<PAGE>
As filed with the Securities and Exchange Commission on October 15, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-----------
IVI CHECKMATE CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2375201
(State of incorporation) (IRS Employer Identification No.)
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(Address of principal Executive Offices) (Zip Code)
PLOURDE COMPUTER SERVICES, INC. 1991 STOCK OPTION PLAN
(Full title of the plan)
MR. JOHN J. NEUBERT
IVI CHECKMATE CORP.
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(770) 594-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
M. HILL JEFFRIES MARK A. CONVERY
ALSTON & BIRD LLP MEIGHEN DEMERS
ONE ATLANTIC CENTER MERRILL LYNCH CANADA TOWER
1201 WEST PEACHTREE STREET 200 KING STREET WEST, SUITE 1100
ATLANTA, GEORGIA 30309-3424 TORONTO, ONTARIO
(404) 881-7000 CANADA M5H 3T4
(416) 977-8400
-----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) SHARE(2) PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 3,518 $1.35 $ 4,749.30 $ 1.40
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 38,003 $2.70 $102,608.10 $ 30.27
- ----------------------------------------------------------------------------------------------------------------------
TotaL 41,521 $107,357.40 $100.00
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of the adjustment provisions of the
Plourde Computer Services, Inc. 1991 Stock Option Plan.
(2) Determined in accordance with Rule 457(h), the registration fee is based on
the average option price per share for shares presently subject to options.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(i) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended.
(ii) Upon written or oral request, the Company will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information, should be
directed to John J. Neubert, Corporate Secretary, at (770) 594-6000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by IVI Checkmate Corp. (the "Company") with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference and deemed to be a part hereof from the date of
the filing of such documents:
(i) The Company's proxy statement/prospectus dated May 26, 1998
which forms a part of the Company's Registration Statement on
Form S-4 (Registration No. 333-53629);
(ii) The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1998, as amended;
(iii) The Company's Current Report on Form 8-K dated June 25, 1998, as
amended; and
(iv) The Company's Current Report on Form 8-K dated October 1, 1998,
as amended.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide for indemnification of directors and officers of
the Company to the full extent permitted by Delaware law.
Section 145 of the General Corporation Law of the State of Delaware provides
generally that a corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at its request in such capacity in another
corporation or business association, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
be the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to
<PAGE>
believe his conduct was unlawful. In addition, pursuant to the authority of
Delaware law, the Certificate of Incorporation of the Company also eliminates
the monetary liability of directors to the fullest extent permitted by Delaware
law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.*
5 Opinion of counsel of Registrant.
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Coopers & Lybrand.
99(a) Plourde Computer Services, Inc. 1991 Stock Option Plan.
- -------------------------
* Exhibits are numbered in accordance with Item 601 of Regulation S-K.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the registration statement;
and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change in such information in the registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not
-------- -------
apply if the registration statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the 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 which remain unsold at the
termination of the offering.
(b) The undersigned issuer 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 Section 15(d) of the
Securities Exchange Act of l934 (and, where applicable, each filing of an
employee benefit plan's annual report
II-2
<PAGE>
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registration pursuant to the foregoing provisions, or otherwise, the
Registration 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 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.
II-3
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the registrant,
IVI Checkmate Corp., 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 Atlanta, Georgia as of October 15, 1998.
IVI CHECKMATE CORP.
By: /s/ J. Stanford Spence
------------------------
J. Stanford Spence
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities on October 15, 1998.
SIGNATURE TITLE
--------- -----
/s/ J. Stanford Spence Chairman of the Board
- -----------------------------
J. Stanford Spence
/s/ George Whitton Vice Chairman of the Board
- -----------------------------
George Whitton
/s/ L. Barry Thomson President, Chief Executive Officer and Director
- -----------------------------
L. Barry Thomson
/s/ Gregory A. Lewis Director
- -----------------------------
Gregory A. Lewis
/s/ John J. Neubert Executive Vice President and Chief Financial
- ----------------------------- Officer
John J. Neubert
Director
- -----------------------------
Gerard Compain
Director
- -----------------------------
Paul W. Noblett
Director
- -----------------------------
Bertil D. Nordin
/s/ Gareth Owen Director
- -----------------------------
Gareth Owen
/s/ Peter E. Roode Director
- -----------------------------
Peter E. Roode
II-4
<PAGE>
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
EXHIBITS FILED WITH
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------
IVI CHECKMATE CORP.
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(770) 594-6000
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER* DESCRIPTION
- -------------- -----------
5 Opinion of counsel to Registrant.
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Coopers & Lybrand.
99(a) Plourde Computer Services, Inc. 1991
Stock Option Plan.
- --------------
*Exhibits are numbered in accordance with Item 601 of Regulation S-K.
II-6
<PAGE>
EXHIBIT 5
---------
Opinion of Alston & Bird LLP regarding the legality of
the securities being registered
<PAGE>
[LETTERHEAD OF ALSTON & BIRD LLP APPEARS HERE]
October 13, 1998
IVI Checkmate Corp.
1003 Mansell Road
Roswell, Georgia 30076
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel to IVI Checkmate Corp., a Delaware
corporation (the "Company"), in connection with the filing of the above-
referenced Registration Statement on Form S-8 (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"). The Registration
Statement is to register under the Securities Act of 1933, as amended (the
"Act"), 41,521 shares of Common Stock, $.01 par value per share ("Common
Stock"), of the Company issued or issuable pursuant to the Plourde Computer
Services, Inc. 1991 Stock Option Plan. Such 41,521 shares of Common Stock are
referred to herein collectively as the "Shares." This opinion letter is rendered
pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law and
of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of officers of the Company and public officials and such
other documents as we have deemed appropriate as a basis for the opinion
hereinafter set forth.
Our opinion set forth below is limited to the laws of the State of Delaware,
and we do not express any opinion herein concerning any other laws.
On the basis of the foregoing, we are of the opinion that the Shares, when
issued and delivered in accordance with the terms and conditions of the above-
referenced plan and related agreements with participants in the plan, will be
validly issued, fully paid and nonassessable by the Company.
<PAGE>
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus constituting a part thereof. In giving such consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
This opinion letter is being furnished by us to the Company and the
Commission solely for the benefit of the Company and the Commission in
connection with the Registration Statement and is not to be used, circulated,
quoted or otherwise relied upon by any other person, or by the Company or the
Commission for any other purpose, without our express written consent. The only
opinion rendered by us consists of those matters set forth in the fourth
paragraph hereof, and no opinion may be implied or inferred beyond those
expressly stated. This opinion letter is rendered as of the date hereof, and we
have no obligation to update this opinion letter.
Sincerely,
ALSTON & BIRD LLP
By: /s/ M. Hill Jeffries
---------------------------
M. Hill Jeffries, Partner
2
<PAGE>
EXHIBIT 23(B)
-------------
Consent of Ernst & Young LLP
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Plourde Computer Services, Inc. 1991 Stock Option
Plan of our report dated February 18, 1998, with respect to the financial
statements of Checkmate Electronics, Inc. for the year ended December 31, 1997
and our report dated May 4, 1998, with respect to the financial statements of
IVI Checkmate Corp. for the period from January 15, 1998 (date of inception)
through March 31, 1998, both included in the IVI Checkmate Corp. Proxy
Statement/Prospectus dated May 26, 1998, which forms a part of the Registration
Statement on Form S-4 (No. 333-53629), and of our report dated September 29,
1998 with respect to the supplemental consolidated financial statements of IVI
Checkmate Corp. included in its Current Report on Form 8-K dated October 1,
1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
October 12, 1998
<PAGE>
EXHIBIT 23(C)
-------------
Consent of Coopers & Lybrand
<PAGE>
EXHIBIT 23(C)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (No. 333-______) pertaining to the Plourde Computer Services, Inc.
1991 Stock Option Plan of our report dated February 12, 1998, on our audits of
the consolidated financial statements of International Verifact Inc. as of
December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and
1995, which report is included in the IVI Checkmate Corp. Proxy Statement/
Prospectus dated May 26, 1998 which forms a part of the Registration Statement
on Form S-4 (File No. 333-53629) and the IVI Checkmate Corp. Current Report on
Form 8-K dated October 1, 1998, filed with the Securities and Exchange
Commission.
/s/ Coopers & Lybrand
---------------------
Coopers & Lybrand
Chartered Accountants
Toronto, Ontario
October 14, 1998
<PAGE>
Exhibit 99(a)
Plourde Computer Services, Inc. 1991 Stock Option Plan
<PAGE>
EXHIBIT 99(a)
PLOURDE COMPUTER SERVICES, INC.
1991 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
--------------------
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock Options or
Nonstatutory Stock Options, at the discretion of the Board and as reflected in
the terms of the written option, agreement.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Board" shall mean the Committee, if one has been appointed, or
-----
the Board of Directors of the Company, if no Committee is appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(c) "Committee" shall mean the Committee appointed by the Board of
---------
Directors in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(d) "Common Stock" shall mean the Common Stock of the Company.
------------
(e) "Company" shall mean Plourde Computer Services, Inc., a California
-------
corporation.
(f) "Consultant" shall mean any person who is engaged by the Company
----------
or any Parent or Subsidiary to render consulting services and is compensated for
such consulting services, and any director of the Company whether compensated
for such services or not; provided that if and in the event the Company
registers any class of any equity security pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the term
Consultant shall thereafter not include directors who are not compensated for
their services or are paid only a director's fee by the Company.
(g) "Continuous Status as an Employee or Consultant" shall mean the
----------------------------------------------
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Board; provided that such leave is for a period
of not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.
(h) "Employee" shall mean any person, including officers and
--------
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a
-1-
<PAGE>
director's fee by the Company shall not be sufficient to constitute "employment"
by the Company.
(i) "Incentive Stock Option" shall mean an Option intended to qualify
----------------------
as an incentive stock option within the meaning of Section 422A of the Code.
(j) "Nonstatutory Stock Option" shall mean an Option not intended to
-------------------------
qualify as an Incentive Stock Option.
(k) "Option"shall mean a stock option granted pursuant to the Plan.
------
(l) "Optioned Stock" shall mean the Common Stock subject to an Option.
--------------
(m) "Optionee" shall mean an Employee or Consultant who receives an
--------
option.
(n) "Parent"shall mean a "parent corporation," whether now or
------
hereafter existing, as defined in Section 425(e) of the Code.
(o) "Plan" shall mean this 1991 Stock Option Plan.
----
(p) "Share" shall mean a share of the Common Stock, as adjusted in
-----
accordance with Section 11 of the Plan.
(q) "Subsidiary" shall mean a "subsidiary corporation," whether now or
----------
hereafter existing, as defined in Section 425(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
-------------------------
the Plan, the maximum aggregate number of shares which may be optioned and sold
under the Plan is 28 shares of Common Stock. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject thereto
shall, unless the Plan shall have been terminated, become available for future
grant under the Plan. Notwithstanding any other provision of the Plan, shares
issued under the Plan and later repurchased by the Company shall not become
available for future grant or sale under the Plan.
4. Administration of the Plan.
---------------------------
(a) Procedure. The Plan shall be administered by the Board of
---------
Directors of the Company.
-2-
<PAGE>
(i) Subject to subparagraph (ii), the Board of Directors may appoint a
Committee consisting of not less than two members of the Board of Directors to
administer the Plan on behalf of the Board of Directors, subject to such terms
and conditions as the Board of Directors may prescribe. Once appointed, the
Committee shall continue to serve until otherwise directed by the Board of
Directors. Members of the Board who are either eligible for options or have
been granted options may vote on any matters affecting the administration of the
Plan or the grant of any options pursuant to the Plan, except that no such
member shall act upon the granting of an Option to himself, but any such member
may be counted in determining the existence of a quorum at any meeting of the
Board during which action is taken with respect to the granting of Options to
him.
(ii) Notwithstanding the foregoing subparagraph (i), if and in any
event the Company registers any class of any equity security pursuant to Section
12 of the Exchange Act, from the effective date of such registration until six
months after the termination of such registration, any grants of Options to
officers or directors shall only be made by the Board of Directors; provided,
however, that if a majority of the Board of Directors is eligible to participate
in this Plan or any other stock option or other stock plan of the Company or any
of its affiliates, or has been eligible at any time during the prior one year
period (or, if shorter, the period following the initial registration of the
Company's equity securities under Section 12 of the Exchange Act), any grants of
Options to directors must be made by, or only in accordance with the
recommendation of, a Committee consisting of two or more persons, who may but
need not be directors or employees of the company, appointed by the Board of
Directors and having full authority to act in the matter, none of whom is
eligible to participate in this Plan or any other stock option or other stock
plan of the Company or any of its affiliates, or has been eligible at any time
during the prior one year period (or, if shorter, the period following the
initial registration of the Company's equity securities under Section 12 of the
Exchange Act). Any Committee administering the Plan with respect to grants to
officers who are not also directors shall conform to the requirements of the
preceding sentence. Once appointed, the Committee shall continue to serve until
otherwise directed by the Board of Directors.
(iii) Subject to the foregoing subparagraphs (i) and (ii), from time to
time the Board of Directors may increase the size of the Committee and appoint
additional members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused, or remove
all members of the Committee and thereafter directly administer the Plan.
(b) Powers of the Board. Subject to the provisions of the Plan, the
-------------------
Board shall have the authority, in its discretion: (i) to grant Incentive Stock
Options or Nonstatutory Stock Options; (ii) to determine, upon review of
relevant information and in accordance with Section 8(b) of the Plan, the fair
market value of the Common Stock; (iii) to determine the exercise price per
share of Options to be granted, which exercise price shall be determined in
accordance with Section 8(a) of the Plan; (iv) to determine the Employees or
Consultants to whom, and the time or times at which, options shall be granted
and the number of shares to be represented by each option; (v) to interpret the
Plan; (vi) to prescribe, amend and rescind
-3-
<PAGE>
rules and regulations relating to the Plan; (vii) to determine the terms and
provisions of each Option granted (which need not be identical) and, with the
consent of the holder thereof, modify or amend each Option; (viii) to accelerate
or defer (with the consent of the Optionee) the exercise date of any Option,
consistent with the provisions of Section 5 of the Plan; (ix) to authorize any
person to execute on behalf of the Company any instrument required to effectuate
the grant of an Option previously granted by the Board; and (x) to make all
other determinations deemed necessary or advisable for the administration of the
Plan.
(c) Effect of Board's Decision. All decisions, determinations and
--------------------------
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. Eligibility.
------------
(a) Nonstatutory Stock Options may be granted only to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an option may, if he is otherwise
eligible, be granted an additional Option or options.
(b) No Incentive Stock Option may be granted to an Employee which,
when aggregated with all other incentive stock options granted to such Employee
by the Company or any Parent or Subsidiary, would result in Shares having an
aggregate fair market value (determined for each Share as of the date of grant
of the option covering such Share) in excess of $100,000 becoming first
available for purchase upon exercise of one or more incentive stock options
during any calendar year.
(c) Section 5(b) of the Plan shall apply only to an Incentive Stock
Option evidenced by an "Incentive Stock Option Agreement" which sets forth the
intention of the Company and the Optionee that such Option shall qualify as an
incentive stock option. Section 5(b) of the Plan shall not apply to any Option
evidenced by a "Nonstatutory Stock option Agreement" which sets forth the
intention of the Company and the Optionee that such option shall be a
Nonstatutory Stock Option.
(d) The Plan shall not confer upon any Optionee any right with respect
to continuation of employment or consulting relationship with the Company, nor
shall it interfere in any way with his right or the Company's right to terminate
his employment or consulting relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon the earlier to
------------
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. Term of Option. The term of each Incentive Stock Option shall be ten
--------------
(10) years from the date of grant thereof or such shorter term as may be
provided in the Incentive
-4-
<PAGE>
Stock Option Agreement. The term of each Nonstatutory Stock Option shall be ten
(10) years and one (1) day from the date of grant thereof or such shorter term
as may be provided in the Nonstatutory Stock Option Agreement. However, in the
case of an option granted to an Optionee who, at the time the Option is granted,
owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent-or Subsidiary, (a) if the option
is an Incentive Stock Option, the term of the Option shall be five (5) years
from the date of grant thereof or such shorter term as may be provided in the
Incentive Stock Option Agreement, or (b) if the Option is a Nonstatutory Stock
Option, the term of the Option shall be five (5) years and one (1) day from the
date of grant thereof or such shorter term as may be provided in the
Nonstatutory Stock Option Agreement.
8. Exercise Price and Consideration.
--------------------------------
(a) The per Share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be such price as is determined by the Board, but
shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the grant of such
Incentive Stock option, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the fair
market value per Share on the date of grant.
(B) granted to any Employee, the per Share exercise price shall be no
less than 100% of the fair market value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of the grant of such Option,
owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the per Share
exercise price shall be no less than 110% of the fair market value per Share on
the date of the grant.
(B) granted to any person, the per Share exercise price shall be no
less than 85% of the fair market value per Share on the date of grant.
(b) The fair market value shall be determined by the Board in its
discretion; provided, however, that where there is a public market for the
Common Stock, the fair market value per Share shall be the mean of the bid and
asked prices (or the closing price per share if the Common Stock is listed on
the National Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System) of the Common Stock for the date of grant, as reported
in the Wall Street Journal (or, if not so reported, as otherwise reported by the
--------------------
NASDAQ System) or, in the event the Common Stock is listed on a stock
-5-
<PAGE>
exchange, the fair market value per Share shall be the closing price on such
exchange on the date of grant of the option, as reported in the Wall Street
-----------
Journal.
- -------
(c) The consideration to be paid for the Shares to be issued upon exercise
of an option, including the method of payment, shall be determined by the Board
and may consist entirely of cash, check, promissory note, other Shares of Common
Stock which
(i) either have been owned by the Optionee for more than six (6) months on the
date of surrender or were not acquired, directly or indirectly, from the
Company, and (ii) have a fair market value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised, or any combination of such methods of payment, or such other
consideration and method of payment for the issuance of Shares to the extent
permitted under Sections 408 and 409 of the California General Corporation Law.
In making its determination as to the type of consideration to accept, the Board
shall consider if acceptance of such consideration may be reasonably expected to
benefit the Company (Section 315(b) of the California General Corporation Law).
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any option granted
-----------------------------------------------
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of the
Plan.
An Option may not be exercised for a fraction of a Share
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue (or cause to
be issued) such stock certificate promptly upon exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 11 of the Plan.
Exercise of an option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the option, by the number of Shares as to which the
option is exercised.
(b) Termination of Status as an Employee or Consultant. In the event of
--------------------------------------------------
termination of an Optionee's Continuous Status as an Employee or Consultant
(as the case may be), such
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<PAGE>
Optionee may, but only within thirty (30) days (or such other period of time,
not exceeding three (3) months in the case of an Incentive Stock Option or six
(6) months in the case of a Nonstatutory Stock Option, as is determined by the
Board, with such determination in the case of an Incentive Stock Option being
made at the time of grant of the option) after the date of such termination (but
in no event later than the date of expiration of the term of such option as set
forth in the option Agreement), exercise his Option to the extent that he was
entitled to exercise it at the date of such termination. To the extent that he
was not entitled to exercise the Option at the date of such termination, or if
he does not exercise such Option (which he was entitled to exercise) within the
time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of Section 9(b)
----------------------
above, in the event of termination of an Optionee's Continuous Status as an
Employee or Consultant as a result of his total and permanent disability (as
defined in Section 22(e)(3) of the Code), he may, but only within six (6) months
(or such other period of time not exceeding twelve (12) months as is determined
by the Board, with such determination in the case of an Incentive Stock Option
being made at the time of grant of the Option) from the date of such termination
(but in no event later than the date of expiration of the term of such option as
set forth in the Option Agreement), exercise his Option to the extent he was
entitled to exercise it at the date of such termination. To the extent that he
was not entitled to exercise the option at the date of termination, or if he
does not exercise such option (which he was entitled to exercise) within the
time specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
-----------------
(i) during the term of the option who is at the time of his death an
Employee or Consultant of the Company and who shall have been in Continuous
Status as an Employee or Consultant since the date of grant of the Option,
the option may be exercised, at any time within six (6) months following
the date of death (but in no event later than the date of expiration of the
term of such Option as set forth in the Option Agreement), by the
Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that would have accrued had the Optionee continued living and
remained in Continuous Status as an Employee or Consultant six (6) months
after the date of death, subject to the limitation set forth in Section
5(b); or
(ii) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Board, with such
determination in the case of an Incentive Stock Option being made at the
time of grant of the Option) after the termination of Continuous Status as
an Employee or Consultant, the Option may be exercised, at any time within
six (6) months following the date of death (but in no event later than the
date of expiration of the term of such Option as set forth in the Option
Agreement), by the Optionee's estate or by a person who acquired the right
to exercise the option by bequest or inheritance, but only to the extent of
the right to exercise that had accrued at the date of termination.
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<PAGE>
10. Non-Transferability of Options. The Option may not be sold, pledged,
------------------------------
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in capitalization or Merger. Subject to any
----------------------------------------------------
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the
Company, the Board shall notify the Optionee at least fifteen (15) days prior to
such proposed action. To the extent it has not been previously exercised, the
option will terminate immediately prior to the consummation of such proposed
action. In the event of a merger of the Company with or into another
corporation, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation, or a parent or subsidiary of such
successor corporation, unless such successor corporation does not agree to
assume the option or to substitute an equivalent option, in which case the Board
shall, in lieu of such assumption or substitution, provide for the Optionee to
have the right to exercise the Option as to all of the optioned Stock, including
Shares as to which the option would not otherwise be exercisable. If the Board
makes an Option fully exercisable in lieu of assumption or substitution in the
event of a merger, the Board shall notify the Optionee that the option shall be
fully exercisable for a period of fifteen (15) days from the date of such
notice, and the Option will terminate upon the expiration of such period.
12. Time of Granting Options. The date of grant of an option shall, for
------------------------
all purposes, be the date on which the Board makes the determination granting
such option. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
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<PAGE>
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may amend or terminate the
-------------------------
Plan from time to time in such respects as the Board may deem advisable;
provided, however, that the Company will obtain the approval of the shareholders
of the Company for any amendment to the Plan in such a manner and to the extent
necessary to comply with the requirements of Rule 16b-3 promulgated under the
Exchange Act and/or Section 422A of the Code (or any other applicable law or
regulation).
(b) Shareholder Approval. If any amendment requiring shareholder
--------------------
approval under Section 13(a) of the Plan is made subsequent to the first
registration of any class of equity securities by the Company under Section 12
of the Exchange Act, such shareholder approval shall be solicited as described
in Section 17 of the Plan, if and to the extent required by the Exchange Act
and/or the rules and regulations promulgated thereunder.
(c) Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan shall not adversely affect options already granted
(except to the extent contemplated by such options) and such Options shall
remain in full force and effect, unless mutually agreed otherwise between the
Optionee and the Board (or other body then administering the Plan), which
agreement must be in writing and signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
----------------------------------
pursuant to the exercise of an option unless the exercise of such option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
---------------------
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any
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<PAGE>
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written option
----------------
agreements in such form as the Board shall approve.
17. Shareholder Approval.
--------------------
(a) Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months before or after the date
the Plan is adopted.
(b) If and in the event that the Company registers any class of equity
securities pursuant to Section 12 of the Exchange Act, any required approval of
the shareholders of the Company obtained after such registration shall be
solicited substantially in accordance with Section 14(a) of the Exchange Act and
the rules and regulations promulgated thereunder.
(c) If any required approval by the shareholders of the Plan itself or
of any amendment thereto is solicited at any time otherwise than in the manner
described in Section 17(b) hereof, then the Company shall, at or prior to the
first annual meeting of shareholders held subsequent to the later of (1) the
first registration of any class of equity securities of the Company under
Section 12 of the Exchange Act or (2) the granting of an Option hereunder to an
officer or director after such registration, do the following:
(i) furnish in writing to the holders entitled to vote for the
Plan substantially the same information which would be required (if proxies to
be voted with respect to approval or disapproval of the Plan or amendment were
then being solicited) by the rules and regulations in effect under Section 14(a)
of the Exchange Act at the time such information is furnished; and
(ii) file with, or mail for filing to, the Securities and
Exchange commission four copies of the written information referred to in
subsection (i) hereof not later than the date on which such information is first
sent or given to shareholders.
18. Information to Optionees. The Company shall provide to each Optionee,
------------------------
during the period for which such Optionee has one or more Options outstanding,
copies of all annual reports and other information which are provided to all
shareholders of the Company. The Company shall not be required to provide such
information if the issuance of Options under the Plan is limited to key
employees whose duties in connection with the Company assure their access to
equivalent information.
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