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As filed with the Securities and Exchange Commission on January __, 1998
Registration No. 0-27038
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
VISIONEER, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3156479
(State of incorporation) (I.R.S. Employer Identification No.)
34800 CAMPUS DRIVE
FREMONT, CA 94555
(Address of principal executive offices)
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1995 EMPLOYEE STOCK PURCHASE PLAN
1993 INCENTIVE STOCK OPTION PLAN
1995 DIRECTORS' STOCK OPTION PLAN
1997 EMPLOYEE STOCK OPTION PLAN
1997 NONSTATUTORY DIRECTOR'S STOCK OPTION PLAN (5,000 SHARES)
1997 NONSTATUTORY DIRECTOR'S STOCK OPTION PLAN (25,000 SHARES)
(Full title of the Plans)
-----------------------
J. Larry Smart
President & Chief Executive Officer
VISIONEER, INC.
34800 Campus Drive
Fremont, CA 94555
(510) 608-0300
(Name, address and telephone number, including area code, of agent for service)
-----------------------
Copy to:
John V. Bautista
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
Page 1 of 26 Pages
Exhibit Index on Page 6
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Maximum Amount Offering Aggregate Amount of
to be Price Per Offering Registration
Title of Securities to be Registered Registered(1) Share Price Fee
- ------------------------------------- ---------------- ------------- -------------- -------------
<S> <C> <C> <C> <C>
1995 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value.................. 400,000 Shares $1.43(2) $572,000.00 $168.74
1993 INCENTIVE STOCK OPTION PLAN
Common Stock Issuable upon
Exercise of Outstanding Options,
$0.001 par value.................. 459,708 Shares $3.83(3) $1,760,681.64 $519.40
Common Stock Reserved for Grant of
Additional Options,
$0.001 par value.................. 540,292 Shares $1.69(4) $913,093.48 $269.36
1995 DIRECTORS' STOCK OPTION PLAN
Common Stock Reserved for Grant of
Additional Options,
$0.001 par value.................. 120,000 Shares $1.69(4) $202,800.00 $59.83
1997 EMPLOYEE STOCK OPTION PLAN
Common Stock Issuable upon
Exercise of Outstanding Options,
$0.001 par value.................. 743,000 Shares $3.04(3) $2,258,720.00 $666.32
Common Stock Reserved for Grant
of Additional Options,
$0.001 par value.................. 557,000 Shares $1.69(4) $941,330.00 $277.69
1997 NONSTATUTORY DIRECTOR'S STOCK OPTION PLAN (5,000 SHARES)
Common Stock Issuable upon
Exercise of Outstanding Option,
$0.001 par value.................. 5,000 Shares $3.50(3) $17,500.00 $5.16
1997 NONSTATUTORY DIRECTOR'S STOCK OPTION PLAN (25,000 SHARES)
Common Stock Issuable upon
Exercise of Outstanding Option,
$0.001 par value.................. 25,000 Shares $3.50(3) $87,500.00 $25.81
TOTAL 2,850,000 Shares $2.37 $6,753,625.12 $1,992.31
-----
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Estimated in accordance with Rule 457(c) under the Securities Act of
1933 as Amended (the "Securities Act") solely for the purpose of
calculating the registration fee. The computation is based upon the
average of the high and low sale prices of the Common Stock as reported
on The Nasdaq National Market on January 26, 1998, multiplied by 85%,
which is the percentage of the trading purchase price applicable to
purchases under the referenced Plan.
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(3) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. Computation based
on the weighted average per share exercise price (rounded to nearest
cent) of outstanding options under the referenced plan, the shares
issuable under which are registered hereby.
(4) Estimated in accordance with Rule 457(c) under the Securities Act solely
for the purpose of calculating the registration fee. The computation
with respect to unissued options is based upon the average high and low
sale prices of the Common Stock as reported on the Nasdaq National
Market on January 26, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on December 11, 1995 pursuant to
Rule 424(b) of the Securities Act and the Registrant's Annual Report on Form
10-K and Form 10-K/A for the fiscal year ended December 29, 1996 filed on March
25, 1997 pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act"). The Registrant's Annual Report on Form 10-K contains audited
financial statements for the Registrant's fiscal year ended December 29, 1996.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act, since the end of the fiscal year covered by the
annual report on Form 10-K referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Exchange Act on October 20, 1995, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the legality of the issuance of
the Common Stock registered hereby will be passed upon for the Registrant by
Venture Law Group, Menlo Park, California. As of the date of this Registration
Statement, certain members of Venture Law Group and investment partnerships of
which members of Venture Law Group are partners beneficially own 160,166 shares
of the Registrant's Common Stock in the aggregate.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
4.1 1997 Employee Stock Option Plan (1,300,000 Shares)
4.2 1997 Nonstatutory Director's Stock Option Plan (5,000 Shares)
4.3 1997 Nonstatutory Director's Stock Option Plan (25,000 Shares)
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Powers of Attorney (see p. 5).
</TABLE>
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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.
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, VISIONEER, INC., a corporation organized and existing under the laws
of the State of Delaware, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fremont,
State of California, on this January 30, 1998
VISIONEER, INC.
By: /s/ J. LARRY SMART
--------------------------------------
J. Larry Smart
President & Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Larry Smart and Geoffrey C. Darby,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933 as Amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. LARRY SMART President and Chief Executive January 30, 1998
- ----------------------------- Officer (Principal Executive
J. Larry Smart Officer)
/s/ GEOFFREY C. DARBY Vice President of Finance and January 30, 1998
- ----------------------------- Administration and Chief
Geoffrey C. Darby Financial Officer (Principal
Financial and Accounting
Officer)
/s/ William J. Harding Director January 30, 1998
- -----------------------------
William J. Harding
/s/ Jeffrey Heimbuck Director January 30, 1998
- -----------------------------
Jeffrey Heimbuck
/s/ David F. Marquardt Director January 30, 1998
- -----------------------------
David F. Marquardt
/s/ Vincent Worms Director January 30, 1998
- -----------------------------
Vincent Worms
</TABLE>
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EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
------ ------
<S> <C> <C>
4.1 1997 Employee Stock Option Plan (1,300,000 Shares) ................... 7
4.2 1997 Nonstatutory Director's Stock Option Plan (5,000 Shares) ........ 14
4.3 1997 Nonstatutory Director's Stock Option Plan (25,000 Shares) ....... 20
5.1 Opinion of Venture Law Group, a Professional Corporation ............. 25
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Accountants ................................... 26
24.1 Powers of Attorney (see p. 5).
</TABLE>
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Exhibit 4.1
VISIONEER, INC.
1997 EMPLOYEE STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this 1997 Employee Stock
Option 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 shall be Nonstatutory Stock Options.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the Board or any of its
Committees appointed pursuant to Section 4 of the Plan.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Committee" shall mean the Committee appointed by the
Board of Directors in accordance with paragraph (a) of Section 4 of the Plan, if
one is appointed. The Committee members shall not be required to be Board
members.
(e) "Common Stock" shall mean the Common Stock of the Company.
(f) "Company" shall mean Visioneer, Inc., a Delaware
corporation.
(g) "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, excluding any Officers, Named
Executives and Directors.
(h) "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 Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Board; provided that such leave is for a period
of not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.
(i) "Director" shall mean a member of the Board.
(j) "Employee" shall mean any person who is employed by the
Company or any Parent or Subsidiary of the Company, excluding any Officers,
Named Executives and Directors. Notwithstanding the foregoing, an Officer who
was not previously employed by the Company and for whom an Option grant is an
inducement essential to the Officer's entering into an employment relationship
or contract with the Company, shall be treated as an Employee for purposes of
the Option grant made to the Officer in connection with commencement of the
Officer's employment with the Company.
(k) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(l) "Fair Market Value" shall mean, as of any date, the value
of Common Stock 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 of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, its Fair Market Value shall be the
closing sales price for such stock
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as quoted on such exchange on system for the last market trading day prior to
the date of determination (if for a given day no sales were reported, the
closing bid on that day shall be used), as such price is reported in The Wall
Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq
System (but not on the National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the bid and asked prices for the Common
Stock or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(m) "Named Executive" shall mean any individual who, on the
last day of the Company's fiscal year, is the chief executive officer of the
Company (or is acting in such capacity) or among the four highest compensated
officers of the Company (other than the chief executive officer). Such officer
status shall be determined pursuant to the executive compensation disclosure
rules under the Exchange Act.
(n) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option, as designated in the
applicable option agreement. "Incentive Stock Option" shall mean an Option
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code, as designated in the applicable option agreement.
(o) "Officer" shall mean a person who is appointed or elected
by the Board of Directors as an officer of the Company, including but not
limited to 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.
(p) "Option" shall mean a stock option granted pursuant to the
Plan.
(q) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(r) "Optionee" shall mean an Employee or Consultant who
receives an Option.
(s) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" shall mean this 1997 Employee Stock Option Plan.
(u) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the
Exchange Act as the same may be amended from time to time, or any successor
provision.
(v)"Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 11 of the Plan.
(w) "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
sold under the Plan is 1,300,000 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 grant under the Plan. Notwithstanding any other provision of the Plan,
shares issued under the Plan and later repurchased by the Company shall not
become available for future grant or sale under the Plan.
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<PAGE> 3
4. Administration of the Plan.
(a) Composition of Administrator. The Plan shall be
administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the legal
requirements relating to the administration of nonstatutory stock option plans,
if any, of applicable securities laws and the Code (collectively, the
"Applicable Laws"). If a Committee has been appointed pursuant to this Section
4(a), 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 any Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies (however caused) and remove all members of a Committee and thereafter
directly administer the Plan, all to the extent permitted by the Applicable
Laws.
(b) Powers of the Administrator. Subject to the provisions of
the Plan, and in the case of a Committee, the specific duties delegated by, or
limitations of authority imposed by, the Board to or on such Committee, the
Administrator shall have the authority, in its discretion:
(i) to grant Options under the Plan;
(ii) to determine, upon review of relevant
information and in accordance with Section 2(l) of the Plan, the fair market
value of the Common Stock;
(iii) to determine the exercise price per share of
Options to be granted, which exercise price shall be determined in accordance
with Section 9(a) of the Plan;
(iv) 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;
(v) to interpret the Plan;
(vi) to approve forms of agreement for use under the
Plan;
(vii) 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;
(viii) to accelerate or defer (with the consent of
the Optionee) the exercise date of any Option;
(ix) to authorize any person to execute on behalf of
the Company any instrument required to effectuate the grant of an Option
previously granted by the Administrator; and
(x) to make all other determinations deemed necessary
or advisable for the administration of the Plan.
(c) Effect of Administrator'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.
5. Eligibility.
(a) Options may be granted only to Employees and Consultants.
An Employee or Consultant who has been granted an Option may, if Optionee is
otherwise eligible, be granted an additional Option or Options.
(b) Each Option shall be designated in the written option
agreement as a Nonstatutory Stock Option.
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(c) 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 Optionee's right or the
Company's right to terminate Optionee's employment or consulting relationship at
any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon its adoption by
the Board of Directors. It shall continue in effect for a term of ten (10) years
unless sooner terminated under Section 14 of the Plan.
7. Term of Option. The term of each Nonstatutory Stock Option shall be
ten (10) years from the date of grant thereof or such shorter term as may be
provided in the Nonstatutory Stock Option Agreement.
8. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Administrator, but shall be no less than 85% of the fair market value per Share
on the date of grant.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined
by the Administrator and may consist entirely of (1) cash, (2) check, (3)
promissory note, (4) other Shares of Common Stock which (i) either have been
owned by the Optionee for more than six (6) months on the date of surrender or
were not acquired, directly or indirectly, from the Company, and (ii) 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, (5) delivery of a
properly executed exercise notice together with irrevocable instructions to a
broker to deliver promptly to the Company the amount of sale or loan proceeds
required to pay the exercise price, or (6) any combination of such methods of
payment. In making its determination as to the type of consideration to accept,
the Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted 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 Section 9(b) of the
Plan. 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. The Company shall issue (or cause to
be issued) such stock certificate promptly upon 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.
(b) Termination of Status as an Employee or Consultant. In the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant, such Optionee may, but only within thirty (30) days (or such other
period of time, not exceeding six (6) months, as is determined by the
Administrator) after the date of
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<PAGE> 5
such termination (but in no event later than the date of expiration of the term
of such Option as set forth in the Option Agreement), exercise Optionee's Option
to the extent that Optionee was entitled to exercise it at the date of such
termination. To the extent that Optionee was not entitled to exercise the Option
at the date of such termination, or if Optionee does not exercise such Option
(which Optionee was entitled to exercise) within the time specified herein, the
Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of
Section 10(b) above, in the event of termination of an Optionee's Continuous
Status as an Employee or Consultant as a result of Optionee's total and
permanent disability (as defined in Section 22(e)(3) of the Code), Optionee may,
but only within twelve (12) months (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement),
from the date of such termination (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement),
exercise Optionee's Option to the extent Optionee was entitled to exercise it at
the date of such termination. To the extent that Optionee was not entitled to
exercise the Option at the date of termination, or if Optionee does not exercise
such Option (which Optionee was entitled to exercise) within the time specified
herein, the Option shall terminate.
(d) Death of Optionee. In the event of termination of an
Optionee's Continuance Status as an Employee or Consultant as a result 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 no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement), 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 of the right to
exercise the Option at the date of death. To the extent that Optionee was not
entitled to exercise the Option at the date of death, or if Optionee does not
exercise such Option to the extent so entitled within the time specified herein,
the Option shall terminate.
10. Non-Transferability of Options. The 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 or distribution; provided, that the
Administrator may in its discretion grant transferable Nonstatutory Stock
Options pursuant to option agreements specifying (i) the manner in which such
Nonstatutory Stock Options are transferable and (ii) that any such transfer
shall be subject to the Applicable Laws. The designation of a beneficiary by an
Optionee will not constitute a transfer. An Option may be exercised, during the
lifetime of the Optionee, only by the Optionee or a transferee permitted by this
Section 11.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Adjustments. 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 which have been returned to the Plan upon cancellation or
expiration of an Option, and 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.
(b) Corporate Transactions. In the event of the proposed
dissolution or liquidation of the Company, the 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 Administrator and give each Optionee the right to exercise Optionee's Option
as to all or any part of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. In the event of a proposed sale of
all or substantially all of the assets of
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<PAGE> 6
the Company, or the merger of the Company with or into another corporation, the
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 such successor corporation does not agree to assume the Option or to
substitute an equivalent option, in which case the Administrator shall, in lieu
of such assumption or substitution, provide for the Optionee to 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 fifteen (15) days from the
date of such notice, and the Option will terminate upon the expiration of such
period.
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
Employee or Consultant to whom an Option is so granted within a reasonable time
after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not adversely affect Options already granted
(except to the extent contemplated by such Options) and such Options shall
remain in full force and effect, unless mutually agreed otherwise between the
Optionee and the Board (or other body then administering the Plan), 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 unless the exercise of such Option 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, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange 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.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise 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.
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. The 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.
16. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Administrator shall approve.
17. Information to Optionees. The Company shall provide to each
Optionee upon request, during the period for which such Optionee has one or more
Options outstanding, copies of all annual reports and other information which
are provided to all shareholders of the Company.
18. Withholding Taxes. As a condition to the exercise of Options
granted hereunder, the Optionee shall make such arrangements as the
Administrator may require for the satisfaction of any federal, state, local or
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<PAGE> 7
foreign withholding tax obligations that may arise in connection with the
exercise, receipt or vesting of such Option. The Company shall not be required
to issue any Shares under the Plan until such obligations are satisfied.
19. Stock Withholding to Satisfy Withholding Tax Obligations. At the
discretion of the Administrator, Optionees may satisfy withholding obligations
as provided in this paragraph. When an Optionee incurs tax liability in
connection with an Option which tax liability is subject to tax withholding
under applicable tax laws, and the Optionee is obligated to pay the Company an
amount required to be withheld under applicable tax laws, the Optionee may
satisfy the withholding tax obligation by one or some combination of the
following methods: (a) by cash payment, or (b) out of Optionee's current
compensation, or (c) if permitted by the Administrator, in its discretion, by
surrendering to the Company Shares that (i) in the case of Shares previously
acquired from the Company, have been owned by the Optionee for more than six
months on the date of surrender, and (ii) have a fair market value on the date
of surrender equal to or less than Optionee's marginal tax rate times the
ordinary income recognized, or (d) by electing to have the Company withhold from
the Shares to be issued upon exercise of the Option that number of Shares having
a fair market value equal to the amount required to be withheld. For this
purpose, the fair market value of the Shares to be withheld shall be determined
on the date that the amount of tax to be withheld is to be determined (the "Tax
Date").
All elections by an Optionee to have Shares withheld to
satisfy tax withholding obligations shall be made in writing in a form
acceptable to the Administrator and shall be subject to the following
restrictions:
(a) the election must be made on or prior to the applicable
Tax Date;
(b) once made, the election shall be irrevocable as to the
particular Shares of the Option as to which the election is made; and
(c) all elections shall be subject to the consent or
disapproval of the Administrator.
In the event the election to have Shares withheld is made by
an Optionee and the Tax Date is deferred under Section 83 of the Code because no
election is filed under Section 83(b) of the Code, the Optionee shall receive
the full number of Shares with respect to which the Option is exercised but such
Optionee shall be unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.
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<PAGE> 1
Exhibit 4.2
VISIONEER, INC.
NOTICE OF NONSTATUTORY STOCK OPTION GRANT
Optionee's Name and Address:
Jeff Heimbuck
399 Atherton Avenue
Atherton, CA 94027
You have been granted an option to purchase Common Stock of Visioneer,
Inc. (the "Company"), as follows:
<TABLE>
<CAPTION>
<S> <C>
Board Approval Date: April 9, 1997*
Date of Grant (Later of Board
Approval Date or
Commencement of
Employment/Consulting): April 9, 1997*
Exercise Price Per Share: $3.50
Total Number of Shares Granted: 5,000
Total Price of Shares Granted: $17,500.00
Term/Expiration Date: April 9, 2007
Vesting Commencement Date: April 9, 1997
Vesting Schedule: 25% of the shares subject to the option
shall become exercisable on each
anniversary of the Vesting Commencement
Date.
Termination Period: Option may be exercised for a period of 30
days after termination of Optionee's
relationship with the Company as a
director of the Company except as set out
in Sections 7 and 8 of the Stock Option
Agreement (but in no event later than the
Expiration Date).
</TABLE>
*This Option is subject to approval of the stockholders of the Company at the
next annual meeting of stockholders. If stockholder approval is not obtained,
this Option will be null and void.
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<PAGE> 2
By your signature and the signature of the Company's representative
below, you and the Company agree that this option is granted under and governed
by the terms and conditions of the Nonstatutory Stock Option Agreement attached
and made a part of this document.
OPTIONEE: VISIONEER, INC.
- ---------------------------------- By:
Signature --------------------------------
- ---------------------------------- Title:
Print Name -------------------------------
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<PAGE> 3
VISIONEER, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Visioneer, Inc., a Delaware corporation (the
"Company"), hereby grants to the Optionee named in the Notice of Stock Option
Grant attached to this Agreement ("Optionee"), an option (the "Option") to
purchase the total number of shares of Common Stock (the "Shares") set forth in
the Notice of Stock Option Grant, at the exercise price per share set forth in
the Notice of Stock Option Grant (the "Exercise Price") subject to the terms,
definitions and provisions of this Nonstatutory Stock Option Agreement (the
"Agreement").
This Option is intended to be a Nonstatutory Stock Option.
2. EXERCISE OF OPTION. This Option shall be exercisable during its term
in accordance with the Vesting Schedule set out in the Notice of Stock Option
Grant as follows:
(a) RIGHT TO EXERCISE.
(i) This Option may not be exercised for a fraction of
a share.
(ii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Sections 6, 7 and 8 below, subject to the limitations contained in paragraphs
(iii) and (iv) below.
(iii) In no event may this Option be exercised after the
date of expiration of the term of this Option as set forth in the Notice of
Stock Option Grant.
(b) METHOD OF EXERCISE.
(i) This Option shall be exercisable by delivering to
the Company a written notice of exercise (in the form attached as Exhibit A)
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to such Shares
of Common Stock as may be required by the Company. Such written notice shall be
signed by Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment of
the Exercise Price. This Option shall be deemed to be exercised upon receipt by
the Company of such written notice accompanied by the Exercise Price.
(ii) As a condition to the exercise of this Option,
Optionee agrees to make adequate provision for federal, state or other tax
withholding obligations, if any, which arise upon the exercise of the Option or
disposition of Shares, whether by withholding, direct payment to the Company, or
otherwise.
(iii) No Shares will be issued pursuant to the exercise of
an Option unless such issuance and such exercise shall comply with all relevant
provisions of law and the requirements of any stock exchange upon which the
Shares may then be listed. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to Optionee on the date on which the
Option is exercised with respect to such Shares.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), at the time this
Option is exercised, Optionee shall, if required by the Company, concurrently
with the exercise of all or any portion of this Option, deliver to the Company
an investment representation statement in customary form, a copy of which is
available for Optionee's review from the Company upon request.
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<PAGE> 4
4. METHOD OF PAYMENT. Payment of the Exercise Price shall be by any of
the following, or a combination of the following, at the election of Optionee:
(a) cash; (b) check; (c) surrender of other Shares of Common Stock of the
Company that (i) either have been owned by Optionee for more than six (6) months
on the date of surrender or were not acquired, directly or indirectly, from the
Company, and (ii) 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; (d) authorization from the Company to retain from the total number of
Shares as to which the Option is exercised that number of Shares having a Fair
Market value on the date of exercise equal to the exercise price for the total
number of Shares as to which the Option is exercised; or (e) if there is a
public market for the Shares and they are registered under the Securities Act,
delivery of a properly executed exercise notice together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds required to pay the exercise price.
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
6. TERMINATION OF RELATIONSHIP. In the event of termination of
Optionee's Continuous Status as a director of the Company, Optionee may, to the
extent otherwise so entitled at the date of such termination (the "Termination
Date"), exercise this Option during the Termination Period set out in the Notice
of Stock Option Grant. To the extent that Optionee was not entitled to exercise
this Option at the date of such termination, or if Optionee does not exercise
this Option within the time specified in the Notice of Stock Option Grant, the
Option shall terminate.
7. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 6
above, in the event of termination of Optionee's relationship with the Company
as a director of the Company as a result of total and permanent disability (as
defined in Section 22(e)(3) of the Code), Optionee may, but only within six (6)
months from the date of termination of such relationship (but in no event later
than the date of expiration of the term of this Option as set forth in Section
10 below), exercise the Option to the extent otherwise so entitled at the date
of such termination. To the extent that Optionee was not entitled to exercise
the Option at the date of termination, or if Optionee does not exercise such
Option (to the extent otherwise so entitled) within the time specified in this
Agreement, the Option shall terminate.
8. DEATH OF OPTIONEE. In the event of the death of Optionee:
(a) during the term of this Option and while a director of the
Company and having been a director of the Company since the date of grant of the
Option, the Option may be exercised, at any time within six (6) months following
the date of death (but in no event later than the date of expiration of the term
of this Option as set forth in Section 10 below), by Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent of the right to exercise that would have accrued had
Optionee continued living and remained as a director of the Company three (3)
months after the date of death, subject to the limitation contained in Section
2(i)(d) above in the case of an Incentive Stock Option; or
(b) within thirty (30) days after the termination of Optionee's
relationship with the Company as a director of the Company, the Option may be
exercised, at any time within six (6) months following the date of death (but in
no event later than the date of expiration of the term of this Option as set
forth in Section 10 below), by Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only to the extent
of the right to exercise that had accrued at the date of termination.
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution. The
designation of a beneficiary does not constitute a transfer. An Option may be
exercised during the lifetime of Optionee only by Optionee or a transferee
permitted by this
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<PAGE> 5
section. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of Optionee.
10. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Stock Option Grant, and may be exercised during such
term only in accordance with the terms of this Option.
11. NO ADDITIONAL EMPLOYMENT RIGHTS. Optionee understands and agrees
that the vesting of Shares pursuant to the Vesting Schedule is earned only by
continuing as a director of the Company at the will of the Company (not through
the act of being hired, being granted this Option or acquiring Shares under this
Agreement). Optionee further acknowledges and agrees that nothing in this
Agreement shall confer upon Optionee any right with respect to continuation as a
director of the Company, nor shall it interfere in any way with his or her right
or the Company's right to terminate his or her employment or consulting
relationship at any time, with or without cause.
12. TAX CONSEQUENCES. Optionee acknowledges that he or she has read the
brief summary set forth below of certain federal tax consequences of exercise of
this Option and disposition of the Shares under the law in effect as of the date
of grant. OPTIONEE UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT HIS
OR HER OWN TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF NONSTATUTORY STOCK OPTION. Optionee may incur
regular federal income tax liability upon the exercise of the Option. Optionee
will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of the
Shares on the date of exercise over the Exercise Price. In addition, if Optionee
is an employee of the Company, the Company will be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise.
(b) DISPOSITION OF SHARES. Gain realized on the disposition of
Shares will be treated as long-term or short-term capital gain depending on
whether or not the disposition occurs more than one year after the exercise
date.
13. SIGNATURE. This Stock Option Agreement shall be deemed executed by
the Company and Optionee upon execution by such parties of the Notice of Stock
Option Grant attached to this Stock Option Agreement.
[Remainder of page left intentionally blank]
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<PAGE> 6
EXHIBIT A
NOTICE OF EXERCISE
To: Visioneer, Inc.
Attn: Stock Option Administrator
Subject: Notice of Intention to Exercise Nonstatutory Stock Option
This is official notice that the undersigned ("Optionee") intends to
exercise Optionee's option to purchase __________ shares of Visioneer, Inc.
Common Stock, under and pursuant to the Nonstatutory Stock Option Agreement
dated ___________, as follows:
Grant Number: ________________________________
Date of Purchase: ________________________________
Number of Shares: ________________________________
Purchase Price: ________________________________
Method of Payment
of Purchase Price: ________________________________
Social Security No.: ________________________________
The shares should be issued as follows:
Name: _________________________________
Address: ______________________________
______________________________
______________________________
______________________________
Signed: _______________________________
Date: _______________________________
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<PAGE> 1
Exhibit 4.3
VISIONEER, INC.
NOTICE OF NONSTATUTORY STOCK OPTION GRANT
Optionee's Name and Address:
Jeff Heimbuck
399 Atherton Avenue
Atherton, CA 94027
You have been granted an option to purchase Common Stock of Visioneer,
Inc. (the "Company"), as follows:
<TABLE>
<S> <C>
Board Approval Date: April 9, 1997
Date of Grant (Later of Board
Approval Date or
Commencement of
Employment/Consulting): April 9, 1997
Exercise Price Per Share: $3.50
Total Number of Shares Granted: 25,000
Total Price of Shares Granted: $87,500.00
Term/Expiration Date: April 9, 2007
Vesting Commencement Date: April 9, 1997
Vesting Schedule: 25% of the shares subject to the option
shall become exercisable on each
anniversary of the Vesting Commencement
Date.
Termination Period: Option may be exercised for a period of 30
days after termination of Optionee's
relationship with the Company as a
director of the Company except as set out
in Sections 7 and 8 of the Stock Option
Agreement (but in no event later than the
Expiration Date).
</TABLE>
By your signature and the signature of the Company's representative
below, you and the Company agree that this option is granted under and governed
by the terms and conditions of the Nonstatutory Stock Option Agreement attached
and made a part of this document.
OPTIONEE: VISIONEER, INC.
- -------------------------------- By:
Signature -------------------------------------
- -------------------------------- Title:
Print Name ---------------------------------
-20-
<PAGE> 2
VISIONEER, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Visioneer, Inc., a Delaware corporation (the
"Company"), hereby grants to the Optionee named in the Notice of Stock Option
Grant attached to this Agreement ("Optionee"), an option (the "Option") to
purchase the total number of shares of Common Stock (the "Shares") set forth in
the Notice of Stock Option Grant, at the exercise price per share set forth in
the Notice of Stock Option Grant (the "Exercise Price") subject to the terms,
definitions and provisions of this Nonstatutory Stock Option Agreement (the
"Agreement").
This Option is intended to be a Nonstatutory Stock Option.
2. EXERCISE OF OPTION. This Option shall be exercisable during its term
in accordance with the Vesting Schedule set out in the Notice of Stock Option
Grant as follows:
(a) RIGHT TO EXERCISE.
(i) This Option may not be exercised for a fraction of
a share.
(ii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Sections 6, 7 and 8 below, subject to the limitations contained in paragraphs
(iii) and (iv) below.
(iii) In no event may this Option be exercised after the
date of expiration of the term of this Option as set forth in the Notice of
Stock Option Grant.
(b) METHOD OF EXERCISE.
(i) This Option shall be exercisable by delivering to
the Company a written notice of exercise (in the form attached as Exhibit A)
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to such Shares
of Common Stock as may be required by the Company. Such written notice shall be
signed by Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment of
the Exercise Price. This Option shall be deemed to be exercised upon receipt by
the Company of such written notice accompanied by the Exercise Price.
(ii) As a condition to the exercise of this Option,
Optionee agrees to make adequate provision for federal, state or other tax
withholding obligations, if any, which arise upon the exercise of the Option or
disposition of Shares, whether by withholding, direct payment to the Company, or
otherwise.
(iii) No Shares will be issued pursuant to the exercise of
an Option unless such issuance and such exercise shall comply with all relevant
provisions of law and the requirements of any stock exchange upon which the
Shares may then be listed. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to Optionee on the date on which the
Option is exercised with respect to such Shares.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), at the time this
Option is exercised, Optionee shall, if required by the Company, concurrently
with the exercise of all or any portion of this Option, deliver to the Company
an investment representation statement in customary form, a copy of which is
available for Optionee's review from the Company upon request.
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<PAGE> 3
4. METHOD OF PAYMENT. Payment of the Exercise Price shall be by any of
the following, or a combination of the following, at the election of Optionee:
(a) cash; (b) check; (c) surrender of other Shares of Common Stock of the
Company that (i) either have been owned by Optionee for more than six (6) months
on the date of surrender or were not acquired, directly or indirectly, from the
Company, and (ii) 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; (d) authorization from the Company to retain from the total number of
Shares as to which the Option is exercised that number of Shares having a Fair
Market value on the date of exercise equal to the exercise price for the total
number of Shares as to which the Option is exercised; or (e) if there is a
public market for the Shares and they are registered under the Securities Act,
delivery of a properly executed exercise notice together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds required to pay the exercise price.
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
6. TERMINATION OF RELATIONSHIP. In the event of termination of
Optionee's Continuous Status as a director of the Company, Optionee may, to the
extent otherwise so entitled at the date of such termination (the "Termination
Date"), exercise this Option during the Termination Period set out in the Notice
of Stock Option Grant. To the extent that Optionee was not entitled to exercise
this Option at the date of such termination, or if Optionee does not exercise
this Option within the time specified in the Notice of Stock Option Grant, the
Option shall terminate.
7. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 6
above, in the event of termination of Optionee's relationship with the Company
as a director of the Company as a result of total and permanent disability (as
defined in Section 22(e)(3) of the Code), Optionee may, but only within six (6)
months from the date of termination of such relationship (but in no event later
than the date of expiration of the term of this Option as set forth in Section
10 below), exercise the Option to the extent otherwise so entitled at the date
of such termination. To the extent that Optionee was not entitled to exercise
the Option at the date of termination, or if Optionee does not exercise such
Option (to the extent otherwise so entitled) within the time specified in this
Agreement, the Option shall terminate.
8. DEATH OF OPTIONEE. In the event of the death of Optionee:
(a) during the term of this Option and while a director of the
Company and having been a director of the Company since the date of grant of the
Option, the Option may be exercised, at any time within six (6) months following
the date of death (but in no event later than the date of expiration of the term
of this Option as set forth in Section 10 below), by Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent of the right to exercise that would have accrued had
Optionee continued living and remained as a director of the Company three (3)
months after the date of death, subject to the limitation contained in Section
2(i)(d) above in the case of an Incentive Stock Option; or
(b) within thirty (30) days after the termination of Optionee's
relationship with the Company as a director of the Company, the Option may be
exercised, at any time within six (6) months following the date of death (but in
no event later than the date of expiration of the term of this Option as set
forth in Section 10 below), by Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only to the extent
of the right to exercise that had accrued at the date of termination.
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution. The
designation of a beneficiary does not constitute a transfer. An Option may be
exercised during the lifetime of Optionee only by Optionee or a transferee
permitted by this
-22-
<PAGE> 4
section. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of Optionee.
10. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Stock Option Grant, and may be exercised during such
term only in accordance with the terms of this Option.
11. NO ADDITIONAL EMPLOYMENT RIGHTS. Optionee understands and agrees
that the vesting of Shares pursuant to the Vesting Schedule is earned only by
continuing as a director of the Company at the will of the Company (not through
the act of being hired, being granted this Option or acquiring Shares under this
Agreement). Optionee further acknowledges and agrees that nothing in this
Agreement shall confer upon Optionee any right with respect to continuation as a
director of the Company, nor shall it interfere in any way with his or her right
or the Company's right to terminate his or her employment or consulting
relationship at any time, with or without cause.
12. TAX CONSEQUENCES. Optionee acknowledges that he or she has read the
brief summary set forth below of certain federal tax consequences of exercise of
this Option and disposition of the Shares under the law in effect as of the date
of grant. OPTIONEE UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT HIS
OR HER OWN TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF NONSTATUTORY STOCK OPTION. Optionee may incur
regular federal income tax liability upon the exercise of the Option. Optionee
will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of the
Shares on the date of exercise over the Exercise Price. In addition, if Optionee
is an employee of the Company, the Company will be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise.
(b) DISPOSITION OF SHARES. Gain realized on the disposition of
Shares will be treated as long-term or short-term capital gain depending on
whether or not the disposition occurs more than one year after the exercise
date.
13. SIGNATURE. This Stock Option Agreement shall be deemed executed by
the Company and Optionee upon execution by such parties of the Notice of Stock
Option Grant attached to this Stock Option Agreement.
[Remainder of page left intentionally blank]
-23-
<PAGE> 5
EXHIBIT A
NOTICE OF EXERCISE
To: Visioneer, Inc.
Attn: Stock Option Administrator
Subject: Notice of Intention to Exercise Nonstatutory Stock Option
This is official notice that the undersigned ("Optionee") intends to
exercise Optionee's option to purchase __________ shares of Visioneer, Inc.
Common Stock, under and pursuant to the Nonstatutory Stock Option Agreement
dated ___________, as follows:
Grant Number: ________________________________
Date of Purchase: ________________________________
Number of Shares: ________________________________
Purchase Price: ________________________________
Method of Payment
of Purchase Price: ________________________________
Social Security No.: ________________________________
The shares should be issued as follows:
Name: _____________________________
Address: __________________________
__________________________
__________________________
__________________________
Signed: __________________________
Date: __________________________
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Exhibit 5.1
January 30, 1998
Visioneer, Inc.
34800 Campus Drive
Fremont, CA 94555
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about January 30, 1998
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 2,850,000 shares of your
Common Stock (the "Shares") reserved for issuance under the 1993 Incentive Stock
Option Plan, the 1995 Employee Stock Purchase Plan, the 1995 Directors' Stock
Option Plan, the 1997 Employee Stock Option Plan, the 1997 Nonstatutory
Director's Stock Option Plan (5,000 Shares) and the 1997 Nonstatutory Director's
Stock Option Plan (25,000 Shares) (collectively, the "Plans"). As your legal
counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares under the Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans and pursuant to the respective agreement which accompanies each
grant under the Plans, the Shares will be legally and validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP,
A Professional Corporation
/s/ JOSHUA L. GREEN
---------------------------
Joshua L. Green
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 31, 1997 appearing
on page 24 of Visioneer's Annual Report on Form 10-K/A for the year ended
December 31, 1996. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page 37 of such
Annual Report on Form 10-K/A.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
January 27, 1998
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