sale of such Subsidiary or an interest in such Subsidiary), the Option (to the extent exercisable at the time of the Optionee's termination of employment) shall be exercisable for a period of ninety (90) days following such termination of employment, and shall thereafter terminate; and (y) If the Optionee's termination of employment is by the Optionee (other than as set forth in paragraph (1) above), the unvested portion of the Option is forfeited and (to the extent exercisable at the time of the Optionee's termination of employment) the vested portion shall be exercisable for a period of thirty (30) days following such termination of employment and shall thereafter terminate; and (4) If the Optionee's employment terminates due to Disability (as described in paragraph (1) above) or under circumstances described in paragraph (3) above, and the Optionee dies prior to the permissible period of exercise for any outstanding Option then held by the Optionee, the Option shall be exercisable for a period of one (1) year following the Optionee's termination of employment, and shall thereafter terminate. Section 3.3 - Tax Treatment - ----------- ------------- The Optionee acknowledges that, to obtain the tax benefits associated with incentive stock options, the Optionee must make no disposition of the shares acquired upon exercise of the Option within two (2) years from the date the Option was granted or within one (1) year (or, to obtain the maximum tax benefit, 18 months) from the date such shares are transferred to the Optionee. ARTICLE IV EXERCISE OF OPTION ------------------ Section 4.1 - Person Eligible to Exercise - ----------- -------------------------- During the lifetime of the Optionee, only he may exercise the Option or any portion thereof. After the death of the Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. -3- Section 4.2 - Partial Exercise - ----------- ---------------- Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that each partial exercise shall be for whole shares only. Section 4.3 - Manner of Exercise - ----------- ------------------ The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company (the "Secretary") of all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion, stating that the Option or portion is thereby exercised upon delivery of such notice; (b) (i) Full payment for the shares in cash with respect to which such Option or portion is exercised; or (ii) With the consent of the Committee, shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate purchase price of the shares with respect to which such Option or portion is exercised; or (iii) Any combination of the consideration provided in the foregoing subparagraphs (i) and (ii); and (c) A bona fide written representation signed by the Optionee or other person then entitled to exercise such Option or portion, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of this subsection (c) and the agreement referred to in the first sentence of this subsection (c); provided, however, that such legend shall not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares; and (d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. -4- Section 4.4 - Conditions to Issuance of Stock Certificates - ----------- -------------------------------------------- The shares of stock deliverable upon the exercise of the Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of the Option or portion thereof prior to fulfillment of all of the following conditions: (a) The admission of such shares to listing on all stock exchanges on which such class of stock is then listed: and (b) The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable; and (c) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable. ARTICLE V MISCELLANEOUS ------------- Section 5.1 - Administration - ----------- -------------- The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Option. Section 5.2 - Option Not Transferable - ----------- ----------------------- Neither the Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. -5- Section 5.3 - Shares to Be Reserved - ----------- --------------------- The Company shall at all times during the term of the Option reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. Section 5.4 - Notices - ----------- ------- Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given upon receipt, if personally delivered, or on the fifth business day after the day when enclosed in a properly sealed envelope addressed as aforesaid, deposited (with postage prepaid) in a post office regularly maintained by the United States Postal Service. Section 5.5 - Titles - ----------- ------ Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. Section 5.6 - Notification of Disposition - ----------- --------------------------- The Optionee shall within ten days give notice to the Company of any disposition or other transfer of any shares of stock acquired under this Agreement if such disposition or transfer is made (a) within two (2) years from the date of granting the Option with respect to such shares or (b) within one (1) year after the transfer of such shares to him, and deliver to the Company any amount of federal, state or local income tax withholding required by law. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Optionee in such disposition or other transfer. Section 5.7 - Amendment - ----------- --------- Whether or not any amendment hereof would constitute a modification under Section 425(h)(3) of the Code, this Option Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.9 - Governing Law - ----------- ------------- The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. -6- IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. /s/ Stephen W. Bershad ________________________ Stephen W. Bershad AXSYS TECHNOLOGIES, INC. /s/ Louis D. Mattielli By:_____________________ Louis D. Mattielli Vice President Optionee's Name: Stephen W. Bershad ------------------ Optionee's Address: 16 Brownell Howland Road, Santa Fe, NJ 87501 -------------------------------------------- Optionee's Taxpayer Identification Number: ###-##-#### ----------- Number of Shares Subject to Option: 7,500 ----- Number of Shares Date ---------------- ----- Exercisability Up to 1,500 shares Any time after February 27, 1999 and prior to expiration Up to an additional Any time after February 27, 2000 1,500 shares and prior to expiration Up to an additional Any time after February 27, 2001 1,500 shares and prior to expiration Up to an additional Any time after February 27, 2002 3,000 shares and prior to expiration -7- EX-10 9 JOINT FILING AGREEMENT DATED 11-23-98 Exhibit 10 ---------- JOINT FILING AGREEMENT AND POWER OF ATTORNEY The undersigned hereby acknowledge and agree that the foregoing Amendment No. 3 to the statement on Schedule 13D, executed in accordance with and pursuant to the power of attorney set forth below or otherwise, is filed on behalf of each of us executing such documents, by power of attorney or otherwise, and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned by a single joint filing pursuant to Paragraph (k) of Rule 13d-1 of the Securities Exchange Act of 1934 (the "Exchange Act"). The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent it knows or has reason to believe that such information is inaccurate. Each person whose signature appears below hereby constitutes and appoints Stephen W. Bershad his true and lawful attorney-in-fact and agent, for him and in name, place and stead, in any and all capacities, to sign any and all filings on Schedule 13D under the Exchange Act, and any amendment thereto, relating to the securities of AXSYS TECHNOLOGIES, INC., and to file the same with the Securities and Exchange Commission, and hereby grants to such 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, as fully to all intents and purposes as he might or could do, hereby ratifying and confirming all that such attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof in connection with such filings. This agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have caused this Joint Filing Agreement and Power of Attorney to be duly executed and delivered as of the 23rd day of November, 1998 /s/ Stephen W. Bershad _________________________________________ Stephen W. Bershad SWB Holding Corporation By: /s/ Stephen W. Bershad ____________________________________ Stephen W. Bershad President -----END PRIVACY-ENHANCED MESSAGE-----