<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1998
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
REALNETWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WASHINGTON 91-1628146
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
1111 THIRD AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98101
(206) 674-2700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
VIVO SOFTWARE, INC. 1993 EQUITY INCENTIVE PLAN, AS AMENDED
(FULL TITLE OF THE PLAN)
ROBERT GLASER
CHIEF EXECUTIVE OFFICER
1111 THIRD AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98101
(206) 674-2700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
COPY TO:
LAURA T. PUCKETT
GRAHAM & JAMES LLP/RIDDELL WILLIAMS P.S.
1001 FOURTH AVENUE PLAZA, SUITE 4500
SEATTLE, WASHINGTON 98154
TEL.: (206) 624-3600
FAX.: (206) 389-1708
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE(2) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
---------------- ------------- --------------------------- --------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock., $.001 per share 45,751 $26.25 $1,200,964 $355.00
</TABLE>
(1) Together with (i) an indeterminate number of shares of Common Stock that
may become issuable under the Vivo Software, Inc. 1993 Equity Incentive
Plan, as amended (the "Plan"), as a result of the adjustment provisions
therein, and (ii) if any interests in the Plan constitute separate
securities required to be registered under the Securities Act of 1933,
as amended, then, pursuant to Rule 416(c), an indeterminate amount of
such interests to be offered or sold pursuant to the Plan.
(2) Computed pursuant to Rule 457(c) and (h) based on the average of the
high and low sale prices for the Common Stock reported by the Nasdaq
National Market on May 19, 1998, which was $26.25.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference into
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1997, filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1997; and
(c) The description of the Registrant's Common Stock set
forth in the Registration Statement on Form 8-A filed by the Registrant with the
Securities and Exchange Commission on September 26, 1997, under Section 12(g) of
the Exchange Act.
All documents filed by the Registrant with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all of the securities offered hereby have been
sold or which deregisters all of the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Any statement 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
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Shares is being passed upon for the Registrant by
Graham & James LLP/Riddell Williams, P.S., 1001 Fourth Avenue Plaza, Suite 4500,
Seattle, Washington 98154, which serves as the Registrant's outside general
counsel. Members of, lawyers of counsel to, and associates performing services
for the Registrant in connection with their employment by, Graham & James
LLP/Riddell Williams P.S. directly or indirectly beneficially own 1,820 shares
of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Articles of Incorporation (the
"Articles") contain provisions entitling directors and executive officers to be
indemnified by the Registrant against claims arising out of their actions in
such capacities to the fullest extent permitted by law, and the Registrant has
entered into Indemnification Agreements with each of its directors and executive
officers that contractually entitle such persons to similar protection. In
addition, the Articles contain provisions limiting the personal liability of
directors to the Registrant or its shareholders to the fullest extent permitted
by law. The Registrant has also secured insurance on behalf of its executive
officers and directors for certain liabilities arising out of their actions in
such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
<PAGE> 3
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Graham & James LLP/Riddell Williams P.S.
23.1 Consent of Graham & James LLP/Riddell Williams P.S.
(included in opinion filed as Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included on signature page)
99.1 Vivo Software, Inc. 1993 Equity Incentive Plan, as amended
</TABLE>
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 (1)(i) and (1)(ii) above 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 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 of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefits
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Seattle, State of Washington, on May 20, 1998.
REALNETWORKS, INC.
By: /s/ Robert Glaser
----------------------------------------------
Robert Glaser
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Robert Glaser and Bruce Jacobsen, and each of them severally, as such
person's attorneys-in-fact, with full power of substitution and resubstitution,
to execute in the name and on behalf of such person, individually and in each
capacity stated below, and to file, any and all amendments to this Registration
Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on May 20, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert Glaser Chairman of the Board and Chief Executive Officer May 20, 1998
- ------------------------------- (Principal Executive Officer)
Robert Glaser
/s/ Mark Klebanoff Chief Financial Officer (Principal Financial Officer) May 20, 1998
- -------------------------------
Mark Klebanoff
/s/ Keith Adams Controller (Principal Accounting Officer) May 20, 1998
- -------------------------------
Keith Adams
/s/ Bruce Jacobsen President, Chief Operating Officer and Director May 20, 1998
- -------------------------------
Bruce Jacobsen
/s/ James W. Breyer Director May 20, 1998
- -------------------------------
James W. Breyer
/s/ Mitchell Kapor Director May 20, 1998
- -------------------------------
Mitchell Kapor
</TABLE>
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Graham & James LLP/Riddell Williams P.S.
23.1 Consent of Graham & James LLP/Riddell Williams P.S.
(included in opinion filed as Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included on signature page)
99.1 Vivo Software, Inc. 1993 Equity Incentive Plan, as amended
</TABLE>
<PAGE> 1
Exhibit 5.1
May 20, 1998
RealNetworks, Inc.
1111 Third Avenue, Suite 2900
Seattle, WA 98101
RE: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel to RealNetworks, Inc., a Washington corporation (the
"Company"), in connection with the preparation of its Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), which the Company will file with the Securities and
Exchange Commission with respect to an aggregate of Forty-five Thousand Seven
Hundred Fifty-one (45,751) shares of Common Stock of the Company (the "Shares")
issuable upon exercise of options granted under the Vivo Software, Inc. 1993
Equity Incentive Plan, as amended (the "Plan"), which the Company assumed in
connection with its acquisition of Vivo Software, Inc. in March 1998.
We have examined the Registration Statement and such other documents and records
as we have deemed relevant and necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the Shares
issuable under the Plan will, upon due execution by the Company and the
registration by its registrar of the certificates for the Shares and issuance
thereof by the Company and receipt by the Company of the consideration therefor
in accordance with the terms of the Plan, be validly issued, fully paid and
nonassessable.
We note that members of, lawyers of counsel to, and associates performing
services for the Company in connection with their employment by, our firm
beneficially own in the aggregate One Thousand Eight Hundred Twenty (1,820)
shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Laura T. Puckett
of
GRAHAM & JAMES LLP/RIDDELL WILLIAMS P.S.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
RealNetworks, Inc.:
We consent to incorporation by reference in the registration
statement dated May 20, 1998 on Form S-8 of RealNetworks, Inc. of our reports
dated January 21, 1998, except for note 9(b), which is as of March 24, 1998,
relating to the consolidated balance sheets of RealNetworks, Inc. and
subsidiaries as of December 31, 1996 and 1997, and the related consolidated
statements of operations, shareholders' equity (deficit), and cash flows for
each of the years in the three-year period ended December 31, 1997, and related
financial statement schedule, which reports appear in RealNetworks, Inc.'s
December 31, 1997 Annual Report on Form 10-K.
KPMG Peat Marwick LLP
Seattle, Washington
May 18, 1998
<PAGE> 1
Exhibit 99.1
VIVO SOFTWARE, INC. 1993 EQUITY INCENTIVE PLAN, AS AMENDED
Section 1. Purpose
The purpose of the Vivo Software, Inc. 1993 Equity Incentive Plan
(the "Plan") is to attract and retain key employees and consultants, to provide
an incentive for them to achieve long-range performance goals, and to enable
them to participate in the long-term growth of the Company.
Section 2. Definitions
"Affiliate" means any business entity in which the Company owns
directly or indirectly 50% or more of the total combined voting power or has a
significant financial interest as determined by the Committee.
"Award" means any Option or Restricted Stock awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor to such Code.
"Committee" means a committee of not less than two members of the
Board appointed by the Board to administer the Plan; provided, however, that
until such committee is appointed "Committee" means the Board.
"Common Stock" or "Stock" means the Common Stock, $0.01 par value, of
the Company.
"Company" means Vivo Software, Inc.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Committee, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death. In
the absence of an effective designation by a Participant, "Designated
Beneficiary" shall mean the Participant's estate.
"Effective Date" means June 22, 1993.
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Committee
in good faith or in the manner established by the Committee from time to time.
"Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under Section 6 that is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 that is not intended to be
an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Committee to receive an
Award under the Plan.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time during which an Award
may be forfeited to the Company pursuant to the terms and conditions of such
Award.
"Restricted Stock" means shares of Common Stock subject to forfeiture
awarded to a Participant under Section 7.
<PAGE> 2
Section 3. Administration
The Plan shall be administered by the Committee. The Committee shall
have authority to adopt, alter and repeal such administrative rules, guidelines
and practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Committee's
decisions shall be final and binding. To the extent permitted by applicable law,
the Committee may delegate to one or more executive officers of the Company the
power to make Awards to Participants who are not Reporting Persons and all
determinations under the Plan with respect thereto, provided that the Committee
shall fix the maximum amount of such Awards for the group and a maximum for any
one Participant.
Section 4. Eligibility
All employees and, in the case of Awards other than Incentive Stock
Options, consultants and non-employee directors of the Company or any Affiliate
capable of contributing significantly to the successful performance of the
Company, other than a person who has irrevocably elected not to be eligible, are
eligible to be Participants in the Plan. Incentive Stock Options may be awarded
only to persons eligible to receive such Options under the Code.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b), Awards may be made
under the Plan for up to 7,005,500 shares of Common Stock. If any Award in
respect of shares of Common Stock expires or is terminated unexercised or is
forfeited without the Participant having had the benefits of ownership (other
than voting rights), the shares subject to such Award, to the extent of such
expiration, termination or forfeiture, shall again be available for award under
the Plan.
Common Stock issued through the assumption or substitution of
outstanding grants from an acquired company shall not reduce the shares
available for Awards under the Plan. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.
(b) In the event that the Committee determines that any stock
dividend, extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock at a price substantially below fair market value, or other similar
transaction affects the Common Stock such that an adjustment is required in
order to preserve the benefits or potential benefits intended to be made
available under the Plan, then the Committee (subject, in the case of Incentive
Stock Options, to any limitation required under the Code) shall equitably adjust
any or all of (i) the number and kind of shares in respect of which Awards may
be made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award, exercise or conversion price with
respect to any of the foregoing, and if considered appropriate, the Committee
may make provision for a cash payment with respect to an outstanding Award,
provided that the number of shares subject to any Award shall always be a whole
number.
Section 6. Stock Qptions
(a) Subject to the provisions of the Plan, the Committee may award
Incentive Stock Options and Nonstatutory Stock Options and determine the number
of shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The terms
and conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provision, and any regulations
thereunder, and no Incentive Stock Option may be granted hereunder more than ten
years after the Effective Date.
(b) The Committee shall establish the option price at the time each
Option is awarded, which price shall not be less than 100% of the Fair Market
Value of the Common Stock on the date of award with respect to Incentive Stock
Options. Nonstatutory Stock Options may be granted at such prices as the
Committee may determine.
(c) Each Option shall be exercisable at such times and subject to
such terms and conditions as the Committee may specify in the applicable Award
or thereafter. The Committee may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price therefor is received by the
Company. Such payment may be made in whole or in part in cash or, to the extent
permitted by the Committee at or after the award of the Option, by delivery of a
note or shares of Common Stock owned by the optionee,
<PAGE> 3
including Restricted Stock, valued at their Fair Market Value on the date of
delivery, or such other lawful consideration as the Committee may determine.
Section 7. Restricted Stock
(a) Subject to the provisions of the Plan, the Committee may award
shares of Restricted Stock and determine the duration of the Restricted Period
during which, and the conditions under which, the shares may be forfeited to the
Company and the other terms and conditions of such Awards. Shares of Restricted
Stock shall be issued for no cash consideration or such minimum consideration as
may be required by applicable law.
(b) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the
Committee, during the Restricted Period. Shares of Restricted Stock shall be
evidenced in such manner as the Committee may determine. Any certificates issued
in respect of shares of Restricted Stock shall be registered in the name of the
Participant and unless otherwise determined by the Committee, deposited by the
Participant, together with a stock power endorsed in blank, with the Company. At
the expiration of the Restricted Period, the Company shall deliver such
certificates to the Participant or if the Participant has died, to the
Participant's Designated Beneficiary.
Section 8. General Provisions Applicable to Awards
(a) Reporting Person Limitations. Notwithstanding any other provision
of the Plan, to the extent required to qualify for the exemption provided by
Rule 16b-3 under the Securities Exchange Act of 1934 and any successor
provision, Awards made to a Reporting Person shall not be transferable by such
person other than by will or the laws of descent and distribution or pursuant to
a qualified domestic relations order, as defined in the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder.
(b) Documentation. Each Award under the Plan shall be evidenced by a
writing delivered to the Participant specifying the terms and conditions thereof
and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Committee considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and regulatory
laws and accounting principles.
(c) Committee Discretion. Each type of Award may be made alone, in
addition to or in relation to any other type of Award. The terms of each type of
Award need not be identical, and the Committee need not treat Participants
uniformly. Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Committee at the time
of award or at any time thereafter.
(d) Settlement. The Committee shall determine whether Awards are
settled in whole or in part in cash, Common Stock, other securities of the
Company, Awards or other property. The Committee may permit a Participant to
defer all or any portion of a payment under the Plan, including dividend
equivalents on amounts denominated in Common Stock.
(e) Dividends. In the discretion of the Committee, any Award under
the Plan may provide the Participant with dividends or dividend equivalents
payable currently or deferred with or without interest.
(f) Termination of Employment. The Committee shall determine the
effect on an Award of the disability, death, retirement or other termination of
employment of a Participant and the extent to which, and the period during
which, the Participant's legal representative, guardian or Designated
Beneficiary may receive payment of an Award or exercise rights thereunder.
(g) Change in Control. In order to preserve a Participant's rights
under an Award in the event of a change in control of the Company, the Committee
in its discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration of
any time period relating to the exercise or realization of the Award, (ii)
provide for the purchase of the Award upon the Participant's request for an
amount of cash or other property that could have been received upon the exercise
or realization of the Award had the Award been currently exercisable or payable,
(iii) adjust the terms of the Award in a manner determined by the Committee to
reflect the change in control, (iv) cause the Award to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the
Committee may consider equitable and in the best interests of the Company.
<PAGE> 4
(h) Loans. The Committee may authorize the making of loans or cash
payments to Participants in connection with any Award under the Plan, which
loans may be secured by any security, including Common Stock, underlying or
related to such Award (provided that such Loan shall not exceed the Fair Market
Value of the security subject to such Award), and which may be forgiven upon
such terms and conditions as the Committee may establish at the time of such
loan or at any time thereafter.
(i) Withholding. The Participant shall pay to the Company, or make
provision satisfactory to the Committee for payment of, any taxes required by
law to be withheld in respect of Awards under the Plan no later than the date of
the event creating the tax liability. In the Committee's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock, including
shares retained from the Award creating the tax obligation, valued at their Fair
Market Value on the date of delivery. The Company and its Affiliates may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to the Participant.
(j) Foreign Nationals. Awards may be made to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Committee considers
necessary or advisable to achieve the purposes of the Plan or comply with
applicable laws.
(k) Amendment of Award. The Committee may amend, modify or terminate
any outstanding Award, including substituting therefor another Award of the same
or a different type, changing the date of exercise or realization and converting
an Incentive Stock Option to a Nonstatutory Stock Option, provided that the
Participant's consent to such action shall be required unless the Committee
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
Section 9. Miscellaneous
(a) No Right To Employment. No person shall have any claim or right
to be granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Company expressly
reserves the right at any time to dismiss a Participant free from any liability
or claim under the Plan, except as expressly provided in the applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof. A Participant to whom
Common Stock is awarded shall be considered the holder of the Stock at the time
of the Award except as otherwise provided in the applicable Award.
(c) Effective Date. Subject to the approval of the shareholders of
the Company, the Plan shall be effective on the Effective Date. Prior to such
approval, Awards may be made under the Plan expressly subject to such approval.
(d) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, subject to any shareholder approval
that the Board determines to be necessary or advisable.
