<PAGE> 1
As filed with the Securities and Exchange Commission on January 19, 2000
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
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MEADE INSTRUMENTS CORP.
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(Exact name of registrant as specified in its charter)
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Delaware 95-2988062
- ------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6001 Oak Canyon
Irvine, California 92620-4205
(949) 451-1450
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(Address of principal executive offices)
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MARIO COSTANTINO NONQUALIFIED STOCK OPTION AGREEMENT
MARIO COSTANTINO BONUS AGREEMENT
- --------------------------------------------------------------------------------
(Full title of the plan)
-------------------
John C. Diebel
Chairman of the Board and
Chief Executive Officer
Meade Instruments Corp.
6001 Oak Canyon
Irvine, California 92620-4205
- --------------------------------------------------------------------------------
(Name and address of agent for service)
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Telephone number, including area code, of agent for service: (949) 451-1450
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
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 38,240(1) shares $27.75(2) $1,061,160(2) $281(2)
$.01 par value
==========================================================================================================
</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 indeterminate number of shares which by reason of certain events
specified in the Mario Costantino Non-Qualified Stock Option Agreement and
the (collectively the "Plans") may become subject to the Plans.
(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 January 15, 2000, 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 8
================================================================================
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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
employee as specified by Rule 428(b)(1) of the Securities Act. 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 Rule 424 of the Securities Act. 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
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Meade Instruments Corp. (the "Company")
filed with the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the Company's fiscal
year ended February 28, 1999, filed with the Commission on May
28, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended May 31, 1999, filed with the Commission on July 15,
1999; and
(c) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended August 31, 1999, filed with the Commission October
13, 1999;
(d) The Company's Quarterly Report of Form 10-Q for the quarterly
period ended November 30, 1999, filed with the Commission on
January 14, 2000;
(e) The Company's Current Report on Form 8-K, filed with the
Commission on September 15, 1999, as amended on each of November
15, 1999 and December 1, 1999; and
(f) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on
February 27, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(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 into the prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock is registered pursuant to Section 12 of the Exchange
Act. Therefore, the description of the securities is omitted.
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 Mark D. Peterson. Mr. Peterson is the Vice
President and General Counsel of the Company, is compensated as an employee of
the Company, and is the holder of options to acquire Common Stock.
3
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
LIMITATION OF LIABILITY
The Company's Certificate of Incorporation (the "Certificate") provides
that a director of the Company will not be personally liable for monetary
damages to the Company or its stockholders for breach of fiduciary duty as a
director, except to the extent such exemption for liability or limitation
thereof is not permitted under the Delaware General Corporation Law (the "Law")
(i.e., liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
paying a dividend or approving a stock repurchase in violation of Section 174 of
the Law, or (iv) for any transaction from which the director derived an improper
personal benefit).
While the Certificate provides directors with protection from awards
for monetary damages for breaches of their duty of care, it does not eliminate
such duty. Accordingly, the Certificate will have no effect on the availability
of equitable remedies, such as an injunction or rescission based on a director's
breach of such director's duty of care.
INDEMNIFICATION
The Certificate provides that each person (and the heirs, executors, or
administrators of such person) who was or is a party or is threatened to be made
a party to, or is involved in any threatened pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or investigative, by
reason of the fact that such person is or was a director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, will be indemnified and held harmless by the Company to the fullest
extent permitted by the Law. The Certificate further provides that the right to
indemnification includes the right to be paid by the Company for expenses
incurred in connection with any such proceeding in advance of its final
disposition to the fullest extent permitted by the Law, and that the right to
indemnification conferred thereunder is deemed a contract right.
The Certificate further provides that the Company may, by action of its
Board of Directors (the "Board"), provide indemnification to such of the
employees and agents of the Company and such other persons serving at the
request of the Company as employees or agents of another corporation,
partnership, joint venture, trust or other enterprise to such extent and to such
effect as is permitted by the Law and the Board.
Pursuant to the Certificate, the Company has the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss incurred by such person in any such capacity or arising out of
his or her status as such, whether or not the Company would have the power to
indemnify such person against such liability under the Law.
The Certificate provides that (i) the rights and authority described
above are not exclusive of any other right that any person otherwise may have or
acquire and (ii) no amendment, modification or repeal of the Certificate, or
adoption of any additional provision of the Certificate or the Company's Bylaws,
or, to the fullest extent permitted by the Law, any amendment, modification or
repeal of law will eliminate or reduce the effect of the provisions in the
Certificate limiting liability or indemnifying certain persons or adversely
affect any right or protection then existing thereunder in respect of any acts
or omissions occurring prior to such amendments, modifications, repeal or
adoption.
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<PAGE> 5
The Company has entered into indemnification agreements with its
directors and officers that require the Company to indemnify the directors and
officers to the fullest extent permitted by applicable provisions of the Law
and, to the extent necessary, the California General Corporation Law.
The Company also maintains directors' and officers' liability insurance
policies insuring directors and officers of the Company for certain covered
losses as defined in the policies.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page 8
ITEM 9. UNDERTAKINGS
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
with or furnished to the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this 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; and
(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.
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<PAGE> 6
(b) 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 this 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.
(h) 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 provisions described in Item 6 above, 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, 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.
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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 January 18, 2000.
By: /s/ John C. Diebel
------------------------------
John C. Diebel,
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John
C. Diebel and Mark D. Peterson, or each of them individually, his true and
lawful attorney-in-fact and agent, with full powers 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 Commission, granting unto
said attorneys-in-fact and agents, 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them individually, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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
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<S> <C> <C>
/s/ John C. Diebel Chairman of the Board and Chief January 18, 2000
- --------------------------------- Executive Officer (Principal
John C. Diebel Executive Officer)
/s/ Steven G. Murdock President, Chief Operating Officer, January 18, 2000
- --------------------------------- Secretary and Director
Steven G. Murdock
/s/ Joseph A. Gordon, Jr. Senior Vice President--North January 18, 2000
- --------------------------------- American Sales and Director
Joseph A. Gordon, Jr.
/s/ Brent W. Christensen Vice President--Finance and Chief January 18, 2000
- --------------------------------- Financial Officer (Principal
Brent W. Christensen Financial and Accounting Officer)
Director
- ---------------------------------
Timothy C. McQuay
Director
- ---------------------------------
Harry L. Casari
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 Mario Costantino Non-Qualified Stock Option Agreement, dated as of
January 6, 2000
4.2 Mario Costantino Meade Instruments Corp. Bonus Agreement, dated as of
January 6, 2000.
5.1 Opinion of Counsel (opinion regarding legality).
23.1 Consent of PricewaterhouseCoopers LLP (consent of independent
auditors).
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included in this Registration Statement under
"Signatures").
<PAGE> 1
EXHIBIT 4.1
MEADE INSTRUMENTS CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT") dated as of
the 6th day of January, 2000 by and between Meade Instruments Corp., a Delaware
corporation (the "COMPANY"), and Mario Costantino (the "OPTIONEE").
R E C I T A L S
WHEREAS, the Company has granted to the Optionee, effective as of the
6th day of January, 2000 (the "GRANT DATE"), a nonqualified stock option to
purchase all or any part of 25,000 shares of the Company's common stock, par
value $0.01 per share (the "COMMON STOCK"), subject to and upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. GRANT OF OPTION. This Agreement evidences the Company's grant to the
Optionee of the right and option to purchase, subject to and on the
terms and conditions set forth herein, all or any part of 25,000 shares
of the Company's Common Stock (the "SHARES") at the price of $27.00 per
Share (the "OPTION"), exercisable from time to time, subject to the
provisions of this Agreement, prior to the close of business on the day
before the tenth anniversary of the Grant Date (the "EXPIRATION Date"),
unless earlier terminated pursuant to Section 9. Such price equals the
fair market value of the Common Stock as of the Grant Date.
2. EXERCISABILITY OF OPTION. The Option shall first become and remain
exercisable as to 1/4 of the shares on the first anniversary of the
Grant Date and as to an additional 1/36 of the shares on and after the
last day of each succeeding calendar month until all remaining Options
have become exercisable. If the Optionee does not in any year purchase
all or any part of the Shares to which the Optionee is entitled, the
Optionee has the right cumulatively thereafter to purchase any Shares
not so purchased and such right shall continue until the Option
terminates or expires. The Option shall only be exercisable in respect
of whole Shares, and fractional Share interests shall be disregarded.
The Option may only be exercised as to at least one-hundred (100)
Shares unless the number purchased is the total number at the time
available for purchase under the Option.
3. METHOD OF EXERCISE OF OPTION. The Option shall be exercisable by the
delivery to the Secretary of the Company of a written notice stating
the number of Shares to be purchased pursuant to the Option and
accompanied by (i) delivery of an executed EXERCISE AGREEMENT in the
form attached hereto as EXHIBIT A, (ii) payment of the full purchase
price of the Shares to be purchased, and (iii) payment in full of any
tax withholding obligation under federal, state or local law. Payment
shall be made in one or
<PAGE> 2
a combination of the following methods: (i) in cash or by electronic
funds transfer; (ii) by check payable to the order of the Company;
(iii) if authorized by the Board of Directors (the "BOARD"), by a
promissory note of the Optionee upon the terms and conditions approved
by the Board; (iv) by notice and third party payment in such manner as
may be authorized by the Board; or (v) by the delivery of shares of
Common Stock of the Company already owned by the Optionee, provided,
however, that the Board may in its absolute discretion limit the
Optionee's ability to exercise the Option by delivering such shares,
and provided further that any shares delivered which were initially
acquired upon exercise of a stock option must have been owned by the
Optionee at least six months as of the date of delivery. Shares of
Common Stock used to satisfy the exercise price of the Option shall be
valued at their fair market value on the date of exercise.
4. TAX WITHHOLDING.
4.1. CASH OR SHARES. Upon any exercise of the Option, the Company shall
have the right at its option to (i) require the Optionee (or personal
representative or beneficiary, as the case may be) to pay or provide
for payment of the amount of any taxes which the Company may be
required to withhold with respect to the Option or (ii) deduct from any
amount payable in cash the amount of any taxes which the Company may be
required to withhold with respect to such cash payment. In any case
where a tax is required to be withheld in connection with the delivery
of shares of Common Stock, the Board may in its sole discretion grant
to the Optionee the right to elect, pursuant to such rules and subject
to such conditions as the Board may establish, to have the Company
reduce the number of shares to be delivered by (or otherwise reacquire)
the appropriate number of shares valued at their then fair market value
to satisfy such withholding obligation.
4.2. TAX LOANS. The Company may, in its discretion and to the extent
permitted by law, authorize a loan to the Optionee in the amount of any
taxes which the Company may be required to withhold with respect to
shares of Common Stock received (or disposed of, as the case may be)
pursuant to a transaction described in Section 4.1. Such a loan shall
be for a term, at a rate of interest and pursuant to such other terms
and conditions as the Company, under applicable law may establish.
5. OPTION REPRICING/CANCELLATION AND REGRANT/WAIVER OF RESTRICTIONS. The
Board from time to time may authorize, generally or in specific cases
only, for the benefit of the Optionee any adjustment in the number of
shares subject to, the restrictions upon or the term, exercise or
purchase price or vesting schedule of the Option by cancellation of the
Option and a subsequent regranting of the Option, by amendment, by
substitution of the Option, by waiver or by other legally valid means.
Such amendment or other action may result among other changes in an
exercise or purchase price which is higher or lower than the exercise
or purchase price of the original or prior Option, provide for a
greater or lesser number of shares subject to the Option, or provide
for a longer or shorter vesting or exercise period.
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<PAGE> 3
6. RESTRICTIONS ON SHARES. The Certificate of Incorporation and Bylaws of
the Company, as either of them may be amended from time to time, may
provide for restrictions with respect to the Common Stock. To the
extent that these restrictions and limitations are greater than those
set forth in this Agreement, such restrictions and limitations shall
apply to any securities acquired upon exercise of the Option and are
incorporated herein by this reference.
7. NO TRANSFERABILITY; LIMITED EXCEPTION TO TRANSFER RESTRICTIONS.
7.1. LIMIT ON EXERCISE AND TRANSFER. Unless otherwise expressly
provided in (or pursuant to) this Section 7 or by applicable law (i)
the Option is non-transferable and shall not be subject in any manner
to sale, transfer, anticipation, alienation, assignment, pledge,
encumbrance or charge; the Option shall be exercised only by the
Optionee; and (ii) amounts payable or shares issuable pursuant to the
Option shall be delivered only to (or for the account of) the Optionee.
7.2. EXCEPTIONS. The Board may permit the Option to be exercised by and
paid only to certain persons or entities related to the Optionee,
including but not limited to members of the Optionee's family,
charitable institutions, or trusts or other entities whose
beneficiaries or beneficial owners are members of the Optionee's family
and/or charitable institutions, or to such other persons or entities as
may be approved by the Board, pursuant to such conditions and
procedures as the Board may establish. Any permitted transfer shall be
subject to the condition that the Board receive evidence satisfactory
to it that the transfer is being made for estate and/or tax planning
purposes on a gratuitous or donative basis and without consideration
(other than nominal consideration).
7.3. FURTHER EXCEPTIONS TO LIMITS ON TRANSFER. The exercise and
transfer restrictions in this Section 7 shall not apply to:
(i) transfers to the Company,
(ii) the designation of a beneficiary to receive benefits in the
event of the Optionee's death or, if the Optionee has died,
transfers to or exercise by the Optionee'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 qualified domestic relations order
if approved or ratified by the Board,
(iv) if the Optionee has suffered a disability, permitted
transfers or exercises on behalf of the Optionee by his or
her legal representative, or
(v) the authorization by the Board of "cashless exercise"
procedures with third parties who provide financing for the
purpose of (or who otherwise facilitate) the exercise of the
Option consistent with applicable laws and the express
authorization of the Board.
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<PAGE> 4
8. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement shall
confer upon the Optionee any right to continue in the employ or other
service of the Company or any of its subsidiaries, nor constitute any
contract or agreement of employment or other service, nor shall
interfere in any way with the right of the Company to change the
Optionee's compensation or other benefits or to terminate the
employment of the Optionee, with or without cause; provided, however,
that nothing contained in this Agreement shall adversely affect any
independent contractual right of the Optionee without his or her
consent thereto.
9. ADJUSTMENT AND TERMINATION UPON CERTAIN EVENTS.
9.1. ADJUSTMENTS. If there shall occur any extraordinary dividend or
other extraordinary distribution in respect of the Common Stock
(whether in the form of cash, Common Stock, other securities, or other
property), or any reclassification, recapitalization, stock split
(including a stock split in the form of a stock dividend), reverse
stock split, reorganization, merger, combination, consolidation,
split-up, spin-off, combination, repurchase, or exchange of Common
Stock or other securities of the Company, or there shall occur any
similar, unusual or extraordinary corporate transaction or event in
respect of the Common Stock or a sale of substantially all the assets
of the Company as an entirety, then the Board shall, in such manner and
to such extent (if any) as it deems appropriate and equitable (1)
proportionately adjust any or all of (a) the number and type of shares
of Common Stock (or other securities) which thereafter may be made the
subject of the Option, (b) the number, amount and type of shares of
Common Stock (or other securities or property) subject to the Option,
(c) the grant, purchase, or exercise price of the Option, (d) the
securities, cash or other property deliverable upon exercise of the
Option, or (e) the performance standards appropriate to the Option, or
(2) in the case of an extraordinary dividend or other distribution,
recapitalization, reclassification, merger, reorganization,
consolidation, combination, sale of assets, split up, exchange, or spin
off, make provision for a cash payment or for the substitution or
exchange of the Option or the cash, securities or property deliverable
to the Optionee based upon the distribution or consideration payable to
holders of the Common Stock of the Company upon or in respect of such
event. In any of such events, the Board may take such action
sufficiently prior to such event if necessary to permit the Optionee to
realize the benefits intended to be conveyed with respect to the
underlying shares in the same manner as is available to stockholders
generally.
9.2. ACCELERATION OF AWARDS UPON CHANGE IN CONTROL. Unless the Board
determines, prior to the occurrence of any of the following (each of
which shall be hereafter referred to as a "Change in Control Event"):
(i) Approval by the stockholders of the Company of the
dissolution or liquidation of the Company;
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<PAGE> 5
(ii) Approval by the stockholders of the Company of an agreement
to merge or consolidate, or otherwise reorganize, with or
into one or more entities that are not subsidiaries or other
affiliates, as a result of which less than 50% of the
outstanding voting securities of the surviving or resulting
entity immediately after the reorganization are, or will be,
owned, directly or indirectly, by stockholders of the
Company immediately before such reorganization (assuming for
purposes of such determination that there is no change in
the record ownership of the Company's securities from the
record date for such approval until such reorganization and
that such record owners hold no securities of the other
parties to such reorganization, but including in such
determination any securities of the other parties to such
reorganization held by affiliates of the Company);
(iii) Approval by the stockholders of the Company of the sale of
substantially all of the Company's business and/or assets to
a person or entity which is not a subsidiary or other
affiliate;
(iv) Any `person' (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended
from time to time (the "EXCHANGE ACT") but excluding any
person described in and satisfying the conditions of Rule
13d-1(b)(1) thereunder) becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then
outstanding securities entitled to then vote generally in
the election of directors of the Company; or
(v) During any period not longer than two consecutive years,
individuals who at the beginning of such period constituted
the Board cease to constitute at least a majority thereof,
unless the election, or the nomination for election by the
Company's stockholders, of each new Board member was
approved by a vote of at least three-fourths of the Board
members then still in office who were Board members at the
beginning of such period (including for these purposes, new
members whose election or nomination was so approved),
that, upon the occurrence of a Change in Control Event, there shall be
no acceleration of benefits under the Option or determines that only
certain or limited benefits under the Option shall be accelerated and
the extent to which they shall be accelerated, and/or establishes a
different time in respect of such Change in Control Event for such
acceleration, then upon the occurrence of a Change in Control Event the
Option shall become immediately exercisable. The Board may override the
limitations on acceleration in this Section 9.2 and may accord the
Optionee a right to refuse any acceleration, in such circumstances as
the Board may approve. Any acceleration of the Option shall comply with
applicable regulatory requirements, including, without limitation,
Section 422 of the Internal Revenue Code of 1986, as amended from time
to time (the "CODE").
5
<PAGE> 6
9.3. POSSIBLE EARLY TERMINATION OF ACCELERATED AWARDS. If the Option
has been fully accelerated as permitted by Section 9.2 but is not
exercised prior to (i) a dissolution of the Company, or (ii) an event
described in Section 9.2 that the Company does not survive, or (iii)
the consummation of an event described in Section 9.2 that results in a
change of control approved by the Board, the Option shall thereupon
terminate, subject to any provision that has been expressly made by the
Board for the survival, substitution, exchange or other settlement of
the Option.
9.4. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Resignation or Dismissal. If the Optionee's employment by
the Company or any of its subsidiaries terminates for any reason (the
date of such termination being referred to as the "SEVERANCE DATE")
other than retirement, a "permanent and total disability" within the
meaning of Section 22(e)(3) of the Code and such other disabilities,
infirmities, afflictions or conditions as the Board by rule may include
("TOTAL DISABILITY") or death, or "for cause" (as determined in the
discretion of the Board), the Optionee shall have, subject to earlier
termination pursuant to or as contemplated by Section 1 or 9.2 hereof,
three months after the Severance Date to exercise the Option to the
extent it shall have become exercisable on the Severance Date. In the
case of a termination "for cause", the Option shall terminate on the
Severance Date. In other cases, the Option, to the extent not
exercisable on the Severance Date, shall terminate.
(b) Death or Disability. If the Optionee's employment by the
Company or any of its subsidiaries terminates as a result of Total
Disability or death, the Optionee, the Optionee's personal
representative or his or her beneficiary, as the case may be, shall
have, subject to earlier termination pursuant to or as contemplated by
Section 1 or 9.2 hereof, until 12 months after the Severance Date to
exercise the Option to the extent it shall have become exercisable by
the Severance Date. The Option to the extent not exercisable on the
Severance Date shall terminate.
(c) Retirement. If the Optionee's employment by the Company or
any of its subsidiaries terminates as a result of retirement with the
consent of the Company or from active service as an employee or officer
of the Company on or after attaining age 55 with 10 or more years of
service or after age 65, the Optionee, the Optionee's personal
representative or his or her beneficiary, as the case may be, shall
have, subject to earlier termination pursuant to or as contemplated by
Section 1 or 9.2 hereof, until 12 months after the Severance Date to
exercise the Option to the extent it shall have become exercisable by
the Severance Date. The Option, to the extent not exercisable on the
Severance Date, shall terminate.
6
<PAGE> 7
(d) Board Discretion. Notwithstanding the foregoing provisions of this
Section 9.4, in the event, or in anticipation, of a termination of
employment with the Company or any of its subsidiaries for any reason,
other than discharge for cause, the Board may, in its discretion,
increase the portion of the Option available to the Optionee, or the
Optionee's beneficiary or personal representative, as the case may be,
or, subject to the provisions of Section 1 hereof, extend the
exercisability period upon such terms as the Board shall determine and
expressly set forth in or by amendment to this Agreement.
9.5. EFFECT OF CHANGE OF SUBSIDIARY STATUS. If an entity ceases to be a
subsidiary of the Company a termination of employment and service shall
be deemed to have occurred with respect to each employee of such
subsidiary who does not continue as an employee of another entity
within the Company.
10. SHARES TO BE RESERVED. The Company shall at all times during the term
of the Option reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
11. ASSIGNMENT. This Agreement cannot be directly or indirectly assigned or
transferred by the Optionee in whole or in part without the prior
written consent of the Company.
12. NOTICES. Any notices, demands or requests of any kind whatsoever
hereunder shall be given in writing and sent to the addresses set forth
below or to such other address as either party may from time to time in
writing designate. Each such notice or other communication shall be
effective (i) if given by telecommunication, when transmitted to the
applicable number so specified in (or pursuant to) this Section 12 and
a verification of receipt is received, (ii) if given by mail, three
days after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when actually delivered at such address.
13. WAIVER. The parties reserve the right to waive by mutual written
consent for a specific period and under specific conditions any
provision of this Agreement, provided that such waiver shall be limited
to the period and conditions specified by mutual written consent and
shall in no way constitute a general waiver, or be considered as
evidence of any given interpretation of any provision so waived.
14. GOVERNING LAW. This Agreement, and the legal relations between the
parties, shall be governed by and construed in accordance with the laws
of the State of California, without regard to conflicts of law
doctrines. All actions or proceedings under or relating to this
Agreement will be resolved in a state or federal court located in
Orange County, California; provided, however, that in the Company's
discretion, such an action may be heard in some other place designated
by it if necessary to acquire jurisdiction over third persons so that
the dispute can be resolved in one action. Each party hereby (i) agrees
to submit to the jurisdiction of the federal and state courts located
in Orange County, California, (ii) agrees to appear in any such action,
(iii) consents to the jurisdiction of such courts and (iv) waives any
objections it might have as to venue in any such court. Service of
process may be made in any action, suit or proceeding by mailing or
delivering a copy of such process to a party at its address and in the
manner set forth in Section 12 hereof.
7
<PAGE> 8
15. TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this Agreement.
16. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided,
if possible, to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the extent possible.
17. ENTIRE AGREEMENT. The parties hereto acknowledge that each has read
this Agreement, understands it, and agrees to be bound by its terms.
The parties further agree that this Agreement and any modifications
made pursuant to it constitute the complete and exclusive written
expression of the terms of the agreement between the parties, and
supercede all prior or contemporaneous proposals, oral or written,
understandings, representations, conditions, warranties, covenants, and
all other communications between the parties relating to the subject
matter of this Agreement. The parties further agree that this Agreement
may not in any way be explained or supplemented by a prior or existing
course of dealings between the parties, by any usage of trade or
custom, or by any prior performance between the parties pursuant to
this Agreement or otherwise.
18. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
19. ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this Agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
20. COMPLIANCE WITH LAWS. Notwithstanding anything else contained herein to
the contrary, this Agreement, the granting and vesting of the Option
and the offer, issuance and delivery of Shares under this Agreement are
subject to compliance with all applicable federal and state laws, rules
and regulations (including but not limited to state and federal
securities laws and federal margin requirements) and to such approvals
by any listing, regulatory or governmental authority as may, in the
opinion of counsel for the Company, be necessary or advisable in
connection therewith. Any securities delivered in respect of this
Agreement will be subject to such restrictions, and to any restrictions
the Company may require to preserve a pooling of interests under
generally accepted accounting principles, and the person acquiring such
securities will, if requested by the Company, provide such assurances
and representations to the Company as the Company may deem necessary or
desirable to assure compliance with all applicable legal requirements.
8
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
hereunto set his or her hand.
MEADE INSTRUMENTS CORP.,
a Delaware corporation
By: /s/ MARK PETERSON
--------------------------------
Name: Mark Peterson
Its: Vice President and
General Counsel
6001 Oak Canyon
Irvine, CA 92618
Telephone: 949-451-1450
Facsimile: 949-451-1460
OPTIONEE
/s/ MARIO COSTANTINO
------------------------------------
Signature
Mario Costantino
------------------------------------
Print Name
S-1
<PAGE> 10
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Nonqualified Stock
Option Agreement by Meade Instruments Corp., I, ___________________________, the
spouse of the Optionee herein named, do hereby agree to be bound by all of the
terms and provisions thereof.
DATED:
------------------------- ----------------------------
Signature of Spouse
<PAGE> 11
EXHIBIT A
MEADE INSTRUMENTS CORP.
EXERCISE AGREEMENT
THIS EXERCISE AGREEMENT (this "AGREEMENT") dated as of the ____ day of
______________, _____, by and between Meade Instruments Corp., a Delaware
corporation (the "COMPANY"), and ______________________ (the "PURCHASER").
R E C I T A L S
WHEREAS, the Company has granted to the Purchaser a nonqualified stock
option (the "OPTION") to purchase all or any part of a designated amount of
authorized but unissued shares of common stock of the Company and, in connection
therewith, the Company and the Purchaser entered into that certain Nonqualified
Stock Option Agreement dated as of the 6th of January, 2000 (the "OPTION
AGREEMENT") of which this Agreement is a part and into which this Agreement is
incorporated;
WHEREAS, the Purchaser desires to exercise the Option and purchase from
the Company and the Company wishes to issue and sell to the Purchaser _______
shares of its common stock, par value $0.01 per share (the "COMMON STOCK"), to
be sold at a price of $27.00 per share, in accordance with and subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK. The Company shall deliver to the
Purchaser a stock certificate representing the shares of Common Stock
against delivery to the Company by the Purchaser of the purchase price
in the sum of $____________ (which represents the product of the $27.00
price per share and the number of shares, the "PURCHASE PRICE").
2. RESTRICTIONS ON SHARES. The shares of Common Stock acquired pursuant to
Section 1 hereof are subject to, and the Purchaser agrees to be bound
by, the provisions of Sections 6, 7 and 20 of the Option Agreement,
incorporated herein by this reference.
3. MISCELLANEOUS. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of California. This
Agreement and the Option Agreement together constitute the entire
agreement and supersede all prior understandings and agreements,
written or oral, of the parties hereto with respect
A-1
<PAGE> 12
to the subject matter hereof. This Agreement may be amended by mutual
agreement of the parties. Such amendment must be in writing and signed
by the Company. The Company may, however, unilaterally waive any
provision hereof in writing to the extent such waiver does not
adversely affect the interests of the Purchaser hereunder, but no such
waiver shall operate as or be construed to be a subsequent waiver of
the same provision or a waiver of any other provision hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
MEADE INSTRUMENTS CORP.,
a Delaware corporation
By:
--------------------------------
Its:
-------------------------------
PURCHASER
------------------------------------
Signature
------------------------------------
Print Name
A-2
<PAGE> 13
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Exercise Agreement
by Meade Instruments Corp., I, ___________________________, the spouse of the
Purchaser herein named, do hereby agree to be bound by all of the terms and
provisions thereof.
DATED:
---------------------------- -------------------------------
Signature of Spouse
A-3
<PAGE> 1
EXHIBIT 4.2
MEADE INSTRUMENTS CORP.
BONUS AGREEMENT
THIS BONUS AGREEMENT (this "Agreement") is entered into by and between
MEADE INSTRUMENTS CORP., a Delaware corporation ("Meade"), and Mario Costantino
("Employee"), Managing Director of Meade Instruments Verwaltungs GmbH, a limited
liability company formed under the laws of Germany and a subsidiary of Meade
("GmbH"), as of the 6th day of January, 2000.
BACKGROUND
WHEREAS, the Board of Directors of Meade (the "Board") has approved the
awards set forth herein; and
WHEREAS, pursuant to such Board approval, Meade desires to provide to
Employee shares of common stock of Meade (the "Shares") subject to the terms,
conditions and restrictions evidenced hereby; and
WHEREAS, Meade has adopted, and the stockholders of Meade have
approved, the Meade Instruments Corp. 1997 Stock Incentive Plan (the "Plan");
and
WHEREAS, pursuant to Section 5.1 of the Plan, Meade desires to provide
for a cash bonus payable to Employee (the "Cash Bonus," and, together with the
Shares, the "Award") upon the terms and conditions evidenced hereby, as required
by the Board and the Plan; and
WHEREAS, GmbH is the unlimited general partner of Meade Instruments
Europe GmbH & Co. KG, a limited partnership formed under the laws of Germany and
the entity through which GmbH operates ("KG"); and
WHEREAS, the Award is granted to Employee in addition to, and not in
lieu of, any other form of compensation otherwise payable or to be paid to
Employee.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom, the parties agree as
follows:
1. CAPITALIZED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Plan.
<PAGE> 2
2. GRANT OF AWARD.
(a) SHARES. Meade hereby agrees to issue to Employee free of costs and
charges a total of 13,240 shares of Meade's common stock, $0.01 par
value per share, on the following terms and conditions:
i. Issuance. The Shares shall be issued in 3 installments, 1/3
(rounded down to the nearest whole number) to be issued on the first
anniversary date hereof, 1/3 (rounded down to the nearest whole number)
to be issued on the second anniversary date hereof and the remainder to
be issued on the third anniversary date hereof.
ii. Forfeiture. The issuance of the Shares is conditioned on the
continued employment of Employee by GmbH (or any affiliate). In the
event that Employee terminates his employment with GmbH (or any
affiliate), or in the event that Employee's employment is terminated
for good cause (as determined in that certain Employment Agreement
dated as of January 6, 2000 by and between GmbH and Employee (the
"Employment Agreement")), at any time prior to the issuance of all of
the Shares in accordance with this Section, Employee shall forfeit his
right to receive any Shares not previously issued. Under all other
circumstances (e.g., GmbH does not renew Employee's employment or
Employee is terminated without good cause), Employee shall be entitled
to receive all of the Shares referenced herein.
iii. Acceleration. Notwithstanding anything to the contrary herein, in
the event Employee is terminated by GmbH (or any affiliate) without
good cause (as determined in the Employment Agreement) or GmbH does not
renew Employee's employment, Employee's right to receive all of the
Shares shall immediately vest free of restrictions, and the Shares, or
the unissued balance thereof, as the case may be, shall be issued
promptly following such termination.
(b) CASH BONUS. Meade hereby agrees to grant to Employee, subject to the
terms and conditions of a performance share award agreement (in a form
customarily used by Meade for employee cash bonus awards (the "Award
Agreement")) to be executed by the parties hereto, a cash bonus
opportunity with respect to KG's operations for the fiscal period
ending February 28, 2001. The benefits with respect to the Cash Bonus
will be calculated pursuant to the Plan based upon KG's achievement of
the performance objectives relating to KG's pretax income as set forth
in the Award Agreement.
3. RESTRICTIONS ON TRANSFER. The Award, and any interest therein or amount
payable in respect thereof, are generally nontransferable, except as
otherwise provided in the Plan.
4. FORFEITURE OF AWARD; EARLY TERMINATION; ADJUSTMENT. The Cash Bonus is subject
to forfeiture, early termination and adjustment pursuant to the Award
Agreement and to the Plan, as applicable.
2
<PAGE> 3
5. CONTINUANCE OF EMPLOYMENT. Notwithstanding any commitment of Employee to
remain in the service or employ of GmbH (or any affiliate), the Award shall
not and does not confer upon Employee any right with respect to the
continuation of his or her service or employment by GmbH (or any affiliate)
or alter or interfere in any way with the right of GmbH (or any affiliate)
at any time to terminate such service or employment or to change the
compensation of Employee or other terms of his service or employment; and
neither shall these terms alter or in any way affect the rights of GmbH (or
any affiliate) or Employee under any other written employment agreement
between them, except as expressly provided herein.
6. TIMING AND MANNER OF PAYMENT; WITHHOLDING TAX. Subject to any changes
imposed by or allowed under the provisions of the Plan, benefits with
respect to the Award shall be paid pursuant hereto, to the Award Agreement
and to the Plan, as applicable. Employee agrees to pay or provide for
payment of all applicable withholding taxes in accordance with the Plan and
applicable law.
7. CONSTRUCTION; AMENDMENT. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of Germany. This Agreement may
only be amended in writing by an instrument signed by both parties.
8. GENERAL TERMS. The Award and any payments in respect thereof are subject
to, and Meade, GmbH and Employee agree to be bound by, the provisions of
the Plan and the Award Agreement that apply to the Award. Such provisions
are incorporated herein by this reference. Employee acknowledges receiving
a copy of the Plan and reading and understanding its applicable provisions.
In the event of a conflict or inconsistency between the terms and
conditions of this Agreement and of the Plan and the Award Agreement, the
terms and conditions of the Plan and the Award Agreement shall govern.
IN WITNESS WHEREOF, The parties have executed this Agreement as of the
date and year first written above.
MEADE INSTRUMENTS CORP., EMPLOYEE,
a Delaware corporation an individual
/s/ STEVEN G. MURDOCK By: /s/ MARIO COSTANTINO
- --------------------------------- -------------------------------
By: Steven G. Murdock Name: Mario Costantino
Title: President
MEADE INSTRUMENTS VERWALTUNGS GMBH,
a German limited liability company
By: Meade Instruments Europe Corp.,
a California corporation and its sole shareholder
/s/ MARK D. PETERSON
- -----------------------------------------
Name: Mark D. Peterson
Title: Vice President and General Counsel
3
<PAGE> 1
EXHIBIT 5.1
MEADE INSTRUMENTS CORPORATION
[LOGO] 6001 OAK CANYON, IRVINE, CALIFORNIA 92620-4205 U.S.A.
(949) 451-1450 |X| FAX: (949) 451-1460 |X| www.meade.com
January 18, 2000
Meade Instruments Corp.
6001 Oak Canyon
Irvine, CA 92620
Re: Registration Statement on Form S-8 of
Meade Instruments Corp. (the "Company")
Ladies and Gentlemen:
In my capacity as Vice President and General Counsel of Meade
Instruments Corp., a Delaware corporation (the "Company"), I have, at your
request, 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 38,240 shares of Common Stock, $.01 par
value, of the Company (the "Common Stock"), and additional rights (together with
the Common Stock, the "Shares"), to be issued pursuant to the Mario Costantino
Nonqualified Stock Option Agreement (the "Stock Option") and the Mario
Costantino Bonus Agreement (together with the Stock Option, the "Plans"). I have
examined the proceedings heretofore taken and to be taken in connection with the
authorization of the Plans and the Shares to be issued pursuant to and in
accordance with the Plans.
Based upon such examination and upon such matters of fact and law as I
have deemed relevant, I am of the opinion that the Shares have 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 Plans
and relevant agreements duly authorized by and in accordance with the terms of
the Plans, will be validly issued, fully paid and nonassessable.
This opinion is furnished by me as counsel for the Company. I consent
to the use of this opinion as an exhibit to the Registration Statement.
Respectively submitted,
MEADE INSTRUMENTS CORP.
/s/ Mark D. Peterson
------------------------------------
Mark D. Peterson
Vice President and General Counsel
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 21, 1999 relating to the
financial statements and financial statement schedule, which appears on page F-1
of the Meade Instruments Corp. Annual Report on Form 10-K for the year ended
February 28, 1999.
/s/ PricewaterhouseCoopers LLP
Costa Mesa, California
January 14, 2000
