<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 1995
REGISTRATION NO. 33-59949-01
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
------------------------
GENENTECH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 94-2347624
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
------------------------
460 POINT SAN BRUNO BOULEVARD
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(415) 225-1000
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
------------------------
1991 EMPLOYEE STOCK PLAN
(FULL TITLE OF THE PLANS)
STEPHEN G. JUELSGAARD, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
GENENTECH, INC.
460 POINT SAN BRUNO BOULEVARD
SOUTH SAN FRANCISCO, CA 94080
(415) 225-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- - ------------------------------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE(2) FEE(2)
- - ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Callable Putable Common Stock
(par value $.02)(1)............. 1,573,360 shares N.A.(2) N.A.(2) N.A.(2)
- - ------------------------------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also relates to the 1,573,360 shares of Common
Stock, par value $.02, of the Registrant into which the 1,573,360 shares of
Callable Putable Common Stock offered hereby are subject to conversion in
accordance with the Certificate of Incorporation of the Registrant.
(2) All filing fees payable in connection with registration of these securities
were paid in connection with the filing of (a) the Registrant's Schedule 14A
dated June 2, 1995, (b) the Registrant's Form S-4, No. 33-59949, dated June
5, 1995 (the "Form S-4") and (c) Amendment No. 1 to the Form S-4 dated
September 8, 1995.
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF SECURITIES
PURSUANT TO THE PLAN: Promptly after the filing of this Post-Effective
Amendment.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4 Registration
Statement pursuant to the procedure described herein. See "INTRODUCTORY
STATEMENT".
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE> 2
INTRODUCTORY STATEMENT
Genentech, Inc. (the "Company" or the "Registrant") hereby amends its
Registration Statement on Form S-4 (No. 33-59949) (the "Form S-4"), by filing
this Post-Effective Amendment No. 1 on Form S-8 ("Amendment No. 1") relating to
the sale of up to 1,573,360 shares of Callable Putable Common Stock, par value
$.02 per share ("Special Common Stock") issuable in connection with the
Company's 1991 Employee Stock Plan (the "Plan"). This Amendment No. 1 also
relates to the sale of a like number of shares of the Company's Common Stock,
par value $.02 per share ("Common Stock"), into which the Special Common Stock
issuable in connection with the Plan is subject to conversion in accordance with
the Company's Certificate of Incorporation. All of such shares were previously
registered under the Form S-4.
On October 25, 1995, HLR (U.S.) II, Inc., a Delaware corporation and a
wholly owned subsidiary of Roche Holdings, Inc., a Delaware corporation
("Roche"), was merged into the Company (the "Merger"). As a result of the
Merger, each outstanding share of Common Stock (other than shares held by Roche
and its affiliates) was converted into one share of Special Common Stock. As a
result of the Merger, shares of Common Stock will no longer be issued pursuant
to the Plan. Instead, participants in the Plan will receive, in lieu of each
share of Common Stock which would have been acquired under the Plan, one share
of Special Common Stock.
The designation of Amendment No. 1 as Registration No. 33-59949-01 denotes
that Amendment No. 1 relates only to the shares of Special Common Stock (or,
upon conversion thereof, Common Stock) issuable pursuant to the Plan and that
this is the first Post-Effective Amendment to the Form S-4 filed with respect to
such shares.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by the Company
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), are incorporated
by reference herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994;
2. The Company's Annual Report to Stockholders for the year ended
December 31, 1994;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
5. The Company's Proxy Statement relating to Genentech's 1995 Annual
Meeting of Stockholders;
6. The description of the Special Common Stock contained in
Genentech's Registration Statement filed pursuant to the 1934 Act, and any
amendment or report filed for the purpose of updating such description;
7. The Company's Current Reports on Form 8-K dated July 10, 1995 and
July 18, 1995;
8. Amendment No. 1 on Form 10-K/A-1 (filed on September 18, 1995)
amending the Annual Report on Form 10-K of the Company for the year ended
December 31, 1994; and
9. Amendment No. 1 on Form 10-Q/A-1 (filed on September 18, 1995)
amending the Quarterly Report on Form 10-Q of the Company for the quarter
ended March 31, 1995.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company of the 1934 Act in each
year during which the offering made by this Registration Statement is in effect
prior to the filing with the Commission of the Company's Annual Report
<PAGE> 3
on Form 10-K covering such year shall not be incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Certificate of Incorporation empowers the Company to
indemnify any director, officer, employee or agent of the Company or any other
person who is serving at the Company's request in any such capacity with another
corporation, partnership, joint venture, trust or other enterprise (including,
without limitation, an employee benefit plan) to the fullest extent permitted
under the Delaware General Corporation law (the "DGCL") as the same exists or
may be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader indemnification rights
than said law permitted the Company to provide prior to such amendment), and any
such indemnification shall continue as to any person who has ceased to be a
director, officer, employee or agent and may inure to the benefit of the heirs,
executors and administrators of such a person.
The Company's Certificate of Incorporation also empowers the Company to
purchase and maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Company would have the power to indemnify
any such person against such expense, liability or loss under the DGCL.
In addition, the By-Laws of the Company provide that the Company may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of the DGCL.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<S> <C>
5-A(1) Opinion of Counsel
15-A(1) Letter re: unaudited financial information
23-A(1) Consent of Ernst & Young LLP, independent auditors
23-B(1) Consent of Counsel is contained in Exhibit 5-A(1) to this Registration
Statement
25-A(1) Power of Attorney is contained on the signature pages to this
Registration Statement
99-A(1) 1991 Employee Stock Plan, as amended and restated as of October 25, 1995
</TABLE>
2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee 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.
(5) 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.
3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this Post-Effective Amendment No. 1 on Form S-8
to the Registration Statement on Form S-4 (Registration No. 33-59949) and has
duly caused this Post-Effective Amendment on Form S-8 to such Registration
Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of South San Francisco, State of California, on
October 25, 1995.
GENENTECH, INC.
By: /s/ LOUIS J. LAVIGNE, JR.
--------------------------------------
Louis J. Lavigne, Jr.
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
<TABLE>
<S> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ ARTHUR D. LEVINSON President and Chief Executive Officer
- - ---------------------------------------------
Arthur D. Levinson
PRINCIPAL FINANCIAL OFFICER:
/s/ LOUIS J. LAVIGNE, JR. Senior Vice President and Chief Financial
- - --------------------------------------------- Officer
Louis J. Lavigne, Jr.
PRINCIPAL ACCOUNTING OFFICER:
/s/ BRADFORD S. GOODWIN Vice President and Controller
- - ---------------------------------------------
Bradford S. Goodwin
DIRECTORS:
/s/ ARTHUR D. LEVINSON
- - ---------------------------------------------
Arthur D. Levinson
/s/ HERBERT W. BOYER*
- - ---------------------------------------------
Herbert W. Boyer
/s/ JURGEN DREWS*
- - ---------------------------------------------
Jurgen Drews
/s/ FRANZ B. HUMER*
- - ---------------------------------------------
Franz B. Humer
</TABLE>
4
<PAGE> 6
<TABLE>
<S> <C>
/s/ LINDA F. LEVINSON*
- - ---------------------------------------------
Linda F. Levinson
/s/ J. RICHARD MUNRO*
- - ---------------------------------------------
J. Richard Munro
/s/ DONALD L. MURFIN*
- - ---------------------------------------------
Donald L. Murfin
/s/ JOHN T. POTTS, JR.*
- - ---------------------------------------------
John T. Potts, Jr.
/s/ C. THOMAS SMITH, JR.*
- - ---------------------------------------------
C. Thomas Smith, Jr.
/s/ ROBERT A. SWANSON*
- - ---------------------------------------------
Robert A. Swanson
/s/ DAVID S. TAPPAN, JR.*
- - ---------------------------------------------
David S. Tappan, Jr.
*By: /s/ JOHN P. MCLAUGHLIN
- - ---------------------------------------------
Attorney-in-Fact
October 25, 1995
</TABLE>
5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER PAGE
- - ------- ----
<C> <S> <C>
5-A(1) Opinion of Counsel..........................................................
15-A(1) Letter re: unaudited financial information..................................
23-A(1) Consent of Ernst & Young LLP, independent auditors..........................
23-B(1) Consent of Counsel is contained in Exhibit 5-A(1) to this Registration
Statement.................................................................
25-A(1) Power of Attorney is contained on the signature pages to this Registration
Statement.................................................................
99-A(1) 1991 Employee Stock Plan, as amended and restated as of October 25, 1995....
</TABLE>
<PAGE> 1
EXHIBIT 5-A(1)
<PAGE> 2
[LETTERHEAD OF GENENTECH, INC.]
October 25, 1995
Genentech, Inc.
460 Point San Bruno Boulevard
South San Francisco, California 94080
Ladies and Gentlemen:
I am General Counsel of Genentech, Inc. (the "Company") and am rendering
this opinion in connection with the filing by the Company of a Post-Effective
Amendment on Form S-8 (the "Amendment") to a Registration Statement on Form S-4
(No. 33-59949) (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 1,573,360 shares of the Company's
Callable Putable Common Stock, $.02 par value ("Special Common Stock"), and the
1,573,360 shares of Common Stock, par value $0.02 per share, into which such
shares of Special Common Stock are subject to conversion in accordance with the
provisions of the Company's Certificate of Incorporation (together with the
shares of Special Common Stock, the "Shares"), pursuant to the Company's 1991
Employee Stock Plan, as amended (the "Plan").
In connection with this opinion, I have examined the Amendment, and related
Prospectuses, the Registration Statement, the Company's Certificate of
Incorporation and By-laws, as amended, and such other documents, records,
certificates, memoranda and other instruments as in my judgment are necessary as
a basis for this opinion.
On the basis of the foregoing, and in reliance thereon, I am of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable.
I consent to the filing of this opinion as an exhibit to the Amendment.
Very truly yours,
By: /s/ STEPHEN G. JUELSGAARD
----------------------------
Stephen G. Juelsgaard
Vice President and
General Counsel
<PAGE> 1
EXHIBIT 15-A(1)
<PAGE> 2
[LETTERHEAD OF ERNST & YOUNG, LLP]
October 24, 1995
The Board of Directors and Stockholders
Genentech, Inc.
We are aware of the incorporation by reference in the Post-Effective
Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 (No.
33-59949) of Genentech, Inc. for the registration of up to 1,573,360 shares of
its Callable Putable Common Stock (and the Common Stock into which such Callable
Putable Common Stock may be converted) of our reports dated April 10, 1995 and
July 14, 1995 relating to the unaudited condensed consolidated interim financial
statements of Genentech, Inc. which are included in its Forms 10-Q for the
quarters ended March 31, 1995 and June 30, 1995, respectively.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
Very truly yours,
ERNST & YOUNG LLP
<PAGE> 1
EXHIBIT 23-A(1)
<PAGE> 2
EXHIBIT 23-A(1)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective
Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 (No.
33-59949), pertaining to the 1991 Employee Stock Plan, as amended, of Genentech,
Inc. for the registration of up to 1,573,360 shares of Callable Putable Common
Stock (and Common Stock into which Callable Putable Common Stock may be
converted) of our report dated January 17, 1995, with respect to the
consolidated financial statements of Genentech, Inc. incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1994, and the
related financial statement schedules included therein, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
October 24, 1995
<PAGE> 1
EXHIBIT 99-A(1)
<PAGE> 2
GENENTECH, INC.
1991 EMPLOYEE STOCK PLAN
(AS AMENDED AND RESTATED AS OF OCTOBER 25, 1995)
1. Purpose
The purpose of this 1991 Employee Stock Plan (the "Plan") is to provide
employees of Genentech, Inc. (the "Company"), and its U.S. subsidiaries
designated by the Company's Board of Directors, who wish to become stockholders
of the Company an opportunity to purchase (i) shares of Callable Putable Common
Stock of the Company, or (ii) shares of Common Stock of the Company, to the
extent shares of Callable Putable Common Stock are converted to Common Stock in
accordance with the Company's Certificate of Incorporation (the shares referred
to in clauses (i) and (ii) above being hereinafter referred to collectively as
the "Shares"). The Plan is intended to qualify as an "employee stock purchase
plan" within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. Eligible Employees
Subject to the provisions of Sections 7, 8 and 9 below, any individual who
is in the full-time employment of the Company on the day on which a Grant Date
(as defined in Section 3 below) occurs is eligible to participate in an offering
of Shares made by the Company hereunder. In addition, the Board of Directors may
at any time designate one or more of the Company's U.S. subsidiary corporations
(as defined in Section 425(f) of the Code) to be included in an offering of
Shares under the Plan. Full-time employment shall mean employment by the Company
or its designated U.S. subsidiary for:
(a) 20 hours or more per week; and
(b) more than five months in the calendar year.
3. Grant Dates
From time to time, the Board of Directors may fix a date (a "Grant Date")
or a series of dates (each of which is a "Grant Date") on which the Company will
grant rights to purchase Shares ("Rights") to employees eligible to participate.
4. Prices
The purchase price per Share for Shares covered by a grant of Rights
hereunder shall be determined by the Board of Directors, but in no event shall
be less than the lesser of:
(a) eighty-five percent (85%) of the fair market value of a Share on
the Grant Date on which such Right was granted; or
(b) eighty-five percent (85%) of the fair market value of a Share on
the date such Right is exercised as to that Share.
5. Exercise of Rights and Method of Payment
(a) Rights granted under the Plan will be exercisable on specific
dates as determined by the Board of Directors.
(b) The method of payment for Shares purchased upon exercise of Rights
granted hereunder shall be through regular payroll deductions or by lump
sum cash payment, or both, as determined by the Board of Directors. No
interest shall be paid upon payroll deductions or other payments in
exercise of Rights unless specifically provided for by the Board of
Directors.
<PAGE> 3
6. Terms of Rights
Rights granted hereunder shall be exercisable during a twenty-seven (27)
month period or such shorter period as determined by the Board of Directors. All
Rights granted to an employee shall terminate upon termination of full-time
employment of the employee. Any payments received by the Company from a
participating employee with respect to a Right granted hereunder and not
utilized for the purchase of Shares upon exercise of such Right shall be
promptly returned to such employee by the Company after termination of such
Right, except that amounts that were not so utilized because such amounts were
insufficient to purchase a whole Share may be applied toward the purchase of
Shares pursuant to a Right subsequently granted hereunder, if any.
7. Shares Subject to the Plan
No more than three million eight hundred thousand (3,800,000) Shares may be
sold pursuant to Rights granted under the Plan. Appropriate adjustments in the
above figure, in the number of Shares covered by outstanding Rights granted
hereunder, in the exercise price of the Rights and in the maximum number of
Shares which an employee may purchase (pursuant to Section 9 below) shall be
made to give effect to any mergers, consolidations, reorganizations,
recapitalizations, stock splits, stock dividends or other relevant changes in
the capitalization of the Company occurring after the effective date of the
Plan, provide that no fractional Shares shall be subject to a Right and each
Right shall be adjusted downward to the nearest full Share. Any agreement of
merger or consolidation will include provisions for protection of the then
existing Rights of participating employees under the Plan. Either authorized and
unissued Shares or issued Shares heretofore or hereafter reacquired by the
Company may be made subject to Rights under the Plan. If for any reason any
Right under the Plan terminates in whole or in part, Shares subject to such
terminated Right may again be subject to a Right under the Plan.
8. Limitations on Grants
Anything to the contrary notwithstanding, pursuant to Section 423 of the
Code:
(a) No employee shall be granted a Right hereunder if such employee,
immediately after the Right is granted, owns stock possessing five percent
(5%) or more of the total combined voting power or value of all classes of
stock of the Company, its parent corporation (as defined in Section 425(c)
of the Code) or any subsidiary corporation, in each case computed in
accordance with Section 423(b)(3) of the Code.
(b) No employee shall be granted a Right which permits his Rights to
purchase Shares under all employee stock purchase plans of the Company and
its subsidiaries to accrue at a rate which exceeds twenty-five thousand
dollars ($25,000) (or such other maximum as may be prescribed from time to
time by the Code) of fair market value of such Shares (determined at the
time such Right is granted) for each calendar year in which such Right is
outstanding at any time, all in accordance with the provisions of Section
423(b)(8) of the Code.
9. Limits on Participation
(a) Participation shall be limited to eligible employees who enroll under
the Plan.
(b) No Right granted to any participating employee shall cover more than
twelve thousand (12,000) Shares.
(c) No more than One Hundred Eighty Thousand (180,000) Shares may be
purchased during any calendar quarter upon the exercise of Rights granted under
the Plan; provided, however, that for those calendar quarters in which the
Company pays regular annual bonuses to eligible employees, the maximum aggregate
numbers of Shares which may be purchased upon the exercise of Rights shall be
Two Hundred Thousand (200,000) Shares. If the aggregate purchases of Shares upon
exercises of Rights granted under the Plan would exceed the applicable maximum
number for a particular calendar quarter, the maximum permitted number of Shares
shall be allocated to the exercising participants in proportion to the number of
Shares they would otherwise purchase during such calendar quarter.
<PAGE> 4
10. Employee's Rights as Stockholder
No participating employee shall have any Rights as a stockholder in the
Shares covered by a Right granted hereunder until such Right has been exercised,
full payment has been made for the corresponding Shares and the purchase has
been entered in the records of the Transfer Agent for the Shares.
11. Rights Not Transferable
Rights under the Plan are not assignable or transferable by a participating
employee.
12. Amendments or Discontinuance of the Plan
The Board of Directors of the Company shall have the right to amend, modify
or terminate the Plan at any time without notice; provided, however, that the
then existing Rights of all participating employees shall not be adversely
affected thereby, except that in the case of a participating employee of a
foreign branch of the Company or a designated U.S. subsidiary corporation the
Plan may be varied to conform with local laws, and provided further that,
subject to the provisions of Section 7 above, no such amendment to the Plan
shall, without the approval of the stockholders of the Company:
(a) Increase the total number of Shares which may be offered under the
Plan;
(b) Amend the Plan in any manner which would render Rights granted
hereunder unqualified for special tax treatment under Section 421 of the
Code.
13. Effective Date and Approvals
The Plan shall become effective as of January 1, 1991. The Company's
obligation to offer, sell or deliver its Shares under the Plan is subject to the
approval of the Company's stockholders and any governmental approval required in
connection with the authorized issuance or sale of such Shares and is further
subject to the determination by the Company that all applicable securities laws
have been complied with.
14. Administration of the Plan
The Board of Directors or any committee or person(s) to whom it delegates
its authority (the "Administrator") shall administer, interpret and apply all
provisions of the Plan. The Administrator may waive such provisions of the Plan
as it deems necessary to meet special circumstances not anticipated or covered
expressly by the Plan. Nothing contained in this Section shall be deemed to
authorize the Administrator to alter or administer the provisions of the Plan in
a manner inconsistent with the provisions of Section 423 of the Code.
