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As filed with the Securities and Exchange Commission
on September 1, 1995
Registration Number 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CERIDIAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-0278528
(State of incorporation) (I.R.S. Employer Identification
Number)
8100 34th Avenue South
Minneapolis, Minnesota 55425
(Address of principal executive offices)
RESUMIX, INC. 1989 STOCK OPTION PLAN
(Full title of the plan)
John A. Haveman
Vice President and Secretary
Ceridian Corporation
8100 34th Avenue South
Minneapolis, Minnesota 55425
(612) 853-7425
(Name, address and telephone number of agent for service)
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
Securities to be price per offering Registration
to be registered registered (1) share(2) price (2) fee
Common Stock,
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$.50 par value 104,641 shares $43.00 $4,499,563 $1,551.57
(1) In addition, pursuant to Rule 416 under the Securities Act of
1933, as amended, this Registration Statement includes an
indeterminate number of additional shares as may be issuable as a
result of the anti-dilution provisions described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, based on the average high and low sale prices
reported for the Registrant's Common Stock on the New York Stock
Exchange on August 24, 1995.
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Part II Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Company are incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
(3) The Company's Current Report on Form 8-K dated January 19, 1995;
(4) The Company's Current Report on Form 8-K dated August 24, 1995;
(5) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 ("Exchange
Act") since December 31, 1994; and
(6) The description of the Company's Common Stock, par value $.50 per
share, contained in the Company's Registration Statement on
Form S-8, File No. 33-56351.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and 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 in this Registration
Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The Company's Common Stock is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
John A. Haveman, Vice President, Secretary and Associate General
Counsel for the Company, has provided an opinion as to the legality of
the securities being registered hereby. Mr. Haveman holds options
granted under the Company's stock based compensation plans to acquire
10,966 shares of the Company's Common Stock, holds 13,000 shares of the
Company's Common Stock that are subject to restrictions on
transferability and possible forfeiture, and is not eligible to
participate in the Resumix, Inc. 1989 Stock Option Plan.
The consolidated financial statements and financial statement
schedules of the Company for each of the years in the three-year period
ended December 31, 1994 have been incorporated by reference in this
registration statement in reliance upon the reports of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing. To the extent that KPMG Peat Marwick LLP
examines and reports on financial statements of the Company issued at
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future dates, and consents to the use of their reports thereon, such
financial statements also will be incorporated by reference in this
registration statement in reliance upon their reports and said
authority.
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Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware ("DGCL") grants each corporation organized thereunder, such as
the Company, the power to indemnify its directors and officers against
liability for certain of their acts. Section 102(b)(7) of the DGCL
permits a provision in the certificate of incorporation of each
corporation organized thereunder eliminating or limiting, with certain
exceptions, the personal liability of a director to the corporation or
its stockholders for monetary changes for breach of fiduciary duty as a
director. The Company's certificate of incorporation contains such a
provision. The foregoing statements are subject to the detailed
provisions of Sections 145 and 102(b)(7) of the DGCL.
Article VI of the Company's Bylaws provides that the Company shall
indemnify its officers, directors and employees to the fullest extent
permitted by the DGCL in connection with proceedings with which any
such person is involved by virtue of his or her status as an officer,
director or employee. The Company has also by contract agreed to
indemnify its directors against damages, judgments, settlements and
costs arising out of any actions against the directors brought by
reason of the fact that they are or were directors. The Company
maintains directors' and officers' liability insurance, including a
reimbursement policy in favor of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following is a complete list of Exhibits filed or incorporated
by reference as part of this registration statement:
Exhibit Description
4.1 Restated Certificate of Incorporation of Ceridian Corporation
(incorporated by reference to Exhibit 4.01 to the Company's
Registration Statement on Form S-8 (File No. 33-54379))
4.2 Bylaws of Ceridian Corporation, as amended (incorporated by
reference to Exhibit 3.01 to the Quarterly Report on Form 10-
Q
for the quarter ended September 30, 1993 (File No. 1-1969))
5.1 Opinion and Consent of John A. Haveman
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of John A. Haveman (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 4 of this Registration
Statement)
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99.1 Resumix, Inc. 1989 Stock Option Plan, as amended
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;
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(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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 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 section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report 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 Registrant pursuant to the foregoing
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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 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 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Minneapolis, State of Minnesota,
on September 1, 1995.
CERIDIAN CORPORATION
By: /s/John A. Haveman
John A. Haveman
Vice President and Secretary
POWER OF ATTORNEY
We, the undersigned officers and directors of Ceridian Corporation,
hereby severally constitute John R. Eickhoff and John A. Haveman, and
either of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our name in the
capacities indicated below any and all amendments to this Registration
Statement on Form S-8 filed by Ceridian Corporation with the Securities and
Exchange Commission, and generally to do all such things in our name and
behalf in such capacities as may be necessary to enable Ceridian
Corporation to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission,
and we hereby ratify and confirm our signatures as they may be signed by
our said attorneys, or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed as of September 1, 1995 by the
following persons in the capacities indicated.
/s/LAWRENCE PERLMAN __________________________
Chairman, President and Ruth M. Davis,Director
Chief Executive Officer
(Principal Executive /s/ALLEN W. DAWSON
Officer and Director) Allen W. Dawson, Director
/s/RONALD JAMES
Ronald James, Director
/s/JOHN R. EICKHOFF
Executive Vice President /s/RICHARD G. LAREAU
and Chief Financial Richard G. Lareau, Director
Officer (Principal
Financial Officer) /s/GEORGE R. LEWIS
George R. Lewis, Director
/s/CHARLES MARSHALL
/S/LOREN D. GROSS Charles Marshall, Director
Vice President and Corporate
Controller (Principal /s/CAROLE J. UHRICH
Accounting Officer) Carole J. Uhrich, Director
__________________________
Richard W. Vieser, Director
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/S/PAUL S. WALSH
Paul S. Walsh, Director
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EXHIBIT INDEX
Exhibit Description Code
4.1 Restated Certificate of Incorporation of IBR
Ceridian Corporation
4.2 Bylaws of Ceridian Corporation, as amended IBR
5.1 Opinion and Consent of John A. Haveman E
23.1 Consent of KPMG Peat Marwick LLP E
23.2 Consent of John A. Haveman (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 4 of the
Registration Statement)
99.1 Resumix, Inc. 1989 Stock Option Plan, as amended E
Legend: E Electronic Filing
IBR Incorporated by Reference
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EXHIBIT 5.1
September 1, 1995
Ceridian Corporation
8100 34th Avenue South
Minneapolis, MN 55425
Re: Ceridian Corporation
Registration Statement on Form S-8
Dear Sir or Madam:
I have acted as counsel to Ceridian Corporation, a Delaware
corporation (the "Company") in connection with the registration by the
Company of 104,641 shares of the Company's Common Stock, $.50 par value
(the "Shares"), pursuant to the Company's registration statement on Form
S-8 which refers to Resumix, Inc. 1989 Stock Option Plan, as amended, and
which is to be filed with the Securities and Exchange Commission on
September 1, 1995 (the "Registration Statement").
In this connection, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such corporate records,
certificates, and written and oral statements of officers and accountants
of the Company and of public officials, and other documents that I have
considered necessary and appropriate for this opinion and, based thereon, I
advise you that, in my opinion:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Delaware.
2. The Company has corporate authority to issue the Shares in the
manner and under the terms set forth in the Registration Statement.
3. The Shares have been duly authorized and, when issued in
accordance with the Plan referred to in the Registration Statement, will be
validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration
Statement.
Very truly yours,
/s/John A. Haveman
John A. Haveman
Vice President, Secretary, and
Associate General Counsel
<PAGE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ceridian Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm in Part II, Item 5 hereof.
/s/KPMG Peat Marwick LLP
Minneapolis, Minnesota
August 31, 1995
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RESUMIX, INC.
1989 STOCK OPTION PLAN
As Adopted July 12, 1989
and As Amended March 14, 1990,
June 19, 1991, September 23, 1992,
November 19, 1992, February 23, 1993
and July 19, 1994
1. PURPOSE. This 1989 Stock Option Plan ("Plan") is
established as a compensatory plan to attract, retain and provide
equity incentives to selected persons to promote the financial
success of RESUMIX, INC. (the "Company"). Capitalized terms not
previously defined herein are defined in Section 17 of this Plan.
2. TYPES OF OPTIONS AND SHARES. Options granted under
this Plan (the "Options") may be either (a) incentive stock
options ("ISOs") within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended (the "Code"), or (b)
nonqualified stock options ("NQSOs"), as designated at the time
of grant. The shares of stock that may be purchased upon
exercise of Options granted under this Plan (the "Shares) are
shares of the Common Stock of the Company.
3. NUMBER OF SHARES. The aggregate number of Shares that
may be issued pursuant to Options granted under this Plan is
4,182,790 Shares, subject to adjustment as provided in this Plan.
If any Option expires or is terminated without being exercised in
whole or in part, the unexercised or released Shares from such
Options shall be available for future grant and purchase under
this Plan. At all times during the term of this Plan, the
Company shall reserve and keep available such number of Shares as
shall be required to satisfy the requirements of outstanding
Options under this Plan.
4. ELIGIBILITY. Options may be granted to employees,
officers, directors, consultants, independent contractors and
advisors (provided such consultants, contractors and advisors
render bona fide services not in connection with the offer and
sale of securities in a capital-raising transaction) of the
Company or any Parent, Subsidiary or Affiliate of the Company (as
defined in Section 17). ISOs may be granted only to employees
(including officers and directors who are also employees) of the
Company or a Parent or Subsidiary of the Company. The Committee
(as defined in Section 14) in its sole discretion shall select
the recipients of Options ("Optionees"). An Optionee may be
granted more than one Option under this Plan. The Company may
also, from time to time, assume outstanding options granted by
another company, whether in connection with an acquisition of
such other company or otherwise, by either (i) granting an option
under this Plan in replacement of the option assumed by the
Company, or (ii) treating the assumed option as if it had been
granted under this Plan if the terms of such assumed option could
be applied to an option granted under this Plan. Such assumption
shall be permissible if the holder of the assumed option would
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have been eligible to be granted an option hereunder if the other
company had applied the rules of this Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall
determine whether each Option is to be an ISO or an NQSO, the
number of Shares subject to the Option, the exercise price of the
Option, the period during which the Option may be exercised, and
all other terms and conditions of the Option, subject to the
following:
(a) Form of Option Grant. Each Option granted under
this Plan shall be evidenced by a written Stock Option Grant (the
"Grant") in such form (which need not be the same for each
Optionee) as the Committee shall from time to time approve.
(b) Date of Grant. The date of grant of an Option
shall be the date on which the Committee makes the determination
to grant such Option unless otherwise specified by the Committee.
The Grant representing the Option will be delivered to the
Optionee with a copy of this Plan within a reasonable time after
the date of grant.
(c) Exercise Price. The exercise price of an NQSO
shall be not less than 85% of the Fair Market Value of the Shares
on the date the Option is granted. The exercise price of an ISO
shall be not less than 100% of the Fair Market Value of the
Shares on the date the Option is granted. The exercise price of
an ISO granted to a person owning more than 10% of the total
combined voting power of all classes of stock of the Company or
any Parent or Subsidiary of the Company ("Ten Percent Shareholder")
shall not be less than 110% of the Fair Market Value of the
Shares on the date the Option is granted.
(d) Exercise Period. Options shall be exercisable
within the times or upon the events determined by the Committee
as set forth in the Grant; provided, however, that no Option
shall be exercisable after the expiration of ten (10) years from
the date the Option is granted, and provided further that no ISO
granted to a Ten Percent Shareholder shall be exercisable after
the expiration of five (5) years from the date the Option is
granted.
(e) Limitations on ISOs. The aggregate Fair Market
Value (determined as of the time an Option is granted) of stock
with respect to which ISOs are exercisable for the first time by
an Optionee during any calendar year (under this Plan or under
any other incentive stock option plan of the Company or any
Parent or Subsidiary of the Company) shall not exceed $100,000.
If the Fair Market Value of stock with respect to which ISOs are
exercisable for the first time by an Optionee during any calendar
year exceeds $100,000, the Options for the first $100,000 worth
of stock to become exercisable in such year shall be ISOs and the
Options for the amount in excess of $100,000 that becomes
exercisable in that year shall be NQSOs. In the event that the
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IRC or the regulations promulgated thereunder are amended after
the effective date of this Plan to provide for a different limit
on the Fair Market Value of Shares permitted to be subject to
ISOs, such different limit shall be incorporated herein and shall
apply to any Options granted after the effective date of such
amendment.
Options
(f) Non-Transferable. Options granted under
this Plan, and any interest therein, shall not be transferable or
assignable by the Optionee, and may not be made subject to
execution, attachment or similar process, otherwise than by will
or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the Optionee only by the
Optionee; provided that NQSOs held by an Optionee who is not an
officer or director of the Company or other person (in each case,
an "Insider") whose transactions in the Company's Common Stock
are subject to Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), may be transferred to such
family members, trusts and charitable institutions as the
Committee, in its sole discretion, shall approve at the time of
the grant of such Option.
(g) Assume Options. In the event the Company assumes
an option granted by another company, the terms and conditions of
such options shall remain unchanged (except the exercise price
and the number and nature of shares issuable upon exercise, which
will be adjusted appropriately pursuant to Section 425(c) of the
Code.) In the event the Company elects to grant a new option
rather than assuming an existing option (as specified in Section
4), such new option need not be granted at Fair Market Value on
the date of grant and may instead be granted with a similarly
adjusted exercise price.
6. EXERCISE OF OPTIONS.
(a) Notice. Options may be exercised only by delivery
to the Company of a written exercise agreement in a form approved
by the Committee (which need not be the same for each Optionee),
stating the number of Shares being purchased, the restrictions
imposed on the Shares, if any, and such representations and
agreements regarding the Optionee's investment intent and access
to information, if any, as may be required by the Company to
comply with applicable securities laws, together with payment in
full of the exercise price for the number of Shares being
purchased.
(b) Payment. Payment for the Shares may be made in
cash (by check) or, where approved by the Committee in its sole
discretion at the time of grant and where permitted by law: (i)
by cancellation of indebtedness of the Company to the Optionee;
(ii) by surrender of shares of Common Stock of the Company that
have been owned by the Optionee for more than six (6) months (and
which have been paid for within the meaning of SEC Rule 144 and,
if such Shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to
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such shares) or were obtained by the Optionee in the open public
market having a Fair Market Value equal to the exercise price of
the Option; (iii) by instructing the Company to withhold Shares
otherwise issuable pursuant to an exercise of the Option having a
Fair Market Value equal to the exercise price of the Option
(including the withheld Shares); (iv) by tender of a full
recourse promissory note having such terms as may be approved by
the Committee and bearing interest at a rate sufficient to avoid
imputation of income under Sections 483 and 1274 of the Code,
provided that the portion of the exercise price equal to the par
value of the Shares, if any, must be paid in cash or other legal
consideration; (v) by waiver of compensation due or accrued to
Optionee for services rendered; (vi) provided that a public
market for the Company's stock exists, through a "same day sale"
commitment from the Optionee and a broker-dealer that is a member
of the National Association of Securities Dealers (an
"NASD Dealer") whereby the Optionee irrevocably elects to
exercise this Option and to sell a portion of the Shares so
purchased to pay for the exercise price and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward
the exercise price directly to the Company; (vii) provided that a
public market for the Company's stock exists, through a "margin"
commitment from the Optionee and an NASD Dealer whereby the
Optionee irrevocably elects to exercise this Option and to pledge
the Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the
exercise price, and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the exercise price
directly to the Company; or (viii) by any combination of the
foregoing. Optionees who are not employees or directors of the
Company shall not be entitled to purchase Shares with a
promissory note unless the note is adequately secured by
collateral other than the Shares.
(c) Withholding Taxes. Prior to issuance of the
Shares upon exercise of an Option, the Optionee shall pay or make
adequate provisions for any federal or state withholding
obligations of the Company, if applicable. Where approved by the
Committee in its sole discretion, the Optionee may provide for
payment of withholding taxes upon exercise of the Option by
requesting that the Company retain Shares with a Fair Market
Value equal to the minimum amount of taxes required to be
withheld. In such case, the Company shall issue the net number
of Shares to the Optionee by deducting the Shares retained from
the Shares exercised. The Fair Market Value of the Shares to be
withheld shall be determined on the date that the amount of tax
to be withheld is to be determined in accordance with Section 83
of the Code (the "Tax Date"). All elections by Optionees to have
Shares withheld for this purpose shall be made in writing in a
form acceptable to the Committee and shall be subject to the
following restrictions:
(i) the election must be made on or prior to
the applicable Tax Date;
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(ii) once made, the election shall be
irrevocable as to the particular Shares as to which the election
is made;
(iii) all elections shall be subject to the
consent or disapproval of the Committee;
(iv) if the Optionee is an Insider, and if
the Company is subject to Section 16(b) of the Exchange Act, the
election may not be made within six (6) months of the date of
grant of the Option; provided, however, that this limitation
shall not apply in the event that death or Disability of the
Optionee occurs prior to the expiration of the six (6) month
period; and
(v) if the Optionee is an Insider, and if
the Company is subject to Section 16(b) of the Exchange Act, the
election must be made either six (6) months prior to the Tax Date
or in the 10-day period beginning on the third day following the
public release of the Company's quarterly or annual summary
statement of operations.
In the event the election to have Shares withheld is
made by an Optionee who is an Insider and the Tax Date is
deferred until six months after exercise of the Option because
no election is filed under Section 83(b) of the Code, the
Optionee shall receive the full number of Shares with respect to
which the Option is exercised, but such Optionee shall be
unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.
(d) Limitations on Exercise. Notwithstanding the
exercise periods set forth in the Grant, exercise of an Option
shall always be subject to the following limitations:
(i) If an Optionee ceases to be employed by
the Company or any Parent, Subsidiary or Affiliate of the Company
for any reason except death or Disability, the Optionee may
exercise such Optionee's Options to the extent (and only to the
extent) that it would have been exercisable upon the date of
termination, within three (3) months after the date of
termination (or such shorter time period as may be specified in
the Grant), provided that, if Optionee is an Insider and the
Company is subject to Section 16(b) of the Exchange Act, the
Optionee's Option will be exercisable for a period of time
sufficient to allow such Optionee from having a matching purchase
and sale under Section 16(b), with any extension beyond three (3)
months from termination of employment deemed to be as an NQSO,
and provided further that in no event may an Option be
exercisable later than the expiration date of the Option.
(ii) If an Optionee's employment with the
Company or any Parent, Subsidiary or Affiliate of the Company is
terminated because of the death of the Optionee or Disability of
Optionee, Optionee's Options may be exercised to the extent (and
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only to the extent) that it would have been exercisable by the
Optionee on the date of termination, by the Optionee (or the
Optionee's legal representative) within twelve (12) months after
the date of termination (or such shorter time period as may be
specified in the Grant), but in any event no later than the
expiration date of the Options.
(iii) The Committee shall have discretion to
determine whether the Optionee has ceased to be employed by the
Company or any Parent, Subsidiary or Affiliate of the Company and
the effective date on which such employment terminated.
(iv) In the case of an Optionee who is a
director, independent consultant, contractor or advisor, the
Committee will have the discretion to determine whether the
Optionee is "employed by the Company or any Parent, Subsidiary or
Affiliate of the Company" pursuant to the foregoing Sections.
(v) The Committee may specify a reasonable
minimum number of Shares that may be purchased on any exercise of
an Option, provided that such minimum number will prevent the
Optionee from exercising the full number of Shares as to which
the Option is then exercisable.
(vi) An Option shall not be exercisable
unless such exercise is in compliance with the Securities Act of
1933, as amended (the "1933 Act"), all applicable state
securities laws and the requirements of any stock exchange or
national market system upon which the Shares may then be listed,
as they are in effect on the date of exercise. The Company shall
be under no obligation to register the Shares with the Securities
and Exchange Commission ("SEC") or to effect compliance with the
registration, qualification or listing requirements of any state
securities laws or stock exchange, and the Company shall have no
liability for any inability or failure to do so.
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7. RESTRICTIONS ON SHARES. At the discretion of the
Committee, the Company may reserve to itself and/or its
assignee(s) in the Grant (a) a right of first refusal to
purchase all Shares that an Optionee (or a subsequent
transferee) may propose to transfer to a third party and/or (b)
a right to repurchase a portion of or all Shares held by an
Optionee upon the Optionee's termination of employment or
service with the Company or its Parent, Subsidiary or Affiliate
of the Company for any reason within a specified time as
determined by the Committee at the time of grant at (i) the
Optionee's original purchase price, (ii) the Fair Market Value
of such Shares or (iii) a price determined by a formula or other
provision set forth in the Grant.
8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The
Committee shall have the power to modify, extend or renew
outstanding Options and to authorize the grant of new Options in
substitution therefor, provided that any such action may not,
without the written consent of the Optionee, impair any rights
under any Option previously granted. Any outstanding ISO that
is modified, extended, renewed or otherwise altered shall be
treated in accordance with Section 425(h) of the Code. The
Committee shall have the power to reduce the exercise price of
outstanding options; provided, however, that the exercise price
per share may not be reduced below the minimum exercise price
that would be permitted under Section 5(c) of this Plan for
options granted on the date the action is taken to reduce the
exercise price.
9. PRIVILEGES OF STOCK OWNERSHIP. Optionees shall have
any of the rights of a shareholder with respect to any Shares
subject to an Option until such Option is properly exercised.
No adjustment shall be made for dividends or distributions or
other rights for which the record date is prior to such date,
except as provided in this Plan. The Company shall provide to
each Optionee a copy of the annual financial statements of the
Company, at such time after the close of each fiscal year of the
Company as such statements are released by the Company to its
shareholders.
10. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any
Option granted under this Plan shall confer on any Optionee any
right to continue in the employ of, or other relationship with,
the Company or any Parent, Subsidiary or Affiliate of the
Company or limit in any way the right of the Company or any
Parent, Subsidiary or Affiliate of the Company to terminate the
Optionee's employment or other relationship at any time, with or
without cause.
11. ADJUSTMENT OF OPTION SHARES. In the event that the
number of outstanding shares of Common Stock of the Company is
changed by a stock dividend, stock split, reverse stock split,
combination, reclassification or similar change in the capital
structure of the Company without consideration, or if a
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substantial portion of the assets of the Company are
distributed, without consideration in a spin-off or similar
transaction, to the shareholders of the Company, the number of
Shares available under this Plan and the number of Shares
subject to outstanding Options and the exercise price per share
of such Options shall be proportionately adjusted, subject to
any required action by the Board of Directors (the "Board") or
shareholders of the Company and compliance with applicable
securities laws; provided, however, that a fractional share
shall not be issued upon exercise of any Option and any
fractions of a Share that would have resulted shall either be
cashed out at Fair Market Value or the number of shares issuable
under the Option shall be rounded up to the nearest whole
number, as determined by the Committee; and provided further
that the exercise price may not be decreased to below the par
value, if any, for the Shares.
12. ASSUMPTION OF OPTIONS BY SUCCESSORS.
(a) In the event of (i) a merger or consolidation in
which the Company is not the surviving corporation (other than a
merger or consolidation with a wholly owned subsidiary, a
reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the
shareholders of the corporation and the Options granted under
this Plan are assumed by the successor corporation which
assumption shall be binding on all Optionees), (ii) a dissolution
or liquidation of the Company, (iii) the sale of substantially
all of the assets of the Company, or (iv) any other transaction
which qualifies as a "corporate transaction" under Section 424(a)
of the Code wherein the shareholders of the Company give up all
of their equity interest in the Company (except for the
acquisition of all or substantially all of the outstanding shares
of the Company), any or all outstanding Options shall be assumed
by the successor corporation, which assumption shall be binding
on all Optionees. In the alternative, the successor corporation
shall substitute an equivalent option or provide substantially
similar consideration to Optionee as was provided to shareholders
(after taking into account the existing provisions of the
Optionee's options, such as the exercise price and the vesting
schedule). The successor corporation shall also issue in place
of outstanding shares of the Company held by Optionee as a result
of the exercise of an Option that are subject to a repurchase
option substantially similar shares or other property subject to
repurchase restrictions no less favorable to the Optionee.
(b) In the event such successor corporation, if any,
refuses to assume or substitute as provided above, pursuant to a
transaction described in Subsections 12(a)(ii), (iii) or (iv)
above, or there is no successor corporation, and if the Company
is ceasing to exist as a separate corporate entity, the Options
shall, notwithstanding any contrary terms in the Grant, expire on
a date at least 20 days after the Board gives written notice to
Optionees specifying the terms and conditions of such
termination.
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(c) In the event such successor corporation refuses to
assume or substitute Options as provided above, pursuant to a
transaction described in Subsection 12(a)(i) above, such Options
shall expire on (and, if the Company has reserved to itself a
right to repurchase Shares issued on exercise of Options, such
right shall terminate on) the consummation of such transaction at
such time and on such conditions as the Board shall determine.
(d) Subject to the foregoing provisions of this
Section 12, in the event of the occurrence of any transaction
described in Section 12(a), any outstanding Options shall be
treated as provided in the applicable agreement or plan of
merger, consolidation, dissolution, liquidation, sale of assets
or other "corporate transaction."
(e) Notwithstanding the above, for Options granted
prior to November 19, 1992, in the event such successor
corporation refuses to assume or substitute, as provided above,
pursuant to a transaction described in Subsection 12(a)(i) above,
such Options shall accelerate and become exercisable in full at
least 20 days prior to, and shall expire on (and, if the Company
has reserved to itself a right to repurchase Shares issued on
exercise of Options at the original purchase price of such
Shares, such right shall terminate on), the consummation of such
transaction at such time and on such conditions as the Board
shall determine. If the Fair Market Value of stock with respect
to which all ISOs are first exercisable in such calendar year
exceeds $100,000, the Options for the first $100,000 worth of
Shares to become exercisable in that year shall be ISOs and the
Options for the amount in excess of $100,000 shall be NQSOs.
13. ADOPTION AND SHAREHOLDER APPROVAL. This Plan shall
become effective on the date that it is adopted by the Board of
the Company. This Plan shall be approved by the shareholders of
the Company, in any manner permitted by applicable corporate
law, within twelve months before or after the date this Plan is
adopted by the Board. Thereafter, no later than twelve (12)
months after the Company becomes subject to Section 16(b) of the
Exchange Act, the Company will comply with the requirements of
Rule 16b-13 with respect to shareholder approval.
14. ADMINISTRATION. This plan may be administered by the
Board or a Committee appointed by the Board (the "Committee").
If, at the time the Company registers under the Exchange Act, a
majority of the Board is not comprised of Disinterested Persons,
the Board shall appoint a Committee consisting of not less than
three persons (who need not be members of the Board), each of
whom is a Disinterested Person. As used in this Plan,
references to the "Committee" shall mean either such Committee
or the Board if no committee has been established. After
registration of the Company under the Exchange Act, Board
members who are not Disinterested Persons may not vote on any
matters affecting the administration of this Plan or on the
grant of any Options pursuant to this Plan to Insiders, but any
such member may be counted for determining the existence of a
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quorum at any meeting of the Board during which action is taken
with respect to Options or administration of this Plan and may
vote on the grant of any Options pursuant to this Plan otherwise
than to Insiders. The interpretation by the Committee of any of
the provisions of this Plan or any Option granted under this
Plan shall be final and binding upon the Company and all persons
having an interest in any Option or any Shares purchased
pursuant to an Option. The Committee may delegate the authority
to grant Options under this Plan to Optionees who are not
Insiders of the Company to officers of the Company.
15. TERM OF PLAN. Options may be granted pursuant to this
Plan from time to time within a period of ten (10) years from
the date on which this Plan is adopted by the Board.
16. AMENDMENT OR TERMINATION OF PLAN. The Committee may
at any time terminate or amend this Plan in any respect
including (but not limited to) amendment of any form of Grant,
exercise agreement or instrument to be executed pursuant to this
Plan; provided, however, that the Committee shall not, without
the approval of the holders of a majority of the outstanding
voting shares of the Company, amend this Plan in any manner that
requires such shareholder approval pursuant to the IRC or the
regulations promulgated thereunder as such provisions apply to
ISO plans or pursuant to the Exchange Act or rule 16b-3 (or its
successor) promulgated thereunder.
17. CERTAIN DEFINITIONS. As used in this Plan. the
following terms shall have the following meanings:
(a) "Parent" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the
Company if, at the time of the granting of the Option, each of
such corporations other than the Company owns stock possessing
50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the
Company if, at the time of granting of the Option, each of the
corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
(c) "Affiliate" means any corporation that directly,
or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, another
corporation, where "control" (including the terms "controlled by"
and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management
and policies of the corporation, whether through the ownership of
voting securities, by contract or otherwise.
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(d) "Disinterested Person" shall have the meaning set
forth in Rule 16b-3(d)(3) as promulgated by the SEC under Section
16(b) of the Exchange Act, as such rule is amended from time to
time and as interpreted by the SEC.
(e) "Fair Market Value" shall mean the fair market
value of the Shares as determined by the Committee from time to
time in good faith. If a public market exists for the Shares,
the Fair Market Value shall be the average of the last reported
bid and asked prices for Common Stock of the Company on the last
trading day prior to the date of determination or, in the event
the Common Stock of the Company is listed on a stock exchange or
on the NASDAQ National Market System, the Fair Market Value shall
be the closing price on such exchange or quotation system on the
last trading day prior to the date of determination.
(f) "Disability" shall mean the inability of the
Optionee to engage in employment with the Company by reason of any
medically determinable physical or mental impairment.
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