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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LUMISYS INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 77-0133232
(State of Incorporation) (I.R.S. Employer Identification No.)
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225 Humboldt Court
Sunnyvale, CA 94089
(408) 733-6565
(Address of principal executive offices)
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1995 STOCK OPTION PLAN
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
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Dean MacIntosh
Chief Financial Officer
Lumisys Incorporated
225 Humboldt Court
Sunnyvale, CA 94089
(408) 733-6565
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
----------------------------------
Copies to:
Andrei M. Manoliu, Esq.
Brett D. White, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
----------------------------------
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Offering Registration
Registered Registered Price Per Share (1) Price (1) Fee
- ----------------- ---------- ------------------- ------------- -----------
Common Stock
($.001 par value) 650,000 $2.875 - $3.375 $1,906,250.00 $529.94
- -----------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act
of 1933, as amended (the "Act"). The offering price per share and aggregate
offering price for shares issuable to unissued stock options are based upon
the average of the high and low prices of Registrant's Common Stock as
reported on the Nasdaq National Market System on August 23, 1999. The
offering price per share and aggregate offering price for shares issuable to
outstanding stock options are based upon the exercise prices of such options.
The following chart illustrates the calculation of the registration fee:
Offering Aggregate
Number of Price Per Offering
Title of Shares Shares Share Price
- ------------------------------------ --------- -------- --------------
Shares issuable pursuant to unissued
stock options pursuant to the 1995
Employee Stock Option Plan 350,000 $2.875 $1,006,250.00
Shares issuable pursuant to
outstanding stock options pursuant to
the 1995 Non-Employee Directors Plan 75,000 $3.375 $ 253,125.00
Shares issuable pursuant to unissued
stock options pursuant to the 1995
Non-Employee Directors Plan 225,000 $2.87 $ 646,875.00
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INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENTS ON FORM S-8 REGISTRATION NO. 333-73019,
NO. 333-30117 AND NO. 33-80253
The contents of Registration Statements on Form S-8 Registration No. 333-
73019, filed with the Securities and Exchange Commission ("SEC") on February
26, 1999, Registration No. 333-30117, filed with the SEC on June 27, 1997,
and Registration No. 33-80253, filed with the SEC on December 11, 1995, are
incorporated by reference herein.
EXHIBITS
Exhibit
Number
- -------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of independent accountants
23.2 Consent of Cooley Godward llp is contained in Exhibit 5.1 to this
Registration Statement
24 Power of Attorney is contained on the signature page
99.1 1995 Stock Option Plan, as amended
99.2 1995 Non-Employee Directors' Stock Option Plan, as amended
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of California, on
August 24, 1999.
LUMISYS INCORPORATED
By:/s/ Phillip Berman
Phillip Berman
Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Phillip Berman and Dean MacIntosh, and each or
any one of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including 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 attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she 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 or her substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ------------------------- ----------------------------- ----------------
/s/ Phillip Berman Chief Executive Officer, August 24 1999
- ------------------- President and Director
Phillip Berman (Principal Executive Officer)
/s/ Dean MacIntosh Chief Financial Officer August 24, 1999
- ------------------ (Principal Financial Officer
Dean MacIntosh and Principal Accounting Officer)
Director August __, 1999
- --------------------
Daniel Burstein
/s/Douglas G. DeVivo Director August 24, 1999
- ------------------------
Douglas G. DeVivo, Ph.D.
/s/Robert Gallagher Director August 24, 1999
- -------------------
Robert Gallagher
/s/Albert Greene Director August __, 1999
- -----------------
Albert Greene
/s/Craig Klosterman Director August 24, 1999
- -------------------
Craig Klosterman
/s/C. Richard Kramlich Director August __, 1999
- ----------------------
C. Richard Kramlich
/s/Bala Manian Director August __, 1999
- ------------------
Bala Manian, Ph.D.
EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Cooley Godward LLP
23.1 Consent of independent accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24 Power of Attorney is contained on the signature page
99.1 1995 Stock Option Plan, as amended
99.2 1995 Non-Employee Directors' Stock Option Plan, as amended
Exhibit 5.1
August 24, 1999
Lumisys Incorporated
225 Humboldt Court
Sunnyvale, California 94089
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Lumisys Incorporated (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 350,000 shares of the
Company's Common Stock, $.001 par value (the "1995 Plan Shares"), pursuant to
its 1995 Stock Option Plan, as amended (the "1995 Plan"), and up to 300,000
shares of the Company's Common Stock, $.001 par value (the "Directors' Plan
Shares"), pursuant to its 1995 Non-Employee Directors' Stock Option Plan, as
amended (the "Directors' Plan"). The 1995 Plan Shares and Directors' Plan
Shares are referred to herein as the "Shares" and the 1995 Plan and
Directors' Plan are referred to herein as the "Plans."
In connection with this opinion, we have examined the Registration Statement
and related Prospectuses, your Certificate of Incorporation and Bylaws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with their respective
Plans, the Registration Statement and related Prospectuses, will be validly
issued, fully paid, and nonassessable (except as to shares issued pursuant to
certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward llp
By: /s/ Andrei M. Manoliu
---------------------------
Andrei M. Manoliu
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 28, 1999 relating to the
financial statements which appear in Lumisys Inc.'s 1998 Annual Report on
Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
San Jose, California
August 24, 1999
Exhibit 99.1
LUMISYS INCORPORATED
1995 STOCK OPTION PLAN
Adopted by the Board Of Directors on September 12, 1995
Approved by the Stockholders on October 11, 1995
Amended by the Board on March 5, 1998
Approved by the Stockholders on June 9, 1998
Amended by the Board on March 18, 1999
Approved by the Stockholders on June 17, 1999
1. Purposes.
(a) The purpose of the Plan is to provide a means by which selected
Employees and Directors of and Consultants to the Company, and its
Affiliates, may be given an opportunity to purchase stock of the
Company.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are now Employees or Directors of or Consultants to the
Company or its Affiliates, to secure and retain the services of new
Employees, Directors and Consultants, and to provide incentives for such
persons to exert maximum efforts for the success of the Company and its
Affiliates.
(c) The Company intends that the Options issued under the Plan shall,
in the discretion of the Board or any Committee to which responsibility
for administration of the Plan has been delegated pursuant to subsection
3(c), be either Incentive Stock Options or Nonstatutory Stock Options.
All Options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and in such form as
issued pursuant to Section 6, and a separate certificate or certificates
will be issued for shares purchased on exercise of each type of Option.
2. Definitions.
(a) "Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance
with subsection 3(c) of the Plan.
(e) "Company" means Lumisys Incorporated, a Delaware corporation.
(f) "Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting services and who is
compensated for such services, provided that the term "Consultant" shall
not include Directors who are paid only a director's fee by the Company
or who are not compensated by the Company for their services as
Directors.
(g) "Continuous Status as an Employee, Director or Consultant" means
the employment or relationship as a Director or Consultant is not
interrupted or terminated. The Board, in its sole discretion, may
determine whether Continuous Status as an Employee, Director or
Consultant shall be considered interrupted in the case of: (i) any
leave of absence approved by the Board, including sick leave, military
leave, or any other personal leave; or (ii) transfers between locations
of the Company or between the Company, Affiliates or their successors.
(h) "Covered Employee" means the chief executive officer and the four
(4) other highest compensated officers of the Company for whom total
compensation is required to be reported to stockholders under the
Exchange Act, as determined for purposes of Section 162(m) of the Code.
(i) "Director" means a member of the Board.
(j) "Employee" means any person, including Officers and Directors,
employed by the Company or any Affiliate of the Company. Neither
service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(l) "Fair Market Value" means as of any date, the value of the Common
Stock of the Company determined as follows:
(1) If the common stock is listed on any established stock exchange
or a national market system, including without limitation the National
Market System of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, the Fair Market Value of a share
of common stock shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such system or
exchange (or the exchange with the greatest volume of trading in common
stock) on the last market trading day prior to the day of determination,
as reported in the Wall Street Journal or such other source as the Board
deems reliable;
(2) If the common stock is quoted on the Nasdaq System (but not on
the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the
Fair Market Value of a share of common stock shall be the mean between
the bid and asked prices for the common stock on the last market trading
day prior to the day of determination, as reported in the Wall Street
Journal or such other source as the Board deems reliable;
(3)In the absence of an established market for the common stock, the
Fair Market Value shall be determined in good faith by the Board.
(m) "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code and
the regulations promulgated thereunder.
(n) "Nonstatutory Stock Option" means an Option not intended to qualify
as an Incentive Stock Option.
(o) "Non-Employee Director" means a Director who either (i) is not a
current Employee or Officer of the Company or its parent or subsidiary,
does not receive compensation (directly or indirectly) from the Company
or its parent or subsidiary for services rendered as a consultant or in
any capacity other than as a Director (except for an amount as to which
disclosure would not be required under Item 404(a) of Regulation S-K
promulgated pursuant to the Securities Act ("Regulation S-K")), does not
possess an interest in any other transaction as to which disclosure
would be required under Item 404(a) of Regulation S-K, and is not
engaged in a business relationship as to which disclosure would be
required under Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a "non-employee director" for purposes of Rule 16b-3.
(p) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(q) "Option" means a stock option granted pursuant to the Plan.
(r) "Option Agreement" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual
Option grant. Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(s) "Optionee" means an Employee, Director or Consultant who holds an
outstanding Option.
(t) "Outside Director" means a Director who either (i) is not a current
employee of the Company or an "affiliated corporation" (within the
meaning of the Treasury regulations promulgated under Section 162(m) of
the Code), is not a former employee of the Company or an "affiliated
corporation" receiving compensation for prior services (other than
benefits under a tax qualified pension plan), was not an officer of the
Company or an "affiliated corporation" at any time, and is not currently
receiving compensation for personal services in any capacity other than
as a Director, or (ii) is otherwise considered an "outside director" for
purposes of Section 162(m) of the Code.
(u) "Plan" means this Lumisys Incorporated 1995 Stock Option Plan.
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(w) "Securities Act" means the Securities Act of 1933, as amended.
Administration.
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in subsection
3(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Options; when and how each Option shall
be granted; whether an Option will be an Incentive Stock Option or a
Nonstatutory Stock Option; the provisions of each Option granted (which
need not be identical), including the time or times such Option may be
exercised in whole or in part; and the number of shares for which an
Option shall be granted to each such person.
(2) To construe and interpret the Plan and Options granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct
any defect, omission or inconsistency in the Plan or in any Option
Agreement, in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(3) To amend the Plan or an Option as provided in Section 11.
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of
the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members (the "Committee"), all of the
members of which Committee may be Non-Employee Directors and/or Outside
Directors. If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board (and references in this Plan
to the Board shall thereafter be to the Committee), subject, however, to
such resolutions, not inconsistent with the provisions of the Plan, as
may be adopted from time to time by the Board. The Board may abolish
the Committee at any time and revest in the Board the administration of
the Plan. Notwithstanding anything in this Section 3 to the contrary,
the Board or the Committee may delegate to a committee of one or more
members of the Board the authority to grant Options to eligible persons
who (1) are not then subject to Section 16 of the Exchange Act and/or
(2) are either (i) not Covered Employees and are not expected to be
Covered Employees at the time of recognition of income resulting from
such Option, or (ii) not persons with respect to whom the Company wishes
to comply with Section 162(m) of the Code.
Shares Subject to the Plan.
(a) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to Options
shall not exceed in the aggregate One Million Two Hundred Fifty Thousand
(1,250,000) shares of the Company's common stock. If any Option shall
for any reason expire or otherwise terminate, in whole or in part,
without having been exercised in full, the stock not purchased under
such Option shall revert to and again become available for issuance
under the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. Eligibility.
(a) Incentive Stock Options may be granted only to Employees.
Nonstatutory Stock Options may be granted only to Employees, Directors
or Consultants.
(b) No person shall be eligible for the grant of an Incentive Stock
Option if, at the time of grant, such person owns (or is deemed to own
pursuant to Section 424(d) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock
of the Company or of any of its Affiliates unless the exercise price of
such Incentive Stock Option is at least one hundred ten percent (110%)
of the Fair Market Value of such stock at the date of grant and the
Incentive Stock Option is not exercisable after the expiration of five
(5) years from the date of grant.
(c) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, no person shall be eligible to be granted Options
covering more than Five Hundred Thousand (500,000) shares of the
Company's common stock in any calendar year.
Option Provisions.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of
separate Options need not be identical, but each Option shall include
(through incorporation of provisions hereof by reference in the Option
or otherwise) the substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(b) Price. The exercise price of each Incentive Stock Option shall be
not less than one hundred percent (100%) of the Fair Market Value of the
stock subject to the Option on the date the Option is granted. The
exercise price of each Nonstatutory Stock Option shall be not less than
eighty-five percent (85%) of the Fair Market Value of the stock subject
to the Option on the date the Option is granted. Notwithstanding the
foregoing, an Option (whether an Incentive Stock Option or Nonstatutory
Stock Option) may be granted with an option exercise price lower than
set forth above if such option is granted pursuant to an assumption or
substitution for another option in a manner qualifying with the
provisions of Section 424(a) of the Code.
(c) Consideration. The purchase price of stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is exercised, or
(ii) at the discretion of the Board or the Committee, at the time of the
grant of the Option, (A) by delivery to the Company of other common
stock of the Company, (B) according to a deferred payment or other
arrangement (which may include, without limiting the generality of the
foregoing, the use of other common stock of the Company) with the person
to whom the Option is granted or to whom the Option is transferred
pursuant to subsection 6(d), or (C) in any other form of legal
consideration that may be acceptable to the Board. In the case of any
deferred payment arrangement, interest shall be payable at least
annually and shall be charged at the minimum rate of interest necessary
to avoid the treatment as interest, under any applicable provisions of
the Code, of any amounts other than amounts stated to be interest under
the deferred payment arrangement.
(d) Transferability. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the person to whom the
Incentive Stock Option is granted only by such person. A Nonstatutory
Stock Option may be transferred to the extent provided in the Option
Agreement; provided that if the Option Agreement does not expressly
permit the transfer of a Nonstatutory Stock Option, the Nonstatutory
Stock Option shall not be transferable except by will or by the laws of
descent and distribution. The person to whom the Option is granted may,
by delivering written notice to the Company, in a form satisfactory to
the Company, designate a third party who, in the event of the death of
the Optionee, shall thereafter be entitled to exercise the Option.
(e) Vesting. The total number of shares of stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but
need not, be equal). The Option Agreement may provide that from time to
time during each of such installment periods, the Option may become
exercisable ("vest") with respect to some or all of the shares allotted
to that period, and may be exercised with respect to some or all of the
shares allotted to such period and/or any prior period as to which the
Option became vested but was not fully exercised. The Option may be
subject to such other terms and conditions on the time or times when it
may be exercised (which may be based on performance or other criteria)
as the Board may deem appropriate. The provisions of this subsection
6(e) are subject to any Option provisions governing the minimum number
of shares as to which an Option may be exercised.
(f) Securities Law Compliance. The Company may require any Optionee,
or any person to whom an Option is transferred under subsection 6(d), as
a condition of exercising any such Option, (1) to give written
assurances satisfactory to the Company as to the Optionee's knowledge
and experience in financial and business matters and/or to employ a
purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters, and
that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Option;
and (2) to give written assurances satisfactory to the Company stating
that such person is acquiring the stock subject to the Option for such
person's own account and not with any present intention of selling or
otherwise distributing the stock. The foregoing requirements, and any
assurances given pursuant to such requirements, shall be inoperative if
(i) the issuance of the shares upon the exercise of the Option has been
registered under a then currently effective registration statement under
the Securities Act, or (ii) as to any particular requirement, a
determination is made by counsel for the Company that such requirement
need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the
Company, place legends on stock certificates issued under the Plan as
such counsel deems necessary or appropriate in order to comply with
applicable securities laws, including, but not limited to, legends
restricting the transfer of the stock.
(g) Termination of Employment or Relationship as a Director or
Consultant. In the event an Optionee's Continuous Status as an
Employee, Director or Consultant terminates (other than upon the
Optionee's death or disability), the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it at
the date of termination) but only within such period of time ending on
the earlier of (i) the date three (3) months after the termination of
the Optionee's Continuous Status as an Employee, Director or Consultant
(or such longer or shorter period specified in the Option Agreement) or
(ii) the expiration of the term of the Option as set forth in the Option
Agreement. If, after termination, the Optionee does not exercise his or
her Option within the time specified in the Option Agreement, the Option
shall terminate, and the shares covered by such Option shall revert to
and again become available for issuance under the Plan.
(h) Disability of Optionee. In the event an Optionee's Continuous
Status as an Employee, Director or Consultant terminates as a result of
the Optionee's disability, the Optionee may exercise his or her Option
(to the extent that the Optionee was entitled to exercise it at the date
of termination), but only within such period of time ending on the
earlier of (i) the date twelve (12) months following such termination
(or such longer or shorter period specified in the Option Agreement), or
(ii) the expiration of the term of the Option as set forth in the Option
Agreement. If, at the date of termination, the Optionee is not entitled
to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become
available for issuance under the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified
herein, the Option shall terminate, and the shares covered by such
Option shall revert to and again become available for issuance under the
Plan.
(i) Death of Optionee. In the event of the death of an Optionee
during, or within a period specified in the Option after the termination
of the Optionee's Continuous Status as an Employee, Director or
Consultant, the Option may be exercised (to the extent the Optionee was
entitled to exercise the Option at the date of death) by the Optionee's
estate, by a person who acquired the right to exercise the Option by
bequest or inheritance or by a person designated to exercise the option
upon the Optionee's death pursuant to subsection 6(d), but only within
the period ending on the earlier of (i) the date eighteen (18) months
following the date of death (or such longer or shorter period specified
in the Option Agreement), or (ii) the expiration of the term of such
Option as set forth in the Option Agreement. If, at the time of death,
the Optionee was not entitled to exercise his or her entire Option, the
shares covered by the unexercisable portion of the Option shall revert
to and again become available for issuance under the Plan. If, after
death, the Option is not exercised within the time specified herein, the
Option shall terminate, and the shares covered by such Option shall
revert to and again become available for issuance under the Plan.
(j) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while an Employee, Director
or Consultant to exercise the Option as to any part or all of the shares
subject to the Option prior to the full vesting of the Option. Any
unvested shares so purchased may be subject to a repurchase right in
favor of the Company or to any other restriction the Board determines to
be appropriate.
(k) Withholding. To the extent provided by the terms of an Option
Agreement, the Optionee may satisfy any federal, state or local tax
withholding obligation relating to the exercise of such Option by any of
the following means or by a combination of such means: (1) tendering a
cash payment; (2) authorizing the Company to withhold shares from the
shares of the common stock otherwise issuable to the Optionee as a
result of the exercise of the Option; or (3) delivering to the Company
owned and unencumbered shares of the common stock of the Company.
7. Covenants of the Company.
(a) During the terms of the Options, the Company shall keep available
at all times the number of shares of stock required to satisfy such
Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the Options;
provided, however, that this undertaking shall not require the Company
to register under the Securities Act either the Plan, any Option or any
stock issued or issuable pursuant to any such Option. If, after
reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for the
Company deems necessary for the lawful issuance and sale of stock under
the Plan, the Company shall be relieved from any liability for failure
to issue and sell stock upon exercise of such Options unless and until
such authority is obtained.
8. Use of Proceeds from Stock.
Proceeds from the sale of stock pursuant to Options shall constitute
general funds of the Company.
9. Miscellaneous.
(a) The Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or any
part thereof will vest pursuant to subsection 6(e), notwithstanding the
provisions in the Option stating the time at which it may first be
exercised or the time during which it will vest.
(b) Neither an Optionee nor any person to whom an Option is transferred
under subsection 6(d) shall be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any shares subject to
such Option unless and until such person has satisfied all requirements
for exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Employee, Director, Consultant or
Optionee any right to continue in the employ of the Company or any
Affiliate (or to continue acting as a Director or Consultant) or shall
affect the right of the Company or any Affiliate to terminate the
employment or relationship as a Director or Consultant of any Employee,
Director, Consultant or Optionee with or without cause.
(d) To the extent that the aggregate Fair Market Value (determined at
the time of grant) of stock with respect to which Incentive Stock
Options granted are exercisable for the first time by any Optionee
during any calendar year under all plans of the Company and its
Affiliates exceeds one hundred thousand dollars ($100,000), the Options
or portions thereof which exceed such limit (according to the order in
which they were granted) shall be treated as Nonstatutory Stock Options.
(e) (1) The Board or the Committee shall have the authority to effect,
at any time and from time to time (i) the repricing of any outstanding
Options under the Plan and/or (ii) with the consent of the affected
holders of Options, the cancellation of any outstanding Options and the
grant in substitution therefor of new Options under the Plan covering
the same or different numbers of shares of Common Stock, but having an
exercise price per share not less than eighty-five percent (85%) of the
Fair Market Value (one hundred percent (100%) of the Fair Market Value
in the case of an Incentive Stock Option or, in the case of a ten
percent (10%) stockholder (as defined in subsection 5(c)), not less than
one hundred and ten percent (110%) of the Fair Market Value) per share
of Common Stock on the new grant date.
(2) Shares subject to an Option canceled under this subsection 9(e)
shall continue to be counted against the maximum award of Options
permitted to be granted pursuant to subsection 5(d) of the Plan. The
repricing of an Option under this subsection 9(e), resulting in a
reduction of the exercise price, shall be deemed to be a cancellation of
the original Option and the grant of a substitute Option; in the event
of such repricing, both the original and the substituted Options shall
be counted against the maximum awards of Options permitted to be granted
pursuant to subsection 5(d) of the Plan. The provisions of this
subsection 9(e) shall be applicable only to the extent required by
Section 162(m) of the Code.
10. Adjustments Upon Changes In Stock.
(a) If any change is made in the stock subject to the Plan, or subject
to any Option (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash,
stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan will be
appropriately adjusted in the class(es) of securities and maximum number
of shares subject to the Plan pursuant to subsection 4(a) and the
maximum number of shares subject to award to any person during any
calendar year pursuant to subsection 5(d), and the outstanding Options
will be appropriately adjusted in the class(es) of securities and number
of shares and price per share of stock subject to such outstanding
Options.
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or
consolidation in which the Company is not the surviving corporation; or
(3) a reverse merger in which the Company is the surviving corporation
but the shares of the Company's common stock outstanding immediately
preceding the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, then to
the extent permitted by applicable law: (i) any surviving corporation
shall assume any Options outstanding under the Plan or shall substitute
similar Options for those outstanding under the Plan, or (ii) such
Options shall continue in full force and effect. In the event any
surviving corporation refuses to assume or continue such Options, or to
substitute similar options for those outstanding under the Plan, then,
with respect to Options held by persons then performing services as
Employees, Directors or Consultants, then such Options shall be
terminated if not exercised prior to such event; provided, however, that
the time during which such Options may be exercised may, at the
discretion of the Board, be accelerated and the Options terminated if
not exercised prior to such event.
11. Amendment Of The Plan And Options.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 10 relating to adjustments upon
changes in stock, no amendment shall be effective unless approved by the
stockholders of the Company to the extent stockholder approval is
necessary for the Plan to satisfy the requirements of Section 422 of the
Code, Rule 16b-3 or any Nasdaq or securities exchange listing
requirements.
(b) The Board may in its sole discretion submit any other amendment to
the Plan for stockholder approval, including, but not limited to,
amendments to the Plan intended to satisfy the requirements of Section
162(m) of the Code and the regulations promulgated thereunder regarding
the exclusion of performance-based compensation from the limit on
corporate deductibility of compensation paid to certain executive
officers.
(c) It is expressly contemplated that the Board may amend the Plan in
any respect the Board deems necessary or advisable to provide Optionees
with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder
relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.
(d) Rights and obligations under any Option granted before amendment of
the Plan shall not be altered or impaired by any amendment of the Plan
unless (i) the Company requests the consent of the person to whom the
Option was granted and (ii) such person consents in writing.
12. Termination or Suspension of the Plan.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on September 11, 2005, which
shall be within ten (10) years from the date the Plan is adopted by the
Board or approved by the stockholders of the Company, whichever is
earlier. No Options may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any Option granted while the Plan is
in effect shall not be altered or impaired by suspension or termination
of the Plan, except with the consent of the person to whom the Option
was granted.
13. Effective Date Of Plan.
The Plan shall become effective as determined by the Board, but no
Options granted under the Plan shall be exercised unless and until the
Plan has been approved by the stockholders of the Company.
Exhibit 99.2
LUMISYS INCORPORATED
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ADOPTED ON AUGUST 16, 1995
APPROVED BY STOCKHOLDERS ON OCTOBER 11, 1995
ADJUSTED FOR 1:4 STOCK SPLIT NOVEMBER 1995
AMENDED BY THE BOARD MARCH 5, 1998
AMENDMENTS APPROVED BY STOCKHOLDERS ON JUNE 9, 1998
AMENDED BY THE BOARD APRIL 27, 1999
AMENDMENTS APPROVED BY STOCKHOLDERS ON June 17, 1999
TERMINATION: AUGUST 15, 2005
1. PURPOSE.
(a) The purpose of the 1995 Non-Employee Directors' Stock Option Plan
(the "Plan") is to provide a means by which each director of Lumisys
Incorporated (the "Company") who is not otherwise an employee of the Company
(including a compensated Chairman of the Board of the Company) or of any
Affiliate of the Company (each such person being hereafter referred to as a
"Non-Employee Director") will be given an opportunity to purchase stock of
the Company.
(b) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company as those terms are defined in
Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now serving as Non-Employee Directors of the Company, to secure and
retain the services of persons capable of serving in such capacity, and to
provide incentives for such persons to exert maximum efforts for the success
of the Company.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to
a committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to options to
purchase shares of common stock of the Company granted under the Plan
(hereinafter referred to singularly as an "Option" and collectively as
"Options") shall not exceed in the aggregate five hundred sixty-two thousand
five hundred (562,500) shares of the Company's common stock. If any Option
granted under the Plan shall for any reason expire or otherwise terminate
without having been exercised in full, the stock not purchased under such
Option shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
4. ELIGIBILITY.
Options shall be granted only to Non-Employee Directors of the
Company.
5. NON-DISCRETIONARY AND DISCRETIONARY GRANTS.
(a) Each person who is, on and after April 27, 1999, elected or appointed
for the first time to be a Non-Employee Director, shall automatically, upon
the later of (i) date of such person's initial election or appointment to be
a Non-Employee Director by the Board or stockholders of the Company and (ii)
the annual meeting of stockholders held in 1999 at which the amendments to
this Plan are approved, be granted an Option to purchase twenty-five thousand
(25,000) shares of common stock of the Company (an "Initial Grant") on the
terms and conditions set forth herein.
(b) On the first anniversary of the Initial Grant, each Non-Employee
Director who received an Initial Grant and who is still serving as a Non-
Employee Director shall automatically be granted an additional Option to
purchase twenty-five thousand (25,000) shares of common stock of the Company
(an "Anniversary Grant") on the terms and conditions set forth herein.
(c) From and after June 17, 1999, each Non-Employee Director shall be
eligible to receive discretionary grants of Options (a "Discretionary Grant")
as may be approved by the Board of Directors; provided, however, that any
Non-Employee Director who has previously received an Initial Grant shall not
be eligible to receive Discretionary Grants until on or after the second
anniversary of such person's Initial Grant.
6. OPTION PROVISIONS.
Each Option shall be subject to the following terms and
conditions:
(a) The term of each Option commences on the date it is granted and,
unless sooner terminated as set forth herein, expires on the date
("Expiration Date") ten (10) years from the date of grant. If the optionee's
service as a Non-Employee Director of the Company terminates for any reason
or for no reason, the Option shall terminate on the earlier of the Expiration
Date or the date three (3) months following the date of termination of
service; provided, however, that if such termination of service is due to the
optionee's death, the Option shall terminate on the earlier of the Expiration
Date or eighteen (18) months following the date of the optionee's death. In
any and all circumstances, an Option may be exercised following termination
of the optionee's service as a Non-Employee Director of the Company only as
to that number of shares as to which it was exercisable on the date of
termination of such service under the provisions of subparagraph 6(e).
(b) The exercise price of each Option shall be one hundred percent (100%)
of the fair market value of the stock subject to such Option on the date such
Option is granted.
(c) Payment of the exercise price of each Option is due in full in cash
upon any exercise when the number of shares being purchased upon such
exercise is less than one thousand (1,000) shares; but when the number of
shares being purchased upon an exercise of an Option is one thousand (1,000)
or more shares, the optionee may elect to make payment of the exercise price
under one of the following alternatives:
(i) Payment of the exercise price per share in cash at the time of
exercise; or
(ii) Provided that at the time of the exercise the Company's common
stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of shares of common stock of the Company already owned by
the optionee, held for the period required to avoid a charge to the Company's
reported earnings, and owned free and clear of any liens, claims,
encumbrances or security interest, which common stock shall be valued at its
fair market value on the date preceding the date of exercise; or
(iii) Payment by a combination of the methods of payment specified in
subparagraph 6(c)(i) and 6(c)(ii) above.
Notwithstanding the foregoing, an Option may be exercised
pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which results in the
receipt of cash (or check) by the Company prior to the issuance
of shares of the Company's common stock.
(d) An Option shall not be transferable except by will or by the laws of
descent and distribution, and shall be exercisable during the lifetime of the
person to whom the Option is granted only by such person or by such person's
guardian or legal representative. The person to whom the Option is granted
may, by delivering written notice to the Company, in a form satisfactory to
the Company, designate a third party who, in the event of the death of the
Optionee, shall thereafter be entitled to exercise the Option.
(e) Each Initial Grant and Anniversary Grant shall be fully vested and
exercisable upon grant. Each Discretionary Grant shall become vested and
exercisable as determined by the Board or the Committee. Each Option granted
prior to April 27, 1999 shall become vested and exercisable in accordance
with the terms of the Plan as in effect on the date of grant of such Option.
(f) The Company may require any optionee, or any person to whom an Option
is transferred under subparagraph 6(d), as a condition of exercising any such
Option: (i) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters; and
(ii) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the Option for such person's own
account and not with any present intention of selling or otherwise
distributing the stock. These requirements, and any assurances given pursuant
to such requirements, shall be inoperative if (i) the issuance of the shares
upon the exercise of the Option has been registered under a then-currently-
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), or (ii), as to any particular requirement, a
determination is made by counsel for the Company that such requirement need
not be met in the circumstances under the then-applicable securities laws.
(g) Notwithstanding anything to the contrary contained herein, an Option
may not be exercised unless the shares issuable upon exercise of such Option
are then registered under the Securities Act or, if such shares are not then
so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the Options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the Options granted under the
Plan; provided, however, that this undertaking shall not require the Company
to register under the Securities Act either the Plan, any Option granted
under the Plan, or any stock issued or issuable pursuant to any such Option.
If, after reasonable efforts, the Company is unable to obtain from the
applicable regulatory commission or agency the authority which counsel for
the Company deems necessary for the lawful issuance and sale of stock under
the Plan, the Company shall be relieved from any liability for failure to
issue and sell stock upon exercise of such Options.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options granted
under the Plan shall constitute general funds of the Company.
9. MISCELLANEOUS.
(a) Neither an optionee nor any person to whom an Option is transferred
under subparagraph 6(d) shall be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares subject to such Option
unless and until such person has satisfied all requirements for exercise of
the Option pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant thereto
shall confer upon any Non-Employee Director any right to continue in the
service of the Company or any Affiliate or shall affect any right of the
Company, its Board or stockholders or any Affiliate to terminate the service
of any Non-Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a group, and
no beneficiary or other person claiming under or through such Non-Employee
Director, shall have any right, title or interest in or to any Option
reserved for the purposes of the Plan except as to such shares of common
stock, if any, as shall have been reserved for such Non-Employee Director
pursuant to an Option granted to him or her.
(d) In connection with each Option made pursuant to the Plan, it shall be
a condition precedent to the Company's obligation to issue or transfer shares
to a Non-Employee Director, or to evidence the removal of any restrictions on
transfer, that such Non-Employee Director make arrangements satisfactory to
the Company to insure that the amount of any federal or other withholding tax
required to be withheld with respect to such sale or transfer, or such
removal or lapse, is made available to the Company for timely payment of such
tax.
(e) As used in this Plan, fair market value means, as of any date, the
value of the Common Stock of the Company determined as follows:
(i) If the common stock is listed on any established stock exchange
or a national market system, including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") System, the Fair Market Value of a share of common stock
shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such system or exchange (or the exchange
with the greatest volume of trading in common stock) on the last market
trading day prior to the day of determination, as reported in the Wall Street
Journal or such other source as the Board deems reliable;
(ii) If the common stock is quoted on the Nasdaq System (but not on
the National Market System thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value
of a share of common stock shall be the mean between the bid and asked prices
for the common stock on the last market trading day prior to the day of
determination, as reported in the Wall Street Journal or such other source as
the Board deems reliable;
(iii) In the absence of an established market for the common stock,
the Fair Market Value shall be determined in good faith by the Board.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to
any Option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or otherwise), the Plan and the
Options outstanding under the Plan will be appropriately adjusted in the
types of securities and the maximum number of shares subject to the Plan and
the types of securities and the number of shares and price per share of stock
subject to outstanding Options.
(b) In the event of: (1) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger into a wholly owned
subsidiary; (2) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise; or (3)
any other capital reorganization in which more than fifty percent (50%) of
the shares of the Company entitled to vote are exchanged, the time during
which Options outstanding under the Plan may be exercised shall be
accelerated and the Options terminated if not exercised prior to such event.
11. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
Except as provided in paragraph 10 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company within twelve (12) months before or after the adoption of the
amendment, if such amendment requires stockholder approval in order for the
Plan to comply with the requirements of Rule 16b-3 promulgated under the
Exchange Act or any Nasdaq or securities exchange listing requirements.
(b) Rights and obligations under any Option granted before any amendment
of the Plan shall not be altered or impaired by such amendment of the Plan
unless (i) the Company requests the consent of the person to whom the Option
was granted and (ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on August 15, 2005. No Options
may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any Option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Option was granted.
(c) The Plan shall terminate upon the occurrence of any of the events
described in Section 10(b) above.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
(a) The Plan and any amendments thereto shall become effective upon
adoption by the Board of Directors, subject to the condition subsequent that
the Plan and those amendments requiring stockholder approval are approved by
the stockholders of the Company.
(b) No Option granted under the Plan shall be exercised or exercisable
unless and until the condition of subparagraph 13(a) above has been met.
