As filed with the Securities and Exchange Commission on August 30, 1999
Registration No. 333-
---------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOLECULAR DEVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-2914362
(State of Incorporation) (I.R.S. Employer Identification No.)
1311 Orleans Drive
Sunnyvale, CA 94089
(408) 747-1700
(Address of principal executive offices, including zip code)
1995 STOCK OPTION PLAN
(Full title of the plan)
JOSEPH D. KEEGAN, PH.D.
CHIEF EXECUTIVE OFFICER AND PRESIDENT
MOLECULAR DEVICES CORPORATION
1311 ORLEANS DRIVE
SUNNYVALE, CA 94089
(408) 747-1700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
ANDREI M. MANOLIU, ESQ.
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price per Share (1) Offering Price (1) Registration Fee
- ---------------- ---------- ------------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,000,000 shares $26 5/8 - $30 $29,401,181 $8,174
$0.001 per share
<FN>
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The
price per share and aggregate offering price for unissued stock options are based upon the average of the high and low
prices of Registrant's Common Stock on August 25, 1999 as reported on the Nasdaq National Market. The price per share
and aggregate offering price for outstanding stock options are based upon the exercise prices of Registrant's Common
Stock granted on May 20, 1999 and July 29, 1999.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 1,000,000 shares of the Registrant's Common Stock to
be issued pursuant to the Registrant's 1995 Stock Option Plan, as amended (the
"Plan"). The Registration Statement on Form S-8 previously filed with the
Securities and Exchange Commission relating to the Plan (File No. 333-4318,
filed with the Commission on May 1, 1996) are incorporated by reference herein.
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditor
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature page hereto
99.1 1995 Stock Option Plan
<PAGE>
SIGNATURES
THE REGISTRANT. 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 Sunnyvale, State of California, on this 30th day of
August, 1999.
MOLECULAR DEVICES CORPORATION
By: /s/ Joseph D. Keegan, Ph.D.
---------------------------------
Joseph D. Keegan, Ph.D.
Chief Executive Officer,
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph D. Keegan, Ph.D., and Timothy Harkness,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute, may lawfully do or cause to be done by virtue hereof.
<TABLE>
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.
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Joseph D. Keegan, Ph.D. Chief Executive Officer, August 30, 1999
- ------------------------------------- President and Director
JOSEPH D. KEEGAN, PH.D. (Principal Executive
Officer)
/s/ Timothy A. Harkness Chief Financial Officer August 30, 1999
- ------------------------------------- (Principal Financial and
TIMOTHY A. HARKNESS Accounting Officer)
/s/ Moshe H. Alafi Director August 27, 1999
- -------------------------------------
MOSHE H. ALAFI
/s/ David L. Anderson Director August 27, 1999
- -------------------------------------
DAVID L. ANDERSON
/s/ A. Blaine Bowman Director August 27, 1999
- -------------------------------------
A. BLAINE BOWMAN
/s/ Paul Goddard, Ph.D. Director August 27, 1999
- -------------------------------------
PAUL GODDARD, PH.D.
/s/ Andre F. Marion Director August 27, 1999
- -------------------------------------
ANDRE F. MARION
/s/ Harden M. McConnell, Ph.D. Director August 27, 1999
- -------------------------------------
HARDEN M. MCCONNELL, PH.D.
/s/ J. Allan Waitz, Ph.D. Director August 27, 1999
- -------------------------------------
J. ALLAN WAITZ, PH.D.
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditor
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature page hereto
99.1 1995 Stock Option Plan
EXHIBIT 5.1
August 30, 1999
Molecular Devices Corporation
1311 Orleans Drive
Sunnyvale, CA 94089
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Molecular Devices Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 1,000,000
shares of the Company's Common Stock, $.001 par value (the "Shares"), pursuant
to its 1995 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/ Andrei M. Manoliu
- -------------------------------------
Andrei M. Manoliu
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Stock Option Plan of Molecular Devices Corporation
of our report dated January 18, 1999, with respect to the consolidated financial
statements and schedule of Molecular Devices Corporation included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
Palo Alto, California
August 25, 1999
EXHIBIT 99.1
1995 STOCK OPTION PLAN
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected
Employees and Directors of and Consultants to the Company, and its
Affiliates, may be given an opportunity to purchase stock of the
Company.
(b) The Company, by means of the Plan, seeks to retain the services
of persons who are now Employees or Directors of or Consultants to
the Company or its Affiliates, to secure and retain the services of
new Employees, Directors and Consultants, and to provide incentives
for such persons to exert maximum efforts for the success of the
Company and its Affiliates.
(c) The Company intends that the Options issued under the Plan shall,
in the discretion of the Board or any Committee to which
responsibility for administration of the Plan has been delegated
pursuant to subsection 3(c), be either Incentive Stock Options or
Nonstatutory Stock Options. All Options shall be separately
designated Incentive Stock Options or Nonstatutory Stock Options at
the time of grant, and in such form as issued pursuant to Section 6,
and a separate certificate or certificates will be issued for shares
purchased on exercise of each type of Option.
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are
defined in Sections 424(e) and (f) respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in
accordance with subsection 3(c) of the Plan.
(e) "Company" means Molecular Devices Corporation.
(f) "Consultant" means any person, including an advisor, engaged by
the Company or an Affiliate to render consulting services and who is
compensated for such services, provided
1
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
that the term "Consultant" shall not include Directors who are paid only a
director's fee by the Company or who are not compensated by the Company for
their services as Directors.
(g) "Continuous Status as an Employee, Director or Consultant" means
the employment or relationship as a Director or Consultant is not
interrupted or terminated. The Board, in its sole discretion, may
determine whether Continuous Status as an Employee, Director or
Consultant shall be considered interrupted in the case of: (i) any
leave of absence approved by the Board, including sick leave,
military leave, or any other personal leave; or (ii) transfers
between locations of the Company or between the Company, Affiliates
or their successors.
(h) "Covered Employee" means the chief executive officer and the four
(4) other highest compensated officers of the Company for whom total
compensation is required to be reported to shareholders under the
Exchange Act, as determined for purposes of Section 162(m) of the
Code.
(i) "Director" means a member of the Board.
(j) "Employee" means any person, including Officers and Directors,
employed by the Company or any Affiliate of the Company. Neither
service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(l) "Fair Market Value" means as of any date, the value of the Common
Stock of the Company determined as follows:
(1) If the common stock is listed on any established stock
exchange or a national market system, including without
limitation the National Market System of the National
Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a
share of common stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported)
as quoted on such system or exchange (or the exchange with
the greatest volume of trading in common stock) on the
last market trading day prior to the day of determination,
as reported in the Wall Street Journal or such other
source as the Board deems reliable;
(2) If the common stock is quoted on the NASDAQ System
(but not on the National Market System thereof) or is
regularly quoted by a recognized securities dealer but
selling prices are not reported, the Fair Market Value of
a share of common stock shall be the mean between the bid
and asked prices for the common stock on the last market
trading day prior to the day of determination, as reported
in the Wall Street Journal or such other source as the
Board deems reliable;
(3) In the absence of an established market for the common
stock, the Fair Market Value shall be determined in good
faith by the Board.
2
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
(m) "Incentive Stock Option" means an Option
intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and
the regulations promulgated thereunder.
(n) "Non-Employee Director" means a Director of the Company who
either (i) is not a current Employee or Officer of the Company or its
parent or a subsidiary, does not receive compensation (directly or
indirectly) from the Company or its parent or a subsidiary for
services rendered as a consultant or in any capacity other than as a
Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to
the Securities Act ("Regulation S-K")), does not possess an interest
in any other transaction as to which disclosure would be required
under Item 404(a) of Regulation S-K and is not engaged in a business
relationship as to which disclosure would be required under Item
404(b) of Regulation S-K; or (ii) is otherwise considered a
"non-employee director" for purposes of Rule 16b-3.
(o) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(p) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(q) "Option" means a stock option granted pursuant to the Plan.
(r) "Option Agreement" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual
Option grant. Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(s) "Optionee" means an Employee, Director or Consultant who holds an
outstanding Option.
(t) "Outside Director" means a Director who either (i) is not a
current employee of the Company or an "affiliated corporation"
(within the meaning of the Treasury regulations promulgated under
Section 162(m) of the Code), is not a former employee of the Company
or an "affiliated corporation" receiving compensation for prior
services (other than benefits under a tax qualified pension plan),
was not an officer of the Company or an "affiliated corporation" at
any time, and is not currently receiving direct or indirect
remuneration from the Company or an "affiliated corporation" for
services in any capacity other than as a Director, or (ii) is
otherwise considered an "outside director" for purposes of Section
162(m) of the Code.
(u) "Plan" means this Molecular Devices 1995 Stock Option Plan.
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
3
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in
subsection 3(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons
eligible under the Plan shall be granted Options; when and
how each Option shall be granted; whether an Option will
be an Incentive Stock Option or a Nonstatutory Stock
Option; the provisions of each Option granted (which need
not be identical), including the time or times such Option
may be exercised in whole or in part; and the number of
shares for which an Option shall be granted to each such
person.
(2) To construe and interpret the Plan and Options granted
under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the
exercise of this power, may correct any defect, omission
or inconsistency in the Plan or in any Option Agreement,
in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(3) To amend the Plan or an Option as provided in Section
11.
(4) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote
the best interests of the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members (the "Committee"), all of
the members of which Committee shall be Non-Employee Directors and
may also be, in the discretion of the Board, Outside Directors. If
administration is delegated to a Committee, the Committee shall have,
in connection with the administration of the Plan, the powers
theretofore possessed by the Board (and references in this Plan to
the Board shall thereafter be to the Committee), subject, however, to
such resolutions, not inconsistent with the provisions of the Plan,
as may be adopted from time to time by the Board. The Board may
abolish the Committee at any time and revest in the Board the
administration of the Plan. Notwithstanding anything in this Section
3 to the contrary, the Board or the Committee may delegate to a
committee of one or more members of the Board the authority to grant
Options to eligible persons who (1) are not then subject to Section
16 of the Exchange Act and/or (2) are either (i) not then Covered
Employees and are not expected to be Covered Employees at the time of
recognition of income resulting from such Option, or (ii) not persons
with respect to whom the Company wishes to comply with Section 162(m)
of the Code.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to Options
shall not exceed in the aggregate one million seven hundred fifty
thousand (1,750,000) shares of Company common stock, plus up to one
million (1,000,000) shares of Company Common Stock to the extent that
such shares
4
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
previously reserved under the Company's terminated 1988 Stock Option Plan (the
"1988 Plan") (i) have not, as of the date of the adoption of this Plan,
previously been issued pursuant to the exercise of options under the 1988 Plan,
and (ii) are not, as of the date of adoption of this Plan, subject to options
outstanding under the 1988 Plan. If any Option granted under the Plan or any
stock option granted under the 1988 Plan shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full,
the stock not acquired shall revert to and again become available for issuance
under this Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to Employees.
Nonstatutory Stock Options may be granted only to Employees,
Directors or Consultants.
(b) No person shall be eligible for the grant of an Option if, at the
time of grant, such person owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of
the Company or of any of its Affiliates unless the exercise price of
such Option is at least one hundred ten percent (110%) of the Fair
Market Value of such stock at the date of grant and the Option is not
exercisable after the expiration of five (5) years from the date of
grant.
(c) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, no person shall be eligible to be granted
Options covering more than Five Hundred Thousand (500,000) shares of
the Company's common stock in any calendar year.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and conditions as
the Board shall deem appropriate. The provisions of separate Options need not be
identical, but each Option shall include (through incorporation of provisions
hereof by reference in the Option or otherwise) the substance of each of the
following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(b) Price. The exercise price of each Incentive Stock Option shall be
not less than one hundred percent (100%) of the Fair Market Value of
the stock subject to the Option on the date the Option is granted.
The exercise price of each Nonstatutory Stock Option shall be not
less than eighty-five percent (85%) of the Fair Market Value of the
stock subject to the Option on the date the Option is granted.
Notwithstanding the foregoing, an Option (whether and Incentive Stock
Option or Nonstatutory Stock Option) may be granted with an option
exercise price lower than that set forth above if such option is
granted pursuant to an assumption or substitution for another option
in a manner qualifying with the provisions of Section 424(a) of the
Code.
5
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
(c) Consideration. The purchase price of stock
acquired pursuant to an Option shall be paid, to
the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the
Option is exercised, or (ii) at the discretion of
the Board or the Committee, at the time of the
grant of the Option, (A) by delivery to the
Company of other common stock of the Company, (B)
according to a deferred payment or other
arrangement (which may include, without limiting
the generality of the foregoing, the use of other
common stock of the Company) with the person to
whom the Option is granted or to whom the Option
is transferred pursuant to subsection 6(d), or (C)
in any other form of legal consideration that may
be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be payable at
least annually and shall be charged at the minimum rate of interest necessary to
avoid the treatment as interest, under any applicable provisions of the Code, of
any amounts other than amounts stated to be interest under the deferred payment
arrangement.
(d) Transferability. An Option shall not be transferable except by
will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the person to whom the Option is
granted only by such person. A Nonstatutory Stock Option shall not be
transferable except by will or by the laws of descent and
distribution or pursuant to a domestic relations order satisfying the
requirements of Rule 16b-3 and the rules thereunder (a "DRO"), and
shall be exercisable during the lifetime of the person to whom the
Option is granted only by such person or any transferee pursuant to a
DRO. The person to whom the Option is granted may, by delivering
written notice to the Company, in a form satisfactory to the Company,
designate a third party who, in the event of the death of the
Optionee, shall thereafter be entitled to exercise the Option.
(e) Vesting. The total number of shares of stock subject to an Option
may, but need not, be allotted in periodic installments (which may,
but need not, be equal). The Option Agreement may provide that from
time to time during each of such installment periods, the Option may
become exercisable ("vest") with respect to some or all of the shares
allotted to that period, and may be exercised with respect to some or
all of the shares allotted to such period and/or any prior period as
to which the Option became vested but was not fully exercised. The
Option may be subject to such other terms and conditions on the time
or times when it may be exercised (which may be based on performance
or other criteria) as the Board may deem appropriate. The provisions
of this subsection 6(e) are subject to any Option provisions
governing the minimum number of shares as to which an Option may be
exercised.
(f) Securities Law Compliance. The Company may require any Optionee,
or any person to whom an Option is transferred under subsection 6(d),
as a condition of exercising any such Option, (1) to give written
assurances satisfactory to the Company as to the Optionee's knowledge
and experience in financial and business matters and/or to employ a
purchaser representative reasonably satisfactory to the Company who
is knowledgeable and experienced in financial and business matters,
and that he or she is capable of evaluating, alone or together with
the purchaser representative, the merits and risks of exercising the
Option; and (2) to give written assurances satisfactory to the
Company stating that such person is acquiring the stock subject to
the Option for such person's own account and not with any present
intention of selling or otherwise distributing the stock. The
foregoing requirements, and any assurances given pursuant
6
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
to such requirements, shall be inoperative if (i) the issuance of the shares
upon the exercise of the Option has been registered under a then currently
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), or (ii) as to any particular requirement, a
determination is made by counsel for the Company that such requirement need not
be met in the circumstances under the then applicable securities laws. The
Company may, upon advice of counsel to the Company, place legends on stock
certificates issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the stock.
(g) Termination of Employment or Relationship as a Director or
Consultant. In the event an Optionee's Continuous Status as an
Employee, Director or Consultant terminates (other than upon the
Optionee's death or disability), the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it
at the date of termination) but only within such period of time
ending on the earlier of (i) the date three (3) months after the
termination of the Optionee's Continuous Status as an Employee,
Director or Consultant, or such longer or shorter period specified in
the Option Agreement, or (ii) the expiration of the term of the
Option as set forth in the Option Agreement. If, after termination,
the Optionee does not exercise his or her Option within the time
specified in the Option Agreement, the Option shall terminate, and
the shares covered by such Option shall revert to and again become
available for issuance under the Plan.
(h) Disability of Optionee. In the event an Optionee's Continuous
Status as an Employee, Director or Consultant terminates as a result
of the Optionee's disability, the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it
at the date of termination), but only within such period of time
ending on the earlier of (i) the date twelve (12) months following
such termination (or such longer or shorter period specified in the
Option Agreement), or (ii) the expiration of the term of the Option
as set forth in the Option Agreement. If, at the date of termination,
the Optionee is not entitled to exercise his or her entire Option,
the shares covered by the unexercisable portion of the Option shall
revert to and again become available for issuance under the Plan. If,
after termination, the Optionee does not exercise his or her Option
within the time specified herein, the Option shall terminate, and the
shares covered by such Option shall revert to and again become
available for issuance under the Plan.
(i) Death of Optionee. In the event of the death of an Optionee
during, or within a period specified in the Option after the
termination of, the Optionee's Continuous Status as an Employee,
Director or Consultant, the Option may be exercised (to the extent
the Optionee was entitled to exercise the Option at the date of
death) by the Optionee's estate, by a person who acquired the right
to exercise the Option by bequest or inheritance or by a person
designated to exercise the option upon the Optionee's death pursuant
to subsection 6(d), but only within the period ending on the earlier
of (i) the date eighteen (18) months following the date of death (or
such longer or shorter period specified in the Option Agreement), or
(ii) the expiration of the term of such Option as set forth in the
Option Agreement. If, at the time of death, the Optionee was not
entitled to exercise his or her entire Option, the shares covered by
the unexercisable portion of the Option shall revert to and again
become available for issuance under the Plan. If, after death, the
Option is not exercised within the time specified herein, the Option
shall
7
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
terminate, and the shares covered by such Option shall revert to and again
become available for issuance under the Plan.
(j) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while an Employee,
Director or Consultant to exercise the Option as to any part or all
of the shares subject to the Option prior to the full vesting of the
Option. Any unvested shares so purchased may be subject to a
repurchase right in favor of the Company or to any other restriction
the Board determines to be appropriate.
(k) Withholding. To the extent provided by the terms of an Option
Agreement, the Optionee may satisfy any federal, state or local tax
withholding obligation relating to the exercise of such Option by any
of the following means or by a combination of such means: (1)
tendering a cash payment; (2) authorizing the Company to withhold
shares from the shares of the common stock otherwise issuable to the
Optionee as a result of the exercise of the Option; or (3) delivering
to the Company owned and unencumbered shares of the common stock of
the Company.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the Options, the Company shall keep available
at all times the number of shares of stock required to satisfy such
Options.
(b) The Company shall seek to obtain from each regulatory commission
or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the
Options; provided, however, that this undertaking shall not require
the Company to register under the Securities Act either the Plan, any
Option or any stock issued or issuable pursuant to any such Option.
If, after reasonable efforts, the Company is unable to obtain from
any such regulatory commission or agency the authority which counsel
for the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell stock upon exercise of such
Options unless and until such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options shall constitute general
funds of the Company.
9. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or
any part thereof will vest pursuant to subsection 6(e),
notwithstanding the provisions in the Option stating the time at
which it may first be exercised or the time during which it will
vest.
(b) Neither an Optionee nor any person to whom an Option is
transferred under subsection 6(d) shall be deemed to be the holder
of, or to have any of the rights of a holder with
8
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
respect to, any shares subject to such Option unless and until such person has
satisfied all requirements for exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Employee, Director, Consultant
or Optionee any right to continue in the employ of the Company or any
Affiliate (or to continue acting as a Director or Consultant) or
shall affect the right of the Company or any Affiliate to terminate
the employment or relationship as a Director or Consultant of any
Employee, Director, Consultant or Optionee with or without cause.
(d) To the extent that the aggregate Fair Market Value (determined at
the time of grant) of stock with respect to which Incentive Stock
Options granted after 1986 are exercisable for the first time by any
Optionee during any calendar year under all plans of the Company and
its Affiliates exceeds one hundred thousand dollars ($100,000), the
Options or portions thereof which exceed such limit (according to the
order in which they were granted) shall be treated as Nonstatutory
Stock Options.
(e) (1) The Board or the Committee shall have the authority to
effect, at any time and from time to time (i) the repricing of any
outstanding Options under the Plan and/or (ii) with the consent of
the affected holders of Options, the cancellation of any outstanding
Options and the grant in substitution therefor of new Options under
the Plan covering the same or different numbers of shares of Common
Stock, but having an exercise price per share not less than
eighty-five percent (85%) of the Fair Market Value (one hundred
percent (100%) of the Fair Market Value in the case of an Incentive
Stock Option or, in the case of a ten percent (10%) stockholder (as
defined in subsection 5(b)), not less than one hundred and ten
percent (110%) of the Fair Market Value) per share of Common Stock on
the new grant date.
(2) Shares subject to an Option canceled under this subsection
9(e) shall continue to be counted against the maximum award of
Options permitted to be granted pursuant to subsection 5(c) of
the Plan. The repricing of an Option under this subsection 9(e),
resulting in a reduction of the exercise price, shall be deemed
to be a cancellation of the original Option and the grant of a
substitute Option; in the event of such repricing, both the
original and the substituted Options shall be counted against
the maximum awards of Options permitted to be granted pursuant
to subsection 5(c) of the Plan. The provisions of this
subsection 9(e) shall be applicable only to the extent required
by Section 162(m) of the Code.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any Option (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than
cash, stock split, liquidating dividend, combination of shares,
exchange of shares, change in corporate structure or otherwise), the
Plan will be appropriately adjusted in the types of securities and
maximum number of shares subject to the Plan pursuant to subsection
4(a) and the maximum number of shares subject to award to any person
during any calendar year pursuant to subsection 5(c), and the
outstanding Options will be appropriately adjusted in the
9
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
types of securities and number of shares and price per share of stock subject to
such outstanding Options.
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or
consolidation in which the Company is not the surviving corporation;
or (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash
or otherwise, then to the extent permitted by applicable law: (i) any
surviving corporation shall assume any Options outstanding under the
Plan or shall substitute similar Options for those outstanding under
the Plan, or (ii) such Options shall continue in full force and
effect. In the event any surviving corporation refuses to assume or
continue such Options, or to substitute similar options for those
outstanding under the Plan, then, with respect to Options held by
persons then performing services as Employees, Directors or
Consultants, then such Options shall be terminated if not exercised
prior to such event; provided, however, that the time during which
such Options may be exercised may, at the discretion of the Board of
Directors, be accelerated and the Options terminated if not exercised
prior to such event.
11. AMENDMENT OF THE PLAN AND OPTIONS.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 10 relating to adjustments
upon changes in stock, no amendment shall be effective unless
approved by the stockholders of the Company within twelve (12) months
before or after the adoption of the amendment, where the amendment
will:
(1) Increase the number of shares reserved for Options under
the Plan;
(2) Modify the requirements as to eligibility for participation
in the Plan (to the extent such modification requires
stockholder approval in order for the Plan to satisfy the
requirements of Section 422 of the Code or any Nasdaq or
securities exchange listing requirements); or
(3) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to satisfy
the requirements of Section 422 of the Code or to comply with
the requirements of Rule 16b-3, or any Nasdaq or securities
exchange listing requirements.
(b) The Board may in its sole discretion submit any other amendment
to the Plan for stockholder approval, including, but not limited to,
amendments to the Plan intended to satisfy the requirements of
Section 162(m) of the Code and the regulations promulgated thereunder
regarding the exclusion of performance-based compensation from the
limit on corporate deductibility of compensation paid to certain
executive officers.
(c) It is expressly contemplated that the Board may amend the Plan in
any respect the Board deems necessary or advisable to provide
Optionees with the maximum benefits provided or to be provided under
the provisions of the Code and the regulations promulgated thereunder
10
<PAGE>
All references herein to numbers of shares already
take into account and give effect to the 2-for-3
reverse stock split effective on December 7, 1995.
relating to Incentive Stock Options and/or to bring the Plan and/or Incentive
Stock Options granted under it into compliance therewith.
(d) Rights and obligations under any Option granted before amendment
of the Plan shall not be impaired by any amendment of the Plan unless
(i) the Company requests the consent of the person to whom the Option
was granted and (ii) such person consents in writing.
(e) The Board at any time, and from time to time, may amend the terms
of any one or more Options; provided, however, that the rights and
obligations under any Option shall not be impaired by any such
amendment unless (i) the Company requests the consent of the person
to whom the Option was granted and (ii) such person consents in
writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on October 29, 2005,
which shall be within ten (10) years from the date the Plan is
adopted by the Board or approved by the stockholders of the Company,
whichever is earlier. No Options may be granted under the Plan while
the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Option granted while the Plan is
in effect shall not be impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Option was
granted.
13. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no Options
granted under the Plan shall be exercised unless and until the Plan has been
approved by the stockholders of the Company, which approval shall be within
twelve (12) months before or after the date the Plan is adopted by the Board,
and, if required, an appropriate permit has been issued by the Commissioner of
Corporations of the State of California.
11
ADOPTED BY THE BOARD OF DIRECTORS ON OCTOBER 30, 1995 APPROVED BY THE
STOCKHOLDERS ON DECEMER 12, 1995 AMENDED BY THE BOARD OF DIRECTORS ON JANUARY
29, 1999 AMENDED BY THE STOCKHOLDERS ON MAY 20, 1999.
