<PAGE>
As filed with the Securities and Exchange Commission on February 13, 1998
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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RADIANT TECHNOLOGY CORPORATION
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(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
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(Address of Principal Executive Offices) (Zip Code)
RADIANT TECHNOLOGY CORPORATION 1998 STOCK OPTION PLAN
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(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)
Calculation of Registration Fee
- -------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum Amount of
securities to be Amount to be offering price aggregate registration
registered registered per unit offering price fee
- -------------------------------------------------------------------------------
Common Stock, 636,666 $.8725(1) $ 235,850(1) $ 71.47
no par value shs.(2) ------- -------- ------
- -------------------------------------------------------------------------------
(1) Based upon the average of the bid and asked prices for the registrant's
common stock on February 10, 1998 for purposes of computing the
registration fee on underlying options to purchase 180,000 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 456,666
underlying outstanding options.
(2) Includes 180,000 shares issuable upon exercise of stock options which are
part of the 1998 Stock Option Plan and 456,666 shares issuable to employees
and directors upon exercise of non-qualified stock options, which are not
part of the 1998 Stock Option Plan.
<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 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.
Item 6. Indemnification of Directors and Officers.
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California Statutes
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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.
(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.
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(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 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
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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.
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
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<PAGE>
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 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:
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(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 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.
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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 islimited 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.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Inapplicable.
II-8
<PAGE>
Item 8. Exhibits.
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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 Bruck & Perry re: legality of shares.
10.1 Stock Option Agreement dated as of September 30, 1992 between
the Company and Lawrence R. McNamee.
10.2 Form of Amended and Restated Non-Qualified Stock Option
Agreement dated as of September 30, 1996 between the Company
and Joseph S. Romance, Peter D. Bundy, Robert B. Thompson and
Carson T. Richert.
23.1 Consent of Bruck & Perry, A Professional Corporation (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 1998 Stock Option Plan and
Forms of Incentive Stock Option Agreement and Non-Qualified
Stock Option Agreement.
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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.
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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 January 22, 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 January 22, 1998
- ----------------------- and Director (Principal
LAWRENCE R. McNAMEE Financial and Accounting
Officer)
/s/ JOSEPH S. ROMANCE Director January 22, 1998
- ---------------------
JOSEPH S. ROMANCE
/s/ CARSON T. RICHERT Director January 22, 1998
- ---------------------
CARSON T. RICHERT
/s/ PETER D. BUNDY Director January 22, 1998
- ------------------
PETER D. BUNDY
/s/ ROBERT B. THOMPSON Director January 22, 1998
- ----------------------
ROBERT B. THOMPSON
II-11
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EXHIBIT 5.1
BRUCK & PERRY
A PROFESSIONAL CORPORATION
500 NEWPORT CENTER DRIVE
SUITE 700
NEWPORT BEACH, CA 92660
(714) 719-6000
February 9, 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 636,666
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/ BRUCK & PERRY
<PAGE>
EXHIBIT 10.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is entered into as of
September 30, 1992, by and between RADIANT TECHNOLOGY CORPORATION, a Delaware
corporation ("Corporation"), and LAWRENCE R. MCNAMEE ("Optionee").
A G R E E M E N T
- - - - - - - - -
It is hereby agreed as follows:
1. GRANT OF OPTIONS. The Corporation hereby grants to Optionee, options
("Options") to purchase all or any part of Three Hundred Forty Six Thousand Six
Hundred Sixty-Six (346,666) shares of the common stock of the Corporation
("Shares"), upon and subject to the terms and conditions set forth herein.
2. IMMEDIATELY EXERCISABLE. The Options shall be immediately
exercisable and shall have no expiration date.
3. METHOD OF EXERCISE. The Options shall be exercisable by Optionee by
giving written notice to the Corporation of the election to purchase and of the
number of Shares Optionee elects to purchase, such notice to be accompanied by
such other executed instruments or documents as may be required by the
Corporation pursuant to this Agreement. At the time of such exercise, Optionee
shall also tender the purchase price of the Shares Optionee has elected to
purchase as required by Section 5 below. Optionee may purchase less than the
total number of Shares for which the Option is exercisable, provided that a
partial exercise of an Option may not be for less than One Hundred (100) Shares.
If Optionee does not purchase all of the Shares which Optionee is entitled to
purchase under the Options, Optionee's right to purchase the remaining
unpurchased Shares shall continue until expiration of the Options. The Options
shall be exercisable with respect to whole Shares only, and fractional share
interests shall be disregarded.
4. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be $.075
per Share.
5. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or bank
cashier's check payable to the Corporation, the purchase price for all Shares
then being purchased.
6. NO RIGHTS TO CONTINUED RELATIONSHIP. Nothing contained in this
Agreement shall obligate the Corporation to have any relationship with Optionee
for any period or interfere in any way with the right of the Corporation to
terminate the relationship with Optionee at any time.
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7. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be September
30, 1992.
8. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to the
privileges of stock ownership as to any Shares not actually issued and delivered
to Optionee. No Shares shall be purchased upon the exercise of any Options
unless and until, in the opinion of the Corporation's counsel, any then
applicable requirements of any laws, or governmental or regulatory agencies
having jurisdiction, and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
9. SECURITIES LAWS COMPLIANCE. The Corporation will diligently endeavor
to comply with all applicable securities laws before any stock is issued
pursuant to the Options. Without limiting the generality of the foregoing, the
Corporation may require from the Optionee such investment representation or such
agreement, if any, as counsel for the Corporation may consider necessary in
order to comply with the Securities Act of 1933 as then in effect, and may
require that the Optionee agree that any sale of the Shares will be made only in
such manner as is permitted by the Corporation. If the Corporation, in its sole
discretion, registers that Shares underlying the Options under the Securities
Act of 1933 by filing a Form S-8 Registration Statement (or other applicable
form) covering the Options and the Shares underlying the Options, Optionee shall
take any action reasonably requested by the Corporation in connection with
registration or qualification of the Shares under federal or state securities
laws.
10. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise of
the Options shall bear such appropriate legend conditions as counsel for the
Corporation shall require.
11. COMPLIANCE WITH APPLICABLE LAWS. THE CORPORATION'S OBLIGATION TO
ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS EXPRESSLY
CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR
REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF SUCH
INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY THE
OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY WITH
THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE CORPORATION SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND
UNDERTAKINGS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR ANY
PERSON ENTITLED TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES FOR
DISTRIBUTION AND (ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF ANY
CERTIFICATES A LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS WHICH
HAVE BEEN GIVEN TO THE CORPORATION OR A REFERENCE THERETO.
2
<PAGE>
12. MISCELLANEOUS.
--------------
12.1 Binding Effect. This Agreement shall bind and inure to
the benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
12.2 Further Acts. Each party agrees to perform any further
acts and execute and deliver any documents which may be necessary to carry out
the provisions of this Agreement.
12.3 Amendment. This Agreement may be amended at any time by
the written agreement of the Corporation and the Optionee.
12.4 Syntax. Throughout this Agreement, whenever the context
so requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of the
various Sections hereof are for convenience only and they shall not limit,
expand or otherwise affect the construction or interpretation of this Agreement.
12.5 Choice of Law. The parties hereby agree that this
Agreement has been executed and delivered in the State of California and shall
be construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree that
any uncertainty or ambiguity existing herein shall not be interpreted against
either of them.
12.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
12.7 Notices. All notices, requests, demands, and other
communications given, or required to be given pursuant to the terms of this
Agreement shall be in writing and may be delivered in person (by hand,
messenger, or other confirmable form of delivery), or be sent by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows,
or by Federal Express or other nationally recognized overnight courier service,
addressed as follows, or by facsimile transmission, to the following respective
numbers, followed by a copy being delivered in person, by mail, or by overnight
courtier as specified herein:
If to Optionee: Lawrence R. McNamee
376 Surf View Drive
Pacific Palisades, CA 90272
If to Corporation: Radiant Technology Corporation
1335 South Acacia Avenue
Fullerton, CA 92831
Attn: President
3
<PAGE>
Either party may, by written notice to the other, specify a different address or
numbers for notice purposes. Any notice sent to the party to whom it is
addressed in accordance with this paragraph will be deemed to have been given
(i) when received, if personally delivered; (ii) if sent by registered or
certified mail, return receipt requested, upon the date of delivery shown on the
receipt card, or if no date is shown, the postmark thereon; (iii) if sent via
Federal Express or other nationally recognized overnight courier, one (1)
business day after deposit with such overnight courier; or (iv) if sent by
facsimile transmission, on the day on which it is sent, if receipt of
transmission is confirmed by telephone. If notice is received on a Saturday,
Sunday or legal holiday, it will be deemed to have been given and received on
the next following business day.
12.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement, modification or
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
12.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in each
respective such action or proceeding shall be entitled, in addition to any and
all other relief granted by a court or other tribunal or body, as may be
appropriate, to an award in such action or proceeding of that sum of money which
represents the attorneys' fees reasonably incurred by the prevailing party
therein in filing or otherwise instituting and in prosecuting or otherwise
pursuing or defending such action or proceeding, and, additionally, the
attorneys' fees reasonably incurred by such prevailing party in negotiating any
and all matters underlying such action or proceeding and in preparation for
instituting or defending such action or proceeding.
4
<PAGE>
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"CORPORATION"
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By:/s/ LAWRENCE R. MCNAMEE
----------------------------------------
Lawrence R. McNamee, Chief Executive Officer
By:/s/ MERCY GINGRICH
-------------------------------------------
Mercy Gingrich, Secretary
"OPTIONEE"
/s/ LAWRENCE R. MCNAMEE
-------------------------------------------
LAWRENCE R. MCNAMEE
5
<PAGE>
EXHIBIT 10.2
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
("Agreement") is entered into as of September 30, 1996, by and between RADIANT
TECHNOLOGY CORPORATION, a Delaware corporation ("Corporation"), and
___________________ ("Optionee").
A G R E E M E N T
- - - - - - - - -
It is hereby agreed as follows:
1. GRANT OF OPTIONS. The Corporation hereby grants to Optionee, options
("Options") to purchase all or any part of Twenty Thousand (20,000) shares of
the common stock of the Corporation ("Shares"), upon and subject to the terms
and conditions set forth herein.
2. OPTION PERIOD. The Options shall be exercisable at any time during
the period commencing on the following dates (subject to the provisions of
Section 10) and expiring on the date three (3) years from the date of the
Options first become exercisable, unless earlier terminated pursuant to Section
7:
Number of Options Exercisable Effective
----------------- ---------------------
10,000 September 30, 1996
10,000 September 30, 1997
3. METHOD OF EXERCISE. The Options shall be exercisable by Optionee by
giving written notice to the Corporation of the election to purchase and of the
number of Shares Optionee elects to purchase, such notice to be accompanied by
such other executed instruments or documents as may be required by the
Corporation pursuant to this Agreement. At the time of such exercise, Optionee
shall also tender the purchase price of the Shares Optionee has elected to
purchase as required by Section 5 below. Optionee may purchase less than the
total number of Shares for which the Option is exercisable, provided that a
partial exercise of an Option may not be for less than One Hundred (100) Shares.
If Optionee does not purchase all of the Shares which Optionee is entitled to
purchase under the Options, Optionee's right to purchase the remaining
unpurchased Shares shall continue until expiration of the Options. The Options
shall be exercisable with respect to whole Shares only, and fractional share
interests shall be disregarded.
4. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be $.48 per
Share, which is one hundred percent (100%) of the fair market value per share on
the date of the grant of the Options as determined in good faith by the Board of
Directors of the Corporation.
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5. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or bank
cashier's check payable to the Corporation, the purchase price for all Shares
then being purchased.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein, the term
"Adjustment Event" means an event pursuant to which the outstanding Shares of
the Corporation are increased, decreased or changed into, or exchanged for a
different number or kind of shares or securities, without receipt of
consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an Adjustment
Event, (i) appropriate and proportionate adjustments shall be made to the number
and kind and exercise price for the shares subject to the Options, and (ii)
appropriate amendments to this Agreement shall be executed by the Corporation
and Optionee if the Corporation determines that such an amendment is necessary
or desirable to reflect such adjustments. The determination by the Corporation
as to what adjustments, amendments or arrangements shall be made pursuant to
this Section 6, and the extent thereof, shall be final and conclusive. No
fractional Shares shall be issued on account of any such adjustment or
arrangement.
7. NO RIGHTS TO CONTINUED RELATIONSHIP. Nothing contained in this
Agreement shall obligate the Corporation to have any relationship with Optionee
for any period or interfere in any way with the right of the Corporation to
terminate the relationship with Optionee at any time. If the Optionee ceases to
be a director of the Corporation, the Options shall expire not later than three
(3) months thereafter. During such three (3) month period and prior to the
expiration of the Options by their terms, the Optionee may exercise the Options
granted to him, but only to the extent such Options were exercisable on the date
he ceased to be a director of the Corporation and except as so exercised, such
Options shall expire at the end of such three (3) month period unless such
Options by their terms expire before such date.
8. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be September
30, 1996.
9. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to the
privileges of stock ownership as to any Shares not actually issued and delivered
to Optionee. No Shares shall be purchased upon the exercise of any Options
unless and until, in the opinion of the Corporation's counsel, any then
applicable requirements of any laws, or governmental or regulatory agencies
having jurisdiction, and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
10. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options. Without limiting the generality of the
foregoing, the Corporation may require from the Optionee such investment
representation or such agreement, if any, as counsel for the Corporation may
consider necessary in order to comply with the Securities Act of 1933 as then in
effect, and may require that the Optionee agree that any sale of the Shares will
be made only in such manner as is permitted by the Corporation. If the
2
<PAGE>
Corporation, in its sole discretion, registers that Shares underlying the
Options under the Securities Act of 1933 by filing a Form S-8 Registration
Statement (or other applicable form) covering the Options and the Shares
underlying the Options, Optionee shall take any action reasonably requested by
the Corporation in connection with registration or qualification of the Shares
under federal or state securities laws.
11. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise of
the Options shall bear such appropriate legend conditions as counsel for the
Corporation shall require.
12. COMPLIANCE WITH APPLICABLE LAWS. THE CORPORATION'S OBLIGATION TO
ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS EXPRESSLY
CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR
REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF SUCH
INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY THE
OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY WITH
THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE CORPORATION SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND
UNDERTAKINGS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR ANY
PERSON ENTITLED TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES FOR
DISTRIBUTION AND (ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF ANY
CERTIFICATES A LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS WHICH
HAVE BEEN GIVEN TO THE CORPORATION OR A REFERENCE THERETO.
13. MISCELLANEOUS.
13.1 Binding Effect. This Agreement shall bind and inure to
the benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
13.2 Further Acts. Each party agrees to perform any further
acts and execute and deliver any documents which may be necessary to carry out
the provisions of this Agreement.
13.3 Amendment. This Agreement may be amended at any time by
the written agreement of the Corporation and the Optionee.
13.4 Syntax. Throughout this Agreement, whenever the context
so requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of the
various Sections hereof are for convenience only and they shall not limit,
expand or otherwise affect the construction or interpretation of this Agreement.
3
<PAGE>
13.5 Choice of Law. The parties hereby agree that this
Agreement has been executed and delivered in the State of California and shall
be construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree that
any uncertainty or ambiguity existing herein shall not be interpreted against
either of them.
13.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
13.7 Notices. All notices, requests, demands, and other
communications given, or required to be given pursuant to the terms of this
Agreement shall be in writing and may be delivered in person (by hand,
messenger, or other confirmable form of delivery), or be sent by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows,
or by Federal Express or other nationally recognized overnight courier service,
addressed as follows, or by facsimile transmission, to the following respective
numbers, followed by a copy being delivered in person, by mail, or by overnight
courtier as specified herein:
If to Optionee:
If to Corporation: Radiant Technology Corporation
1340 North Jefferson Street
Anaheim, CA 92807
Attn: President
Either party may, by written notice to the other, specify a different address or
numbers for notice purposes. Any notice sent to the party to whom it is
addressed in accordance with this paragraph will be deemed to have been given
(i) when received, if personally delivered; (ii) if sent by registered or
certified mail, return receipt requested, upon the date of delivery shown on the
receipt card, or if no date is shown, the postmark thereon; (iii) if sent via
Federal Express or other nationally recognized overnight courier, one (1)
business day after deposit with such overnight courier; or (iv) if sent by
facsimile transmission, on the day on which it is sent, if receipt of
transmission is confirmed by telephone. If notice is received on a Saturday,
Sunday or legal holiday, it will be deemed to have been given and received on
the next following business day.
13.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement, modification or
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
4
<PAGE>
13.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in each
respective such action or proceeding shall be entitled, in addition to any and
all other relief granted by a court or other tribunal or body, as may be
appropriate, to an award in such action or proceeding of that sum of money which
represents the attorneys' fees reasonably incurred by the prevailing party
therein in filing or otherwise instituting and in prosecuting or otherwise
pursuing or defending such action or proceeding, and, additionally, the
attorneys' fees reasonably incurred by such prevailing party in negotiating any
and all matters underlying such action or proceeding and in preparation for
instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"CORPORATION"
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By:________________________________
Lawrence R. McNamee
Chief Executive Officer
"OPTIONEE"
-----------------------------------
5
<PAGE>
EXHIBIT 23.2
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
February 6, 1998
<PAGE>
EXHIBIT 99.1
RADIANT TECHNOLOGY CORPORATION
1998 STOCK OPTION PLAN
----------------------
1. PURPOSE. The purpose of the Radiant Technology Corporation 1998
Stock Option Plan (the "Plan") is to strengthen Radiant Technology Corporation,
a California corporation ("Corporation"), by providing to employees, officers,
directors, consultants and independent contractors of the Corporation or any of
its subsidiaries (including dealers, distributors, and other business entities
or persons providing services on behalf of the Corporation or any of its
subsidiaries) added incentive for high levels of performance and unusual efforts
to increase the earnings of the Corporation. The Plan seeks to accomplish this
purpose by enabling specified persons to purchase shares of the common stock of
the Corporation, thereby increasing their proprietary interest in the
Corporation's success and encouraging them to remain in the employ or service of
the Corporation.
2. CERTAIN DEFINITIONS. As used in this Plan, the following words and
phrases shall have the respective meanings set forth below, unless the context
clearly indicates a contrary meaning:
2.1 "Board of Directors": The Board of Directors of the
Corporation.
2.2 "Committee": The Committee which shall administer the Plan
shall consist of all of the members of the Board of Directors.
2.3 "Fair Market Value Per Share": The fair market value per
share of the Shares as determined by the Committee in good faith. The Committee
is authorized to make its determination as to the fair market value per share of
the Shares on the following basis: (i) if the Shares are traded only otherwise
than on a securities exchange and are not quoted on the National Association of
Securities Dealers' Automated Quotation System ("NASDAQ"), but are quoted in the
"pink sheets" published by the National Daily Quotation Bureau, the greater of
(a) the average of the mean between the average daily bid and average daily
asked prices of the Shares during the thirty (30) day period preceding the date
of grant of an Option, as quoted in the "pink sheets" published by the National
Daily Quotation Bureau, or (b) the mean between the average daily bid and
average daily asked prices of the Shares on the date of grant, as published in
such "pink sheets;" (ii) if the Shares are traded only otherwise than on a
securities exchange and are quoted on NASDAQ, the greater of (a) the average of
the mean between the closing bid and closing asked prices of the Shares during
the thirty (30) day period preceding the date of grant of an Option, as reported
by the Wall Street Journal and (b) the mean between the closing bid and closing
asked prices of the Shares on the date of grant of an Option, as reported by the
Wall Street Journal; (iii) if the Shares are admitted to trading on a securities
exchange, the greater of (a) the average of the daily closing prices of the
Shares during the ten (10) trading days preceding the date of grant of an
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Option, as quoted in the Wall Street Journal, or (b) the daily closing price of
the Shares on the date of grant of an Option, as quoted in the Wall Street
Journal; or (iv) if the Shares are traded only otherwise than as described in
(i), (ii) or (iii) above, or if the Shares are not publicly traded, the value
determined by the Committee in good faith based upon the fair market value as
determined by completely independent and well qualified experts.
2.4 "Option": A stock option granted under the Plan.
2.5 "Incentive Stock Option": An Option intended to qualify
for treatment as an incentive stock option under Code
Sections 421 and 422, and designated as an Incentive
Stock Option.
2.6 "Nonqualified Option": An Option not qualifying as an
Incentive Stock Option.
2.7 "Optionee": The holder of an Option.
2.8 "Option Agreement": The document setting forth the terms
and conditions of each Option.
2.9 "Shares": The shares of common stock of the Corporation.
2.10 "Code": The Internal Revenue Code of 1986, as amended.
2.11 "Subsidiary": Any corporation of which fifty percent
(50%) or more of total combined voting power of all
classes of stock of such corporation is owned by the
Corporation or another Subsidiary (as so defined).
3. ADMINISTRATION OF PLAN.
-----------------------
3.1 In General. This Plan shall be administered by the
Committee. Any action of the Committee with respect to administration of the
Plan shall be taken pursuant to (i) a majority vote at a meeting of the
Committee (to be documented by minutes), or (ii) the unanimous written consent
of its members.
3.2 Authority. Subject to the express provisions of this Plan,
the Committee shall have the authority to: (i) construe and interpret the Plan,
decide all questions and settle all controversies and disputes which may arise
in connection with the Plan and to define the terms used therein; (ii)
prescribe, amend and rescind rules and regulations relating to administration of
the Plan; (iii) determine the purchase price of the Shares covered by each
Option and the method of payment of such price, individuals to whom, and the
time or times at which, Options shall be granted and exercisable and the number
of Shares covered by each Option; (iv) determine the terms and provisions of the
respective Option Agreements (which need not be identical); (v) determine the
duration and purposes of leaves of absence which may be granted to participants
without constituting a termination of their employment for purposes of the Plan;
and (vi) make all other determinations necessary or advisable to the
administration of the Plan. Determinations of the Committee on matters
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<PAGE>
referred to in this Section 3 shall be conclusive and binding on all parties
howsoever concerned. With respect to Incentive Stock Options, the Committee
shall administer the Plan in compliance with the provisions of Code Section 422
as the same may hereafter be amended from time to time. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option.
4. ELIGIBILITY AND PARTICIPATION.
------------------------------
4.1 In General. Only officers, employees and directors who are
also employees of the Corporation or any Subsidiary shall be eligible to receive
grants of Incentive Stock Options. Officers, employees and directors (whether or
not they are also employees) of the Corporation or any Subsidiary, as well as
consultants, independent contractors or other service providers of the
Corporation or any Subsidiary shall be eligible to receive grants of
Nonqualified Options. Within the foregoing limits, the Committee, from time to
time, shall determine and designate persons to whom Options may be granted. All
such designations shall be made in the absolute discretion of the Committee and
shall not require the approval of the stockholders. In determining (i) the
number of Shares to be covered by each Option, (ii) the purchase price for such
Shares and the method of payment of such price (subject to the other sections
hereof), (iii) the individuals of the eligible class to whom Options shall be
granted, (iv) the terms and provisions of the respective Option Agreements, and
(v) the times at which such Options shall be granted, the Committee shall take
into account such factors as it shall deem relevant in connection with
accomplishing the purpose of the Plan as set forth in Section 1. An individual
who has been granted an Option may be granted an additional Option or Options if
the Committee shall so determine. No Option shall be granted under the Plan
after January 21, 2008, but Options granted before such date may be exercisable
after such date.
4.2 Certain Limitations. In no event shall Incentive Stock
Options be granted to an Optionee such that the sum of (i) aggregate fair market
value (determined at the time the Incentive Stock Options are granted) of the
Shares subject to all Options granted under the Plan which are exercisable for
the first time during the same calendar year, plus (ii) the aggregate fair
market value (determined at the time the options are granted) of all stock
subject to all other incentive stock options granted to such Optionee by the
Corporation, its parent and Subsidiaries which are exercisable for the first
time during such calendar year, exceeds One Hundred Thousand Dollars ($100,000).
For purposes of the immediately preceding sentence, fair market value shall be
determined as of the date of grant based on the Fair Market Value Per Share as
determined pursuant to Section 2.3.
5. AVAILABLE SHARES AND ADJUSTMENTS UPON CHANGES
---------------------------------------------
IN CAPITALIZATION.
------------------
5.1 Shares. Subject to adjustment as provided in Section 5.2
below, the total number of Shares to be subject to Options granted pursuant to
this Plan shall not exceed 180,000 Shares. Shares subject to the Plan may be
either authorized but unissued shares or shares that were once issued and
subsequently reacquired by the Corporation; the Committee shall be empowered to
take any appropriate action required to make Shares available for Options
granted under this Plan. If any Option is surrendered before exercise or lapses
without exercise in full or for any other reason ceases to be exercisable, the
Shares reserved therefore shall continue to be available under the Plan.
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<PAGE>
5.2 Adjustments. As used herein, the term "Adjustment Event"
means an event pursuant to which the outstanding Shares of the Corporation are
increased, decreased or changed into, or exchanged for a different number or
kind of shares or securities, without receipt of consideration by the
Corporation, through reorganization, merger, recapitalization, reclassification,
stock split, reverse stock split, stock dividend, stock consolidation or
otherwise. Upon the occurrence of an Adjustment Event, (i) appropriate and
proportionate adjustments shall be made to the number and kind of shares and
exercise price for the shares subject to the Options which may thereafter be
granted under this Plan, (ii) appropriate and proportionate adjustments shall be
made to the number and kind of and exercise price for the shares subject to the
then outstanding Options granted under this Plan, and (iii) appropriate
amendments to the Option Agreements shall be executed by the Corporation and the
Optionees if the Committee determines that such an amendment is necessary or
desirable to reflect such adjustments. If determined by the Committee to be
appropriate, in the event of an Adjustment Event which involves the substitution
of securities of a corporation other than the Corporation, the Committee shall
make arrangements for the assumptions by such other corporation of any Options
then or thereafter outstanding under the Plan. Notwithstanding the foregoing,
such adjustment in an outstanding Option shall be made without change in the
total exercise price applicable to the unexercised portion of the Option, but
with an appropriate adjustment to the number of shares, kind of shares and
exercise price for each share subject to the Option. The determination by the
Committee as to what adjustments, amendments or arrangements shall be made
pursuant to this Section 5.2, and the extent thereof, shall be final and
conclusive. No fractional Shares shall be issued under the Plan on account of
any such adjustment or arrangement.
6. TERMS AND CONDITIONS OF OPTIONS.
--------------------------------
6.1 Intended Treatment as Incentive Stock Options. Incentive
Stock Options granted pursuant to this Plan are intended to be "incentive stock
options" to which Code Sections 421 and 422 apply, and the Plan shall be
construed and administered to implement that intent. If all or any part of an
Incentive Stock Option shall not be an "incentive stock option" subject to
Sections 421 or 422 of the Code, such Option shall nevertheless be valid and
carried into effect. All Options granted under this Plan shall be subject to the
terms and conditions set forth in this Section 6 (except as provided in Section
5.2) and to such other terms and conditions as the Committee shall determine to
be appropriate to accomplish the purpose of the Plan as set forth in Section 1.
6.2 Amount and Payment of Exercise Price.
6.2.1 Exercise Price. The exercise price per Share
for each Share which the Optionee is entitled to purchase under a Nonqualified
Option shall be determined by the Committee but shall not be less than
eighty-five percent (85%) of the Fair Market Value Per Share on the date of the
grant of the Nonqualified Option. The exercise price per Share for each Share
which the Optionee is entitled to purchase under an Incentive Stock Option shall
be determined by the Committee but shall not be less than the Fair Market Value
Per Share on the date of the grant of the Incentive Stock Option; provided,
however, that the exercise price shall not be less than one hundred ten percent
(110%) of the Fair Market Value Per Share on the date of the grant of the
Incentive Stock Option in the case of an individual then owning (within the
meaning of Code Section 424(d)) more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation or of its
parent or Subsidiaries.
4
<PAGE>
6.2.2 Payment of Exercise Price. The consideration
to be paid for the Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Committee and may consist of
promissory notes, shares of the common stock of the Corporation or such other
consideration and method of payment for the Shares as may be permitted under
applicable state and federal laws. Shares acquired by a non-employee of the
Company using Shares of the Common Stock of the Corporation as payment must be
held for six months prior to any disposition thereof.
6.3 Exercise of Options.
6.3.1 Each Option granted under this Plan shall be
exercisable at such times and under such conditions as may be determined by the
Committee at the time of the grant of the Option and as shall be permissible
under the terms of the Plan; provided, however, in no event shall an Option be
exercisable after the expiration of ten (10) years from the date it is granted,
and in the case of an Optionee owning (within the meaning of Code Section
424(d)), at the time an Incentive Stock Option is granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Corporation or of its parent or Subsidiaries, such Incentive Stock Option shall
not be exercisable later than five (5) years after the date of grant.
6.3.2 An Optionee may purchase less than the total
number of Shares for which the Option is exercisable, provided that a partial
exercise of an Option may not be for less than One Thousand (1,000) Shares and
shall not include any fractional shares.
6.4 Nontransferability of Options. All Options granted under
this Plan shall be nontransferable, either voluntarily or by operation of law,
otherwise than by will or the laws of descent and distribution, and shall be
exercisable during the Optionee's lifetime only by such Optionee.
6.5 Effect of Termination of Employment or Other Relationship.
Except as otherwise determined by the Committee in connection with the grant of
Nonqualified Options, the effect of termination of an Optionee's employment or
other relationship with the Corporation on such Optionee's rights to acquire
Shares pursuant to the Plan shall be as follows:
6.5.1 Termination for Other than Disability or Cause
or Death. If an Optionee ceases to be employed by, or ceases to have a
relationship with, the Corporation for any reason other than for disability,
cause, or death, such Optionee's Options shall expire not later than three (3)
months thereafter. During such three (3) month period and prior to the
expiration of the Option by its terms, the Optionee may exercise any Option
granted to him, but only to the extent such Options were exercisable on the date
of termination of his employment or relationship and except as so exercised,
such Options shall expire at the end of such three (3) month period unless such
Options by their terms expire before such date. The decision as to whether a
termination for a reason other than disability, cause or death has occurred
shall be made by the Committee, whose decision shall be final and conclusive,
except that employment shall not be considered terminated in the case of sick
leave or other bona fide leave of absence approved by the Corporation.
5
<PAGE>
6.5.2 Disability. If an Optionee ceases to be
employed by, or ceases to have a relationship with, the Corporation by reason of
disability (within the meaning of Code Section 22(e)(3)), such Optionee's
Options shall expire not later than one (1) year thereafter. During such one (1)
year period and prior to the expiration of the Option by its terms, the Optionee
may exercise any Option granted to him, but only to the extent such Options were
exercisable on the date the Optionee ceased to be employed by, or ceased to have
a relationship with, the Corporation by reason of disability and except as so
exercised, such Options shall expire at the end of such one (1) year period
unless such Options by their terms expire before such date. The decision as to
whether a termination by reason of disability has occurred shall be made by the
Committee, whose decision shall be final and conclusive.
6.5.3 Termination for Cause. If an Optionee's
employment by, or relationship with, the Corporation is terminated for cause,
such Optionee's Option shall expire immediately; provided, however, the
Committee may, in its sole discretion, within thirty (30) days of such
termination, waive the expiration of the Option by giving written notice of such
waiver to the Optionee at such Optionee's last known address. In the event of
such waiver, the Optionee may exercise the Option only to such extent, for such
time, and upon such terms and conditions as if such Optionee had ceased to be
employed by, or ceased to have a relationship with, the Corporation upon the
date of such termination for a reason other than disability, cause, or death.
Termination for cause shall include termination for malfeasance or gross
misfeasance in the performance of duties or conviction of illegal activity in
connection therewith or any conduct detrimental to the interests of the
Corporation. The determination of the Committee with respect to whether a
termination for cause has occurred shall be final and conclusive.
6.5.4 Death of an Optionee. If the Optionee ceases to
be employed by, or ceases to have a relationship with, the Corporation by reason
of death, such Optionee's Options shall expire not later than three (3) months
thereafter. During such three (3) month period and prior to the expiration of
the Option by its terms, such Option may be exercised by his executor or
administrator or the person or persons to whom the Option is transferred by will
or the applicable laws of descent and distribution, but only to the extent such
Options were exercisable on the date Optionee ceased to be employed by, or
ceased to have a relationship with, the Corporation by reason of death.
6.6 Withholding of Taxes. As a condition to the exercise, in
whole or in part, of any Options the Board of Directors may in its sole
discretion require the Optionee to pay, in addition to the purchase price of the
Shares covered by the Option an amount equal to any Federal, state or local
taxes that may be required to be withheld in connection with the exercise of
such Option.
6.7 No Rights to Continued Employment or Relationship. Nothing
contained in this Plan or in any Option Agreement shall obligate the Corporation
to employ or have another relationship with any Optionee for any period or
interfere in any way with the right of the Corporation to reduce such Optionee's
compensation or to terminate the employment of or relationship with any Optionee
at any time.
6
<PAGE>
6.8 Time of Granting Options. The time an Option is granted,
sometimes referred to herein as the date of grant, shall be the day the
Corporation executes the Option Agreement; provided, however, that if
appropriate resolutions of the Committee indicate that an Option is to be
granted as of and on some prior or future date, the time such Option is granted
shall be such prior or future date.
6.9 Privileges of Stock Ownership. No Optionee shall be
entitled to the privileges of stock ownership as to any Shares not actually
issued and delivered to such Optionee. No Shares shall be purchased upon the
exercise of any Option unless and until, in the opinion of the Corporation's
counsel, any then applicable requirements of any laws or governmental or
regulatory agencies having jurisdiction and of any exchanges upon which the
stock of the Corporation may be listed shall have been fully complied with.
6.10 Securities Laws Compliance. The Corporation will
diligently endeavor to comply with all applicable securities laws before any
Options are granted under the Plan and before any Shares are issued pursuant to
Options. Without limiting the generality of the foregoing, the Corporation may
require from the Optionee such investment representation or such agreement, if
any, as counsel for the Corporation may consider necessary or advisable in order
to comply with the Securities Act of 1933 as then in effect, and may require
that the Optionee agree that any sale of the Shares will be made only in such
manner as is permitted by the Committee. The Committee in its discretion may
cause the Shares underlying the Options to be registered under the Securities
Act of 1933, as amended, by the filing of a Form S-8 Registration Statement
covering the Options and Shares underlying such Options. Optionee shall take any
action reasonably requested by the Corporation in connection with registration
or qualification of the Shares under federal or state securities laws.
6.11 Option Agreement. Each Incentive Stock Option and
Nonqualified Option granted under this Plan shall be evidenced by the
appropriate written Stock Option Agreement ("Option Agreement") executed by the
Corporation and the Optionee in a form substantially the same as the appropriate
form of Option Agreement attached as Exhibit "I" or "II" hereto (and made a part
hereof by this reference) and shall contain each of the provisions and
agreements specifically required to be contained therein pursuant to this
Section 6, and such other terms and conditions as are deemed desirable by the
Committee and are not inconsistent with the purpose of the Plan as set forth in
Section 1.
7. PLAN AMENDMENT AND TERMINATION.
-------------------------------
7.1 Authority of Committee. The Committee may at any time
discontinue granting Options under the Plan or otherwise suspend, amend or
terminate the Plan and may, with the consent of an Optionee, make such
modification of the terms and conditions of such Optionee's Option as it shall
deem advisable; provided that, except as permitted under the provisions of
Section 5.2, the Committee shall have no authority to make any amendment or
modification to this Plan or any outstanding Option thereunder which would: (i)
increase the maximum number of shares which may be purchased pursuant to Options
granted under the Plan, either in the aggregate or by an Optionee (except
pursuant to Section 5.2); (ii) change the designation of the class of the
employees eligible to receive Incentive Stock Options; (iii) extend the term of
the Plan or the maximum Option period thereunder; (iv) decrease the minimum
Incentive Stock Option price or permit reductions of the price at which shares
may be purchased
7
<PAGE>
for Incentive Stock Options granted under the Plan; or (v) cause Incentive Stock
Options issued under the Plan to fail to meet the requirements of incentive
stock options under Code Section 422. An amendment or modification made pursuant
to the provisions of this Section 7 shall be deemed adopted as of the date of
the action of the Committee effecting such amendment or modification and shall
be effective immediately, unless otherwise provided therein, subject to approval
thereof (1) within twelve (12) months before or after the effective date by
stockholders of the Corporation holding not less than a majority vote of the
voting power of the Corporation voting in person or by proxy at a duly held
stockholders meeting when required to maintain or satisfy the requirements of
Code Section 422 with respect to Incentive Stock Options, and (2) by any
appropriate governmental agency. No Option may be granted during any suspension
or after termination of the Plan.
7.2 Ten (10) Year Maximum Term. Unless previously terminated
by the Committee, this Plan shall terminate on January 21, 2008, and no Options
shall be granted under the Plan thereafter.
7.3 Effect on Outstanding Options. Amendment, suspension or
termination of this Plan shall not, without the consent of the Optionee, alter
or impair any rights or obligations under any Option theretofore granted.
8. EFFECTIVE DATE OF PLAN.
-----------------------
This Plan shall be effective as of January 22, 1998, the date the Plan
was adopted by the Board of Directors, subject to the approval of the Plan by
the affirmative vote of a majority of the issued and outstanding Shares of
common stock of the Corporation represented and voting at a duly held meeting at
which a quorum is present within twelve (12) months thereafter. The Committee
shall be authorized and empowered to make grants of Options pursuant to this
Plan prior to such approval of this Plan by the stockholders; provided, however,
in such event the Option grants shall be made subject to the approval of this
Plan and such Option grants by the stockholders in accordance with the
provisions of this Section 8.
9. MISCELLANEOUS PROVISIONS.
-------------------------
9.1 Exculpation and Indemnification. The Corporation shall
indemnify and hold harmless the Committee from and against any and all
liabilities, costs and expenses incurred by such persons as a result of any act,
or omission to act, in connection with the performance of such persons' duties,
responsibilities and obligations under the Plan, other than such liabilities,
costs and expenses as may result from the gross negligence, bad faith, willful
conduct and/or criminal acts of such persons.
9.2 Governing Law. The Plan shall be governed and construed in
accordance with the laws of the State of California and the Code.
9.3 Compliance with Applicable Laws. The inability of the
Corporation to obtain from any regulatory body having jurisdiction authority
deemed by the Corporation's counsel to be necessary to the lawful issuance and
sale of any Shares upon the exercise of an Option shall relieve the Corporation
of any liability in respect of the non-issuance or sale of such Shares as to
which such requisite authority shall not have been obtained.
8
<PAGE>
FORM OF INCENTIVE STOCK OPTION AGREEMENT
----------------------------------------
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") is entered into as
of ____________________, by and between RADIANT TECHNOLOGY CORPORATION, a
California corporation ("Corporation"), and _________________________
("Optionee").
R E C I T A L S
- - - - - - - -
A. On January 22, 1998, the Board of Directors of the Corporation
adopted, subject to the approval of the Corporation's shareholders, the Radiant
Technology Corporation 1998 Stock Option Plan (the "Plan").
B. Pursuant to the Plan, on _______________, _____, the Plan Committee
("Committee") authorized granting to Optionee options to purchase shares of the
common stock of the Corporation ("Shares") for the term and subject to the terms
and conditions hereinafter set forth.
A G R E E M E N T
- - - - - - - - -
It is hereby agreed as follows:
1. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the context
otherwise clearly requires, terms with initial capital letters used herein shall
have the meanings assigned to such terms in the Plan.
2. GRANT OF OPTIONS. The Corporation hereby grants to Optionee, options
("Options") to purchase all or any part of __________ Shares, upon and subject
to the terms and conditions of the Plan, which is incorporated in full herein by
this reference, and upon the other terms and conditions set forth herein.
3. OPTION PERIOD. The Options shall be exercisable at any time during
the period commencing on the following dates (subject to the provisions of
Section 17) and expiring on the date __________ (_____) years from the date of
grant, unless earlier terminated pursuant to Section 7:
Number of Options Exercisable On or After
----------------- -----------------------
4. METHOD OF EXERCISE. The Options shall be exercisable by Optionee by
giving written notice to the Corporation of the election to purchase and of the
number of Shares Optionee elects to purchase, such notice to be accompanied by
such other executed instruments or documents as may be required by the Committee
Exhibit I-1
<PAGE>
pursuant to this Agreement, and unless otherwise directed by the Committee,
Optionee shall at the time of such exercise tender the purchase price of the
Shares he has elected to purchase. An Optionee may purchase less than the total
number of Shares for which the Option is exercisable, provided that a partial
exercise of an Option may not be for less than One Thousand (1,000) Shares. If
Optionee shall not purchase all of the Shares which he is entitled to purchase
under the Options, his right to purchase the remaining unpurchased Shares shall
continue until expiration of the Options. The Options shall be exercisable with
respect of whole Shares only, and fractional Share interests shall be
disregarded.
5. AMOUNT OF PURCHASE PRICE. The purchase price per Share for each
Share which Optionee is entitled to purchase under the Options shall be
$__________ per Share.
6. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or bank
cashier's check payable to the Corporation, the purchase price for all Shares
then being purchased. Provided, however, the Board of Directors may, in its sole
discretion, permit payment by the Corporation of the purchase price in whole or
in part with Shares. If the Optionee is so permitted, and the Optionee elects to
make payment with Shares, the Optionee shall deliver to the Corporation
certificates representing the number of Shares in payment for new Shares, duly
endorsed for transfer to the Corporation, together with any written
representations relating to title, liens and encumbrances, securities laws,
rules and regulatory compliance, or other matters, reasonably requested by the
Board of Directors. The value of Shares so tendered shall be their Fair Market
Value Per Share on the date of the Optionee's notice of exercise.
7. EFFECT OF TERMINATION OF EMPLOYMENT. If an Optionee's employment or
other relationship with the Corporation (or a Subsidiary) terminates, the effect
of the termination on the Optionee's rights to acquire Shares shall be as
follows:
7.1 Termination for Other than Disability, Cause or Death. If
an Optionee ceases to be employed by, or ceases to have a relationship with, the
Corporation or a Subsidiary for any reason other than for disability, cause or
death, such Optionee's Options shall expire not later than three (3) months
thereafter. During such three (3) month period and prior to the expiration of
the Option by its terms, the Optionee may exercise any Option granted to him,
but only to the extent such Options were exercisable on the date of termination
of his employment or relationship and except as so exercised, such Options shall
expire at the end of such three (3) month period unless such Options by their
terms expire before such date. The decision as to whether a termination for a
reason other than disability, cause or death has occurred shall be made by the
Committee, whose decision shall be final and conclusive, except that employment
shall not be considered terminated in the case of sick leave or other bona fide
leave of absence approved by the Corporation.
7.2 Disability. If an Optionee ceases to be employed by, or
ceases to have a relationship with, the Corporation or a Subsidiary by reason of
disability (within the meaning of Code Section 22(e)(3)), such Optionee's
Options shall expire not later than one (1) year thereafter. During such one (1)
year period and prior to the expiration of the Option by its terms, the Optionee
may exercise any Option granted to him, but only to the extent such Options
Exhibit I-2
<PAGE>
were exercisable on the date the Optionee ceased to be employed by, or ceased to
have a relationship with, the Corporation or Subsidiary by reason of disability.
The decision as to whether a termination by reason of disability has occurred
shall be made by the Committee, whose decision shall be final and conclusive.
7.3 Termination for Cause. If an Optionee's employment by, or
relationship with, the Corporation or a Subsidiary is terminated for cause, such
Optionee's Option shall expire immediately; provided, however, the Committee
may, in its sole discretion, within thirty (30) days of such termination, waive
the expiration of the Option by giving written notice of such waiver to the
Optionee at such Optionee's last known address. In the event of such waiver, the
Optionee may exercise the Option only to such extent, for such time, and upon
such terms and conditions as if such Optionee had ceased to be employed by, or
ceased to have a relationship with, the Corporation or a Subsidiary upon the
date of such termination for a reason other than disability, cause or death.
Termination for cause shall include termination for malfeasance or gross
misfeasance in the performance of duties or conviction of illegal activity in
connection therewith or any conduct detrimental to the interests of the
Corporation or a Subsidiary. The determination of the Committee with respect to
whether a termination for cause has occurred shall be final and conclusive.
7.4 Death of an Optionee. If an Optionee ceases to be employed
by, or ceases to have a relationship with, the Corporation by reason of death,
Optionee's Options shall expire not later than six (6) months thereafter. During
such six (6) month period and prior to the expiration of the Option by its
terms, such Options may be exercised by his executor or administrator or the
person or persons to whom the Option is transferred by will or the applicable
laws of descent and distribution, but only to the extent such Options were
exercisable on the date Optionee ceased to be employed by, or ceased to have a
relationship with, the Corporation or a Subsidiary by reason of death.
8. NONTRANSFERABILITY OF OPTIONS. The Options shall not be
transferable, either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution and shall be exercisable during the
Optionee's lifetime only by Optionee.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein, the term
"Adjustment Event" means an event pursuant to which the outstanding Shares of
the Corporation are increased, decreased or changed into, or exchanged for a
different number or kind of shares or securities, without receipt of
consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an Adjustment
Event, (i) appropriate and proportionate adjustments shall be made to the number
and kind and exercise price for the shares subject to the Options, and (ii)
appropriate amendments to this Agreement shall be executed by the Corporation
and Optionee if the Committee determines that such an amendment is necessary or
desirable to reflect such adjustments. If determined by the Committee to be
appropriate, in the event of an Adjustment Event which involves the substitution
of securities of a corporation other than the Corporation, the Committee shall
make arrangements for the assumptions by such other corporation of the Options.
Notwithstanding the foregoing, any such adjustment to the Options shall be made
without change in the total exercise price applicable to the unexercised portion
of the Options, but with an appropriate adjustment to the number of shares, kind
of shares and exercise price for each share subject to the Options. The
determination by the Committee as to what adjustments, amendments or
arrangements shall be made pursuant to this Section 10, and the extent thereof,
shall be final and conclusive. No fractional Shares shall be issued on account
of any such adjustment or arrangement.
Exhibit I-3
<PAGE>
10. NO RIGHTS TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
contained in this Agreement shall obligate the Corporation to employ or have
another relationship with Optionee for any period or interfere in any way with
the right of the Corporation to reduce Optionee's compensation or to terminate
the employment of or relationship with Optionee at any time.
11. TIME OF GRANTING OPTIONS. The time the Options shall be deemed
granted, sometimes referred to herein as the "date of grant," shall be
- ------------, -----.
12. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled to
the privileges of stock ownership as to any Shares not actually issued and
delivered to Optionee. No Shares shall be purchased upon the exercise of any
Options unless and until, in the opinion of the Corporation's counsel, any then
applicable requirements of any laws, or governmental or regulatory agencies
having jurisdiction, and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
13. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options.
Without limiting the generality of the foregoing, the Corporation may require
from the Optionee such investment representation or such agreement, if any, as
counsel for the Corporation may consider necessary in order to comply with the
Securities Act of 1933 as then in effect, and may require that the Optionee
agree that any sale of the Shares will be made only in such manner as is
permitted by the Committee. The Committee may in its discretion cause the Shares
underlying the Options to be registered under the Securities Act of 1933 as
amended by filing a Form S-8 Registration Statement covering the Options and the
Shares underlying the Options. Optionee shall take any action reasonably
requested by the Corporation in connection with registration or qualification of
the Shares under federal or state securities laws.
14. INTENDED TREATMENT AS INCENTIVE STOCK OPTIONS. The Options granted
herein are intended to be "incentive stock options" to which Sections 421 and
422 of the Internal Revenue Code of 1986, as amended from time to time ("Code")
apply, and shall be construed to implement that intent. If all or any part of
the Options shall not be subject to Sections 421 and 422 of the Code, the
Options shall nevertheless be valid and carried into effect.
15. PLAN CONTROLS. The Options shall be subject to and governed by the
provisions of the Plan. All determinations and interpretations of the Plan made
by the Committee shall be final and conclusive.
16. SHARES SUBJECT TO LEGEND. If deemed necessary by the Corporation's
counsel, all certificates issued to represent Shares purchased upon exercise of
the Options shall bear such appropriate legend conditions as counsel for the
Corporation shall require.
Exhibit I-4
<PAGE>
17. CONDITIONS TO OPTIONS.
17.1 Compliance with Applicable Laws. THE CORPORATION'S
OBLIGATION TO ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS
EXPRESSLY CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION
OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR
RULINGS OR REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF
SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY THE
OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY WITH
THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN ITS SOLE DISCRETION,
DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND UNDERTAKINGS MAY
INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR ANY PERSON ENTITLED
TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES FOR DISTRIBUTION AND
(ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF ANY CERTIFICATES A
LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS WHICH HAVE BEEN GIVEN
TO THE COMMITTEE OR A REFERENCE THERETO.
17.2 SHAREHOLDER APPROVAL OF PLAN. IF THE OPTIONS GRANTED
HEREBY ARE GRANTED PRIOR TO APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE
CORPORATION PURSUANT TO SECTION 8 OF THE PLAN, THE GRANT OF THE OPTIONS MADE
HEREBY IS EXPRESSLY CONDITIONED UPON AND SUCH OPTIONS SHALL NOT BE EXERCISABLE
UNTIL THE APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE CORPORATION IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE PLAN.
17.3 Maximum Exercise Period. Notwithstanding any provision of
this Agreement to the contrary, the Options shall expire no later than ten years
from the date hereof or five years if, as of the date hereof, the Optionee owns
or is considered to own by reason of Code Section 424(d) more than 10% of the
total combined voting power of all classes of stock of the Corporation or any
Subsidiary or parent corporation of the Corporation.
18. MISCELLANEOUS.
18.1 Binding Effect. This Agreement shall bind and inure to
the benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
18.2 Further Acts. Each party agrees to perform any further
acts and execute and deliver any documents which may be necessary to carry out
the provisions of this Agreement.
18.3 Amendment. This Agreement may be amended at any time by
the written agreement of the Corporation and the Optionee.
Exhibit I-5
<PAGE>
18.4 Syntax. Throughout this Agreement, whenever the context
so requires, the singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders. The headings and captions of the
various Sections hereof are for convenience only and they shall not limit,
expand or otherwise affect the construction or interpretation of this Agreement.
18.5 Choice of Law. The parties hereby agree that this
Agreement has been executed and delivered in the State of California and shall
be construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree that
any uncertainty or ambiguity existing herein shall not be interpreted against
either of them.
18.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
18.7 Notices. All notices and demands between the parties
hereto shall be in writing and shall be served either by registered or certified
mail, and such notices or demands shall be deemed given and made forty-eight
(48) hours after the deposit thereof in the United States mail, postage prepaid,
addressed to the party to whom such notice or demand is to be given or made, and
the issuance of the registered receipt therefor. If served by telegraph, such
notice or demand shall be deemed given and made at the time the telegraph agency
shall confirm to the sender, delivery thereof to the addressee. All notices and
demands to Optionee or the Corporation may be given to them at the following
addresses:
If to Optionee:
If to Corporation: Radiant Technology Corporation
1335 South Acacia Avenue
Fullerton, CA 92831
Such parties may designate in writing from time to time such other place or
places that such notices and demands may be given.
18.8 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof, this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement, modification or
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
Exhibit I-6
<PAGE>
18.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in each
respective such action or proceeding shall be entitled, in addition to any and
all other relief granted by a court or other tribunal or body, as may be
appropriate, to an award in such action or proceeding of that sum of money which
represents the attorneys' fees reasonably incurred by the prevailing party
therein in filing or otherwise instituting and in prosecuting or otherwise
pursuing or defending such action or proceeding, and, additionally, the
attorneys' fees reasonably incurred by such prevailing party in negotiating any
and all matters underlying such action or proceeding and in preparation for
instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"CORPORATION" "OPTIONEE"
RADIANT TECHNOLOGY CORPORATION,
a California corporation
-------------------------------
By:______________________________
Exhibit I-7
<PAGE>
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is
entered into as of _______________, by and between RADIANT TECHNOLOGY
CORPORATION, a California corporation ("Corporation"), and
_________________________ ("Optionee").
R E C I T A L S
- - - - - - - -
A. On January 22, 1998, the Board of Directors of the Corporation
adopted, subject to the approval of the Corporation's shareholders, the Radiant
Technology Corporation 1998 Stock Option Plan (the "Plan").
B. Pursuant to the Plan, on _______________ the Plan Committee
("Committee") authorized granting to Optionee of options to purchase shares of
the common stock of the Corporation ("Shares") for the term and subject to the
terms and conditions hereinafter set forth.
A G R E E M E N T
- - - - - - - - -
It is hereby agreed as follows:
1. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the
context otherwise clearly requires, terms with initial capital letters used
herein shall have the meanings assigned to such terms in the Plan.
2. GRANT OF OPTIONS. The Corporation hereby grants to Optionee,
options ("Options") to purchase all or any part of _______________ Shares, upon
and subject to the terms and conditions of the Plan, which is incorporated in
full herein by this reference, and upon the other terms and conditions set forth
herein.
3. OPTION PERIOD AND PURCHASE PRICE. The Options shall be
exercisable at the following purchase prices and at any time during the period
commencing on the following dates, and shall expire on ____________________
unless earlier terminated pursuant to Section 7:
Number of Options Exercisable On or After
----------------- -----------------------
4. METHOD OF EXERCISE. The Options shall be exercisable by
Optionee by giving written notice to the Corporation of the election to purchase
and of the number of Shares Optionee elects to purchase, such notice to be
accompanied by such other executed instruments or documents as may be required
by the Committee pursuant to this Agreement, and unless otherwise directed by
Exhibit II-1
<PAGE>
the Committee, Optionee shall at the time of such exercise tender the purchase
price of the Shares he has elected to purchase. An Optionee may purchase less
than the total number of Shares for which the Option is exercisable, provided
that a partial exercise of an Option may not be for less than One Thousand
(1,000) Shares. If Optionee shall not purchase all of the Shares which he is
entitled to purchase under the Options, his right to purchase the remaining
unpurchased Shares shall continue until expiration of the Options. The Options
shall be exercisable with respect of whole Shares only, and fractional Share
interests shall be disregarded.
5. AMOUNT OF PURCHASE PRICE. The purchase price per Share for
each Share which Optionee is entitled to purchase under the Options shall be
that amount set forth in Section 3 above.
6. PAYMENT OF PURCHASE PRICE. At the time of Optionee's notice of
exercise of the Options, Optionee shall tender in cash or by certified or bank
cashier's check payable to the Corporation, the purchase price for all Shares
then being purchased. Provided, however, the Board of Directors may, in its sole
discretion, permit payment by the Corporation of the purchase price in whole or
in part with Shares. If the Optionee is so permitted, and the Optionee elects to
make payment with Shares, the Optionee shall deliver to the Corporation
certificates representing the number of Shares in payment for new Shares, duly
endorsed for transfer to the Corporation, together with any written
representations relating to title, liens and encumbrances, securities laws,
rules and regulatory compliance, or other matters, reasonably requested by the
Board of Directors. The value of Shares so tendered shall be their Fair Market
Value Per Share on the date of the Optionee's notice of exercise.
7. EFFECT OF TERMINATION OF EMPLOYMENT. If an Optionee's
employment or other relationship with the Corporation (or a Subsidiary)
terminates, the effect of the termination on the Optionee's rights to acquire
Shares shall be as follows:
7.1 Termination for Other than Disability, Cause or Death.
If an Optionee ceases to be employed by, or ceases to have a relationship with,
the Corporation or a Subsidiary for any reason other than for disability, cause
or death, such Optionee's Options shall expire not later than three (3) months
thereafter. During such three (3) month period and prior to the expiration of
the Option by its terms, the Optionee may exercise any Option granted to him,
but only to the extent such Options were exercisable on the date of termination
of his employment or relationship and except as so exercised, such Options shall
expire at the end of such three (3) month period unless such Options by their
terms expire before such date. The decision as to whether a termination for a
reason other than disability, cause or death has occurred shall be made by the
Committee, whose decision shall be final and conclusive, except that employment
shall not be considered terminated in the case of sick leave or other bona fide
leave of absence approved by the Corporation.
7.2 Disability. If an Optionee ceases to be employed by,
or ceases to have a relationship with, the Corporation or a Subsidiary by reason
of disability (within the meaning of Code Section 22(e)(3)), such Optionee's
Options shall expire not later than one (1) year thereafter. During such one (1)
year period and prior to the expiration of the Option by its terms, the Optionee
may exercise any Option granted to him, but only to the extent such Options
Exhibit II-2
<PAGE>
were exercisable on the date the Optionee ceased to be employed by, or ceased to
have a relationship with, the Corporation or Subsidiary by reason of disability.
The decision as to whether a termination by reason of disability has occurred
shall be made by the Committee, whose decision shall be final and conclusive.
7.3 Termination for Cause. If an Optionee's employment by,
or relationship with, the Corporation or a Subsidiary is terminated for cause,
such Optionee's Option shall expire immediately; provided, however, the
Committee may, in its sole discretion, within thirty (30) days of such
termination, waive the expiration of the Option by giving written notice of such
waiver to the Optionee at such Optionee's last known address. In the event of
such waiver, the Optionee may exercise the Option only to such extent, for such
time, and upon such terms and conditions as if such Optionee had ceased to be
employed by, or ceased to have a relationship with, the Corporation or a
Subsidiary upon the date of such termination for a reason other than disability,
cause or death. Termination for cause shall include termination for malfeasance
or gross misfeasance in the performance of duties or conviction of illegal
activity in connection therewith or any conduct detrimental to the interests of
the Corporation or a Subsidiary. The determination of the Committee with respect
to whether a termination for cause has occurred shall be final and conclusive.
7.4 Death of an Optionee. If an Optionee ceases to be
employed by, or ceases to have a relationship with, the Corporation by reason of
death, Optionee's Options shall expire not later than six (6) months thereafter.
During such six (6) month period and prior to the expiration of the Option by
its terms, such Options may be exercised by his executor or administrator or the
person or persons to whom the Option is transferred by will or the applicable
laws of descent and distribution, but only to the extent such Options were
exercisable on the date Optionee ceased to be employed by, or ceased to have a
relationship with, the Corporation or a Subsidiary by reason of death.
8. NONTRANSFERABILITY OF OPTIONS. The Options shall not be
transferable, either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution and shall be exercisable during the
Optionee's lifetime only by Optionee.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. As used herein,
the term "Adjustment Event" means an event pursuant to which the outstanding
Shares of the Corporation are increased, decreased or changed into, or exchanged
for a different number or kind of shares or securities, without receipt of
consideration by the Corporation, through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, stock consolidation or otherwise. Upon the occurrence of an Adjustment
Event, (i) appropriate and proportionate adjustments shall be made to the number
and kind and exercise price for the shares subject to the Options, and (ii)
appropriate amendments to this Agreement shall be executed by the Corporation
and Optionee if the Committee determines that such an amendment is necessary or
desirable to reflect such adjustments. If determined by the Committee to be
appropriate, in the event of an Adjustment Event which involves the substitution
of securities of a corporation other than the Corporation, the Committee shall
make arrangements for the assumptions by such other corporation of the Options.
Notwithstanding the foregoing, any such adjustment to the Options shall be made
without change in the total exercise price applicable to the unexercised portion
of the Options, but with an appropriate adjustment to the number of shares, kind
of shares and exercise price for each share subject to the Options. The
determination by the Committee as to what adjustments, amendments or
arrangements shall be made pursuant to this Section 10, and the extent thereof,
shall be final and conclusive. No fractional Shares shall be issued on account
of any such adjustment or arrangement.
Exhibit II-3
<PAGE>
10. NO RIGHTS TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
contained in this Agreement shall obligate the Corporation to employ or have
another relationship with Optionee for any period or interfere in any way with
the right of the Corporation to reduce Optionee's compensation or to terminate
the employment of or relationship with Optionee at any time.
11. TIME OF GRANTING OPTIONS. The time the Options shall be
deemed granted, sometimes referred to herein as the "date of grant", shall be
_____________, ____.
12. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not be entitled
to the privileges of stock ownership as to any Shares not actually issued and
delivered to Optionee. No Shares shall be purchased upon the exercise of any
Options unless and until, in the opinion of the Corporation's counsel, any then
applicable requirements of any laws, or governmental or regulatory agencies
having jurisdiction, and of any exchanges upon which the stock of the
Corporation may be listed shall have been fully complied with.
13. SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any stock is
issued pursuant to the Options. Without limiting the generality of the
foregoing, the Corporation may require from the Optionee such investment
representation or such agreement, if any, as counsel for the Corporation may
consider necessary in order to comply with the Securities Act of 1933 as then in
effect, and may require that the Optionee agree that any sale of the Shares will
be made only in such manner as is permitted by the Committee. The Committee may
in its discretion cause the Shares underlying the Options to be registered under
the Securities Act of 1933 as amended by filing a Form S-8 Registration
Statement covering the Options and the Shares underlying the Options. Optionee
shall take any action reasonably requested by the Corporation in connection with
registration or qualification of the Shares under federal or state securities
laws.
14. INTENDED TREATMENT AS NON-QUALIFIED STOCK OPTIONS. The
Options granted herein are intended to be non-qualified stock options described
in U.S. Treasury Regulation ("Treas. Reg.") ss.1.83-7 to which Sections 421 and
422 of the Internal Revenue Code of 1986, as amended from time to time ("Code")
do not apply, and shall be construed to implement that intent. If all or any
part of the Options shall not be described in Treas. Reg. ss.1.83-7 or be
subject to Sections 421 and 422 of the Code, the Options shall nevertheless be
valid and carried into effect.
15. PLAN CONTROLS. The Options shall be subject to and governed
by the provisions of the Plan. All determinations and interpretations of the
Plan made by the Committee shall be final and conclusive.
16. SHARES SUBJECT TO LEGEND. If deemed necessary by the
Corporation's counsel, all certificates issued to represent Shares purchased
upon exercise of the Options shall bear such appropriate legend conditions as
counsel for the Corporation shall require.
Exhibit II-4
<PAGE>
17. CONDITIONS TO OPTIONS.
17.1 Compliance with Applicable Laws. THE CORPORATION'S
OBLIGATION TO ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTIONS IS
EXPRESSLY CONDITIONED UPON THE COMPLETION BY THE CORPORATION OF ANY REGISTRATION
OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR
RULINGS OR REGULATIONS OF ANY GOVERNMENTAL REGULATORY BODY, OR THE MAKING OF
SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND UNDERTAKINGS BY THE
OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN ORDER TO COMPLY WITH
THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN ITS SOLE DISCRETION,
DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND UNDERTAKINGS MAY
INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE OR ANY PERSON ENTITLED
TO EXERCISE THE OPTION (i) IS NOT PURCHASING SUCH SHARES FOR DISTRIBUTION AND
(ii) AGREES TO HAVE PLACED UPON THE FACE AND REVERSE OF ANY CERTIFICATES A
LEGEND SETTING FORTH ANY REPRESENTATIONS AND UNDERTAKINGS WHICH HAVE BEEN GIVEN
TO THE COMMITTEE OR A REFERENCE THERETO.
17.2 SHAREHOLDER APPROVAL OF PLAN. IF THE OPTIONS
GRANTED HEREBY ARE GRANTED PRIOR TO APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF
THE CORPORATION PURSUANT TO SECTION 8 OF THE PLAN, THE GRANT OF THE OPTIONS MADE
HEREBY IS EXPRESSLY CONDITIONED UPON AND SUCH OPTIONS SHALL NOT BE EXERCISABLE
UNTIL THE APPROVAL OF THE PLAN BY THE SHAREHOLDERS OF THE CORPORATION IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE PLAN.
18. MISCELLANEOUS.
18.1 Binding Effect. This Agreement shall bind and inure
to the benefit of the successors, assigns, transferees, agents, personal
representatives, heirs and legatees of the respective parties.
18.2 Further Acts. Each party agrees to perform any
further acts and execute and deliver any documents which may be necessary to
carry out the provisions of this Agreement.
18.3 Amendment. This Agreement may be amended at any time
by the written agreement of the Corporation and the Optionee.
18.4 Syntax. Throughout this Agreement, whenever the
context so requires, the singular shall include the plural, and the masculine
gender shall include the feminine and neuter genders. The headings and captions
of the various Sections hereof are for convenience only and they shall not
limit, expand or otherwise affect the construction or interpretation of this
Agreement.
Exhibit II-5
<PAGE>
18.5 Choice of Law. The parties hereby agree that this
Agreement has been executed and delivered in the State of California and shall
be construed, enforced and governed by the laws thereof. This Agreement is in
all respects intended by each party hereto to be deemed and construed to have
been jointly prepared by the parties and the parties hereby expressly agree that
any uncertainty or ambiguity existing herein shall not be interpreted against
either of them.
18.6 Severability. In the event that any provision of this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
18.7 Notices. All notices and demands between the parties
hereto shall be in writing and shall be served either by registered or certified
mail, and such notices or demands shall be deemed given and made forty-eight
(48) hours after the deposit thereof in the United States mail, postage prepaid,
addressed to the party to whom such notice or demand is to be given or made, and
the issuance of the registered receipt therefor. If served by telegraph, such
notice or demand shall be deemed given and made at the time the telegraph agency
shall confirm to the sender, delivery thereof to the addressee. All notices and
demands to Optionee or the Corporation may be given to them at the following
addresses:
If to Optionee:
--------------------------
If to Corporation: Radiant Technology Corporation
1335 South Acacia
Fullerton, CA 92831
Such parties may designate in writing from time to time such other place or
places that such notices and demands may be given.
18.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
this Agreement supersedes all prior and contemporaneous agreements and
understandings of the parties, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as set forth or referred to herein. No supplement, modification or
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
Exhibit II-6
<PAGE>
18.9 Attorneys' Fees. In the event that any party to this
Agreement institutes any action or proceeding, including, but not limited to,
litigation or arbitration, to preserve, to protect or to enforce any right or
benefit created by or granted under this Agreement, the prevailing party in each
respective such action or proceeding shall be entitled, in addition to any and
all other relief granted by a court or other tribunal or body, as may be
appropriate, to an award in such action or proceeding of that sum of money which
represents the attorneys' fees reasonably incurred by the prevailing party
therein in filing or otherwise instituting and in prosecuting or otherwise
pursuing or defending such action or proceeding, and, additionally, the
attorneys' fees reasonably incurred by such prevailing party in negotiating any
and all matters underlying such action or proceeding and in preparation for
instituting or defending such action or proceeding.
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"CORPORATION"
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By:________________________________
"OPTIONEE"
Exhibit II-7
