<PAGE>
As filed with the Securities and Exchange Commission on October 2, 1998
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------------------
RADIANT TECHNOLOGY CORPORATION
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
California 95-2800355
- ------------------------------ ---------------------------------
(STATE OR OTHER JURISDICTION (IRS EMPLOYER IDENTIFICATION NO.)
of incorporation or organization)
1335 South Acacia Avenue, Fullerton, California 92831
-----------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
RADIANT TECHNOLOGY CORPORATION 1991 INCENTIVE STOCK OPTION PLAN,
AS AMENDED AND 1991 NONSTATUTORY STOCK OPTION PLAN, AS AMENDED
------------------------------------------------------------------
(Full title of the plan)
Lawrence R. McNamee
1335 South Acacia Avenue
Fullerton, California 92831
---------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(714) 991-0200
-------------------------------------------------------------
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ----------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate offering Amount of
registered registered per unit price registration fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 shs. $1.56(1) $1,535,500(1) $452.97
no par value
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Based upon the average of the bid and asked prices for the registrant's
common stock on October 1, 1998 for purposes of computing the
registration fee on underlying options to purchase 982,000 shares not
yet granted in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933, as amended, and based upon the exercise price
for the registrant's common stock for purposes of computing the
registration fee on 18,000 shares underlying outstanding options.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Radiant Technology Corporation (the "Company") incorporates by reference into
this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1997.
3. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
4. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998.
5. The description of the Company's common stock contained in the
Company's Registration Statement on Form S-18 (Reg. No. 2-72528-LA).
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, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all of the 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.
Any statement contained in a document incorporated by reference herein
as set forth above shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
- -----------------------------------
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
- ------------------------------------------------
Inapplicable.
II-2
<PAGE>
Item 6. Indemnification of Directors and Officers.
- ---------------------------------------------------
California Statutes
SS.317. INDEMNIFICATION OF CORPORATE "AGENT".
(a) for the purposes of this section, "agent" means any person who is or
was a director, officer, employee or other agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of the predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes without limitation attorneys' fees and any expenses of
establishing a right to indemnification under subdivision (d) or paragraph (4)
of subdivision (e).
(b) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in its favor)
by reason of the fact that the person is or was an agent of the corporation,
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the proceeding if that person acted in
good faith and in a manner the person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
(c) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that the person is or was an agent of the
corporation, against expenses actually and reasonably incurred by that person in
connection with the defense or settlement of the action if the person acted in
good faith, in a manner the person believed to be in the best interests of the
corporation and its shareholders.
No indemnification shall be made under this subdivision for any of the
following:
(1) In respect of any claim, issue or matter as to which the person
shall have been adjudged to be liable to the corporation in the performance of
that person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which the proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine.
II-3
<PAGE>
(2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval.
(3) Of expenses incurred in defending a pending action which is settled
or otherwise disposed of without court approval.
(d) To the extent that an agent of a corporation has been successful on
the merits in defense of any proceeding referred to in subdivision (b) or (c) or
in defense of any claim, issue, or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this section shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standard of conduct set
forth in subdivision (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of directors who are not
parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by independent
legal counsel in a written opinion.
(3) Approval of the shareholders (Section 153), with the shares owned by
the person to be indemnified not being entitled to vote thereon.
(4) The court in which the proceeding is or was pending upon application
made by the corporation or the agent or the attorney or other person rendering
services in connection with the defense, whether or not the application by the
agent, attorney or other person is opposed by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced by the
corporation prior to the final disposition of the proceeding upon receipt of an
undertaking by or on behalf of the agent to repay that amount if it shall be
determined ultimately that the agent is not entitled to be indemnified as
authorized in this section. The provisions of subdivision (a) of Section 315 do
not apply to advances made pursuant to this subdivision.
(g) The indemnification authorized by this section shall not be deemed
exclusive of any additional rights to indemnification for breach of duty to the
corporation and its shareholders while acting in the capacity of a director or
officer of the corporation to the extent the additional rights to
indemnification are authorized in an article provision adopted pursuant to
paragraph (11) of subdivision (a) of Section 204. The indemnification provided
by this section for acts, omissions, or transactions while acting in the
capacity of, or while serving as, a director or officer of the corporation but
not involving breach of duty to the corporation and its shareholders shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, to the extent the additional rights to
indemnification are authorized in the articles of the corporation. An article
provision authorizing indemnification "in excess of that otherwise
II-4
<PAGE>
permitted by Section 317" or "to the fullest extent permissible under California
law" or the substantial equivalent thereof shall be construed to be both a
provision for additional indemnification for breach of duty to the corporation
and its shareholders as referred to in, and with the limitations required by,
paragraph (11) of subdivision (a) of Section 204 and a provision for additional
indemnification as referred to in the second sentence of this subdivision. The
rights to indemnity hereunder shall continue as to a person who has ceased to be
a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person. Nothing contained in this
section shall affect any right to indemnification to which persons other than
the directors and officers may be entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this section,
except as provided in subdivision (d) or paragraph (4) of subdivision (e), in
any circumstance where it appears:
(1) That it would be inconsistent with a provision of the articles,
bylaws, a resolution of the shareholders, or an agreement in effect at the time
of the accrual of the alleged cause of action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification.
(2) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
(i) A corporation shall have power to purchase and maintain insurance on
behalf of any agent of the corporation against any liability asserted against or
incurred by the agent in that capacity or arising out of the agent's status as
such whether or not the corporation would have the power to indemnify the agent
against that liability under this section. The fact that a corporation owns all
or a portion of the shares of the company issuing a policy of insurance shall
not render this subdivision inapplicable if either of the following conditions
are satisfied: (1) if the articles authorize indemnification in excess of that
authorized in this section and the insurance provided by this subdivision is
limited as indemnification is required to be limited by paragraph (11) of
subdivision (a) of Section 204; or (2)(A) the company issuing the insurance
policy is organized, licensed, and operated in a manner that complies with the
insurance laws and regulations applicable to its jurisdiction of organization,
(B) the company issuing the policy provides procedures for processing claims
that do not permit that company to be subject to the direct control of the
corporation that purchased that policy, and (C) the policy issued provides for
some manner of risk sharing between the issuer and purchaser of the policy, on
one hand, and some unaffiliated person or persons, on the other, such as by
providing for more than one unaffiliated owner of the company issuing the policy
or by providing that a portion of the coverage furnished will be obtained from
some unaffiliated insurer or reinsurer.
(j) This section does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though the person may also be an agent as
defined in subdivision (a) of the employer corporation. A corporation shall have
power to indemnify such a trustee, investment manager, or other fiduciary to the
extent permitted by subdivision (f) of Section 207.
II-5
<PAGE>
Articles of Incorporation
-------------------------
The Company's Articles of Incorporation, as amended, provide that the
liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. The Company's
Articles of Incorporation authorize the Company to provide idemnification of
agents for breach of duty to the Company and its shareholders through bylaw
provisions, or through agreements with its agents, or both, in excess of the
indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to applicable limits set forth in Section 204 of
the California Corporations Code.
Bylaws
------
Article VI of the Company's Bylaws provides for indemnification of the
Company's directors, officers and agents to advance expenses for defense of
litigation and to purchase and maintain insurance on behalf of any director or
officer of the Company against any liability asserted against or incurred by
them in such capacity or arising out of their status as such and authorize the
Board to extend such indemnity to others as follows:
ARTICLE VI. Indemnification.
----------------
Section 1. DEFINITIONS. For the purposes of this Article, "agent"
means any person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation. "Proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
under Sections 4 or 5(c).
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any proceeding (other than an action by or in
the right of the corporation to procure a judgment in its favor) by reason of
the fact that such person is or was an agent of the corporation, against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 3. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall have the power to indemnify any person who
was or
II-6
<PAGE>
is a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith, in a manner such person believed to be in the best interests of the
corporation and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
(a) In respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation in the performance of
such person's duty to the corporation, unless and only to the extent that the
court in which such proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for the expenses which such court
shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending action
which is settled or otherwise disposed of without court approval.
Section 4. INDEMNIFICATION AGAINST EXPENSES. To the extent that an
agent of the corporation has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 or in defense of any claim, issue or
matter therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED DETERMINATION. Except as provided in Section 4,
any indemnification under this Article shall be made by the corporation only if
authorized in the specific case, upon a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3, by:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) Approval of the shareholders, with the shares owned by the person to
be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the corporation prior to the final disposition of
such proceeding upon
II-7
<PAGE>
receipt of an undertaking by or on behalf of the agent to repay such amount
unless it shall be determined ultimately that the agent is entitled to be
indemnified as authorized in this Article.
Section 7. OTHER INDEMNIFICATION. No provision made by the
corporation to indemnify its or its subsidiary's directors or officers for the
defense of any proceeding, whether contained in the Articles, Bylaws, a
resolution of shareholders or directors, an agreement or otherwise, shall be
valid unless consistent with this Article. Nothing contained in this Article
shall affect any right to indemnification to which persons other than such
directors and officers may be entitled by contract or otherwise.
Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification
or advance shall be made under this Article, except as provided in Sections 4 or
5(c), in any circumstances where it appears:
(a) That it would be inconsistent with a provision of the Articles,
Bylaws, a resolution of the shareholders or an agreement in effect at the time
of the accrual of the alleged cause of action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. INSURANCE. The corporation shall have power to purchase
and maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against such liability under the provision of this
Article.
Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT
PLANS. This Article does not apply to a proceeding against any trustee,
investment manager or other fiduciary of an employee benefit plan in such
person's capacity as such, even though such person may also be an agent of the
corporation as defined in Section 1. A corporation shall have power to indemnify
such a trustee, investment manager or other fiduciary to the extent permitted by
Subdivision (f) of Section 207 of the California General Corporation Law.
Indemnity Agreements.
---------------------
The Company has entered into an Indemnity Agreement with each of its
directors and officers pursuant to which the Company has agreed to maintain
directors' and officers' liability insurance unless the Company determines in
good faith that such insurance is not reasonably available, the premium costs
are disproportionate to the amount of coverage, the coverage is limited by
exclusions so as to provide insufficient benefit or the director or officer is
covered by similar insurance maintained by a subsidiary of the Company. The
Indemnity Agreements also provide for mandatory indemnification of a director or
officer against third party actions and derivative actions and mandatory
advancement of expenses subject to the undertaking of the director or officer to
repay advanced expenses if it is ultimately determined that the director or
officer was not entitled to indemnification.
II-8
<PAGE>
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Inapplicable.
Item 8. Exhibits.
- ------------------
Exhibit Number Description
- ------------------ -----------
3.1 Certificate of Restated Articles of Incorporation incorporated by
reference to the Registration Statement of Form S-18
(Registration No. 2-72528-LA).
3.1(a) Certificate of Amendment of Articles of Incorporation
incorporated by reference to the Proxy Statement dated January
14, 1986.
3.1(b) Certificate of Amendment of Articles of Incorporation
incorporated by reference to Annual Report on Form 10-K filed
January 15, 1990.
3.2 Restated Bylaws incorporated by reference to the Registration
Statement on From S-18 (Registration No. 2-72528-LA).
3.2(a) Amendment to Bylaws incorporated by reference to Annual Report on
Form 10-K filed January 15, 1990.
4.1 Specimen of Common Stock Certificate incorporated by reference to
Registration Statement on From S-18 (Registration No.
2-72528-LA).
5.1 Opinion of Oppenheimer Wolff & Donnelly, LLP re: legality of
shares.
23.1 Consent of Oppenheimer Wolff & Donnelly, LLP (included in its
opinion filed as Exhibit 5.1 to the Registration Statement).
23.2 Consent of Cacciamatta Accountancy Corporation.
99.1 Radiant Technology Corporation 1991 Incentive Stock Option Plan,
As Amended and 1991 Non-Statutory Stock Option Plan, As Amended
II-9
<PAGE>
Item 9. Undertakings.
- ----------------------
A. The undersigned registrant hereby undertakes to file during any
period in which offers or sales of the securities are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed or
any material change to such information set forth in the Registration Statement.
B. The undersigned registrant hereby undertakes that, for purposes 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.
C. The undersigned registrant hereby undertakes 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.
D. 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.
E. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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.
II-10
<PAGE>
SIGNATURES
----------
The Registrant
- --------------
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 Fullerton, State of California, on September 4,
1998.
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By: /s/ Lawrence R. McNamee
------------------------------------
Lawrence R. McNamee,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Lawrence R. McNamee Chief Executive Officer September 4, 1998
- ------------------------- and Director (Principal
LAWRENCE R. McNAMEE Financial and Accounting
Officer)
/s/ Joseph S. Romance Director September 19, 1998
- ------------------------
JOSEPH S. ROMANCE
/s/ Carson T. Richert Director September 11, 1998
- ------------------------
CARSON T. RICHERT
/s/ Peter D. Bundy Director September 12, 1998
- ------------------------
PETER D. BUNDY
Director September __, 1998
- ------------------------
ROBERT B. THOMPSON
II-11
<PAGE>
EXHIBIT 5.1
OPPENHEIMER WOLFF & DONNELLY LLP
500 NEWPORT CENTER DRIVE
SUITE 700
NEWPORT BEACH, CA 92660
(714) 719-6000
September 30, 1998
Radiant Technology Corporation
1335 South Acacia
Fullerton, CA 92831
Re: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Gentlemen:
As counsel for Radiant Technology Corporation, a California corporation
(the "Company"), we have examined its Articles of Incorporation, as amended,
Bylaws and such other corporate records, documents and proceedings, and such
questions of law as we have deemed relevant for the purpose of this opinion. We
have also, as such counsel, examined the Registration Statement on Form S-8 of
the Company as filed with the Securities and Exchange Commission, covering the
registration under the Securities Act of 1933, as amended, of a total of
1,000,000 shares of no par value common stock ("Common Stock"), including the
exhibits and form of Prospectus (the "Prospectus") pertaining thereto, and any
amendments thereto (collectively, the "Registration Statement").
Upon the basis of such examination, we are of the opinion that:
1. The Company is a corporation duly authorized and validly existing in
good standing under the laws of the State of California, with all requisite
power to conduct the business described in the Registration Statement.
2. The Company has an authorized capitalization as set forth in Part II,
Item 3 of the Registration Statement.
3. The shares of the Company's Common Stock registered pursuant to the
Registration Statement have been duly and validly authorized and, subject to the
payment therefor pursuant to the terms contemplated in the final Prospectus,
such shares of Common Stock will be duly and validly issued as fully paid and
non-assessable securities of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ OPPENHEIMER WOLFF & DONNELLY LLP
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 of Radiant Technology Corporation of our report dated December 2, 1997
on our audit of the financial statements of Radiant Technology Corporation as of
September 30, 1997 and 1996 and for each of the years in the three year period
ended September 30, 1997.
/s/ Cacciamatta Accountancy Corporation
CACCIAMATTA ACCOUNTANCY CORPORATION
Irvine, California
September 30, 1998
<PAGE>
EXHIBIT 99.1
RADIANT TECHNOLOGY CORPORATION
1991 INCENTIVE STOCK OPTION PLAN, AS AMENDED
AND
1991 NONSTATUTORY STOCK OPTION PLAN, AS AMENDED
1. NAME, EFFECTIVE DATE AND PURPOSE.
---------------------------------
(a) This Plan document is intended to implement and govern two
separate stock option plans of RADIANT TECHNOLOGY CORPORATION, a California
corporation (the "Company"): the 1991 Incentive Stock Option Plan ("Plan A") and
the 1991 Nonstatutory Stock Option Plan ("Plan B"). Plan A provides for the
granting of options that are intended to qualify as incentive stock options
("Incentive Stock Options") within the meaning of Section 422A(b) of the
Internal Revenue Code, as amended. Plan B provides for the granting of options
that are not intended to so qualify. Unless specified otherwise, all the
provisions of this Plan relate equally to both Plan A and Plan B and are
condensed for convenience into one Plan document.
(b) This Stock Option Plan is established effective as of April
30, 1991. The purpose of this Plan is to promote the growth and general
prosperity of the Company and its Affiliated and Successor Companies. This Plan
will permit the Company to grant options ("Options") to purchase shares of its
common stock ("Common Stock"). The granting of Options will help the Company
attract and retain the best available persons for positions of substantial
responsibility and will provide certain key employees with an additional
incentive to contribute to the success of the Company, its Affiliated and
Successor Companies. For purposes of this Plan, the term "Affiliated Companies"
shall mean any component member of a controlled group of corporations, as
defined under Internal Revenue Code Section 1563, in which the Company is also a
component member.
2. ADMINISTRATION.
---------------
(a) The Plan shall be administered by the Board of Directors of
the Company (the "Board").
(b) The Board shall have sole authority, in its absolute
discretion, to determine which of the eligible persons of the Company and its
Affiliated and Successor Companies shall receive Options ("Optionees"), and,
subject to the express provisions and restrictions of this Plan, shall have sole
authority, in its absolute discretion, to determine the time when Options shall
be granted, the terms and conditions of an Option other than those terms and
conditions fixed under this Plan, the number of shares which may be issued upon
exercise of an Option and the means of payment for such shares, and shall have
authority to do everything necessary or appropriate to administer the Plan,
including but not limited to (i) setting different terms and conditions for
different Options and (ii) interpreting the Plan. All decisions, determinations
and interpretations of the Board shall be final and binding on all Optionees.
1
<PAGE>
(c) The Board shall have the authority to delegate some or all of
the powers granted to it pursuant to this Section 2 to a committee (the
"Committee") appointed by the Board and consisting of not less than three (3)
members of the Board, one of whom shall be the President of the Company. The
Board may from time to time remove members from, or add members to, the
Committee, and vacancies on the Committee shall be filled by the Board. All
decisions, determinations and interpretations of the Committee shall be final
and binding on all Optionees, unless otherwise determined by the Board.
(d) Aggregate limitations with respect to the participation of
directors and officers in the plan:
(i) No more than 800,000 shares of Common Stock may be
optioned and sold to directors of the Company under Plan A and Plan B considered
in the aggregate.
(ii) No more than 800,000 shares of Common Stock may be
optioned and sold to nondirector officers of the Company under Plan A and Plan B
considered in the aggregate.
(e) Definitions:
(i) RESTRICTED SHAREHOLDER: An individual who, at the time
an Option is granted under either Plan A or Plan B, owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
employer corporation or of any Parent, Subsidiary or Successor Corporation of
such corporation, with stock ownership to be determined in light of the
attribution rules set forth in Section 425(d) of the Internal Revenue Code.
(ii) PARENT CORPORATION: A corporation as defined in
Section 425(e) of the Internal Revenue Code.
(iii) SUBSIDIARY CORPORATION: A corporation as defined in
Section 425(f) of the Internal Revenue Code.
(iv) COMPANY: The term "Company" shall refer to Radiant
Technology Corporation, a California corporation, and any Parent, Subsidiary or
Successor Corporation of such corporation.
(v) OFFICER: The president, secretary, treasurer, any vice
president in charge of a principal business function (such as sales,
administration, or finance) and any other person who performs similar
policy-making functions for the Company.
3. ELIGIBILITY.
-----------
(a) Plan A: The Board (or the Committee, if so authorized by the
Board) may, in its discretion, grant one or more Options under Plan A to any key
management employee of the Company of its Affiliated or Successor Companies,
including any employee who is a director of the Company or of any of its
Affiliated or Successor Companies presently
2
<PAGE>
existing or hereinafter organized or acquired. Such options may be granted to
one or more such employees without being granted to other eligible employees, as
the Board may deem fit.
(b) Plan B: The Board (or the Committee, if so authorized by the
Board), may, in its discretion, grant one or more Options under Plan B to any
employee, consultant, independent contractor, salesman, or director of the
Company or its Affiliated or Successor Companies. Such Options may be granted to
one or more such persons without being granted to other eligible persons, as the
Board may deem fit.
4. STOCK TO BE OPTIONED.
---------------------
The maximum aggregate number of shares which may be optioned and
sold under Plan A and Plan B is One Million (1,000,000) shares of authorized
Common Stock of the Company. The foregoing constitutes an absolute cumulative
limitation on the total number of shares that may be optioned under both Plan A
and B. Therefore, at any particular date the maximum aggregate number of shares
which may be optioned under Plan A is equal to One Million (1,000,000) shares
minus the number of shares previously optioned under both Plan A and Plan B and
the maximum aggregate number of shares which may be optioned under Plan B is
equal to One Million (1,000,000) shares minus the number of shares which have
been previously optioned under both Plan A and Plan B. All shares to be optioned
and sold under either Plan A or Plan B may be either authorized but unissued
shares or shares held in the treasury. Shares of Common Stock that:
(a) are repurchased by the Company after issuance hereunder
pursuant to the exercise of an Option, or
(b) are not purchased by the Optionee prior to the expiration or
termination of the applicable Option, shall again become available to be covered
by Options to be issued hereunder and shall not, as of the effective date of
such repurchase or expiration, be counted as covered by an outstanding Option
for purposes of the above-described maximum number of shares which may be
optioned hereunder.
5. OPTION PRICE.
-------------
The Option Price for shares of Common Stock to be issued under
either Plan A or Plan B shall be 100% of the fair market value of such shares on
the date on which the Option covering such shares is granted by the Board (or
the Committee, if so authorized by the Board), except that if on the date on
which such Option is granted the Optionee is a Restricted Shareholder, then such
Option Price shall be 110% of the fair market value of the shares of Common
Stock subject to the Option on the date such Option is granted by the Board (or
the Committee, if so authorized). The fair market value of shares of Common
Stock for all purposes of Plan A is to be determined by the Board (or the
Committee, if so authorized by the Board) in its sole discretion, exercised in
good faith.
6. TERM OF PLAN.
-------------
3
<PAGE>
The Plan shall become effective upon April 30, 1991, and shall
continue in effect until April 30, 2001, unless terminated earlier by action of
the Board. No Option may be granted hereunder after April 30, 2001.
7. EXERCISE OF OPTION.
-------------------
Subject to the actions, conditions and/or limitations set forth
in this Plan document and/or any applicable Stock Option Agreement entered into
hereunder, Options granted under this Plan shall be exercisable in accordance
with the following rules:
(a) No Option may be exercised in whole or in part until one (1)
year after the date on which the Option is granted by the Board, or by the
Committee if so authorized (hereinafter the "Option Grant Date").
(b) Subject to the specific provisions of this Section 7, Options
shall become exercisable at such times and in such installments (which may be
cumulative) as the Board shall provide in the terms of each individual Option;
provided, however, that Options shall become exercisable as to no less than 20%
of the shares covered thereby each year during its term and provided further
that by resolution adopted after an Option is granted the Board may, on such
terms and conditions as it may determine to be appropriate, and subject to the
specific provisions of this Section 7, accelerate the time at which such Option
or installment thereof may be exercised. For purposes of this Plan, any accrued
installment of an Option granted hereunder shall be referred to as an "Accrued
Installment."
(c) An Option may be exercised when Accrued Installments accrue
as provided in the terms under which such Option was granted and at any time
thereafter within a period of ten (10) years from the Option Grant Date,
subject, however, to the restrictions contained in this Section 7. In no event
shall any Option be exercised on or after the tenth anniversary of the Option
Grant Date of such Option, regardless of the circumstances then existing
(including but not limited to the death or termination of employment of the
Optionee).
The tenth anniversary of the Option Grant Date shall be hereinafter designated
the "Tenth Anniversary Date."
8. RULES APPLICABLE TO CERTAIN DISPOSITIONS.
-----------------------------------------
(a) Notwithstanding the foregoing provisions of Section 7, in the
event the Company or the shareholders of the Company enter into an agreement to
dispose of all or substantially all of the assets or stock of the Company by
means of a sale, merger, consolidation, reorganization or liquidation to another
unrelated entity, an Option shall become immediately exercisable with respect to
the full number of shares subject to that Option during the period commencing as
of the date of execution of such agreement and ending as of the earlier of:
(i) the day prior to the Tenth Anniversary Date; or
(ii) that date which is the later of (A) the date on which
the disposition of assets or stock contemplated by the agreement is consummated
or (B) is the 30th day following the date of execution of such agreement. The
exercise of any Option that was
4
<PAGE>
permissible solely by reason of this Subsection 8(a) shall be conditioned upon
the consummation of the disposition of the assets or stock under the
above-referenced agreement. Upon the later of the dates specified in the first
sentence of this subsection, the consummation of any such disposition of assets
or stock, this Plan and any unexercised Options issued hereunder (or any
unexercised portion thereof) shall terminate and cease to be effective.
(b) Notwithstanding the foregoing, in the event that any such
agreement shall be terminated without consummating the disposition of said stock
or assets:
(i) any unexercised nonvested installments that had become
exercisable solely by reason of the provisions of Subsection 8(a) shall again
become nonvested and unexercisable as of said termination of such agreement, and
(ii) any option exercised solely by reason of this
Subsection 8(a) shall be deemed ineffective and such installments shall again
become nonvested and unexercisable as of said termination of such agreement.
(c) In lieu of permitting any exercise of an Option pursuant to
Subsection 8(a) above, the Board (or the Committee, if so authorized by the
Board) may, at its election and subject to the approval of the corporation
purchasing or acquiring the stock or assets of the Company (the "surviving
corporation") arrange for the Optionee to receive upon surrender of Optionee's
Option a new option covering shares of the surviving corporation in the same
proportion, at an equivalent option price and subject to the same terms and
conditions as the old Option. For purposes of the preceding sentence, the excess
of the aggregate fair market value of the shares subject to such new option
immediately after consummation of such disposition of stock or assets over the
aggregate option price of such shares of the surviving corporation shall not be
more than the excess of the aggregate fair market value of all shares subject to
the old Option immediately before consummation of such disposition of stock or
assets over the aggregate Option Price of such shares of the Company, and the
new option shall not give the Optionee additional benefits which such Optionee
did not have under the old Option or deprive the Optionee of benefits which the
Optionee had under the old Option.
9. MERGERS AND ACQUISITIONS.
-------------------------
(a) If the Company at any time should succeed to the business of
another corporation' through a merger or consolidation, or through the
acquisition of stock or assets of such corporation, Options may be granted under
the Plan to option holders of such corporation or its subsidiaries, in
substitution for options or rights to purchase stock of such corporation held by
them at the time of succession. The Board (or the Committee, if so authorized by
the Board) shall have sole and absolute discretion to determine the extent to
which such substitute Options shall be granted (if at all), the person or
persons to receive such substitute Options (who need not be all option holders
of such corporation), the number of Options to be received by each of such
person, the Option Price of such Option, and the terms and conditions of such
substitute Options; provided, however, that the terms and conditions of the
substitute Options shall comply with the provisions of Section 425(a) of the
Code, such that the excess of the aggregate fair market value of the shares
subject to such substitute Option immediately after the substitution or
assumption over the aggregate option price of such shares is not more than the
excess of the
5
<PAGE>
aggregate fair market value of all shares subject to the substitute Option
immediately before such substitution or assumption Over the aggregate option
price of such shares, and the substitute Option or the assumption of the old
option does not give the holder thereof additional benefits which he did not
have under such old option.
(b) Notwithstanding anything to the contrary herein, no Option
shall be granted not any action taken, permitted or omitted, which would cause
the Plan, or any Options granted hereunder as to which Rule 16b-3 under the
Securities Exchange Act of 1934 may apply, not to comply with such Rule.
10. TERMINATION OF EMPLOYMENT.
--------------------------
(a) Subject to the provisions of Subsection 10(b) hereinbelow
involving the death or disability of an Optionee while an employee or director
of the Company, as of the effective date of the termination of employment or
termination of directorship of an Optionee with the Company (or Affiliated
Company) for any reason other than death or disability (the "Termination Date"),
any unexercised Accrued Installments of the Option granted hereunder to such
terminated Optionee shall expire and become unexercisable as of the earlier of:
(i) the applicable Tenth Anniversary Date, or
(ii) thirty (30) days following said Termination Date;
provided, however, that the Board may extend such thirty (30) day period in the
case of an Option under Plan A to a period not to exceed three (3) months
following the Termination Date and in the case of Options under Plan B to a
period not to exceed one (1) year following the Termination Date, but in no
event beyond the applicable Tenth Anniversary Date. Any installments of an
Option which have not accrued as of the Optionee's termination is death or
disability. Any portion of an Option that expires hereunder shall remain
unexercisable and be of no effect whatsoever after such expiration
notwithstanding that such Optionee may be reemployed by, or again become a
director of, the Company or an Affiliated Company.
(b) Notwithstanding the foregoing provisions of this Section 10,
in the event of the death of an Optionee while an employee or director of the
Company (or an Affiliated Company), or in the event of the termination of
employment or a directorship by reason of the Optionee's disability, any
unexercised Accrued Installments of the Option granted hereunder to such
Optionee shall expire and become unexercisable as of the earlier of:
(i) the applicable Tenth Anniversary Date, or
(ii) the first anniversary of the date of death of such
Optionee (if applicable), or
(iii) the first anniversary of the date of the termination
of employment or directorship by reason of disability (if applicable). Any such
Accrued Installments of a deceased Optionee may be exercised prior to their
expiration by (and only by) the person or persons to whom the Optionee's Option
rights shall pass by will or by the laws of descent and distribution, if
applicable, subject, however, to all of the terms and conditions of this Plan
and
6
<PAGE>
the applicable Stock Option Agreement governing the exercise of Options granted
hereunder. For purposes of this Subsection 10(b), an Optionee shall be deemed
employed by the Company (or Affiliated Company) during any period of leave of
absence from active employment as authorized by the Company (or Affiliated
Company).
11. EXERCISE OF OPTIONS.
--------------------
(a) An Option shall be deemed exercised when written notice of
such exercise has been given to the Company at its principal business office by
the person entitled to exercise the Option and full payment in cash or cash
equivalents (or with shares of Common Stock pursuant to Section 14) for the
shares with respect to which the Option is exercised has been received by the
Company. Until the issuance of the stock certificates, no right to vote or
receive dividends or any other rights as a stockholder shall exist with respect
to optioned shares notwithstanding the exercise of the Option. No adjustment
will be made for a dividend or other rights for which the record date is prior
to the date the stock certificate is issued except as provided in Section 24.
(b) An Option may be exercised in accordance with this Section 11
as to all or any portion of the shares covered by any Accrued Installment of the
Option from time to time during the applicable option period, but shall not be
exercisable with respect to fractions of a share.
(c) As soon as practicable after any proper exercise of an Option
in accordance with the provisions of this Plan, the Company shall, without
charging transfer or issue tax to the Optionee, deliver to the Optionee at the
main office of the Company, or such other place as shall be mutually acceptable,
a certificate or certificates representing the shares of Common Stock as to
which the Option has been exercised. The time of issuance and delivery of the
Common Stock may be postponed by the Company for such period as may be required
for it with reasonable diligence to comply with any applicable listing
requirements of any national or regional securities exchange and any law or
regulation applicable to the issuance and delivery of such shares.
12. AUTHORIZATION TO ISSUE OPTIONS AND SHAREHOLDER APPROVAL.
--------------------------------------------------------
Options granted under the Plan shall be conditioned upon the
Company obtaining any required permit from the California Department of
Corporations and/or other appropriate governmental agencies, free of any
conditions not acceptable to the Board, authorizing the Company to issue such
Options, provided, however, such condition shall lapse as of the effective date
of issuance of such permit(s) in a form to which the Company does not object
within sixty (60) days. The grant of Options under the Plan also is conditioned
on approval of the Plan by the vote or written consent of the holders of a
majority of the outstanding shares of the Company's Common Stock; and no Option
granted hereunder shall be effective or exercisable unless and until the Plan
has been so approved.
7
<PAGE>
13. LIMIT ON VALUE OF OPTIONED SHARES.
----------------------------------
The aggregate fair market value (determined as of the Option
Grant Date) of the shares of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by an employee during any calendar
year under all stock option plans of the Company shall not exceed $100,000. The
limitation imposed by this Section 13 shall not apply with respect to
nonstatutory stock options granted under Plan B.
14. PAYMENT OF EXERCISE PRICE WITH COMPANY STOCK.
---------------------------------------------
The Board (or the Committee, if so authorized) may provide that,
upon exercise of the Option, the Optionee may elect to pay for all or some of
the shares of Common Stock underlying the Option with shares of Common Stock of
the Company previously acquired and owned at the time of exercise by the
Optionee, provided that the Optionee will make representations and warranties
satisfactory to the Company regarding his or her title to the shares used to
effect the purchase, including without limitation representations and warranties
that the Optionee has good and marketable title to such shares free and clear or
any and all liens, encumbrances, charges, equities, claims, security interests,
options or restrictions and has fur[ power to deliver such shares without
obtaining the consent or approval of any person or governmental authority other
than those which have already given consent or approval in a form satisfactory
to the Company. The equivalent dollar value of the shares used to effect the
purchase shall be the fair market value of the shares on the date of the
purchase as determined by the Board (or the Committee, if so authorized) in its
sole discretion, exercised in good faith.
15. STOCK OPTION AGREEMENT.
-----------------------
The terms and conditions of Options granted under the Plan shall
be evidenced by a Stock Option Agreement (hereinafter referred to as the
"Agreement") executed by the Company and the person to whom the Option is
granted. Each agreement shall contain the following provisions:
(a) A provision fixing the number of shares which may be issued
upon exercise of the Option;
(b) A provision establishing the Option Price per share;
(c) A provision establishing the times and the installments in
which Options may be exercised;
(d) A provision incorporating therein this Plan by reference;
(e) A provision clarifying which Options are intended to be
Incentive Stock Options under Plan A and which are intended to be nonstatutory
stock options under Plan B;
(f) A provision fixing the maximum duration of the Option as not
more than ten (10) years from the Option Grant Date;
8
<PAGE>
(g) Such representations and warranties by the Optionee as may be
required by Section 25 of this Plan or as may be required by the Board (or the
Committee) in its discretion;
(h) Any other restrictions (in addition to those established
under this Plan) as may be established by the Board (or the Committee) with
respect to the exercise of the Option, the transfer of the Option, and/or the
transfer of the shares purchased by exercise of the Option, provided that such
restrictions are not in conflict with this Plan; and
(i) Such other terms and conditions not inconsistent with this
Plan as may be established by the Board (or the Committee) in its discretion.
16. TAXES, FEES AND EXPENSES.
-------------------------
The Company shall pay all original issue and transfer taxes (but
not income taxes, if any) with respect to the grant of Options and/or the issue
and transfer of shares pursuant to the exercise of such Options, and all other
fees and expenses necessarily incurred by the Company in connection therewith,
and will from time to time use its best efforts to comply with all laws and
regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
17. WITHHOLDING OF TAXES.
---------------------
The grant of Options hereunder and the issuance of Common Stock
pursuant to the exercise of such Options is conditioned upon the Company's
reservation of the right to withhold, in accordance with any applicable law,
from any compensation payable to the Optionee any taxes required to be withheld
by federal, state or local law as a result of the grant or exercise of any such
Option.
18. AMENDMENT OR TERMINATION OF THE PLAN.
-------------------------------------
(a) The Board may amend this Plan from time to time in such
respects as the Board may deem advisable, provided, however, that no such
amendment shall operate to (i) affect adversely an Optionee's rights under this
Plan with respect to any Option granted hereunder prior to the adoption of such
amendment, except as may be necessary, in the judgment of counsel to the
Company, to comply with any applicable law, or (ii) increase the maximum
aggregate number of shares which may be optioned and sold under the Plan.
(b) The Board may at any time terminate this Plan. Any such
termination of the Plan shall not, without the written consent of the Optionee,
alter the terms of Options already granted and such Options shall remain in full
force and effect as if this Plan had not been terminated.
19. OPTIONS NOT TRANSFERABLE.
-------------------------
Options granted under this Plan may not be sold, pledged,
hypothecated, assigned, encumbered, gifted or otherwise transferred or alienated
in any manner, either voluntarily or
9
<PAGE>
involuntarily by operation of law, otherwise than by will or the laws of descent
or distribution, and may be exercised during the lifetime of an Optionee only by
such Optionee.
20. NO RESTRICTIONS ON TRANSFER OF STOCK.
-------------------------------------
Common Stock issued pursuant to the exercise of an Option granted
under this Plan (hereinafter "Optioned Stock"), or any interest in such Optioned
Stock, may be sold, assigned, gifted, pledged. hypothecated, encumbered or
otherwise transferred or alienated in any manner by the holder(s) thereof,
subject, however, to any representations or warranties requested under Section
25 of this Plan and also subject to compliance with any applicable federal,
state or other local law, regulation or rule governing the sale or transfer of
stock or transfer of stock or securities.
21. RESERVATION OF SHARES OF COMMON STOCK.
--------------------------------------
The Company, during the term of this Plan, will at all times
reserve and keep available such number of shares of its Common Stock as shall be
sufficient to satisfy the requirements of the Plan.
22. RESTRICTIONS ON ISSUANCE OF SHARES.
-----------------------------------
The Company, during the term of this Plan, will use its best
efforts to seek to obtain from the appropriate regulatory agencies any requisite
authorization in order to issue and sell such number of shares of its Common
Stock as shall be sufficient to satisfy the requirements of the Plan. The
inability of the Company to obtain from any such regulatory agency having
jurisdiction thereof the authorization deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any shares of its stock hereunder
or the inability of the Company to confirm to its satisfaction that any issuance
and sale of any shares of such stock will meet applicable legal requirements
shall relieve the Company of any liability in respect of the nonissuance or sale
of such stock as to which such authorization or confirmation have not been
obtained.
23. NOTICES.
--------
Any notice to be given to the Company pursuant to the provisions
of this Plan shall be addressed to the Company in care of its Secretary at its
principal office, and any notice to be given to a person to whom an Option is
granted hereunder shall be addressed to him or her at the address given beneath
his signature on his or her Stock Option Agreement, or at such other address as
such person or his or her transferee (upon the transfer of Optioned Stock) may
hereafter designate in writing to the Company. Any such notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, registered or certified, and deposited, postage and registry or
certification fee prepaid, in a post office or branch post office regularly
maintained by the United States Postal Service. It shall be the obligation of
each Optionee and each-transferee holding Optioned Stock to provide the
Secretary of the Company, by letter mailed as provided hereinabove, with written
notice of his or her correct mailing address.
10
<PAGE>
24. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
-------------------------------------------
If the outstanding shares of Common Stock of the Company are
increased, decreased, changed into or exchanged for a different number or kind
of shares of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, then upon
proper authorization of the Board an appropriate and proportionate adjustment
shall be made in the number or kind of shares which may be issued upon exercise
of Options granted under the Plan; provided, however, that no such adjustment
need be made if, upon the advice of counsel, the Board determines that such
adjustment may result in the receipt of federally taxable income to holders of
Options granted hereunder or the holders of Common Stock or other classes of the
Company's securities.
25. REPRESENTATIONS AND WARRANTIES.
-------------------------------
As a condition to the exercise of any portion of an Option, the
Company may require the person exercising such Option to make any representation
and/or warranty to the Company as may, in the judgment of counsel to the
Company, be required under any applicable law or regulation, including but not
limited to a representation and warranty that the shares are being acquired 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 under the Securities Act of 1933, as amended or any other applicable
law, regulation or rule of any governmental agency.
26. NO ENLARGEMENT OF EMPLOYEE RIGHTS.
----------------------------------
This Plan is purely voluntary on the part of the Company, and
while the Company hopes to continue it indefinitely, the continuance of the Plan
shall not be deemed to constitute a contract between the Company and any
employee, or to be consideration for or a condition of the employment of any
employee. Nothing contained in the Plan shall be deemed to give any employee the
right to be retained in the employ of the Company or its Affiliated Companies,
or to interfere with the right of the Company or an Affiliated Company to
discharge or retire any employee thereof at any time. No employee shall have any
right to or interest in Options authorized hereunder prior to the grant of such
an Option to such employee, and upon such grant he or she shall have only such
rights and interests as are expressly provided herein, subject, however, to all
applicable provisions of the Company's Certificate of Incorporation, as the same
may be amended from time to time.
27. INFORMATION TO OPTION HOLDERS.
------------------------------
During the period any options granted to employees of the Company
remain outstanding, such employee-option holders shall be entitled to receive,
on an annual or other periodic basis, financial and other information regarding
the Company. The Board (or the Committee, if so authorized) shall exercise its
discretion with regard to the nature and extent of the financial information so
provided, giving due regard to the size and circumstances of the Company and, if
the Company provides annual reports to its shareholders, the Company's practice
in connection with such annual reports. Notwithstanding the above, if the
issuance of options under either Plan A or Plan B is limited to key employees
whose duties in connection
11
<PAGE>
with the Company assure their access to equivalent information, this Section 23
shall not apply to such employees and plan.
28. LEGENDS ON STOCK CERTIFICATES.
------------------------------
Each certificate representing Common Stock issued under this Plan
shall bear whatever legends are required by federal or state law or by any
governmental agency. In particular, unless an appropriate registration statement
is filed pursuant to the Federal Securities Act of 1933, as amended, with
respect to the shares of Common Stock issuable under this Plan, each certificate
representing such Common Stock shall be endorsed on its face with the following
legend or its equivalent:
"Neither the Option pursuant to which the shares represented by
this certificate are issued nor said shares have been registered under the
Federal Securities Act of 1933, as amended (the "Act"). Transfer or sale of such
securities or any interest therein is unlawful except after registration, or
pursuant to an exemption from the registration requirements, as provided in the
Act and the regulations thereunder."
A copy of this Plan shall be delivered to the Secretary of the
Company and shall be shown by him or her to any eligible person making
reasonable inquiry concerning it.
29. SPECIFIC PERFORMANCE.
---------------------
The Options granted under this Plan and the Optioned Stock issued
pursuant to the exercise of such options cannot be readily purchased or sold in
the open market, and, for that reason among others, the Company and its
shareholders will be irreparably damaged in the event that this Plan is not
specifically enforced. Should any dispute arise concerning the sale or other
disposition of an Option and/or Optioned Stock, an injunction may be issued
restraining such sale or other disposition of such Option and/or Optioned Stock
pending the determination of such Option controversy. In the event of any
controversy concerning the right or obligation to purchase or sell any such
Option or Optioned Stock, such right or obligation shall be enforceable in a
court of equity by a decree of specific performance. Such remedy shall, however,
be cumulative and not exclusive, and shall be in addition to any other remedy
which the parties may have.
30. INVALID PROVISIONS.
-------------------
In the event that any provision of this Plan is found to be
invalid or otherwise unenforceable under any applicable law, such invalidity or
unenforceability shall not be construed as rendering any other provisions
contained herein invalid or unenforceable, and all such other provisions shall
be given full force and effect to the same extent as though the invalid or
unenforceable provision was not contained herein.
31. APPLICABLE LAW.
---------------
This Plan shall be governed by and construed in accordance with
the laws of the State of California.
12
<PAGE>
32. SUCCESSORS AND ASSIGNS.
-----------------------
This Plan shall be binding on and inure to the benefit of the
Company and the employees to whom an Option is granted hereunder, and such
employees' heirs, executors, administrators, legatees, personal representatives,
assignees and transferees.
IN WITNESS WHEREOF, pursuant to the due authorization and adoption
of this Plan on April 30, 1991, the Company has caused this Plan to be duly
executed by its duly authorized officers, effective as of April 30, 1991.
RADIANT TECHNOLOGY CORPORATION, a
California corporation
By: /s/ Carson T. Richert
---------------------------------
Carson T. Richert, President
By: /s/ Mercy Gingrich
---------------------------------
Mercy Gingrich, Secretary
13
