<PAGE>
As filed with the Securities and Exchange Commission on September 23, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________________
NORTHWEST PIPE COMPANY
(Exact name of registrant as specified in charter)
OREGON 93-0557988
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
________________________
12005 N. BURGARD, PORTLAND, OREGON 97203
(503) 285-1400
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
________________________
NORTHWEST PIPE COMPANY
1995 STOCK INCENTIVE PLAN
________________________
BRIAN W. DUNHAM
PRESIDENT AND CHIEF OPERATING OFFICER
NORTHWEST PIPE COMPANY
12005 N. BURGARD, PORTLAND, OREGON 97203
(503) 285-1400
(Name, address, including zip code and telephone number,
including area code, of agent for service)
________________________
with copies to:
GREGORY E. STRUXNESS, ESQ.
ATER WYNNE LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of
be Registered Registered Price per Share (1) Aggregate Offering Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 200,000 shares $19.00 $3,800,000 $1,121
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement is filed in accordance with the provisions of
General Instruction E to Form S-8 for the purpose of registering additional
shares of common stock for offer and sale under the Northwest Pipe Company
1995 Stock Incentive Plan, for which a registration statement on Form S-8
(File No. 333-20167) is already effective. Except to the extent that exhibits
are filed herewith the contents of Northwest Pipe Company's registration
statement on Form S-8 (File No. 333-20167) are hereby incorporated by
reference.
ITEM 8. EXHIBITS
Number Description
------ -----------
5.1 Opinion of Ater Wynne LLP as to the legality of the securities being
registered
23.1 Consent of Ater Wynne LLP (included in legal opinion filed as
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included in signature page in Part II of the
Registration Statement)
99.1 Northwest Pipe Company Amended 1995 Stock Incentive Plan
ITEM 9. UNDERTAKINGS
a. The undersigned registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
i. to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
ii. to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
iii. to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or
-2-
<PAGE>
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
b. The undersigned registrant hereby undertakes that, for the
purpose of determining 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.
c. The undersigned registrant hereby undertakes 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.
d. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 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.
e. 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such a director, officer or controlling person in
connection with 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.
-3-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portland, State of Oregon, on the
22nd day of September, 1998.
NORTHWEST PIPE COMPANY
By: /s/ Brian W. Dunham
-----------------------------------
Brian W. Dunham
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William R. Tagmyer and Brian W. Dunham and each
of them singly, as true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign the registration statement filed
herewith and any or all amendments to said registration statement (including
post-effective amendments), 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 and about the foregoing, 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 agent or any of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Witness our hands on the date set forth below.
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.
[SIGNATURES ON FOLLOWING PAGE]
-4-
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ William R. Tagmyer Chairman and Chief Executive Officer
- ------------------------
William R. Tagmyer (Principal Executive Officer) 9/22/98
/s/ Brian W. Dunham President, Chief Operating Officer
- ------------------------
Brian W. Dunham and Director 9/22/98
/s/ John D. Murakami Vice President and Chief Financial
- ------------------------
John D. Murakami Officer (Principal Financial and
Accounting Officer) 9/22/98
/s/ Warren K. Kearns Director 9/22/98
- ------------------------
Warren K. Kearns
/s/ Wayne B. Kingsley Director 9/22/98
- ------------------------
Wayne B. Kingsley
/s/ Vern B. Ryles Director 9/22/98
- ------------------------
Vern B. Ryles
/s/ Neil R. Thornton Director 9/22/98
- ------------------------
Neil R. Thornton
-5-
<PAGE>
INDEX TO EXHIBITS
Exhibit Page
Number Exhibit No.
------- -----
5.1 Opinion of Ater Wynne LLP as to the legality of the securities being
registered
23.1 Consent of Ater Wynne LLP (included in legal opinion filed as
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included in signature page in Part II of the
Registration Statement)
99.1 Northwest Pipe Company Amended 1995 Stock Incentive Plan
<PAGE>
Exhibit 5.1
ATER WYNNE LLP
222 S.W. Columbia, Suite 1800
Portland, Oregon 97201
(503)226-1191 (phone)
(503)226-0079 (fax)
September 22, 1998
Board of Directors
Northwest Pipe Company
12005 N. Burgard
Portland, OR 97203-0149
Gentlemen:
In connection with the registration of 200,000 shares of common stock,
par value $.01 per share (the "Common Stock"), of Northwest Pipe Company, an
Oregon corporation (the "Company"), under the Registration Statement on Form
S-8 to be filed with the Securities and Exchange Commission on September 23,
1998, and the proposed offer and sale of the Common Stock pursuant to the
terms of the Company's 1995 Stock Incentive Plan (the "1995 Plan"), we have
examined such corporate records, certificates of public officials and officers
of the Company and other documents as we have considered necessary or proper
for the purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the 1995 Plan, when such shares have been delivered against
payment therefor as contemplated by the 1995 Plan, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
/s/ Ater Wynne LLP
Ater Wynne LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Northwest Pipe Company on Form S-8 of our report dated February 7,
1998, except for Note 18, for which the date is March 6, 1998, on our audits of
the consolidated financial statements and financial statement schedule of
Northwest Pipe Company and subsidiaries as of December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997, which report is
included in the Annual Report on Form 10-K of Northwest Pipe Company for the
year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Portland, Oregon
September 21, 1998
<PAGE>
Exhibit 99.1
NORTHWEST PIPE COMPANY
AMENDED 1995 STOCK INCENTIVE PLAN
1. PURPOSES OF THE PLAN.
--------------------
The purposes of this Stock Incentive Plan are to attract and retain the
best available personnel for positions of substantial responsibility, to
provide additional incentive to the Employees and Consultants of the Company
and to promote the success of the Company's business.
Options granted hereunder may be either "incentive stock options," as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, or
"nonqualified stock options," at the discretion of the Board and as reflected
in the terms of the written option agreement. In addition, shares of the
Company's Common Stock may be Sold hereunder independent of any Option grant.
2. DEFINITIONS.
-----------
As used herein, the following definitions shall apply:
2.1 "Administrator" shall mean the Board or any of its Committees as
-------------
shall be administering the Plan, in accordance with Section 41 of the Plan.
2.2 "Board" shall mean the Board of Directors of the Company.
-----
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
2.4 "Committee" shall mean a Committee appointed by the Board in
---------
accordance with Section 41 of the Plan.
2.5 "Common Stock" shall mean the Class B Common Stock of the Company.
------------
2.6 "Company" shall mean Northwest Pipe Company, an Oregon corporation.
-------
2.7 "Consultant" shall mean any person who is engaged by the Company or
----------
any Parent or Subsidiary to render consulting services and is compensated for
such consulting services and any Director of the Company whether compensated
for such services or not.
2.8 "Continuous Status as an Employee or Consultant" shall mean the
----------------------------------------------
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an
<PAGE>
Employee or Consultant shall not be considered interrupted in the case of: (i)
any sick leave, military leave, or any other leave of absence approved by the
Company; provided, however, that for purposes of Incentive Stock Options, any
such leave is for a period of not more than ninety days or reemployment upon
the expiration of such leave is guaranteed by contract or statute, provided
further, that on the ninety-first day of such leave (where reemployment is not
guaranteed by contract or statute) the Optionee's Incentive Stock Option shall
automatically convert to a Nonqualified Stock Option; or (ii) transfers
between locations of the Company or between the Company, its Parent, its
Subsidiaries or its successor.
2.9 "Director" shall mean a member of the Board.
--------
2.10 "Disability" shall mean total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
2.11 "Employee" shall mean any person, including Officers and Directors,
--------
employed by the Company or any Parent or Subsidiary of the Company. Neither
the payment of a director's fee by the Company nor service as a Director shall
be sufficient to constitute "employment" by the Company.
2.12 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
2.13 "Incentive Stock Option" shall mean an Option intended to qualify as
----------------------
an incentive stock option within the meaning of Section 422 of the Code.
2.14 "Nonqualified Stock Option" shall mean an Option not intended to
-------------------------
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
2.15 "Notice of Grant" shall mean a written notice evidencing certain
---------------
terms and conditions of an individual Option grant. The Notice of Grant is
part of the Option Agreement.
2.16 "Officer" shall mean 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.
2.17 "Option" shall mean a stock option granted pursuant to the Plan.
------
2.18 "Option Agreement" shall mean a written agreement between the
----------------
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of
the Plan.
2.19 "Optioned Stock" shall mean the Common Stock subject to an Option.
--------------
2.20 "Optionee" shall mean an Employee or Consultant who receives an
--------
Option.
2 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
2.21 "Parent" shall mean a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
2.22 "Plan" shall mean this 1995 Stock Incentive Plan.
----
2.23 "Rule 16b-3" shall mean 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.
2.24 "Sale" or "Sold" shall include, with respect to the sale of Shares
---- ----
under the Plan, the sale of Shares for consideration in the form of cash or
notes, as well as a grant of Shares for consideration in the form of past or
future services.
2.25 "Share" shall mean a share of the Common Stock, as adjusted in
-----
accordance with Section 11 of the Plan.
2.26 "Subsidiary" shall mean a "subsidiary corporation," whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN.
-------------------------
Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of Shares which may be optioned and/or Sold under the Plan is
629,000 shares of Common Stock. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available
for future Option grants and/or Sales under the Plan; provided, however, that
Shares that have actually been issued under the Plan shall not be returned to
the Plan and shall not become available for future distribution under the
Plan.
4. ADMINISTRATION OF THE PLAN.
--------------------------
4.1 Procedure.
---------
4.1.1 Multiple Administrative Bodies. If permitted by Rule 16b-3,
------------------------------
the Plan may be administered by different bodies with respect to
Directors, Officers who are not Directors, and Employees who are neither
Directors nor Officers.
4.1.2 Administration With Respect to Directors and Officers Subject
-------------------------------------------------------------
to Section 16(b). With respect to Option grants made to Employees who
----------------
are also Officers or Directors subject to Section 16(b) of the Exchange
Act, the Plan shall be administered by (A) the Board, if the Board may
administer the Plan in compliance with the rules governing a plan
intended to qualify as a discretionary plan under Rule 16b-3, or (B) a
Committee designated by the Board to administer the Plan, which Committee
shall be constituted to comply with the rules, if any, governing a plan
intended to qualify as a
3 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
discretionary plan under Rule 16b-3. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the size
of the Committee and appoint additional members, remove members (with or
without cause) and substitute new members, fill vacancies (however
caused), and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by the rules, if any,
governing a plan intended to qualify as a discretionary plan under Rule
16b-3. With respect to persons subject to Section 16 of the Exchange
Act, transactions under the Plan are intended to comply with all
applicable conditions of Rule 16b-3. To the extent any provision of the
Plan or action by the Administrator fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable
by the Administrator.
4.1.3 Administration With Respect to Other Persons. With respect
--------------------------------------------
to Option grants made to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by
the Board or a Committee designated by the Board, which Committee shall
be constituted to satisfy the legal requirements relating to the
administration of stock option plans under state corporate and securities
laws and the Code. Once appointed, such Committee shall serve in its
designated capacity until otherwise directed by the Board. The Board may
increase the size of the Committee and appoint additional members, remove
members (with or without cause) and substitute new members, fill
vacancies (however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by
the legal requirements relating to the administration of stock option
plans under state corporate and securities laws and the Code.
4.2 Powers of the Administrator. Subject to the provisions of the Plan,
---------------------------
and in the case of a Committee, subject to the specific duties delegated by
the Board to such Committee, the Administrator shall have the authority, in
its discretion:
4.2.1 to grant Incentive Stock Options in accordance with Section
422 of the Code, or Nonqualified Stock Options;
4.2.2 to authorize Sales of Shares of Common Stock hereunder;
4.2.3 to determine, upon review of relevant information and in
accordance with Section 82 of the Plan, the fair market value of the
Common Stock;
4.2.4 to determine the exercise/purchase price per Share of Options
to be granted or Shares to be Sold, which exercise/purchase price shall
be determined in accordance with Section 81 of the Plan;
4.2.5 to determine the Employees or Consultants to whom, and the
time or times at which, Options shall be granted and the number of Shares
to be represented by each Option;
4 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
4.2.6 to determine the Employees or Consultants to whom, and the time
or times at which, Shares shall be Sold and the number of Shares to be
Sold;
4.2.7 to interpret the Plan;
4.2.8 to prescribe, amend and rescind rules and regulations relating
to the Plan;
4.2.9 to determine the terms and provisions of each Option granted
(which need not be identical) and, with the consent of the holder
thereof, modify or amend each Option;
4.2.10 to determine the terms and provisions of each Sale of Shares
(which need not be identical) and, with the consent of the purchaser
thereof, modify or amend each Sale;
4.2.11 to accelerate or defer (with the consent of the Optionee) the
exercise date of any Option;
4.2.12 to accelerate or defer (with the consent of the Optionee or
purchaser of Shares) the vesting restrictions applicable to Shares Sold
under the Plan or pursuant to Options granted under the Plan;
4.2.13 to authorize any person to execute on behalf of the Company
any instrument required to effectuate the grant of an Option or Sale of
Shares previously granted or authorized by the Board;
4.2.14 to determine the restrictions on transfer, vesting
restrictions, repurchase rights, or other restrictions applicable to Shares
issued under the Plan;
4.2.15 to effect, at any time and from time to time, with the consent
of the affected Optionees, the cancellation of any or all outstanding
Options under the Plan and to grant in substitution therefor new Options
under the Plan covering the same or different numbers of Shares, but having
an Option price per Share consistent with the provisions of Section 8 of
this Plan as of the date of the new Option grant;
4.2.16 to establish, on a case-by-case basis, different terms and
conditions pertaining to exercise or vesting rights upon termination of
employment, whether at the time of an Option grant or Sale of Shares, or
thereafter;
4.2.17 to approve forms of agreement for use under the Plan;
4.2.18 to reduce the exercise price of any Option to the then
current fair market value if the fair market value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
5 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
4.2.19 to determine whether and under what circumstances an Option
may be settled in cash under subsection 9.5 instead of Common Stock; and
4.2.20 to make all other determinations deemed necessary or
advisable for the administration of the Plan.
4.3 Effect of Board's Decision. All decisions, determinations and
--------------------------
interpretations of the Administrator shall be final and binding on all
Optionees and any other holders of any Options granted under the Plan or
Shares Sold under the Plan.
5. ELIGIBILITY.
-----------
5.1 Persons Eligible. Options may be granted and/or Shares Sold only to
----------------
Employees and Consultants. Incentive Stock Options may be granted only to
Employees. An Employee or Consultant who has been granted an Option or Sold
Shares may, if he or she is otherwise eligible, be granted an additional
Option or Options or Sold additional Shares.
5.2 ISO Limitation. To the extent that the aggregate fair market value:
--------------
(i) of shares subject to an Optionee's Incentive Stock Options granted by the
Company, any Parent or Subsidiary, which (ii) become exercisable for the first
time during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonqualified Stock Options. For purposes of this Section 52, Incentive Stock
Options shall be taken into account in the order in which they were granted,
and the fair market value of the Shares shall be determined as of the time of
grant.
5.3 Section 52 Limitations. Section 52 of the Plan shall apply only to
----------------------
an Incentive Stock Option evidenced by an Option Agreement which sets forth
the intention of the Company and the Optionee that such Option shall qualify
as an Incentive Stock Option. Section 52 of the Plan shall not apply to any
Option evidenced by a Option Agreement which sets forth the intention of the
Company and the Optionee that such Option shall be a Nonqualified Stock
Option.
5.4 No Right to Continued Employment. The Plan shall not confer upon
--------------------------------
any Optionee any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his employment or
consulting relationship at any time.
5.5 Other Limitations. The following limitations shall apply to grants
-----------------
of Options to Employees:
5.5.1 No Employee shall be granted, in any fiscal year of the
Company, Options to purchase more than 100,000 Shares.
6 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
5.5.2 In connection with his or her initial employment, an Employee
may be granted Options to purchase up to an additional 100,000 Shares which
shall not count against the limit set forth in subsection 5.5.1 above.
5.5.3 The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 11.
5.5.4 If an Option is canceled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 11, the canceled Option shall be counted against the
limits set forth in subsections 5.5.1 and 5.5.2) above. For this purpose, if
the exercise price of an Option is reduced, the transaction will be treated as
a cancellation of the Option and the grant of a new Option.
6. TERM OF PLAN.
------------
The Plan shall become effective upon the earlier to occur of its adoption
by the Board or its approval by the shareholders of the Company as described
in Section 17 of the Plan. It shall continue in effect for a term of ten (10)
years, unless sooner terminated under Section 13 of the Plan.
7. TERM OF OPTION.
--------------
The term of each Option shall be stated in the Notice of Grant; provided,
however, that in the case of an Incentive Stock Option, the term shall be ten
(10) years from the date of grant or such shorter term as may be provided in
the Notice of Grant. However, in the case of an Incentive Stock Option
granted to an Optionee who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the date of grant thereof
or such shorter term as may be provided in the Notice of Grant.
8. EXERCISE/PURCHASE PRICE AND CONSIDERATION.
-----------------------------------------
8.1 Exercise/Purchase Price. The per-Share exercise/purchase price for
-----------------------
the Shares to be issued pursuant to exercise of an Option or a Sale shall be
such price as is determined by the Administrator, but shall be subject to the
following:
8.1.1 In the case of an Incentive Stock Option
8.1.1.1 granted to an Employee who, at the time of the grant
of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price
shall be no less than one hundred ten percent (110%) of the fair
market value per Share on the date of the grant.
7 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
8.1.1.2 granted to any other Employee, the per Share exercise
price shall be no less than one hundred percent (100%) of the fair
market value per Share on the date of grant.
8.1.2 In the case of a Nonqualified Stock Option or Sale the per
Share exercise/purchase price determined by the Administrator.
Any determination to establish an Option exercise price or effect a Sale
of Common Stock at less than fair market value on the date of the Option grant
or authorization of Sale shall be accompanied by an express finding by the
Administrator specifying that the sale is in the best interest of the Company,
and specifying both the fair market value and the Option exercise or Sale
price of the Common Stock.
8.2 Fair Market Value. The fair market value per Share shall be
-----------------
determined by the Administrator in its discretion; provided, however, that
where there is a public market for the Common Stock, the fair market value per
Share shall be the closing price of the Common Stock (or the closing bid if no
sales were reported) for the date of grant of the Option or authorization of
Sale or other determination, as reported in The Wall Street Journal (or, if
-----------------------
not so reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation (NASDAQ) System) or, in the event the
Common Stock is listed on a stock exchange, the fair market value per Share
shall be the closing price on such exchange for the date of grant of the
Option or authorization of Sale or other determination, as reported in The
---
Wall Street Journal.
- -------------------
8.3 Consideration. The consideration to be paid for the Shares to be
-------------
issued upon exercise of an Option or pursuant to a Sale, including the method
of payment, shall be determined by the Administrator. In the case of an
Incentive Stock Option, the Administrator shall determine the acceptable form
of consideration at the time of grant. Such consideration may consist of:
8.3.1 cash;
8.3.2 check;
8.3.3 transfer to the Company of Shares which
8.3.3.1 in the case of Shares acquired upon exercise of an
Option, have been owned by the Optionee for more than six months on
the date of surrender, and
8.3.3.2 have a fair market value on the date of surrender
equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised;
8.3.4 delivery of a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the
Company the amount of Sale or loan proceeds required to pay the exercise
price;
8 - AMENDED 1995 STOCK INCENTIVE PLAN
<PAGE>
8.3.5 such other consideration and method of payment for the
issuance of Shares to the extent permitted by legal requirements relating
to the administration of stock option plans under state corporate and
securities laws and the Code; or
8.3.6 any combination of the foregoing methods of payment.
If the fair market value of the number of whole Shares transferred or the
number of whole Shares surrendered is less than the total exercise price of
the Option, the shortfall must be made up in cash or by check.
Notwithstanding the foregoing provisions of this Section 83, the consideration
for Shares to be issued pursuant to a Sale may not include, in whole or in
part, the consideration set forth in subsections 8.3.3 and 8.3.4 above.
9. EXERCISE OF OPTION.
------------------
9.1 Procedure for Exercise; Rights as a Shareholder. Any Option granted
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hereunder shall be exercisable at such times and under such conditions as
determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the
terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under the Option Agreement and
Section 83 of the Plan. Each Optionee who exercises an Option shall, upon
notification of the amount due (if any) and prior to or concurrent with
delivery of the certificate representing the Shares, pay to the Company
amounts necessary to satisfy applicable federal, state and local tax
withholding requirements. An Optionee must also provide a duly executed copy
of any stock transfer agreement then in effect and determined to be applicable
by the Administrator. Until the issuance (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of
the Company) of the stock certificate evidencing such Shares, no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except as provided
in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
9.2 Termination of Employment or Consulting Relationship. In the event
----------------------------------------------------
that an Optionee's Continuous Status as an Employee or Consultant terminates
(other than upon the Optionee's death or Disability) the Optionee may exercise
his or her Option, but only within
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such period of time as is determined by the Administrator, and only to the
extent that the Optionee was entitled to exercise it at the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant). In the case of an Incentive
Stock Option, the Administrator shall determine such period of time (in no
event to exceed ninety (90) days from the date of termination) when the Option
is granted. 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 the Plan. If, after termination, the
Optionee does not exercise his or her Option with the time specified by the
Administrator, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
9.3 Disability of Optionee. In the event that an Optionee's Continuous
----------------------
Status as an Employee or Consultant terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option at any time within
twelve (12) months from the date of such termination, but only to the extent
that the Optionee was entitled to exercise it at the date of such termination
(but in no event later than the expiration of the term of such Option as set
forth in the Notice of Grant). 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 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 the Plan.
9.4 Death of Optionee. In the event of the death of an Optionee, the
-----------------
Option may be exercised at any time within twelve (12) months following the
date of death (but in the no event later than the expiration of the term of
such Option as set forth in the Notice of Grant), by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that the Optionee was entitled to exercise
the Option at the date of death. 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 the Plan. If, after
death, the Optionee's estate or a person who acquired the right to exercise
the Option by bequest or inheritance does not exercise the Option within the
time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
9.5 Buyout Provisions. The Administrator may at any time offer to
-----------------
buyout for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time such offer is made.
10. NONTRANSFERABILITY OF OPTIONS.
-----------------------------
Except as otherwise specifically provided in the Option Agreement, an
Option may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will, or by the laws of descent and
distribution, and may be exercised during the lifetime of the Optionee only by
the Optionee or, if incapacitated, by his or her legal guardian or legal
representative.
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<PAGE>
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
----------------------------------------------------
11.1 Changes in Capitalization: Subject to any required action by the
-------------------------
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have
yet been granted or Sales made or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Administrator, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an Option.
11.2 Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, each outstanding Option will
terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Administrator. The Administrator may, in the
exercise of its sole discretion in such instances, declare that any Option
shall terminate as of a date fixed by the Board and give each Optionee the
right to exercise his or her Option as to all or any part of the Optioned
Stock, including Shares as to which the Option would not otherwise be
exercisable.
11.3 Merger or Asset Sale. In the event of a proposed sale of all or
--------------------
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each outstanding Option shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
Parent or Subsidiary of such successor corporation, unless the Administrator
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Administrator makes an
Option fully exercisable in lieu of assumption or substitution in the event of
a merger or sale of assets, the Administrator shall notify the Optionee that
the Option shall be fully exercisable for a period of thirty (30) days from
the date of such notice or such shorter period as the Administrator may
specify in the notice, and the Option will terminate upon the expiration of
such period. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the Option
confers the right to purchase, for each Share of Optioned Stock subject to the
Option immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger
or sale of assets by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority
of the outstanding Shares); provided,
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<PAGE>
however, that if such consideration received in the merger or sale of assets
was not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation and the
Optionee, provide for the consideration to be received upon the exercise of
the Option, for each Share of Optioned Stock subject to the Option, to be
solely common stock of the successor corporation or its Parent equal in fair
market value to the per share consideration received by holders of Common
Stock in the merger or sale of assets.
12. TIME OF GRANTING OPTIONS.
------------------------
The date of grant of an Option shall, for all purposes, be the date on
which the Administrator makes the determination granting such Option. Notice
of the determination shall be given to each Optionee within a reasonable time
after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
-------------------------------------
13.1 Amendment and Termination. The Board may amend or terminate the
-------------------------
Plan from time to time in such respects as the Board may deem advisable.
13.2 Shareholder Approval. The Company shall obtain shareholder
--------------------
approval of any Plan amendment to the extent necessary and desirable to comply
with Rule 16b-3 or with Section 422 of the Code (or any successor rule or
statute or other applicable law, rule or regulation, including the
requirements of any exchange or quotation system on which the Common Stock is
listed or quoted). Such shareholder approval, if required, shall be obtained
in such a manner and to such a degree as is required by the applicable law,
rule or regulation.
13.3 Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES.
----------------------------------
Shares shall not be issued pursuant to the exercise of an Option or a
Sale unless the exercise of such Option or consummation of the Sale and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act
of 1933, as amended, applicable state securities laws, the Exchange Act, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange (including NASDAQ) upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
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<PAGE>
15. RESERVATION OF SHARES.
---------------------
The Company, during the term of this Plan, will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
16. LIABILITY OF COMPANY.
--------------------
16.1 Inability to Obtain Authority. Inability of the Company to obtain
-----------------------------
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
As a condition to the exercise of an Option or a Sale, the Company may
require the person exercising such Option or to whom Shares are being Sold to
represent and warrant at the time of any such exercise or Sale that the Shares
are being purchased only for investment and without any present intention to
sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned relevant
provisions of law.
16.2 Grants Exceeding Allotted Shares. If the Optioned Stock covered by
--------------------------------
an Option exceeds, as of the date of grant, the number of Shares which may be
issued under the Plan without additional shareholder approval, such Option
shall be void with respect to such excess Optioned Stock, unless shareholder
approval of an amendment sufficiently increasing the number of Shares subject
to the Plan is timely obtained in accordance with Section 13 of the Plan.
17. SHAREHOLDER APPROVAL.
--------------------
Continuance of the Plan shall be subject to approval by the shareholders
of the Company within twelve months before or after the date the Plan is
adopted. Such shareholder approval shall be obtained in the manner and to the
degree required under applicable federal and state law.
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