<PAGE> 1
As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
PROCOM TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
-------------------
California 33-0268063
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2181 Dupont Drive, Irvine, California 92715
(949) 794-4257
(Address and telephone number of principal executive offices)
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AMENDED AND RESTATED PROCOM TECHNOLOGY, INC. 1995 STOCK OPTION PLAN
(Full title of the plan)
-------------------
Frederick Judd
Vice President - Finance, and General Counsel
Procom Technology, Inc.
2181 Dupont Drive, Irvine, California 92715
(Name and address of agent for service)
-------------------
Telephone number, including area code, of agent for service: (949) 794-4257
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,140,000 (1) 7.8125 (2) $8,906,250 (2) $2,476 (2)
par value $0.01
per share
--------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers, in addition to the number of
shares of Common Stock stated above, options and other rights to
purchase or acquire the shares of Common Stock covered by the
Prospectus and, pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), an additional
indeterminate number of shares, options and rights which by reason
of certain events specified in the Amended and Restated Procom
Technology, Inc. 1995 Stock Option Plan (the "Plan") may become
subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and
in the aggregate, and the registration fee were calculated based
upon the average of the high and low prices of the Common Stock on
June 29, 1999, as reported on the Nasdaq National Market System and
published in The Western Edition of The Wall Street Journal.
The Exhibit Index for this Registration Statement is at page 6.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Securities Act Rule 428(b)(1). Such documents need not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Securities Act Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Procom Technology, Inc. (the "Company") filed
with the Commission are incorporated herein by reference:
(a) The Registration Statement on Form S-8 of the Company relating to
the Plan filed with the Commission on March 25, 1997 (registration number
333-23905).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of Common Stock registered hereby
is passed on for the Company by Frederick L. Judd. Mr. Judd is the Vice
President - Finance and General Counsel of the Company, is compensated by the
Company as an employee, is the holder of options to acquire shares of Common
Stock, and is eligible to participate in the Plan.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 6.
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Irvine, State of California, on the 28th day of June,
1999.
By: /s/ Alex Razmjoo
------------------------------------
Alex Razmjoo
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Alex Razmjoo Chairman of the Board, June 28, 1999
- -------------------------- President and Chief Executive
Alex Razmjoo Officer (Principal Executive
Officer)
/s/ Frank Alaghband Executive Vice President - June 28, 1999
- -------------------------- Operations, and Director
Frank Alaghband
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
/s/ Alex Aydin Executive Vice President - June 30, 1999
- -------------------------- Finance and Administration,
Alex Aydin and Director (Principal
Financial Officer)
/s/ Nick Shahrestany Executive Vice President - June 28, 1999
- -------------------------- Marketing and Information
Nick Shahrestany Technology, and Director
Director
- --------------------------
Dom Genovese
Director
- --------------------------
David Blake
/s/ Frederick L. Judd Vice President - Finance and June 30, 1999
- -------------------------- General Counsel (Principal
Frederick L. Judd Accounting Officer)
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C>
4. Amended and Restated Procom Technology, Inc. 1995 Stock Option Plan.
5. Opinion of Frederick L. Judd (Opinion re legality).
23.1 Consent of Arthur Andersen LLP (Consent of Independent Auditor).
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit 5).
24. Power of Attorney (included in this Registration Statement under
"Signatures").
</TABLE>
6
<PAGE> 1
EXHIBIT 4
AMENDED AND RESTATED
PROCOM TECHNOLOGY, INC.
1995 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to promote the success of the
Corporation by providing an additional means to attract, motivate and retain key
personnel, consultants, advisors and knowledgeable directors through the grant
of Options that provide added long term incentives for high levels of
performance and for significant efforts to improve the financial performance of
the Corporation.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the
Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean either the Board or a committee of
two or more directors, each of whom, (i) in respect of any decision at a time
when the Participant affected by the decision may be subject to Code Section
162(m), shall be an "outside" director within the meaning of Section 162(m) of
the Code and (ii) in respect of any decision at a time when the Participant
affected by the decision is subject to Section 16 of the Exchange Act, shall be
a "non-employee director" within the meaning of Rule 16b-3 of the Exchange Act,
appointed by the Board in accordance with Section 4 of this Plan.
(d) "Common Stock" shall mean the Common Stock, par value
$0.01 share, of the Corporation.
(e) "Corporation" shall mean Procom Technology, Inc., a
California corporation.
(f) "Disability" shall mean the condition of an Employee who
is, in the judgment of the Board or the Committee, unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than twelve
months.
(g) "Effective Date" shall have the meaning given such term in
Section 3 hereof.
(h) "Employee" shall mean an individual who is employed
(within the meaning of Code Section 3401(c) and the regulations thereunder) by
the Corporation or a Subsidiary.
(i) "Event" shall mean any of the following:
(1) approval by the shareholders of the Corporation
of an agreement to merge or consolidate, or otherwise reorganize, with
or into one or more entities other than Subsidiaries, as a result of
which less than 50% of the outstanding voting securities of the
surviving or resulting entity are, or are to be, owned by former
shareholders of the Corporation;
(2) approval by the shareholders of the Corporation
of the sale of all or substantially all of the Corporation's business
assets to a person or entity which is not a Subsidiary; or
(3) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act, but excluding (x) any person
described in and satisfying the conditions of Rule 13d-1(b)(1)
thereunder and (y) any person having beneficial ownership of more than
<PAGE> 2
5% of the outstanding voting power at the time of adoption of this
Plan) becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 50% of the combined voting power of
the Corporation's then outstanding securities entitled to then vote
generally in the election of directors of the Corporation.
(j) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(k) "Exercise Price" shall mean the price per Share of Common
Stock, determined by the Board or the Committee, at which an Option may be
exercised.
(l) "Fair Market value" shall mean the value of one Share of
Common Stock, determined as follows:
(1) If the Shares are traded on an exchange, the
price at which Shares traded at the close of business on the date of
valuation;
(2) If the Shares are traded over-the-counter on the
NASDAQ System, the closing price if one is available, or the mean
between the bid and asked prices on said System at the close of
business on the date of valuation; and
(3) If neither (1) nor (2) applies, the fair market
value as determined by the Board or the Committee in good faith. Such
determination shall be conclusive and binding on all persons.
(m) "Incentive Stock Option" shall mean an option described in
Section 422(b) of the Code.
(n) "Nonstatutory Stock Option" shall mean an option not
described in Section 422(b), 423(b) or 424(b) of the Code.
(o) "Option" shall mean an option to purchase Common Stock
under this Plan. An Option shall be designated by the Committee as a
Nonstatutory Stock Option or an Incentive Stock Option.
(p) "Optionee" shall mean an employee who has received an
Option.
(q) "Plan" shall mean the Procom Technology, Inc. 1995 Stock
Option Plan, as it may be amended from time to time.
(r) "Purchase Price" shall mean the Exercise Price multiplied
by the number of Shares with respect to which an Option is exercised.
(s) "Retirement" shall mean the voluntary termination of
employment by an Employee upon the attainment of age sixty-five and the
completion of not less than twenty years of service with the Corporation or a
Subsidiary.
(t) "Share" shall mean one share of Common Stock, adjusted in
accordance with Section 10 of this Plan (if applicable).
(u) "Subsidiary" shall mean any corporation at least fifty
percent of the total combined voting power of which is owned by the Corporation
or by another Subsidiary.
3. EFFECTIVE DATE. This Plan was adopted by the Board and approved by
the Corporation's shareholders as of September 15, 1995, which is the effective
date of this Plan (the "Effective Date").
<PAGE> 3
4. ADMINISTRATION. This Plan shall be administered by the Board, or by
a committee appointed by the Board which shall consist of not less than two
members (either entity acting in such capacity being hereafter referred to as
the "Committee"). The Board shall appoint one of the members of the Committee,
if there be one, as Chairman of the Committee. The Committee shall hold meetings
at such times and places as it may determine. Acts of a majority of the
Committee at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee. The Committee shall from time to time at its discretion select
the Plan participants, the number of Shares to be granted to each Optionee (no
more than 100,000 options may be granted hereunder to any person during any
twelve month period) and designate such Options as Incentive Stock Options or
Nonstatutory Stock Options, except that no Incentive Stock Option may be granted
to a non-Employee director or a non-Employee consultant. A member of the
Committee shall in no event participate in any determination relating to Options
held by or to be granted to such Committee member. The interpretation and
construction by the Committee of any provision of this Plan or of any Option
granted hereunder shall be final. No member of the Committee shall be liable for
any action or determination made in good faith with respect to this Plan or any
Option granted hereunder.
5. PARTICIPATION.
(a) Eligibility. The Optionees shall be such persons as the
Committee may select from among the following classes of persons, subject to the
terms and conditions of (b) below:
(1) Employees of the Corporation or of a Subsidiary
(who may be officers, whether or not they are directors);
(2) Directors of the Corporation or of a Subsidiary;
and
(3) Advisors or consultants who perform bona fide
services for the Corporation of a nature similar to those services
performed by key employees, who are selected to participate in this
Plan by the Committee from time to time.
Solely for purposes of this Plan, an Optionee who is a director,
advisor or consultant who performs bona fide services for the Corporation of a
nature similar to those services performed by key employees shall be deemed to
be an Employee, and service as a director, advisor or consultant who performs
bona fide services for the Corporation of a nature similar to those services
performed by key employees shall, solely for purposes of this Plan, be deemed to
be employment, except that no Incentive Stock Option may be granted to a
non-Employee director or non- Employee advisor or consultant.
(b) Ten-Percent Shareholders. An Employee who owns more than
ten percent of the total combined voting power of all classes of outstanding
stock of the Corporation, its parent or any of its Subsidiaries shall not be
eligible to receive an Incentive Stock Option unless (i) the Exercise Price of
the Shares subject to such Option is at least 110% of the Fair Market value of
such Shares on the date of grant and (ii) such Option by its terms is not
exercisable after the expiration of five years from the date of grant.
(c) Stock Ownership. For purposes of (b) above, in determining
stock ownership, an Employee shall be considered as owning the stock owned,
directly or indirectly, by or for his brothers, sisters, spouses, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust shall be considered as being owned
proportionately by or for its shareholders, partners or beneficiaries. Stock
with respect to which such Employee holds an Option shall not be counted.
(d) Outstanding Stock. For purposes of (b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant of the Option to the Optionee. "Outstanding stock" shall not include
shares authorized for issue under outstanding Options held by the Optionee or by
<PAGE> 4
any other person.
6. STOCK. The stock subject to Options granted under this Plan shall be
Shares of the Corporation's authorized but unissued or reacquired Common Stock.
The aggregate number of Shares which may be issued upon exercise of Options
under this Plan shall not exceed 1,590,000 shares. The number of Shares subject
to Options outstanding at any time shall not exceed the number of Shares
remaining available for issuance under this Plan. If any outstanding Option for
any reason expires or is terminated, the Shares allocable to the unexercised
portion of such Option may again be made subject to any Option. The limitations
established by this Section 6 shall be subject to adjustment in the manner
provided in Section 10 hereof upon the occurrence of an event specified therein.
7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreements. Options shall be evidenced by
written stock option agreements in such form as the Committee shall from time to
time determine. Such agreements shall comply with and be subject to the terms
and conditions set forth below.
(b) Number of Shares. Each Option shall state the number of
Shares to which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 10 hereof.
(c) Exercise Price. Each Option shall state the Exercise
Price. The Exercise Price in the case of any Incentive Stock Option shall not be
less than the Fair Market Value on the date of grant and, in the case of any
Incentive Stock Option granted to an Optionee described in Section 5(b) hereof,
shall not be less than 110% of the Fair Market Value on the date of grant. The
Exercise Price in the case of any Nonstatutory Stock Option shall not be less
than 85% of the Fair Market Value on the date of grant.
(d) Medium and Time of Payment. The Purchase Price shall be
payable in full in United States dollars upon the exercise of the Option;
provided, however, that if the applicable Option Agreement so provides the
Purchase Price may be paid (i) by the surrender of Shares in good form for
transfer, owned by the person exercising the Option and having a Fair Market
Value on the date of exercise equal to the Purchase Price, or in any combination
of cash and Shares, as long as the sum of the cash so paid and the Fair Market
Value of the Shares so surrendered equal the Purchase Price, (ii) by
cancellation of indebtedness owed by the Corporation to the Optionee, (iii) with
a full recourse promissory note executed by the Optionee or (iv) any combination
of the foregoing. The interest rate and other terms and conditions of such note
shall be determined by the Committee. The Committee may, if it desires, require
that the Optionee pledge his or her Shares to the Corporation for the purpose of
securing the payment of such note and require that the stock certificate(s)
representing such Shares shall not be released to the Optionee until such note
has been paid in full. If the Corporation determines that it is required to
withhold state or federal income tax as a result of the exercise of an Option,
as a condition to the exercise thereof, an Employee may be required to make
arrangements satisfactory to the Corporation to enable it to satisfy such
withholding requirements.
(e) Term and Nontransferability of Options. Each Option shall
state the time or times, and the conditions upon which, all or part thereof
becomes exercisable. No Option shall be exercisable after the expiration of ten
years from the date it was granted, and no Incentive Stock Option granted to an
Optionee described in Section 5(b) hereof shall be exercisable after the
expiration of five years from the date it was granted.
Unless otherwise expressly provided in (or pursuant to) this
7(e), by applicable law and by the Option Agreement, as the same may be amended,
(i) all Options are non-transferable and shall not be subject in any manner to
sale, transfer, anticipation, alienation, assignment, pledge, encumbrance or
charge; Options shall be exercised only by the Participant; and (ii) amounts
payable or shares issuable pursuant to an Option shall be delivered only to (or
for the account of) the Participant.
<PAGE> 5
The Committee may permit Options to be exercised by and paid
to certain persons or entities related to the Participant pursuant to such
conditions and procedures as the Committee may establish. Any permitted transfer
shall be subject to the condition that the Committee receive evidence
satisfactory to it that the transfer is being made for estate and/or tax
planning purposes or a gratuitous or donative basis and without consideration
(other than nominal consideration). Notwithstanding the foregoing, Incentive
Stock Options shall be subject to any and all applicable transfer restrictions
under the Code.
The exercise and transfer restrictions in this Section 7(e)
shall not apply to:
(i) transfers to the Corporation,
(ii) the designation of a beneficiary to receive
benefits in the event of the Participant's death or, if the Participant
has died, transfers to or exercise by the Participant's beneficiary,
or, in the absence of a validly designated beneficiary, transfers by
will or the laws of descent and distribution,
(iii) transfers pursuant to a QDRO order,
(iv) if the Participant has suffered a disability,
permitted transfers or exercises on behalf of the Participant by his or
her legal representative, or
(v) the authorization by the Committee of "cashless
exercise" procedures with third parties who provide financing for the
purpose of (or who otherwise facilitate) the exercise of Options
consistent with applicable laws and the express authorization of the
Committee.
Notwithstanding the foregoing, Incentive Stock Options shall
be subject to all applicable transfer restrictions under the Code.
(f) Termination of Employment, Except by Death, Disability or
Retirement. If an Optionee ceases to be an Employee for any reason other than
his or her death, Disability or Retirement, the Optionee's Option, to the extent
not exercised, shall terminate and become null and void at such time as the
Optionee ceases to be an Employee, except that such Optionee shall have the
right, subject to the restrictions of (e) above, to exercise the Option at any
time within thirty days after termination of employment, but only to the extent
that, at the date of termination of employment, the Optionee's right to exercise
such Option had vested pursuant to the terms of the applicable option agreement
and had not previously been exercised; provided, however, that if the Optionee
was terminated for cause (as defined in the applicable option agreement) any
Option not exercised in full prior to such termination shall be canceled. For
this purpose, the employment relationship shall be treated as continuing intact
while the Optionee is on military leave, sick leave or other bona fide leave of
absence (to be determined in the sole discretion of the Committee). The
foregoing notwithstanding, (i) in the case of an Incentive Stock Option,
employment shall not be deemed to continue beyond ninety days after the
Optionee's reemployment rights are guaranteed by statute or by contract, and
(ii) in the case of a Nonstatutory Stock Option, the Committee may extend or
otherwise modify the period of time specified herein during which the Option may
be exercised following termination of Optionee's employment.
(g) Death of Optionee. If an Optionee dies while an Employee,
or after ceasing to be an Employee but during the period while he or she could
have exercised the Option under this Section 7, and has not fully exercised the
Option, then the Option may be exercised in full, subject to the restrictions of
(e) above, at any time within three months after the Optionee's death, by the
executors or administrators of his or her estate or by any person or persons who
have acquired the Option directly from the Optionee by bequest or inheritance,
but only to the extent that, at the date of death, the Optionee's right to
exercise such Option had accrued and had not been forfeited pursuant to the
<PAGE> 6
terms of the applicable Option Agreement and had not previously been exercised.
The foregoing notwithstanding, in the case of a Nonstatutory Stock Option, the
Committee may extend or otherwise modify the period of time specified herein
during which the Option may be exercised following termination of Optionee's
employment, or amend an Incentive Stock Option to convert it into a Nonstatutory
Stock Option with an extended term.
(h) Disability of Optionee. If an Optionee ceases to be an
Employee by reason of Disability, the Optionee's Option, to the extent not
exercised, shall terminate and become null and void at such time as the Optionee
ceases to be an Employee, except that such Optionee shall have the right,
subject to the restrictions of (e) above, to exercise the Option at any time
within three months after termination of employment, but only to the extent
that, at the date of termination of employment, the Optionee's right to exercise
such Option had become vested pursuant to the terms of the applicable option
agreement and had not previously been exercised. The foregoing notwithstanding,
in the case of a Nonstatutory Stock Option, the Committee may extend or
otherwise modify the period of time specified herein during which the Option may
be exercised following termination of Optionee's employment, or amend an
Incentive Stock Option to convert it into a Nonstatutory Stock Option with an
extended term.
(i) Retirement of Optionee. If an Optionee ceases to be an
Employee by reason of Retirement, the Optionee's Option, to the extent not
exercised, shall terminate and become null and void at such time as the Optionee
ceases to be an Employee, except that such Optionee shall have the right,
subject to the restrictions of (e) above, to exercise the Option at any time
within three months after termination of employment, but only to the extent
that, at the date of termination of employment, the Optionee's right to exercise
such Option had become vested pursuant to the terms of the applicable option
agreement and had not previously been exercised. The foregoing notwithstanding,
in the case of a Nonstatutory Stock Option, the Committee may extend or
otherwise modify the period of time specified herein during which the Option may
be exercised following termination of Optionee's employment, or amend an
Incentive Stock Option to convert it into a Nonstatutory Stock Option with an
extended term.
(j) Rights as a Shareholder. An Optionee, or a transferee of
an Optionee, shall have no rights as a shareholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property), distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 hereof.
(k) Modification, Extension and Renewal of Option. Within the
limitations of this Plan, the Committee may modify, extend, renew or reprice
outstanding Options or accept the cancellation of outstanding Options (to the
extent not previously exercised) for the granting of new Options with, if
desired, lower exercise prices, in substitution therefor. The foregoing
notwithstanding, no modification of an Option shall, without the consent of the
Optionee, alter or impair any rights or obligations under any Option previously
granted.
(l) Other Provisions. The stock option agreements authorized
under this Plan may contain such other provisions not inconsistent with the
terms of this Plan (including, without limitation, restrictions upon the
exercise of the Option) as the Committee deems advisable.
8. LIMITATION ON VALUE OF EXERCISABLE SHARES. In the case of Incentive
Stock Options granted hereunder, the aggregate Fair Market Value (determined as
of the date of the grant thereof) of the Shares with respect to which Incentive
Stock Options become exercisable by any employee of the Corporation for the
first time during any calendar year (under this Plan and all other plans
maintained by the Corporation, its parent or its Subsidiaries) shall not exceed
$100,000.
<PAGE> 7
9. TERM OF PLAN. Options may be granted pursuant to this Plan until the
expiration of ten years from the effective date of this Plan.
10. RECAPITALIZATIONS. Subject to any required action by shareholders,
the number of Shares covered by this Plan as provided in Section 6 hereof, the
number of Shares covered by each outstanding Option and the Exercise Price
thereof shall be proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a subdivision or consolidation of Shares
or the payment of a stock dividend (but only of Common Stock) or any other
increase or decrease in the number of issued Shares effected without receipt of
consideration by the Corporation. Subject to any required action by
shareholders, if the Corporation is the surviving corporation in any merger or
consolidation, each outstanding Option shall apply to the securities to which a
holder of the number of Shares subject to the Option would have been entitled in
the merger or consolidation. To the extent that the foregoing adjustments relate
to securities of the Corporation, such adjustments shall be made by the
Committee, whose determination shall be conclusive and binding on all persons.
Except as expressly provided in this Section 10, the Optionee shall have no
rights by reason of subdivision or consolidation of shares of stock of any
class, the payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to this Plan shall not affect in any way the right or power of the Corporation
to make adjustments, reclassifications, reorganizations or changes to its
capital or business structure, to merge or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business assets.
11. SECURITIES LAW REQUIREMENTS.
(a) Legality of Issuance. The issuance of any Shares upon the
exercise of any Option and the grant of any Option shall be contingent upon the
following:
(1) the Corporation and the Optionee shall have taken
all actions required to register the Shares under the Securities Act of
1933, as amended (the "Act"), and to qualify the Option and the Shares
under any and all applicable state securities or "blue sky" laws or
regulations, or to perfect an exemption from the respective
registration and qualification requirements thereof;
(2) any applicable listing requirement of any stock
exchange on which the Common Stock is listed shall have been satisfied;
and
(3) any other applicable provision of state or
federal law shall have been satisfied.
(b) Restrictions on Transfer. Regardless of whether the
offering and sale of Shares under this Plan has been registered under the Act or
has been registered or qualified under the securities laws of any state, the
Corporation may impose restrictions on the sale, pledge or other transfer of
such Shares (including the placement of appropriate legends on stock
certificates) if, in the judgment of the Corporation and its counsel, such
restrictions are necessary or desirable in order to achieve compliance with the
provisions of the Act, the securities laws of any state or any other law. In the
event that the sale of Shares under this Plan is not registered under the Act
but an exemption is available which requires an investment representation or
other representation, each Optionee shall be required to represent that such
Shares are being acquired for investment, and not with a view to the sale or
distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Corporation and its counsel. Any determination
by the Corporation and its counsel in connection with any of the matters set
forth in this Section 11 shall be conclusive and binding on all persons. Stock
certificates evidencing Shares acquired under this Plan pursuant to an
<PAGE> 8
unregistered transaction shall bear the following restrictive legend and such
other restrictive legends as are required or deemed advisable under the
provisions of any applicable law.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). ANY TRANSFER OF SUCH SECURITIES
WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE ISSUER SUCH REGISTRATION IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT."
(c) Registration or Qualification of Securities. The
Corporation may, but shall not be obligated to register or qualify the issuance
of Options and/or the sale of Shares under the Act or any other applicable law.
The Corporation shall not be obligated to take any affirmative action in order
to cause the issuance of Options or the sale of Shares under this Plan to comply
with any law.
(d) Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock certificate
representing shares sold under this Plan is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Shares but lacking such legend.
12. AMENDMENT OF THIS PLAN. The Board may from time to time, with
respect to any Shares at the time not subject to Options, suspend or discontinue
this Plan or revise or amend it in any respect whatsoever, except to the extent
that shareholder approval is required by applicable law for such suspension,
discontinuation, revision or amendment.
13. ACCELERATION OF OPTIONS. Unless prior to an Event the Board
determines that, upon its occurrence, there shall be no acceleration of Options
or determines those selected Options which shall be accelerated and the extent
to which they shall be accelerated, upon the occurrence of an Event each Option
shall become immediately exercisable to the full extent theretofore not
exercisable; subject, however, to compliance with applicable regulatory
requirements, including, without limitation, Section 422 of the Code. For
purposes of this section only, the Board shall mean the Board as constituted
immediately prior to the Event. If any Option has been fully accelerated as
provided in this Section 13, but is not exercised prior to the dissolution of
the Corporation or a merger, consolidation or other reorganization which the
Corporation does not survive, such Option shall thereupon terminate, subject to
any provision that has been expressly made by the Committee for the survival,
substitution, exchange or other settlement of such Option.
14. EXECUTION. To record the adoption of this Plan in the form set
forth above by the Board as of the Effective Date, the Corporation has caused
this Plan to be executed in the name and on behalf of the Corporation where
provided below by an officer of the Corporation thereunto duly authorized.
PROCOM TECHNOLOGY, INC.,
a California corporation
By: ______________________________
Its:______________________________
<PAGE> 1
EXHIBIT 5
June 30, 1999
Procom Technology, Inc.
2181 Dupont Drive
Irvine, California 92715
Re: Registration on Form S-8 of Procom
Technology, Inc. (the "Company")
Gentlemen:
At your request, I have examined the Registration Statement on Form S-8
to be filed with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of 1,140,000 shares
of Common Stock, par value $0.01 per share, of the Company (the "Common Stock"),
to be issued pursuant to the Amended and Restated Procom Technology, Inc. 1995
Stock Option Plan (the "Plan"). I have examined the proceedings heretofore taken
and to be taken in connection with the authorization of the Plan and the Common
Stock to be issued pursuant to and in accordance with the Plan.
Based upon such examination and upon such matters of fact and law as I
have deemed relevant, I am of the opinion that the Common Stock has been duly
authorized by all necessary corporate action on the part of the Company and,
when issued in accordance with such authorization, the provisions of the Plan
and relevant agreements duly authorized by and in accordance with the terms of
the Plan, will be validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Respectfully submitted,
/s/ Frederick L. Judd
----------------------------------------
Frederick L. Judd
Vice President - Finance
and General Counsel
<PAGE> 1
EXHIBIT 23.1
ARTHUR ANDERSEN LLP LETTERHEAD
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our report included in this Form 10-K into the Company's previously filed
Registration Statement on Form S-8 File Number 333-23905.
/s/ ARTHUR ANDERSEN LLP
------------------------------
ARTHUR ANDERSEN LLP
Orange County, California
June 28, 1999
