-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Up9ZJNHzE06tfQowp+Hrori+XHbUp14g6EpiSbrTsumkLbUgqWFhUhMq1QcyLl0z z+IaJO7w66MLoXZmZjywPQ== 0000950152-95-000064.txt : 19950608 0000950152-95-000064.hdr.sgml : 19950608 ACCESSION NUMBER: 0000950152-95-000064 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19950127 EFFECTIVENESS DATE: 19950215 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WAXMAN INDUSTRIES INC CENTRAL INDEX KEY: 0000105096 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-HARDWARE & PLUMBING & HEATING EQUIPMENT & SUPPLIES [5070] IRS NUMBER: 340899894 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-57477 FILM NUMBER: 95503546 BUSINESS ADDRESS: STREET 1: 24460 AURORA RD CITY: BEDFORD HEIGHTS STATE: OH ZIP: 44146 BUSINESS PHONE: 2164391830 MAIL ADDRESS: STREET 1: 24460 AURORA ROAD CITY: BEDFORD HEIGHTS STATE: OH ZIP: 44146 S-8 1 WAXMAN INDUSTRIES, INC. 1 As filed with the Securities and Exchange Commission on January 27, 1995. Registration No. 33- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________________ WAXMAN INDUSTRIES, INC. (Exact name of issuer as specified in its charter) Delaware 34-0899894 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) Number) 24460 Aurora Road Bedford Heights, Ohio 44146 (Address of principal executive offices) (Zip Code) _________________________ 1992 NON-QUALIFIED AND INCENTIVE STOCK OPTION PLAN OF WAXMAN INDUSTRIES, INC., WAXMAN INDUSTRIES, INC. 1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS, AND EMPLOYEE STOCK PURCHASE PLAN OF WAXMAN INDUSTRIES, INC. (Full titles of the Plans) _________________________
Armond Waxman Scott M. Zimmerman, Esq. President and Co-Chief Shereff, Friedman, Hoffman Executive Officer & Goodman, LLP Waxman Industries, Inc. 919 Third Avenue 24460 Aurora Road New York, New York 10022 Bedford Heights, Ohio 44146 (212) 758-9500 (216) 439-1830
(Name, address and telephone number, including area code, of agents for service) CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------ Proposed Title of Maximum Proposed Maximum Securities Amount Offering Price Aggregate Amount of to be Registered to be Registered(1) Per Share(2) Offering Price(2) Registration Fee - ------------------------------------------------------------------------------------------------------------------ Common Stock, par value $0.01 per share 2,850,000 shares $1.0625 $3,028,125 $1,044.18 - ------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416, this Registration Statement also covers such additional securities as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h), on the basis of the average of the high and low prices of the Registrant's Common Stock as quoted on the New York Stock Exchange on January 26, 1995. 1 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference --------------------------------------- The following documents, which have been filed by Waxman Industries, Inc., a Delaware corporation (the "Registrant"), with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1994 (the "1994 Form 10-K"), which is the Registrant's latest Annual Report on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and which contains audited financial statements for the Registrant's latest fiscal year for which a Form 10-K was required to have been filed. (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarter ended September 30, 1994. (c) The description of the Registrant's Common Stock, par value $0.01 per share, which is contained in a registration statement filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the time of filing of such documents. Item 4. Description of Securities. ------------------------- Not applicable. Item 5. Interest of Named Experts and Counsel. ------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- The Certificate of Incorporation of the Registrant provides that each person who is a party to or involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she was a director or officer of the Registrant, shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the Delaware General Corporation Law against all expense, liability and loss reasonably incurred by such person in connection therewith. The Certificate of Incorporation provides that the right to indemnification contained therein is a contract right and includes the right to be paid by the Registrant the expenses -2- 3 incurred in defending any such proceeding in advance of its final disposition; provided, however, that if the Delaware General Corporation Law requires, the payment of such expenses incurred in advance of the final disposition of a proceeding shall be made only upon delivery to the Registrant of an undertaking to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified. The Registrant maintains directors' and officers' liability insurance covering certain liabilities incurred by the directors and officers of the Registrant in connection with the performance of their duties. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits -------- The following exhibits are filed as part of this registration statement: 4.1* 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. (Incorporated by reference to Exhibit 10.7 to the Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1993, File No. 0-5888). 4.2 Amendment No. 1 to 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. 4.3 Waxman Industries, Inc. 1994 Stock Option Plan for Non-Employee Directors 4.4 Employee Stock Purchase Plan of Waxman Industries, Inc. 5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP. 23.1 Consent of Independent Public Accountants 23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in Exhibit 5.1). 24 Power of Attorney (included in signature page to this registration statement). _________________________ *Incorporated by reference as indicated. 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; -3- 4 (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement: PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (ii) do not apply if the registration statement is on Form S-3 or S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. - 4 - 5 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 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 Cleveland, State of Ohio, on this 27th day of January, 1995. WAXMAN INDUSTRIES, INC. By: /s/ Neal R. Restivo ------------------------------- Neal R. Restivo Senior Vice President and Chief Financial Officer KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose signature appears below constitutes and appoints Neal R. Restivo and Armond Waxman, and each of them (with full power of each of them to act alone), his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and on his behalf, and in his name, place and stead, in any all capacities to execute and sign any and all amendments or post-effective amendments to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof and the Registrant hereby confers like authority on its behalf. Pursuant to the requirements of the Securities Act 1933, the Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Melvin Waxman Chairman of the Board, Co-Chief January 27, 1995 - ----------------------------- Executive Officer and Director Melvin Waxman /s/ Armond Waxman President, Co-Chief Executive January 27, 1995 - ----------------------------- Officer and Director Armond Waxman /s/ Neal R. Restivo Senior Vice President and Chief January 27, 1995 - ----------------------------- Financial Officer (principal Neal R. Restivo financial and accounting officer) /s/ Samuel J. Krasney Director January 27, 1995 - ----------------------------- Samuel J. Krasney /s/ Irving Z. Friedman Director January 27, 1995 - ----------------------------- Irving Z. Friedman /s/ Judy Robins Director January 27, 1995 - ----------------------------- Judy Robins
- 5 - 6 WAXMAN INDUSTRIES, INC. FORM S-8 REGISTRATION STATEMENT EXHIBIT INDEX
SEQUENTIALLY NUMBERED EXHIBIT PAGE - ------- ------------ 4.1* 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. (Incorporated by reference to Exhibit 10.7 to the Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1993, File No. 0-5888). 4.2 Amendment No. 1 to 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. 4.3 Waxman Industries, Inc. 1994 Stock Option Plan for Non-Employee Directors. 4.4 Employee Stock Purchase Plan of Waxman Industries, Inc. 5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP. 23.1 Consent of Independent Public Accountants 23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in Exhibit 5.1). 24 Power of Attorney (included in signature page to this registration statement).
_________________________ *Incorporated by reference as indicated. - 6 - EX-4.2 2 EXHIBIT 4.2 1 EXHIBIT 4.2 Amendment No. 1 to 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. 2 Amendment No. 1 to 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. Section 3 of the 1992 Non-Qualified and Incentive Stock Option Plan of Waxman Industries, Inc. is hereby amended and restated in its entirety to read as follows: "3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon the exercise of Options to be granted from time to time under the Plan, an aggregate of 1,500,000 Shares, which Shares may be, in whole or in part, as the Board shall from time to time determine, authorized but unissued Shares, or issued Shares which shall have been reacquired by the Company. Any Shares subject to issuance upon exercise of Options but which are not issued because of a surrender, lapse, expiration or termination or any such Option prior to issuance of the Shares shall once again be available for issuance in satisfaction of Options. The maximum number of Shares which may be issued pursuant to, or by reason of, Options awarded to any participant is 750,000 Shares." EX-4.3 3 EXHIBIT 4.3 1 EXHIBIT 4.3 WAXMAN INDUSTRIES, INC. 1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS 2 WAXMAN INDUSTRIES, INC. 1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS 1. NAME. The name of this plan is the Waxman Industries, Inc. 1994 Stock Option Plan for Non-Employee Directors. 2. PURPOSE. The purpose of the Plan is to enable the Company to secure non-employee persons of requisite experience and ability to serve on the Board, to motivate Non-Employee Directors to exert their best efforts on behalf of the Company, thus enhancing the value of the Company for the benefit of the Company's stockholders. 3. DEFINITIONS. For the purposes of the Plan, the following terms shall be defined as set forth below: (a) "Award" means a grant of options to a Participant pursuant to Section 8 of the Plan. (b) "Award Agreement" means the written agreement between the Company and the Participant that contains the terms and conditions pertaining to the grant of options. (c) "Board" means the Board of Directors of the Company. (d) "Change in Control" means a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act (as in effect on the date the Plan is adopted by the Board), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a Change in Control shall be deemed to have occurred if: (i) any "person" (as defined in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of the Company's then outstanding securities; provided, however, that no Change of Control shall be deemed to have occurred if 3 prior to the acquisition of such thirty percent (30%) of the combined voting power of the Company's then outstanding securities, a majority of the Continuing Directors approve such acquisition; or (ii) if there shall cease to be a majority of the Board comprised of Continuing Directors; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least eighty percent (80%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company or all or substantially all the Company's assets. Notwithstanding anything in this Section 3 to the contrary, an event or occurrence (or a series of events or occurrences) which would otherwise constitute a Change in Control under the foregoing shall not constitute a Change in Control for purposes of this Plan if the Board, by majority vote, determines that a Change in Control does not result therefrom; but only if Continuing Directors constitute a majority of the directors voting in favor of such determination. Further, an event or occurrence (or a series of events or occurrences) which would not otherwise constitute a Change in Control under the foregoing shall be deemed to constitute a Change in Control for purposes of this Plan if the Board, by majority vote, determines that a Change in Control does result therefrom; but only if Continuing Directors constitute a majority of the directors voting in favor of such determination. A determination by directors under the provisions of this paragraph shall be made solely for purposes of this Plan and shall not directly or indirectly affect any determination or analysis of whether a change in control results for any other purpose. Any determination made with respect to whether a change in control results for purposes of any other plan or agreement of the Company shall have no effect for purposes of this Plan. (e) "Chairman" means the individual appointed by the Committee to serve as the chairman of the Committee. (f) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (g) "Committee" means the Committee established pursuant to Section 4 of the Plan. - 2 - 4 (h) "Common Stock" means the $.01 par value Common Stock of the Company or any security of the Company identified by the Committee as having been issued in substitution or exchange therefor or in lieu thereof. (i) "Company" means Waxman Industries, Inc. (j) "Continuing Directors" means individuals who at the beginning of any period of two (2) consecutive years constitute the Board and any new director(s) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously approved. (k) "Directors" means the members of the Board. (l) "Effective Date" means the date on which the Plan is approved by the stockholders of the Company, as provided in Section 5(a) hereof. (m) "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute. (n) "Fair Market Value" means, with respect to the Shares, the closing price for the Shares on the New York State Exchange (the "NYSE") on the last day prior to the date on which the value is to be determined (or if there was no trading reported, the next preceding day on which there was trading reported). (o) "Non-Employee Director" means an individual who: (i) is now, or hereafter becomes, a member of the Board and (ii) is not an employee of the Company on the date of the grant of an option. (p) "NSO" means an option that does not meet the requirements of Section 422(b) of the Code, which provides the right to purchase a Share at a price and for Term fixed in accordance with the Plan, and subject to such other limitations and restrictions imposed by the Plan. (q) "Participant" means a Non-Employee Director who has been granted an NSO under the Plan (or in the event of the death or disability of a Non-Employee Director, the estate or personal representative of the Non-Employee Director). (r) "Person" means any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization, or government or political subdivision thereof. (s) "Plan" means this Waxman Industries, Inc. 1994 Stock Option Plan for Non-Employee Directors. - 3 - 5 (t) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, or any successor or replacement rule or regulation thereto. Accordingly, all references in the Plan to a specific paragraph of Rule 16b-3 shall be deemed to be references to such paragraph or to the applicable successor or replacement paragraph thereto. (u) "Share" or "Shares" means a share or shares of Common Stock, adjusted in accordance with Section 9(b) hereof, as applicable. (v) "Term" means the period during which a particular Award may be exercised. 4. ADMINISTRATION. (a) Generally. The Plan shall be administered by the Committee. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect to the Plan or any NSO shall be within the sole and absolute discretion of the Committee, may be made at any time, and shall be final, conclusive and binding upon the Company, any Participant, any holder or beneficiary of any NSO and any shareholder of the Company. (b) Composition of the Committee. The members of the Committee shall be appointed by the Board and shall consist of no less than two members of the Board who are "disinterested persons" as such term is used in Rule 16b-3. The Committee may from time to time remove members from, or add members to, the Committee. Vacancies on the Committee, however caused, shall be filled by the Board. (c) Actions by the Committee. The Committee shall hold meetings at such times and places as it may determine. The Committee shall appoint one of its members as Chairman. Acts approved by a majority of the members of the Committee present at a meeting at which a quorum is present, or acts reduced to or approved in writing by a majority of the members of the Committee, shall be the valid acts of the Committee. (d) Powers of the Committee. Subject to the terms of the Plan and applicable law, the Committee shall have full power and authority to administer the Plan in its sole and absolute discretion. To this end, the Committee is authorized to construe and interpret the Plan and to make all other determinations necessary or advisable for the administration of the Plan. Subject to the foregoing, any determination, decision or action of the Committee in connection with the - 4 - 6 construction, interpretation, administration, or application of the Plan shall be final, conclusive and binding upon all Participants and any person claiming under or through a Participant. (e) Reliance and Indemnification of Committee Members. The Committee may employ attorneys, consultants, accountants or other persons and the Committee, the Company and its officers and directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. No member of the Committee or the Committee shall be personally liable for any action, determination or interpretation taken or made in good faith by the Committee or the Committee with respect to the Plan, or NSO made thereunder, and all members of the Committee and the Committee shall be fully indemnified and protected by the Company in respect of any such action, determination or interpretation. (f) NSO Accounts. The Committee shall maintain or cause to be maintained a journal or other record in which a separate account for each Participant shall be established. Whenever NSOs are granted to or exercised by a Participant, the Participant's account shall reflect such grant or exercise and the Participant's account shall be appropriately adjusted in the event of any change in capitalization or transaction pursuant to Section 9 hereof. 5. APPROVAL OF THE PLAN; TERM OF THE PLAN. (a) Approval of Plan by Stockholders; Effective Date of the Plan. The Plan was adopted by the Board on May 25, 1994. The Plan will be submitted for the approval of the Company's stockholders within 12 months after such date. The date of such stockholder approval is the "Effective Date". Awards may be granted prior to such stockholder approval; provided, however, that such Awards shall not be exercisable prior to the time when the Plan is approved by the stockholders; provided, further, that if such approval has not been obtained at the end of said 12 month period, all Awards previously granted under the Plan shall thereupon be cancelled and become null and void. (b) Term of Plan. No NSO shall be granted pursuant to the Plan on or after the tenth (10th) anniversary of the Effective Date, but NSOs theretofore granted may be extended beyond that date and the Committee shall have the authority to amend, alter, adjust, suspend, discontinue, or terminate any such NSO or to waive any conditions or rights under any such NSO, and to amend the Plan, beyond that date. - 5 - 7 6. SHARES SUBJECT TO THE PLAN. (a) Limitation on Number of Shares. The maximum aggregate number of Shares which may be subject to NSOs granted to Participants pursuant to the Plan shall be 250,000. The limitation on the number of Shares which may be subject to NSOs under the Plan shall be subject to adjustment as provided in Section 9 hereof. If any NSO granted under the Plan expires or is terminated for any reason without having been exercised in full, the Shares allocable to the unexercised portion of such NSO shall again become available for grant pursuant to the Plan. At all times during the term of the Plan, the Company shall reserve and keep available for issuance such number of Shares as the Company is obligated to issue upon the exercise of all then outstanding NSOs. (b) Accounting for NSOs. For purposes of this Section 6, the number of Shares covered by an NSO, or to which an NSO relates, shall be counted on the date of grant of such NSO against the aggregate number of Shares available for granting NSOs under the Plan. Any Shares that are delivered by the Company pursuant to any NSO, and any NSOs that are granted by, or become obligations of, the Company, through the assumption by the Company, or in substitution for, outstanding options previously granted by an acquired company shall be counted against the Shares available for granting NSOs under the Plan. 7. SOURCE OF SHARES ISSUED UNDER THE PLAN. Common Stock issued under the Plan may consist, in whole or in part, of authorized and unissued Shares or treasury Shares, as determined in the sole and absolute discretion of the Committee. No fractional Shares shall be issued under the Plan. 8. NON-QUALIFIED STOCK OPTIONS. (a) Grant of NSOs. (i) Each person who was a Non-Employee Director on the date of the Plan's adoption by the Board shall automatically be granted NSOs to purchase twenty thousand (20,000) shares of Common Stock, subject to all the provisions of the Plan. (ii) Each person who is either elected or appointed a Non-Employee Director, and who has not previously received a grant of NSO's pursuant to clause (i) above, shall automatically be granted NSOs to purchase twenty thousand (20,000) shares of Common Stock, on the date of their appointment or election, subject to the provisions of the Plan. - 6 - 8 (b) Exercise Price. The price at which each Share covered by a NSO may be purchased pursuant to this Plan shall be the Fair Market Value of a Share on the date of the NSO grant. (c) Terms and Conditions. All NSOs granted pursuant to the Plan shall be evidenced by an Award Agreement, approved as to form by the Committee, which shall be subject to the following express terms and conditions and to the other terms and conditions specified in this Section 8, and to such other terms and conditions as shall be determined by the Committee in its sole and absolute discretion which are not inconsistent with the Plan: (i) after one year from the date of the Award, it may be exercised as to not more than one-quarter (1/4) of the NSOs granted under the Award. (ii) after two years from the date of the Award, it may be exercised as to not more than an aggregate of two-quarters (2/4) of the NSOs granted under the Award. (iii) after three years from the date of the Award, it may be exercised as to not more than an aggregate of three-quarters (3/4) of the NSOs granted under the Award. (iv) after four years from the date of the Award, it may be exercised as to any part or all of the NSOs granted under the Award. (v) the failure of a NSO to vest for any reason whatsoever shall cause the NSO to expire and be of no further force or effect; (vi) unless terminated earlier pursuant to Section 8(e) hereof, the term of each NSO shall in no event be more than ten (10) years from the date of the grant; (vii) NSOs shall not be transferable by the Participant otherwise than by will or by the laws of descent and distribution and shall be exercised during the lifetime of the Participant only by the Participant; provided, however, that if so determined by the Committee, a Participant, in the manner established by the Committee, may designate a beneficiary or beneficiaries to exercise the rights of the Participant, and to receive any property distributable, with respect to any NSO, upon the death or permanent disability of the Participant; (viii) except as provided in clause (iv) above, no NSO or interest therein may be transferred, assigned, pledged or hypothecated - 7 - 9 by the holder during the holder's lifetime whether by operation of law or otherwise, or be made subject to execution, attachment or similar process. (d) Exercise. (i) NOTICE OF EXERCISE. A Participate entitled to exercise a NSO may do so by delivery of a written notice to that effect specifying the number of Shares with respect to which the NSO is being exercised. Except as provided in Section 8(d)(ii) below, the notice shall be accompanied by payment in full of the purchase price of any Shares to be purchased, which payment may be made in cash or, with the Committee's approval (and subject to the requirements of Rule 16b-3), in Shares valued at Fair Market Value at the time of exercise or, with the Committee's approval, a combination thereof. No Shares shall be issued upon exercise of a NSO until full payment has been made therefor. All notices, payments or requests provided for herein shall be delivered to the Chief Financial Officer of the Company. (ii) CASHLESS EXERCISE PROCEDURES. The Company, in its sole discretion, may establish procedures whereby a Participant, subject to the requirements of Rule 16b-3, Regulation T, federal income tax laws, and other federal, state and local tax and securities laws, can exercise a NSO or a portion thereof without making a direct payment of the option price to the Company. If the Company so elects to establish a cashless exercise program, the Company shall determine, in its sole discretion, and from time to time, such administrative procedures and policies as it deems appropriate and such procedures and policies shall be binding on any Participant wishing to utilize the cashless exercise program. (e) Termination of NSOs. NSOs granted under the Plan shall be subject to the following events of termination: (i) in the event a Participant is removed from the Board, all unexercised NSOs held by such Participant on the date of such removal (whether or not vested) will expire immediately; and (ii) in the event a Participant is no longer a member of the Board, other than by reason of removal, such removal is due to Participant being unable to perform his duties for the Company because of a disability (as defined by the Board) all unexercised NSOs held by such Participant at the time the Participant is no longer a member of the Board shall terminate, provided, however, that the Award may be - 8 - 10 exercised by the Participant (to the extent that he or she shall have been entitled to do so at the time he or she ceased to be a Director) at any time within six (6) months after such Participant ceased to be a Director, but not beyond the original term thereof. (f) Share Certificates. All certificates for Shares delivered under the Plan pursuant to any NSO or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other restrictions of the Securities and Exchange Commission, any stock exchange upon which such Shares or other securities are then listed, and any applicable Federal or state securities laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. (g) Stockholder Approval. Notwithstanding anything to the contrary contained herein (i) no Award shall be exercisable prior to the time when the Plan is approved by the stockholders as provided for in Section 5(a) herein and (ii) if such approval is not obtained as provided for in Section 5(a) herein, all Awards previously granted under the Plan shall thereupon be cancelled and become null and void. 9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes in all of the outstanding Shares by reason of stock dividends, stock splits, recapitalizations, mergers, consolidations, combinations, or exchanges of shares, separations, reorganizations or liquidations or similar events or in the event of extraordinary cash or noncash dividends being declared with respect to outstanding Shares or other similar transactions, the number and class of Shares available under the Plan in the aggregate, the number and class of Shares subject to Awards theretofore granted, applicable purchase prices and all other applicable provisions, shall, subject to the provisions of the Plan, be equitably adjusted by the Committee, which adjustment may, but need not, include payment to the holder of a NSO, in cash or in Shares, in an amount equal to the difference between the then current Fair Market Value of the Shares subject to such Award, as equitably determined by the Committee, and the option price or of such NSO, as the case may be. The foregoing adjustment and the manner of application of the foregoing provisions shall be determined by the Committee in its sole discretion. Any such adjustment may provide for the elimination of any fractional Share which might otherwise become subject to an Award. 10. TERMINATION OF AWARDS UPON CHANGE IN CONTROL. Notwithstanding anything to the contrary, in the case of a Change in Control, each Award granted under the Plan shall terminate ninety (90) days after the occurrence of - 9 - 11 such Change in Control, but, in the event of any such termination the Award holder shall have the right, commencing at least five (5) days prior to the Change in Control and subject to any other limitation on the exercise of such Award in effect on the date of exercise to immediately exercise any NSOs in full, without regard to any vesting limitations, to the extent they shall not have been theretofore exercised. 11. AMENDMENT AND TERMINATION. (a) Modifications to the Plan. The Committee, insofar as permitted by law, may from time to time, with respect to any Shares at the time not subject to NSOs, suspend, discontinue or terminate the Plan or revise, alter or amend the Plan in any respect whatsoever; provided, however, that no amendment of the Plan shall cause the Plan to be in violation of Rule 16b-3 (including Section (c)(2)(ii)(B) thereunder). (b) Rights of Participant. No amendment, suspension or termination of the Plan that would adversely affect the right of any Participant with respect to a NSO previously granted under the Plan will be effective without the written consent of the affected Participant. (c) Correction of Defects, Omissions and Inconsistencies. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any NSO in the manner and to the extent it shall deem desirable to carry the Plan into effect. 12. MISCELLANEOUS. (a) Stockholders' Rights. No Participant and no beneficiary or other person claiming under or though such Participant shall acquire any rights as a stockholder of the Company by virtue of such Participant's having been granted a NSO under the Plan. No Participant and no beneficiary or other person claiming under or through such Participant will have any right, title or interest in or to any Shares allocated or reserved under the Plan or subject to any NSO except as to Shares, if any, that have been issued or transferred to such Participant. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to the date of exercise. - 10 - 12 (b) Other Compensation Arrangements. Nothing contained in the Plan shall prevent the Committee from adopting other compensation arrangements for Non-Employee Directors, subject to stockholder approval if such approval is required. Such other arrangements may be either generally applicable or applicable only in specific cases. (c) Treatment of Proceeds. Proceeds realized from the exercise of NSOs under the Plan constitute general funds of the Company. (d) Withholding. The Company shall be authorized to withhold from any NSO granted or any payment due or transfer made under any NSO or under the Plan the amount of withholding taxes due in respect of a NSO, its exercise, or any payment or transfer under such NSO or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. Upon the exercise of a NSO, the Participant receiving Shares pursuant thereto may be required to pay the Company the amount of any such withholding taxes which is required to be withheld with respect to such Shares. (e) Cost of the Plan. The costs and expenses of administering the Plan shall be borne by the Company. (f) No Right to Continue as Director. Nothing contained in the Plan or in any instrument executed pursuant to the Plan will confer upon any Participant any right to continue as a member of the Board or affect the right of the Company, the Committee or the stockholders of the Company to terminate the directorship of any Participant at any time with or without cause. (g) Severability. The provisions of the Plan shall be deemed severable and the validity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. (h) Binding Effect of Plan. The Plan shall inure to the benefit of the Company, its successors and assigns. - 11 - 13 (i) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the internal laws of the State of Delaware, without regard to any principles of conflicts of law, and applicable Federal law. (j) No Waiver of Breach. No waiver by any Person at any time or any breach by another Person of, or compliance with, any condition or provision of the Plan to be performed by such other Person shall be deemed a waiver of the same, any similar or any dissimilar provisions or conditions at the same or at any prior or subsequent time. (k) No Trust or Fund Created. Neither the Plan nor any NSO shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company pursuant to an NSO, such right shall be no greater than the right of any unsecured general creditor of the Company. (l) Headings. The headings contained herein are for references purposes only and shall not affect in any way the meaning or interpretation of this Plan. - 12 - EX-4.4 4 EXHIBIT 4.4 1 EXHIBIT 4.4 Employee Stock Purchase Plan of Waxman Industries, Inc. 2 EMPLOYEE STOCK PURCHASE PLAN OF WAXMAN INDUSTRIES, INC. 1. PURPOSE OF THE PLAN. This Employee Stock Purchase Plan of Waxman Industries, Inc. adopted on this 1st day of September, 1992, is intended to encourage eligible employees of the Company and its Subsidiaries to acquire or increase their ownership of common stock of the Company on reasonable terms. The opportunity so provided is intended to foster in participants a strong incentive to put forth maximum effort for the continued success and growth of the Company and its Subsidiaries, to aid in retaining individuals who put forth such efforts, and to assist in attracting the best available individuals to the Company and its Subsidiaries in the future. It is the Company's intention that this Employee Stock Purchase Plan qualify as an "employee stock purchase plan" under Section 423 of the Code. Accordingly, the provisions of the Plan shall be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code. 2. DEFINITIONS. When used herein, the following terms shall have the meanings set forth below: 2.1 "Account" means the account maintained for an Employee who elects to participate in any offering of Shares made under the Plan for the purpose of recording the amounts withheld from his Annual Compensation pursuant to Section 9 of the Plan. 2.2 "Annual Compensation" means an amount equal to the sum of (i) the annual base rate of pay of an Employee as determined from the payroll records of the Company on the first day of the Subscription Period of an offering of Shares made pursuant to the Plan, and (ii) the amount paid to the Employee by the Company or any of its Subsidiaries under any incentive compensation plan or bonus plan during the twelve (12) month period immediately preceding the first day of the Subscription Period of an offering of Shares made pursuant to the Plan. 2.3 "Board" means the Board of Directors of Waxman Industries, Inc. 2.4 "Code" means the Internal Revenue Code of 1986, as in effect at the time of reference, or any successor revenue code which may hereafter be adopted in lieu thereof, and reference to any specific provisions of the Code shall refer to the corresponding provisions of the Code as it may hereafter be amended or replaced. 2.5 "Committee" means the Stock Option Committee of the Board or any other committee appointed by the Board which is invested by the Board with responsibility for the administration of the Plan and whose members meet the requirements for eligibility to serve as set forth in Rule 16b-3 and in the Plan. 2.6 "Company" means Waxman Industries, Inc. 2.7 "Employees" means persons employed by the Company or any of its Subsidiaries on the first day of the Subscription Period of any offering of Shares made pursuant to the Plan; provided, however, that no person shall be considered an Employee unless he (i) is customarily employed by the Company or any of its Subsidiaries for more than twenty (20) hours per week and more than five (5) months in a calendar year and (ii) has been employed by the Company or any of its Subsidiaries for at least six (6) months as of the first day of the Subscription Period of any such offering. 2.8 "Fair Market Value" means, with respect to the Shares, the closing price of the Shares on the last business day prior to the date on which the value is to be determined, as reported in the Wall Street Journal or such other source of quotations for, or reports of 1 3 trading of, the Shares as the Committee may reasonably select from time to time or, if no reported sale takes place on such day, the average of the last reported bid and asked prices on the principal national securities exchange on which the Shares are listed or admitted to trading, or if not listed or admitted to trading on any national securities exchange, then the average of the last reported bid and asked prices as reported by the National Association of Securities Dealers, Inc. Automated Quotation System; provided, however, if the price of the Shares is not then so reported, then Fair Market Value shall mean the last known price per Share paid by a purchaser in an arms-length transaction; provided further, however, if no such sales have occurred during the three-week period immediately preceding the date on which the value is to be determined, Fair Market Value shall mean the fair market value of the Shares as determined by the Committee, in its discretion. 2.9 "Option" means the right granted to an Employee to purchase Shares pursuant to an offering made under the Plan and pursuant to such Employee's election to purchase Shares in such offering, at a price, and subject to such limitations and restrictions as the Plan and the Committee may impose. 2.10 "Parent" means any corporation, other than the employer corporation, in an unbroken chain of corporations ending with the employer corporation if each of the corporations other than the employer corporation owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 2.11 "Plan" means the Company's Employee Stock Purchase Plan. 2.12 "Purchase Period" means the number of calendar months during which installment payments for Shares purchased pursuant to Options granted under the Plan shall be made. 2.13 "Rule 16b-3" means Rule 16b-3 of the General Rules and Regulations of the Securities Exchange Act of 1934, as in effect at the time of reference, or any successor rules or regulations which may hereafter be adopted in lieu thereof, and any reference to any specific provisions of Rule 16b-3 shall refer to the corresponding provisions of Rule 16b-3 as it may hereafter be amended or replaced. 2.14 "Shares" means shares of the Company's $.01 par value common stock or, if by reason of the adjustment provisions contained herein, any rights under the Plan pertain to any other security, such other security. 2.15 "Subscription Period" means that period of time prescribed in any offering of Shares made pursuant to the Plan beginning on the first day Employees may elect to participate in such offering and ending on the last day such elections to participate are authorized to be received and accepted. 2.16 "Subsidiary" or "Subsidiaries" means any corporation or corporations other than the employer corporation in an unbroken chain of corporations beginning with the employer corporation if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 2.17 "Successor" means the legal representative of the estate of a deceased Employee or the person or persons who shall acquire the right to exercise or receive an Option by bequest or inheritance or by reason of the death of the Employee. 3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon the exercise of Options to be granted from time to time pursuant to offerings made under the Plan, an aggregate of 1,100,000 Shares, which Shares may be, in whole or in part, as the Board shall from time to time determine, authorized but unissued Shares, or issued Shares which shall have been reacquired 2 4 by the Company. The number of Shares reserved under the Plan may be issued pursuant to the exercise of Options granted pursuant to one or more offerings made under the Plan. Any Shares subject to issuance upon exercise of Options but which are not issued because of a surrender, lapse, expiration or termination of any such Option prior to issuance of the Shares shall once again be available for issuance in satisfaction of Options. 4. ADMINISTRATION OF THE PLAN. The Board shall appoint the Committee, which shall consist of not less than two (2) disinterested persons as defined in Rule 16b-3. Subject to the provisions of the Plan, the Committee shall have full authority, in its discretion, to determine when offerings shall be made under the Plan, the number of Shares to be made available in any such offering, the length of the Subscription Period and Purchase Period of any such offering (provided, however, that in no event shall the Subscription Period and the Purchase Period of any offering together exceed twenty-seven (27) months) and such other terms and conditions not inconsistent with the Plan as may be necessary or appropriate; to interpret the Plan; and to prescribe, amend and rescind rules and regulations relating to the Plan; and generally to interpret and determine any and all matters whatsoever relating to the administration of the Plan. The Board may from time to time appoint members to the Committee in substitution for or in addition to members previously appointed and may fill vacancies, however caused, in the Committee. The Committee shall select one of its members as its chairman and shall hold its meetings at such times and places as it shall deem advisable. A majority of its members shall constitute a quorum. Any action of the Committee may be taken by a written instrument signed by all of the members, and any action so taken shall be fully as effective as if it had been taken by a vote of a majority of the members at a meeting duly called and held. The Committee shall make such rules and regulations for the conduct of its business as it shall deem advisable and shall appoint a Secretary who shall keep minutes of its meetings and records of all action taken in writing without a meeting. No member of the Committee shall be liable, in the absence of bad faith, for any act or omission with respect to his service on the Committee. 5. ELIGIBILITY TO PARTICIPATE IN OFFERINGS. All Employees shall be eligible to participate in, and shall receive timely notice of, any offering of Shares made under the Plan; provided, however, that the Committee may exclude the Employees of any specified Subsidiary from any offering made under the Plan; and provided further, however, that the Committee may determine that any offering of Shares made under the Plan will not be extended to highly compensated Employees (within the meaning of Section 414(q) of the Code). Notice of any offering of Shares pursuant to the Plan shall specify the Subscription Period and the Purchase Period of such offering and shall be accompanied by a written form on which an Employee may elect to participate in such offering. In order to participate in any offering of Shares made pursuant to the Plan, an Employee must sign an election to participate in such offering on the form provided by the Company for such purpose stating the Employee's desire to purchase Shares under the Plan and showing the amount which the Employee elects to have withheld from his pay for each payroll period during the Purchase Period. The election to participate in any such offering must be delivered on or before the last day of the Subscription Period to the Senior Vice President -- Finance of the Company. 6. GRANT OF OPTIONS. Subject to the limitations set forth in Section 7 of the Plan, each Employee who elects during the Subscription Period of any offering made under the Plan to purchase Shares in such offering shall automatically be granted an Option to purchase a fixed maximum number of Shares determined by the following procedure: Step 1 -- Determine the aggregate amount which will be withheld (based on the Employee's election form) from the Employee's pay during the Purchase Period; Step 2 -- Divide the amount determined in Step 1 by the exercise price of the Option and round down the quotient to the nearest whole number. This figure shall be the fixed maximum number of Shares for which the Employee may be granted an Option to purchase. 3 5 The date on which the Option is granted to each participating Employee shall be the first day of the Purchase Period of such offering. Notice that an Option has been granted shall be given to each participating Employee and shall show the maximum number of Shares subject to the Option and the amount to be withheld from his pay for each payroll period during the Purchase Period of such offering. In the event the total maximum number of Shares resulting from all elections to purchase under any offering of Shares made under the Plan exceeds the number of Shares offered, the Company reserves the right to reduce the maximum number of Shares which Employees may purchase pursuant to their elections to purchase, to allot the Shares available in such manner as it shall determine, but generally pro rata to subscriptions received, and to grant Options to purchase only for such reduced number of Shares. In the event an Employee's election to purchase Shares pursuant to an offering made under the Plan is cancelled, in whole or in part, pursuant to the provisions of the Plan, a proportionate portion of the Option granted to such Employee shall automatically terminate. 7. LIMITATIONS OF NUMBER OF SHARES WHICH MAY BE PURCHASED. The following limitations shall apply with respect to the number of Shares which may be purchased by each Employee who elects to participate in an offering made under the Plan: (a) No Employee may purchase, or elect to purchase, Shares during any one offering pursuant to the Plan for an aggregate purchase price in excess of the lesser of (i) the percentage of the Annual Compensation applicable to such offering as determined by the Committee, or (ii) twenty percent (20%) of his Annual Compensation (in each event, which amount shall be prorated in the event the Purchase Period is less or more than twelve (12) months). (b) No Employee shall be granted an Option to purchase Shares under the Plan if such Employee immediately after such Option is granted, owns stock, within the meaning of Section 424(d) of the Code, and including stock subject to purchase under any outstanding options, possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or, if applicable, any Subsidiary or, if applicable, a Parent. (c) No Employee shall be granted an Option to purchase Shares which permits his right to purchase stock under the Plan and all other employee stock purchase plans of the Company and, if applicable, a Subsidiary, and, if applicable, a Parent, to accrue (as determined under Section 423(b)(8) of the Code) at a rate which exceeds twenty-five thousand dollars ($25,000) of fair market value of such stock (determined on the date the Option to purchase is granted) for each calendar year in which such Option is outstanding at any time. An Employee may elect to purchase less than the number of Shares which he is entitled to elect to purchase. 8. EXERCISE PRICE. The per Share exercise price for Shares subject to purchase under Options granted pursuant to an offering made under the Plan shall be eighty-five percent (85%) of the Fair Market Value of the Shares on the first day of the Purchase Period of such offering, unless the Committee, in its discretion, determines that the per Share exercise price applicable to such offering will be greater than eighty-five percent (85%), but not more than one hundred percent (100%), of the Fair Market Value of the Shares on the first day of the Purchase Period of such offering. 9. METHOD OF PAYMENT. Payment of the exercise price of any Option granted pursuant to the Plan shall be made in installments through payroll deductions, with no right of prepayment. 4 6 Each Employee electing to participate in an offering of Shares made under the Plan shall authorize the Company to withhold a designated amount from his regular weekly, bi-weekly, semimonthly or monthly pay for each payroll period during the Purchase Period. All such payroll deductions made for an Employee shall be credited to his Account. No interest shall accrue on the amounts credited to an Employee's Account pursuant to this Section 9. 10. EXERCISE OF OPTIONS. As of the close of business on the last business day of the Purchase Period of any offering of Shares made under the Plan, each outstanding Option shall automatically be exercised. Upon the exercise of an Option, the aggregate amount of the payroll deductions credited to the Account of each Employee as of that date will automatically be applied to the exercise price for the purchase of that number of Shares, rounded to the nearest whole share, equal to the Account balance divided by the exercise price, not to exceed the maximum number of shares issuable under the Option. A certificate representing the Shares so purchased shall be delivered to the Employee or the Employee's Successor as soon as reasonably practicable after the exercise of the Option. The remainder of the Account balance not applied to purchase Shares shall be paid in cash to the Employee or the Employee's Successor as soon as reasonably practicable after the exercise of the Option. 11. RIGHTS AS STOCKHOLDER. An Employee will become a stockholder of the Company with respect to Shares for which payment has been completed at the close of business on the last business day of the Purchase Period. An Employee will have no rights as a stockholder with respect to Shares under an election to purchase Shares until he has become a stockholder as provided above. 12. CANCELLATION OF ELECTION TO PURCHASE. An Employee who has elected to purchase Shares during the Subscription Period of any offering made under the Plan may cancel his election in its entirety or may partially cancel his election by reducing the amount which he has authorized the Company to withhold from his pay for each payroll period during the Purchase Period. Any such full or partial cancellation shall be effective upon the delivery by the Employee of written notice of cancellation to the Senior Vice President -- Finance of the Company. Such notice of cancellation must be so delivered before the close of business on the last business day of the Purchase Period. If an Employee partially cancels his original election by reducing the amount authorized to be withheld from his pay, he shall continue to make installment payments at the reduced rate for the remainder of the Purchase Period. Only one partial cancellation may be made during a Purchase Period. An Employee's rights upon the full or partial cancellation of his election to purchase Shares shall be limited to the following: (a) He may receive in cash, as soon as practicable after delivery of the notice of cancellation, the amount then credited to his Account, except that, in the case of a partial cancellation, he must retain in his Account an amount equal to the amount of his new payroll deduction times the number of payroll periods in the Purchase Period through the date of cancellation, or (b) He may have the amount credited to his Account at the time the cancellation becomes effective applied to the purchase of the number of Shares such amount will then purchase. If option (b) is elected, installment payments must be continued for the month in which the notice of cancellation is given. The cancellation and purchase of Shares will become effective at the close of business on the last business day of the Purchase Period. 13. LEAVE OF ABSENCE OR LAYOFF. An Employee purchasing Shares under the Plan who is granted a leave of absence (including a military leave) or is laid off during the Purchase Period may at that time (on a form provided by the Company) elect one of the following: 5 7 (a) He may suspend payments during the leave of absence, or, in the case of a layoff, he may suspend payments for not more than ninety (90) days, but not in either case beyond the last month of the Purchase Period, or (b) He may make his installment payments in cash but not, in case of leave of absence, for longer than his leave nor more than ninety (90) days in case of a layoff. If option (a) is elected, the Employee at the end of the suspension period must make up the deficiency in his Account either by immediate lump sum payment or with increased installment payments so that payment for the maximum number of Shares covered by his Option will be completed in the last month of the Purchase Period. If the Employee elects to make increased installment payments, he may, nevertheless, at any time before the end of the Purchase Period make up his remaining deficiency by a lump sum payment. If an Employee who has elected either of options (a) or (b) does not return to active service upon the expiration of his leave of absence or within ninety (90) days from the date of his layoff, his election to purchase shall be deemed to have been canceled at that time, and the Employee's only right will be to receive in cash the amount credited to his Account. 14. EFFECT OF FAILURE TO MAKE PAYMENTS WHEN DUE. If in any payroll period for any reason not set forth in Section 13, an Employee who has filed an election to purchase Shares under the Plan has no pay or his pay is insufficient (after other authorized deductions) in any payroll period to permit deduction of his installment payment, such payment may be made in cash at the time. If not so made, the Company shall have the right, as set forth below, to treat such failure as a cancellation of the Employee's election to purchase Shares. If the Company does not treat such failure as a cancellation of the Employee's election to purchase Shares, the Employee, when his pay is again sufficient to permit the resumption of installment payments, must pay in cash the amount of the deficiency in his Account or arrange for uniformly increased installment payments so that payment for the maximum number of Shares covered by his Option will be completed in the last month of the Purchase Period. If the Employee elects to make increased installment payments, he may, nevertheless, at any time prior to the end of the Purchase Period make up the remaining deficiency by a lump sum payment. Subject to the above and other provisions of the Plan permitting postponement, the Company may treat the failure by an Employee to make any payment as a cancellation of his election to purchase Shares. Such cancellation will be affected by mailing notice to him at his last known business or home address. Upon such mailing, the Employee's only right will be to receive in cash the amount credited to his Account. 15. RETIREMENT. If an Employee who retires in a manner entitling him to early, normal or late retirement benefits under the provisions of any retirement plan of the Company or a Subsidiary in which the Employee participates (or if no such plan then exists, at or after age sixty-five (65)) has an election to purchase Shares in effect at the time of his retirement, he may, within three (3) months after the date of his retirement (but in no event later than the end of the Purchase Period), by delivering written notice to the Senior Vice President -- Finance of the Company, elect to: (a) Complete the remaining installment payments in cash, (b) Make a lump sum payment in the amount of any deficiency for the remaining portion of the Purchase Period, or (c) Cancel his election to purchase Shares in accordance with the provisions of Section 12. If no such notice is given within such period, the election will be deemed canceled as of the date of retirement and the only right of the Employee will be to receive in cash the amount credited to his Account. 6 8 16. DEATH. If an Employee, including a retired Employee, dies and has an election to purchase Shares in effect at the time of his death, the Employee's Successor may, within three (3) months from the date of death (but in no event later than the end of the Purchase Period), by delivering written notice to the Senior Vice President -- Finance of the Company, elect to: (a) Complete the remaining installment payments in cash, (b) Make a lump sum payment in the amount of any deficiency for the remaining portion of the Purchase Period, or (c) Cancel the election to purchase Shares in accordance with the provisions of Section 12. If no such notice is given within such period, the election will be deemed canceled as of the date of death, and the only right of such Successor will be to receive in cash the amount credited to the Employee's Account. 17. TERMINATION OF EMPLOYMENT OTHER THAN FOR RETIREMENT OR DEATH. If an Employee's employment is terminated for any reason other than retirement or death prior to the end of the Purchase Period, his election to purchase shall thereupon be deemed canceled as of the date on which his employment terminated. In such an event, no further payments under such election will be permitted, and the Employee's only right will be to receive in cash the amount credited to his Account. 18. NONTRANSFERABILITY OF OPTIONS. An Option, or an Employee's right to any amounts held for his Account under the Plan, shall not be transferable, other than (a) by will or the laws of descent and distribution, and an Option may be exercised, during the lifetime of the holder of the Option, only by the holder or in the event of death, the holder's Successor or (b) if permitted pursuant to the Code and the Regulations thereunder without affecting the Option's qualification under Section 423 of the Code, pursuant to a qualified domestic relations order. 19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes in all of the outstanding Shares by reason of stock dividends, stock splits, recapitalizations, mergers, consolidations, combinations, or exchanges of shares, separations, reorganizations or liquidations, or similar events, or in the event of extraordinary cash or non-cash dividends being declared with respect to the Shares, or similar transactions or events, the number and class of Shares available under the Plan in the aggregate, the number and class of Shares subject to Options theretofore granted, applicable purchase prices and all other applicable provisions, shall, subject to the provisions of the Plan, be equitably adjusted by the Committee. The foregoing adjustment and the manner of application of the foregoing provisions shall be determined by the Committee in its sole discretion. Any such adjustment may provide for the elimination of any fractional Share which might otherwise become subject to an Option. 20. UNUSUAL CORPORATE EVENT. Notwithstanding anything to the contrary, in the case of an unusual corporate event such as a liquidation, merger, reorganization (other than a reorganization defined in Code Section 368(a)(1)(F)), or other business combination, acquisition or change in control of the Company through a tender offer or otherwise, the Board may, in its sole discretion, elect to terminate the Purchase Period of any offering then in effect as of the last day of the month during which the unusual corporate event occurs. In the event of any such termination, an Option holder shall have the right, commencing at least five (5) days prior to such unusual corporate event, to either make a lump sum payment in the amount equal to the remaining installment payments to be made pursuant to his election to purchase Shares, or to cancel his election to purchase Shares in the manner set forth in Section 12. 7 9 21. TAXES. The Employee, or his Successor, shall promptly notify the Company of any disposition of Shares acquired pursuant to the exercise of an Option under the Plan and the Company shall have the right to deduct any taxes required by law to be withheld as a result of such disposition from any amounts otherwise payable then or at any time thereafter to the Employee. The Company shall also have the right to require a Successor entitled to receive Shares pursuant to the exercise of an Option to pay the Company the amount of any taxes which the Company is or will be required to withhold with respect to the Shares before the certificate for such Shares is delivered pursuant to the Option. 22. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years from the date hereof, and an Option shall not be granted under the Plan after that date although the terms of any Options may be amended at any date prior to the end of its term in accordance with the Plan. Any Options outstanding at the time of termination of the Plan shall continue in full force and effect according to the terms and conditions of the Option and this Plan. 23. AMENDMENT OF THE PLAN. The Plan may be amended at any time and from time to time by the Board, but no amendment without the approval of the stockholders of the Company shall be made if stockholder approval under Section 423 of the Code or Rule 16b-3 would be required. Notwithstanding the discretionary authority granted to the Committee in Section 4 of the Plan, no amendment of the Plan or any Option granted under the Plan shall impair any of the rights of any holder, without the holder's consent, under any Option theretofore granted under the Plan. 24. DELIVERY OF SHARES ON EXERCISE. Delivery of certificates for Shares pursuant to the exercise of an Option may be postponed by the Company for such period as may be required for it with reasonable diligence to comply with any applicable requirements of any federal, state or local law or regulation or any administrative or quasi-administrative requirement applicable to the sale, issuance, distribution or delivery of such Shares. The Committee may, in its sole discretion, require an Employee to furnish the Company with appropriate representations and a written investment letter prior to the exercise of an Option or the delivery of any Shares pursuant to the exercise of an Option. 25. FEES AND COSTS. The Company shall pay all original issue taxes on the exercise of any Option granted under the Plan and all other fees and expenses necessarily incurred by the Company in connection therewith. 26. NO CONTRACT OF EMPLOYMENT. Neither the adoption of this Plan nor the grant of any Option shall be deemed to obligate the Company or any Subsidiary to continue the employment of any Employee. 27. EFFECTIVENESS OF THE PLAN. The Plan shall become effective when approved by the Board. The Plan shall thereafter be submitted to the Company's stockholders for approval and unless the Plan is approved by the affirmative votes of the holders of shares having a majority of the voting power of all shares represented at a meeting duly held in accordance with Delaware law within twelve (12) months after being approved by the Board, the Plan and all Options made under it shall be void and of no force and effect. 28. OTHER PROVISIONS. As used in the Plan, and in other documents prepared in implementation of the Plan, references to the masculine pronoun shall be deemed to refer to the feminine or neuter, and references in the singular or the plural shall refer to the plural or the singular, as the identity of the person or persons or entity or entities being referred to may require. The captions used in the Plan and in such other documents prepared in implementation of the Plan are for convenience only and shall not affect the meaning of any provision hereof or thereof. 8 EX-5.1 5 EXHIBIT 5.1 1 EXHIBIT 5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP 2 SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP 919 THIRD AVENUE NEW YORK, NY 10022 ________ Telephone (212) 758-9500 Facsimile (212) 758-9526 Telex 237328 January 27, 1995 Waxman Industries, Inc. 24460 Aurora Road Bedford Heights, Ohio 44146 Dear Ladies and Gentlemen: Waxman Industries, Inc., a Delaware corporation (the "Company"), intends to transmit for filing with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended, on Form S-8 (the "Registration Statement") which relates to 2,850,000 shares of the Company's common stock, par value $.01 per share ("Common Stock"), which are being offered pursuant to the Company's 1992 Non-Qualified and Incentive Stock Option Plan, as amended by Amendment No. 1 thereto, its 1994 Stock Option Plan for Non-Employee Directors and its Employee Stock Purchase Plan (the three plans, as amended, referred to above are hereafter referred to collectively as the "Plans" and the 2,850,000 shares of Common Stock referred to above are hereafter referred to collectively as the "Shares"). This opinion is an exhibit to the Registration Statement. We have at times acted as counsel to the Company in connection with certain corporate and securities matters, and in such capacity we are familiar with the various corporate and other proceedings relating to the proposed offer and sale of the Shares as contemplated by the Registration Statement. We have examined copies (in each case signed, certified or otherwise proved to our satisfaction) of the Company's Certificate of Incorporation as presently in effect, its By-Laws as presently in effect, minutes and other instruments evidencing actions taken by its directors and stockholders, the Plans and such other documents and instruments relating to the Company and the proposed offering as we have deemed necessary under the circumstances. Insofar as this opinion relates to securities to be issued in the future, we have assumed that all applicable laws, rules and regulations in effect at the time of such issuance are the same as such laws, rules and regulations in effect as of the date hereof. We note that we are members of the Bar of the State of New York and that we are not admitted to the Bar of the State of Delaware. To the extent that the opinion expressed herein involves the law of the State of Delaware, our opinion is based solely upon our 3 Waxman Industries, Inc. January 27, 1995 Page 2 reading of the Delaware General Corporation Law as reported by Prentice Hall Legal and Financial Services. Based on the foregoing, and subject to and in reliance on the accuracy and completeness of the information relevant thereto provided to us, it is our opinion that the Shares to be issued pursuant to the Plans (including upon the proper exercise of options granted pursuant to the Plans) have been duly authorized, and (subject to the effectiveness of the Registration Statement and compliance with applicable state securities laws) when issued in accordance with the terms of the Plans, will be legally and validly issued, fully paid and non-assessable. It should be understood that nothing in this opinion is intended to apply to any disposition of the Shares which any participant in any of the Plans might propose to make. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to any filing made by the Company under the securities or "Blue Sky" laws of any state. This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purposes, except as expressly provided in the preceding paragraph without our express written consent, and no party other than you is entitled to rely on it. This opinion is rendered to you as of the date hereof, and we undertake no obligation to advise you of any changes in any matters herein, whether legal or factual, after the date hereof. Very truly yours, /s/ Shereff, Friedman, Hoffman & Goodman, LLP --------------------------------------------- SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP SFH&G:SMZ:GA:ALK:kk EX-23.1 6 EXHIBIT 23.1 1 EXHIBIT 23.1 Consent of Independent Public Accountants 2 Consent of Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated August 23, 1994 included in Waxman Industries, Inc. Form 10-K for the year ended June 30, 1994 and to all references to our Firm included in this Registration Statement. ARTHUR ANDERSEN LLP Cleveland, Ohio January 25, 1995. -----END PRIVACY-ENHANCED MESSAGE-----