As filed with the Securities and Exchange Commission on March 12, 1996.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERICAN RIVERS OIL COMPANY
(Exact name of Registrant as specified in its charter)
Wyoming 84-0839926
(State or other jurisdiction (IRS Employer
of incorporation or organization) I.D. Number)
700 East Ninth Avenue, Suite 106
Denver, Colorado 80203
(Address of Principal Executive Offices, Including Zip Code)
1982 STOCK OPTION PLAN
1992 STOCK OPTION PLAN
1995 STOCK OPTION AND STOCK COMPENSATION PLAN
(Full title of the plan)
A. Thomas Tenenbaum
Brenman Key & Bromberg, P.C.
1775 Sherman Street, Suite 1001
Denver, Colorado 80203
(303) 894-0234
(Name, address and telephone number of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Proposed Proposed maximum
securities maximum aggregate Amount of
to be Amount offering price offering registration
registered to be registered per unit price fee
- ----------- ---------------- -------------- --------------- -------------
<S> <C> <C> <C> <C>
Common Stock 23,144 shares (2) $ 0.625 $ 14,465.00 $ 4.99
Common Stock 36,536 shares (2) $ 0.680 $ 24,844.48 $ 8.57
Common Stock 27,160 shares (3) $ 1.31 $ 35,579.60 $ 12.27
Common Stock 27,160 shares (3) $ 1.44 $ 39,110.40 $ 13.48
Common Stock 750,000 shares (4) $ 1.4375 (5) $1,078,125.00 $371.77
-------------- ------ ------------- -------
Total: 864,000 shares $1,192,124.50 $411.08
============== ============= =======
(1) There are also registered hereunder such indeterminate number of
additional shares of Common Stock as may become subject to the Plans as
a result of the anti-dilution provisions thereof.
(2) To be issued upon the exercise of options issued under the Registrant's
1982 Stock Option Plan.
(3) To be issued upon the exercise of options issued under the Registrant's
1992 Stock Option Plan.
(4) To be issued under the Registrants 1995 Stock Option and Stock
Compensation Plan.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the bid and ask prices
reported by NASDAQ on March 7, 1996.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The required Plan Information is included in documents being maintained
and delivered by the Registrant as required by Rule 428 of the Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Registrant shall provide to participants a written statement
advising them of the availability, without charge, upon written or oral request,
of documents incorporated by reference in Item 3 of Part II hereof and of
documents required to be delivered pursuant to Rule 428(b) under the Securities
Act. The statement will include the address listing the title or department and
telephone number to which the request is to be directed.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant are
incorporated into this Registration Statement by this reference:
(1) The description of the Common Stock contained in the Registrant's Form
8-A Registration Statement under the Securities Exchange Act of 1934
(the "Exchange Act"), as filed on October 20, 1981; and
(2) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
March 31, 1995;
(3) Registrant's Form 10-QSB for the quarter ended June 30, 1995;
Registrant's Form 10-QSB for the quarter ended September 30, 1995;
Registrant's Form 10-QSB for the quarter ended December 31, 1995;
Registrant's Form 8-K as of November 3, 1995 and Registrant's 8-K as of
December 8, 1995.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all shares offered
hereunder have been sold or which de-registers all securities then remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing such documents.
Item 4. Description of Securities.
No description of the class of securities to be offere is required
under this item because the class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The firm of Brenman Key & Bromberg, P.C., counsel to the Registrant in
connection with this Registration Statement and other matters, will be awarded
100,000 shares of Common Stock under the Registrant's 1995 Stock Option and
Stock Compensation Plan for services rendered to the Registrant.
Item 6. Indemnification of Directors and Officers.
(a) The Wyoming Business Corporation Act (the "Wyoming Act") provides
that the articles of incorporation of a company may eliminate or limit (and the
Company's Articles so limit) the personal liability of a director for breach of
fiduciary duty as a director provided that the company may not eliminate or
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the company or its shareholders, (ii) for any acts or omissions not
in good faith or which involved intentional misconduct or a knowing violation of
the law, (iii) for unlawful distributions, or (iv) for any transaction from
which the director derived an improper personal benefit.
II-1
<PAGE>
The Wyoming Act also provides that a company may indemnify its
directors, officers, employees or agents made a party to a proceeding because of
his or her relation to the company if: (i) he conducted himself in good faith,
(ii) reasonably believed that his conduct was in or at least not opposed to the
company's best interests and (iii) in the case of a criminal proceeding, he had
no reasonable cause to believe his conduct was unlawful. However, the company
may not indemnify such individuals (i) in connection with a proceeding by or in
the right of the company in which the individual was adjudged liable to the
company or (ii) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that a personal benefit
was improperly received by him. Indemnification is limited to reasonable
expenses incurred in connection with the proceeding.
(b) Article VII of the Company's Articles of Incorporation, as amended,
provides for the indemnification of the Company's directors, officers,
employees, fiduciaries or agents, as follows:
ARTICLE VII
INDEMNIFICATION
The corporation shall indemnify any person who is or was a
director to the maximum extent provided by statute.
The corporation shall indemnify any person who is or was an
officer, employee or agent of the corporation who is not a
director to the maximum extent provided by law, or to a
greater extent if consistent with law and if provided by
resolution of the corporation's shareholders or directors,
or in a contract.
The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer,
employee, fiduciary or agent of the corporation and who
while a director, officer, employee, fiduciary or agent of
the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee,
employee, fiduciary or agent of any other foreign or
domestic corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan against any
liability asserted against or incurred by him in any such
capacity or arising out of his status as such, whether or
not the corporation would have the power to indemnify him
against such liability under provisions of the statute.
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<PAGE>
(c) Article XI of the Company's Bylaws provides that: "The Corporation
shall have the power to indemnify any director, officer, employee, or agent of
the Corporation or any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise to the fullest extent permitted by the
Wyoming Business Corporation Act."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
5.1 Opinion of Brenman Key & Bromberg, P.C.
10.1 1982 Stock Option Plan
10.2 1992 Stock Option Plan
10.3 1995 Stock Option and Stock Compensation Plan
23.1 Consent of Brenman Key & Bromberg, P.C. - See Exhibit 5.1
23.2 Consent of Hein + Associates LLP
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are 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;
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<PAGE>
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in an amendment by those paragraphs is
included in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) 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 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, Colorado, on March 8, 1996.
AMERICAN RIVERS OIL COMPANY
By: /s/ Karlton Terry
-------------------------------
Karlton Terry, President
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 dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Karlton Terry
- --------------------- Chairman of the Board, March 8, 1996
Karlton Terry President and Chief,
Executive Officer
/s/ Jubal Terry
- --------------------- Director and acting March 8, 1996
Jubal Terry Chief Financial Officer
/s/ Denis Bell Director March 11, 1996
- ---------------------
Denis Bell
Exhibit 5.1
March 8, 1996
Board of Directors
AMERICAN RIVERS OIL COMPANY
700 East Ninth Avenue, Suite 106
Denver, Colorado 80203
Re: American Rivers Oil Company
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to American Rivers Oil Company, a Wyoming
corporation (the "Company"), in connection with the preparation and filing with
the U.S. Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of the Company's registration
statement of Form S-8 (the "Registration Statement"). This Registration
Statement relates to the registration under the Act of 864,000 shares of the
Company's common stock, $.01 par value (the "Common Stock"), which may be issued
pursuant to the Company's 1982 Stock Option Plan, 1992 Stock Option Plan and
1995 Stock Option and Stock Compensation Plan (the "Plans").
In rendering this opinion, we have reviewed the Registration Statement, as
well as a copy of the Company's articles of incorporation and bylaws, each as
amended to date, and the individual Plans. We have also reviewed such documents
and such statutes, rules and judicial precedents as we have deemed necessary for
the opinions expressed herein.
In rendering this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of documents
submitted to us as originals, the conformity to original documents of documents
submitted to us as certified or photostatic copies, and the authenticity of
originals of such photostatic copies.
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations herein set forth, we are of the opinion that the
shares of Common Stock issuable under the Plans, pursuant to the award of shares
and the exercise of stock options granted thereunder, have been duly and validly
authorized and, when issued and sold in the manner contemplated in the Plans (by
award to eligible persons as defined in the Plans) and by the Registration
Statement, will be validly issued, fully paid and nonassessable.
<PAGE>
The opinion set forth in this letter is limited by, subject to and based on
the following:
1.We are admitted to practice before the Bar of the State of Colorado and
are not admitted to practice in any other jurisdiction, including Wyoming.
2.The foregoing opinion is limited in all respects to the laws of the State
of Colorado and applicable federal securities laws of the United States.
3.To the extent such opinion relates to the laws of other jurisdictions,
such opinion is based upon an examination of relevant authorities and is
believed to be correct, but we have obtained no legal opinions as to such
matters from attorneys licensed to practice in such other jurisdictions.
We consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement.
This opinion may not be used, circulated, quoted or otherwise referred to
for any other purpose without prior written consent and may not be relied upon
by any person or entity other than the Company and its successors and assigns.
This opinion is based upon our knowledge of law and facts as of its date. We
assume no duty to communicate to you with respect to any matter which comes to
our attention hereafter.
Very truly yours,
/s/ Brenman Key & Bromberg, P.C.
Exhibit 10.1
METRO CABLE CORPORATION
INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan. This Stock Option Plan (hereinafter referred to as
the "Plan") is intended to encourage ownership of stock of Metro Cable
Corporation, a Colorado corporation (herein after referred to as the
"Corporation"), by key employees (either full-time or part-time) of the
Corporation and its subsidiaries, and to provide additional incentive for them
to promote the success of the business. As used in the Plan, the term
"subsidiary" shall have the same meaning as the term "subsidiary corporation"
defined in Section 425(f) of the Internal Revenue Code of 1954, as from time to
time amended (the "Code"). (Unless otherwise indicated, all sections hereinafter
cited refer to the Internal Revenue Code of 1954, as from time to time amended.)
The Plan and options granted under the Plan shall be classified as Incentive
Stock Option and conform to the Internal Revenue Code treatment of Incentive
Stock Options.
2. Scope of the Plan. An aggregate 3,000,000 shares of the Corporation's
common stock, par value $.001 per share (hereinafter referred to as "Common
Stock"), shall be available and reserved for issue under the Plan, subject,
however, to the provisions of Section 12 hereof. If an option should expire or
terminate for any reason without having been exercised in full, the unpurchased
shares which were subject thereto shall, unless the Plan shall have terminated,
become available for other options under the Plan. The Common Stock shall not be
issued in respect of an option granted hereunder unless the exercise of such
option and the issuance and delivery of shares of Common Stock pursuant thereto
shall comply with all relevant provisions of law, including the law of the
Corporation's state of incorporation, the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended, the rules and regulations
thereunder and the requirements of any stock exchange upon which the Common
Stock say then be listed, and shall be further subject to the approval of the
Corporation's counsel with respect to such compliance.
3. Administration of the Plan. The Plan shall be administered by a Stock
Option Committee consisting of at least three directors, or if no Committee is
appointed, by the Board of Directors which shall have authority from time to
time: (a) subject to the provisions of Section 4, to determine which of the key
executive employees of the Corporation or any of its present or future
subsidiaries (as defined in Section 425 of the Code) shall be granted options
with respect to any or all of such shares; (b) to determine the times when
options shall he granted and the number of shares to be granted except as may
otherwise be provided herein; (c) to determine, subject to Section 5, the time
or times when each option becomes exercisable and the duration of the exercise
period; (d) to prescribe the form or forms of the instruments evidencing any
options granted under the Plan (which forms shall be consistent with the Plan
but the terms and provisions need not be identical in each case); (e) to adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the administration of the Plan; and (f) to construe and interpret
the Plan, the rules and regulations and the instruments evidencing options
granted under the Plan and to make all other determinations deemed necessary or
advisable for the administration of the Plan.
<PAGE>
The grant of options will be entirely discretionary and nothing in the Plan
will be deemed to give any director, officer or employee a right to receive
options. All decisions, determinations and implementation by the Board of
Directors shall be final and binding.
The Committee may request advice or assistance or employ such other persons
as are necessary for proper administration of the Plan.
4. Eligibility and Participation. Options may be granted only to key
employees (including officers and directors who are employees) of the
Corporation or any of its subsidiaries. An individual who has been granted an
option may, if he is otherwise eligible, be granted additional options.
Additional rights may be granted; however, no additional options shall be
granted if the grant will cause such options to violate the terms of Section
422A of the Code.
The aggregate fair market value of the stock (determined at the time of
grant of the option) for which any employee may be granted options under the
Plan and all other plans of the Corporation adopted under Section 422A of the
Code in any calendar year may not exceed the amount set forth in Section
422A(b)(8) and 422A(c)(4) of the Code, as amended, from time to time.
5. Terms of the Options. The term of each option granted under the Plan
shall be for not more than ten years from the date of the granting thereof,
subject to its earlier termination as hereinafter provided. Options shall be
granted at 100% of the fair market value of the Common Stock to which they
relate at the time of such grant, except that any option granted under the Plan
to a person owning more than 10% of the total combined voting power of the
Common Stock shall be at a price of 110% of such fair market value and shall be
for a term of no more than five years.
6. Nontransferablilty of Options. An option granted under the Plan shall by
its terms not be transferable otherwise than by will or by the laws of descent
and distribution, and an option may be exercised, during the lifetime of the
holder of the option, only by such holder.
7. Exercise of Options. Except as hereinafter provided in this Section 7
and in Sections 8 and 9 hereof, options are exercisable in whole or part
cumulatively to the extent of 20% of the number of shares covered thereby
immediately upon the grant thereof, 40% after the expiration of one year from
date of grant, 60% after the expiration of two years from date of grant, 80%
after the expiration of three years from date of grant and 100% after the
expiration of four years or more from the date of grant, provided, however, no
option shall be exercisable after the expiration of the term thereof as provided
in Section 5 hereof; and no option shall be exercisable unless the holder
thereof shall at the time of exercise have been an employee of the Corporation
or of any subsidiary of the Corporation for a period of at least three months,
except as otherwise provided in Sections 8 and 9 hereof. The purchase price of
any shares as to which an option shall be exercisable shall be paid in full at
the time of exercise. The holder of an option shall not have any of the rights
of a shareholder with respect to the shares covered by his option until such
shares shall have been issued to him upon the purchase of such shires upon
exercise of the option.
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<PAGE>
8. Previously Granted Options. Each option granted hereunder shall provide,
to the extent required by Sections 422A(b)(7) and 422A(c)(7) of the Code, that
it shall not be exercisable by the holder thereof while there is outstanding in
his hands any previously granted incentive stock option to purchase stock of the
Corporation or of any subsidiary of the Corporation.
9. Exercise Upon Cessation of Employment. If the holder of an option
granted hereunder ceases to be an employee of the Corporation or any of its
subsidiaries, any option held by him hereunder may be exercised to the extent
exercisable on the termination date, within three months thereafter (but in no
event after the option expires by its terms), unless employment is terminated
for cause, in which case the option terminates immediately. Any termination of
an option hereunder by reason of cessation of employment shall be without
prejudice to any right or remedies which the Corporation or any of its
subsidiaries may have against the holder of the option under the stock option
agreement or otherwise.
The stock option agreements may contain such provisions as the Committee
shall approve with reference to the effect of approved leaves of absence;
provided, however, that all options shall terminate ten years after date of
grant.
10. Exercise Upon Death or Disability. If the holder of an unexpired option
granted under this Plan dies while an employee of this Corporation or its
subsidiaries, or within three months after termination of employment (other than
for cause), his executor, administrator or other person entitled by law to his
rights thereunder may exercise the option at any time within one year after
death (but in no event after the option expires) to the extent exercisable at
the date of death.
If the holder of an unexpired option granted under this Plan becomes
disabled within the meaning of Section lO5(d)(4) of the Code while an employee
of this Corporation or its subsidiaries, such employee may exercise the option
at any time within 12 months after leaving employment of the Corporation.
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<PAGE>
11. Effectiveness of the Plan. The Plan shall become effective upon
adoption by the Board of Directors of the Corporation; provided, however, that
the Plan shall be submitted for approval by the shareholders of the Corporation
no later than 12 months after the date of adoption of the Plan by the Board of
Directors. Should the shareholders fail to approve the Plan, all options granted
thereunder shall be and become null and void.
12. Time of Granting Options. The date of grant of an option under the Plan
shall, for all purposes, be the date on which the Committee makes the
determination granting such options; and no grant shall be deemed effective
under the Plan prior to such date. Notice of the Committee's action shall be
given to each employee to whom an option is so granted a reasonable time after
the date of such grant.
13. Adjustments. Options granted hereunder shall contain such uniform
provisions as the Committee shall, in its sole judgment, determine for
adjustment of the number and class of shares covered thereby or of the option
prices, or both, to reflect a stock dividend, stock split-up, share combination,
exchange of shares, recapitalization, merger, consolidation, acquisition or
disposition of property or shares, reorganization, liquidation, issuance of
additional shares or other similar change or transactions of or by the
Corporation. In any such event the aggregate number and class of shares
available for issuance under the Plan shall be appropriately adjusted and all of
the provisions of this Plan with respect to the number and class of shares so
available shall likewise be adjusted; provided, however, that no such adjustment
shall be made so as to constitute a modification, extension or renewal of the
option within the meaning of Section 425(h) of the Code, or so as to prevent the
Corporation, or any other corporation or a subsidiary thereof if the employee
shall become employed by such corporation by reason of the transaction in
respect of which such adjustment is made, from being a corporation issuing or
assuming the option in a transaction to which Section 425(a) of the Code
applies.
14. Termination and Amendment of the Plan. The Plan will terminate on
January 1, 1992 unless the Board of Directors elects to terminate it prior to
that date. The Board of Directors may, without further shareholder approval, at
any time terminate, modify or amend the Plan. It may not, however, without
further approval by the holders of a majority of the outstanding Common Stock,
increase the number of shares as to which options may be granted, change the
eligibility requirements for persons entitled to receive options or adversely
affect the rights of an optionee under any unexercised option or any portion
thereof without the consent of the optionee.
Neither the termination or any modification or amendment of the Plan shall,
without the consent of the holder of an option theretofore granted under the
Plan, adversely affect the rights of such holder with respect to such option.
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<PAGE>
15. Termination of Right of Action. Every right of action arising out of or
in connection with the Plan by or on behalf of the Corporation or of any
subsidiary, or by any shareholder of the Corporation or of any subsidiary
against any past, present or future member of the Board of Directors, or against
any employee, or by an employee (past, present or future) against the
Corporation or any subsidiary, will, irrespective of the place where an action
may be brought and irrespective of the place of residence of any such
shareholder, director or employee, cease and be barred by the expiration of
three years from the date of the act or omission in respect of which such right
of action is alleged to have risen.
16. Registration of Certificates. Certificates may be registered only in
the name of the employee or, if he so indicates in writing, in his name jointly
with a member of his family, with right of survivorship. An employee who is a
resident of a jurisdiction which does not recognize such a joint tenancy may
have certificates registered in his name as tenant in common with a member of
his family, without right of survivorship.
17. Option Agreements. Each Option granted under this Plan shall be
evidenced by an agreement in such form and containing such provisions (subject
to and limited by the terms of this Plan) as the Board or Committee shall from
time to time approve. Agreements evidencing the Options need not be identical.
18. Tax Litigation. The Corporation shall have the right to contest, at its
expense, any tax ruling or decision, administrative or judicial, on an issue
which is related to the Plan and which the Board of Directors believes to be
important to holders of options issued under the Plan and to conduct any such
contest or any litigation arising therefrom to a final decision.
19. Governmental and Other Regulations. The Plan, and the grant and
exercise of the option to purchase shares hereunder, and the Corporation's
obligation to sell and deliver shares upon the exercise of rights to purchase
shares shall be subject to all applicable federal and state laws, rules and
regulations, and to such approvals by any regulatory or governmental agency
which may, in the opinion of counsel for the Corporation, be required.
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Exhibit 10.2
METRO CABLE CORPORATION
1992 STOCK OPTION PLAN
1. Purpose: Restrictions on Amount Available Under the Plan. This 1992
stock Option Plan (the "Plan") is intended to encourage stock ownership by
employees, consultants, officers and directors of METRO CABLE: CORPORATION, INC.
(the "Corporation"), its divisions and Subsidiary Corporations, so that they may
acquire or increase their proprietary interest in the Corporation; to induce
qualified persons to become employees, officers or directors (whether or not
they become employees) of or consultants to the Corporation; and to encourage
such employees, officers and directors (whether or not they are employees) and
consultants to remain in the employ of or continue to be associated with the
Corporation and to put forth maximum efforts for the success of the
Corporation's business. It is further intended that options granted by the
Committee pursuant to Section 6 of this Plan shall constitute "incentive stock
options" ("Incentive Stock Options") within the meaning of Section 422 of the
Internal Revenue Code, and the regulations issued thereunder, and options
granted by the Committee pursuant to Section 7 of this Plan shall constitute
"non-qualified stock options" ("Non- qualified Stock Options").
2. Definitions. As used in this Plan, the following words and phrases shall
have the meanings indicated:
(a) "Disability" shall mean an Optionee's inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than 12 months.
(b) "Market Value" per share as of a particular date shall mean the
last sale price of the Corporation's Common Stock as reported on a national
securities exchange or on the NASDAQ National Market System or, if a last sale
reporting quotation is not available for the Corporation's Common Stock, the
average of the bid and asked prices of the Corporation's Common Stock as
reported by NASDAQ or on the electronic bulletin board, or if not so reported,
as listed in the National Quotation Bureau, Inc.'s "Pink Sheets" or, if such
quotations are unavailable, the value determined by the Committee (as
hereinafter defined) in accordance with their discretion in making a bona fide,
good faith determination of fair market value. Market Value shall be determined
without regard to any restriction other than a restriction which, by its terms,
will never lapse.
(c) "Internal Revenue Code" shall mean the United States Internal
Revenue Code of 1986, as amended from time to time (codified at Title 26 of the
United States Code) (the "Internal Revenue Code"), and any successor
legislation.
<PAGE>
(d) "Parent Corporation" shall mean any corporation (other than the
employer corporation) in an unbroken chain of corporations ending with the
employer corporation if, at the time of granting an option, each of the
corporations other than the employer corporation owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
(e) "Subsidiary Corporation" shall mean any corporation (other than the
employer corporation) in an unbroken chain of corporations beginning with the
employer corporation if, at the time of granting an option, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
3. Administration.
(a) The Plan shall be administered by the Compensation Committee (the
"Committee") , consisting of not less than two members of the Board of Directors
of the Corporation (the "Board"), each of whom must be "disinterested" within
the meaning of Rule l6b-3(c)(2)(i) under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or alternatively, in the absence of a designated and
qualified committee, the entire Board shall serve as the Committee. Options
granted hereunder at any time when any Committee member is not "disinterested"
within the meaning of Rule 16b-3(c)(2)(i) under the Securities Exchange Act of
1934, as amended (the "1934 Act") shall not qualify as exempt purchases under
Rule l6b-3 of the 1934 Act.
(b) The Committee shall have the authority in its discretion, subject
to and not inconsistent with the express provisions of the Plan, to administer
the Plan and to exercise all the powers and authorities either specifically
granted to it under the Plan or necessary or advisable in the administration of
the Plan, including (without limitation): the authority to grant options; to
determine which options shall constitute Incentive Stock Options and which
options shall constitute Non-qualified Stock Options; to determine the purchase
price of the shares of Common Stock covered by each option (the "Option Price");
to determine the persons to whom, and the time or times at which, options shall
be granted; to determine the number of shares to be covered by each option; to
determine Market Value per share; to interpret the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms and
provisions of the Option Agreements (which need not be identical) entered into
in connection with options granted under the Plan; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members or to one or more
agents such administrative duties as it may deem advisable, and the Committee or
any person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan.
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<PAGE>
(c) The Board shall fill all vacancies, however caused, in the
Committee. The Board may from time to time appoint additional members to the
Committee, and may at any time remove one or more Committee members and
substitute others. One member of the Committee shall be selected by the Board as
chairman. The Committee shall hold its meetings at such times and places as it
shall deem advisable. Options granted under the Plan shall be evidenced by duly
adopted resolutions of the Committee included in the minutes of the meeting at
which they are adopted or in a unanimous written consent.
(d) The Committee shall endeavor to administer the Plan and grant
options hereunder in a manner that is compatible with the obligations of persons
subject to Section 16 of the 1934 Act, although compliance with Section 16 is
the obligation of the Optionee, not the Corporation. Neither the Board nor the
Corporation assume any responsibility for an Optionee's compliance with his
obligations under Section 16 of the 1934 Act.
(e) No member or the Board or Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any option
granted hereunder.
4. Eligibility.
(a) Subject to certain limitations hereinafter set forth, options may
be granted to employees of, consultants to and officers and directors (whether
or not they are employees) of the Corporation or its present or future divisions
and Subsidiary Corporations. In determining the persons to whom options shall be
granted and the number of shares to be covered by each option, the Committee
shall take into account the duties of the respective persons, their present and
potential contributions to the success of the Corporation and such other factors
as theCcommittee shall deem relevant in connection with accomplishing the
purpose of the Plan. A person to whom an option has been granted hereunder is
sometimes referred to herein as an "Optionee."
(b) An Optionee shall be eligible to receive more than one grant of an
option during the term of the Plan, on the terms and subject to the restrictions
herein set forth.
5. Stock Reserved.
(a) The stock subject to options hereunder shall be shares of the
Corporation's Common Stock, $.01 par value per share ("Common Stock") . The
aggregate number of shares of Common Stock as to which options may be granted
from time to time under the Plan, and the aggregate number which may be issued
to officers and directors, shall not exceed 150,000. Such shares may, in whole
or in part, be authorized but unissued shares or shares that shall have been or
that may be reacquired by the Corporation. The limitations established by this
Section 5(a) shall be subject to adjustment as provided in Section 8(i) hereof.
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<PAGE>
(b) In the event that any outstanding option under the Plan for any
reason expires or is terminated without having been exercised in full, the
shares of Common Stock allocable to the unexercised portion of such option
(unless the Plan shall have been terminated) shall become available for
subsequent grants of options under the Plan.
6. Incentive Stock Options.
(a) Options granted pursuant to this Section 6 are intended to
constitute Incentive Stock Options and shall be subject to the following special
terms and conditions, in addition to the general terms and conditions specified
in Section 8 hereof. Only employees of the Corporation shall be entitled to
receive Incentive Stock Options.
(b) The aggregate Market Value (determined as of the date the Incentive
Stock Option is granted) of the shares of Common Stock with respect to which
Incentive Stock Options granted under this and any other plan of the Corporation
or any Parent Corporation or Subsidiary Corporation are exercisable for the
first time by an Optionee during any calendar year may not exceed the amount
(generally, $100,000 per year) set forth in Section 422(d) of the Internal
Revenue Code.
(c) Incentive Stock Options granted under this Plan are intended to
satisfy all requirements for incentive stock options under Section 422 of the
Internal Revenue Code and the Treasury Regulations thereunder and,
notwithstanding any other provision of this Plan, the Plan and all Incentive
Stock Options granted under it shall be so construed, and all contrary
provisions shall be so limited in scope and effect and, to the extent they
cannot be so limited, they shall be void.
7. Non-qualified Stock Options. Options granted pursuant to this Section 7
are intended to constitute Non-qualified Stock Options and shall be subject only
to the general terms and conditions specified in Section 8 hereof.
8. Terms and Conditions of Options. Each option granted pursuant to the
Plan shall be evidenced by a written Option Agreement between the Corporation
and the Optionee, which agreement shall be substantially in the form of Exhibit
"A" attached hereto as modified from time to time by the Committee in its
discretion, and which shall comply with and be subject to the following terms
and conditions:
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(a) Number of Shares. Each Option Agreement shall state the number of
shares of Common Stock to which the option relates.
(b) Type of Option. Each Option Agreement shall specifically identify
the portion, if any, of the option which constitutes an Incentive Stock Option
and the portion, if any, which constitutes a Non- qualified Stock Option.
(c) Option Price. (i) Each Option Agreement shall state the Option
Price, which (except as otherwise set forth in paragraphs 8(c)(ii) and 8(c)
(iii) hereof) shall be not less than 100% of the Market Value per share on the
date of grant of the option.
(ii) Any Incentive Stock Option granted under the Plan to a person
owning more than ten percent of the total combined voting power of the Common
Stock shall be exercisable at a price no less than 110% of the Market Value per
share on the date of grant of the Incentive Stock Option.
(iii) Any Non-qualified Stock Option granted under the Plan shall
be exercisable at a price no less than 80% of the Market Value per share on the
date of grant of the Non-qualified Stock Option.
(iv) The Option Price shall be subject to adjustment as provided
in Section 8(i) hereof.
(v) The date on which the Committee adopts a resolution expressly
granting an option shall be considered the day on which such option is granted,
unless a future date is specified in the resolution.
(d) Term of Option. Each Option shall be exercisable during the
exercise period as and at the times the Committee, in its sole discretion, may
determine, as reflected in the Option Agreement; provided, however:
(i) The exercise period shall not exceed ten years from the date
of grant of the option.
(ii) Incentive Stock Options granted to a person owning more than
ten percent of the total combined voting power of the Common Stock of the
Corporation shall be for no more than five years;
(iii) The Committee shall have the authority to accelerate or
extend the exercisability of any outstanding option at such time and under such
circumstances as it, in its sole discretion, deems appropriate. No exercise
period may be extended to increase the term of the option beyond ten years from
the date of the grant.
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<PAGE>
(iv) The exercise period shall be subject to earlier termination
as provided in Sections 8(f) and 8(g) hereof, and furthermore shall be
terminated upon surrender of the option by the holder thereof if such surrender
has been authorized in advance by the Committee.
(e) Method of Exercise and Medium and Time of Payment.
(i) An option may be exercised, as to any or all whole shares of
Common Stock as to which the option has become exercisable; provided, however,
that an option may not be exercised at any one time as to fewer than 100 shares
(or such number of shares as to which the option is then exercisable if such
number of shares is less than 100).
(ii) Each exercise of an option granted hereunder, whether in
whole or in part, shall be by written notice to the Secretary of the Corporation
designating the number of shares as to which the option is exercised, and shall
be accompanied by payment in full of the Option Price (in cash, shares or
property) for the number of shares so designated, together with any written
statements reasonably required by the Company in order to fulfill its
obligations under any applicable securities laws.
(iii) The Option Price shall be paid in cash, in shares of Common
Stock having a Market Value equal to such Option Price or in property or in a
combination of cash, shares of Common Stock and property, and (subject to
approval of the Board of Directors) may be effected in whole or in part (A) with
monies received from the Corporation at the time of exercise as a compensatory
cash payment, or (B) with monies borrowed from the Corporation pursuant to
repayment terms and conditions as shall be determined from time to time by the
Committee, in its discretion, separately with respect to each exercise of
options and each Optionee; provided, however, that each such method and time for
payment and each such borrowing and terms and conditions of repayment shall be
permitted by and be in compliance with applicable law.
(iv) The Board of Directors shall have the sole and absolute
discretion to determine whether or not property other than cash or Common Stock
may be used to purchase the shares of Common Stock hereunder and, if so, to
determine the value of the property received.
(f) Termination. Except as provided in this Section 8(f) and in Section
8(g) hereof, an option may not be exercised unless the Optionee is then an
employee or officer or director of or consultant to the Corporation or a
division or Subsidiary Corporation thereof (or a corporation or a Parent or
Subsidiary Corporation of such corporation issuing or assuming the option in a
transaction to which Section 424(a) of the Internal Revenue Code applies), and
unless the Optionee has remained continuously as an employee, officer or
director of or consultant to the Corporation since the date of grant of the
option.
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(i) If the Optionee ceases to be an employee, officer or director
of or consultant to the Corporation (other than by reason of death, Disability
or retirement), all options of such Optionee that are exercisable at the time of
such cessation may, unless earlier terminated in accordance with their terms, be
exercised within three months after such cessation; provided, however, that if
the employment or consulting relationship of an Optionee shall terminate, or if
a director shall be removed, for cause, all options theretofore granted to such
Optionee shall, to the extent not theretofore exercised, immediately terminate.
(ii) Nothing in the Plan or in any option granted pursuant hereto
shall confer upon an individual any right to continue in the employ of the
Corporation or any or its divisions or Subsidiary Corporations or interfere in
any way with the right of the Corporation or its shareholders or any such
division or Subsidiary Corporation to terminate such employment or other
relationship between the individuai and the Corporation or any of its divisions
and Subsidiary Corporations.
(g) Death, Disability or Retirement of Optionee. If an Optionee shall
die while a director or officer of, or employed by, or a consultant to, the
Corporation or a Subsidiary Corporation or within three months after the
termination of such Optionee's employment, directorship, service as an officer
or consulting relationship, other than termination for cause, or it the
Optionee's employment, directorship, service as an officer or consulting
relationship shall terminate by reason of Disability or retirement, all options
theretofore granted to such Optionee (whether or not otherwise exercisable;
unless earlier terminated in accordance with their terms), may be exercised by
the Optionee or by the Optionee's estate or by a person who acquired the right
to exercise such option by bequest or inheritance or otherwise by reason of the
death or Disability of the Optionee, at any time within one year after the date
of death, Disability or retirement or the Optionee; provided, however, that in
the case of Incentive Stock Options such one-year period shall be limited to
three months in the case of retirement.
(h) Transferability Restriction. (i) Options granted under the Plan
shall not be transferable other than by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder. Options may be exercised during the lifetime of
the Optionee only by the Optionee and thereafter only by his legal
representative.
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<PAGE>
(ii) Any attempted sale, pledge, assignment, hypothecation or
other transfer of an option contrary to the provisions hereof and the levy of
any execution, attachment or similar process upon an option shall be null and
void and without force or effect and shall result in termination of the option.
(iii) (A) As a condition to the transfer of any shares of Common
Stock issued upon exercise of an option granted under this Plan, the Corporation
may require an opinion of counsel, satisfactory to the Corporation, to the
effect that such transfer will not be in violation of the Securities Act of 1933
or any other applicable securities laws or that such transfer has been
registered under federal and all applicable state securities laws. (B) Further,
the Corporation shall be authorized to refrain from delivering or transferring
shares of Common Stock issued under this Plan until the Board of Directors
determines that such delivery or transfer will not violate applicable securities
laws and the Optionee has tendered to the Corporation any federal, state or
local tax owed by the Optionee as a result of exercising the option, or
disposing of any Common Stock, when the Corporation has a legal liability to
satisfy such tax. (C) The Corporation shall not be liable for damages due to
delay in the delivery or issuance of any stock certificate for any reason
whatsoever, including, but not limited to, a delay caused by listing
requirements of any securities exchange or any registration requirements under
the Securities Act of 1933, the 1934 Act, or under any other state or federal
law, rule or regulation. (D) The Corporation is under no obligation to take any
action or incur any expense in order to register or qualify the delivery or
transfer of shares of Common Stock under applicable securities laws or to
perfect any exemption from such registration or qualification. (E) The
Corporation will have no liability to any Optionee for refusing to deliver or
transfer shares of Common Stock if such refusal is based upon the provisions of
this Paragraph.
(i) Effect of Certain Changes.
(i) If there is any change in the number of outstanding shares of
Common Stock through the declaration of stock dividends, or through
recapitalization resulting in stock splits, or combinations or exchanges of such
shares, the number of shares of Common Stock available for options, the number
of such shares covered by outstanding options, and the price per share of such
options, shall be proportionately adjusted by the Committee to reflect any
increase or decrease in the number of issued shares of Common Stock; provided,
however, that any fractional shares resulting from such adjustment shall be
eliminated.
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<PAGE>
(ii) In the event of the proposed dissolution or liquidation of
the corporation, or in the event of any corporate separation or division,
including, but not limited to, split-up, split- off or spin-off, or in the event
of a merger or consolidation of the Corporation with another corporation, the
Committee may provide that the holder of each option then exercisable shall have
the right to exercise such option (at its then Option Price) solely for the kind
and amount of shares of stock and other securities, property, cash or any
combination thereof which would be receivable upon such dissolution,
liquidation, or corporate separation or division, or merger or consolidation by
a holder of the number of shares of Common Stock for which such option might
have been exercised immediately prior to such event; or the Committee may
provide, in the alternative, that each option granted under the Plan shall
terminate as of a date to be fixed by the Committee; provided, however, that not
less than 30 days' written notice of the date so fixed shall be given to each
Optionee, who shall have the right, during the period of 30 days preceding such
termination, to exercise the options as to all or any part of the shares of
Common Stock covered thereby, including shares as to which such options would
not otherwise be exercisable.
(iii) Paragraph (ii) of this Section 8(i) shall not apply to a
merger or consolidation in which the Corporation is the surviving corporation
and shares of Common Stock are not converted into or exchanged for stock,
securities of any other corporation, cash or any other thing of value.
Notwithstanding the preceding sentence, in case of any consolidation or merger
of another corporation into the Corporation in which the Corporation is the
surviving corporation and in which there is a reclassification or change
(including a change to the right to receive cash or other property) of the
shares of Common Stock (other than a change in par value, or from par value to
no par value, or as a result of a subdivision or combination, but including any
change in such shares into two or more classes or series of shares), the
Committee may provide that the holder of each option then exercisable shall have
the right to exercise such option solely for the kind and amount of shares of
stock and other securities (including those of any new direct or indirect parent
of the Corporation) , property, cash or any combination thereof receivable upon
such reclassification, change, consolidation or merger by the holder of the
number of shares of Common Stock for which such option might have been
exercised.
(iv) Notwithstanding paragraph (ii) of this Section 8(i), in the
event of any merger or consolidation in which the Company is not the surviving
corporation or any sale or transfer by the Company of all or substantially all
its assets or any tender offer or exchange offer for or the acquisition,
directly or indirectly, by any person or group of all or a majority of the then
outstanding voting securities of the Company, all options issued pursuant to the
Plan shall become exercisable in full, notwithstanding any other provision of
the Plan or of any outstanding options granted thereunder, including provisions
providing for staggered vesting of options, on and after (i) the fifteenth day
prior to the effective date of such merger, consolidation, sale, transfer or
acquisition or (ii) the date of commencement of such tender offer or exchange
offer, as the case may be. To the extent that Section 422(d) of the Internal
Revenue Code would not permit the provisions of the foregoing sentence to apply
to any outstanding options, such options shall immediately upon the occurrence
of the event described in the foregoing sentence, be treated for all purposes of
the Plan as nonstatutory stock options and shall be immediately exercisable as
such as provided in the foregoing sentence. Notwithstanding the foregoing, in no
event shall any option be exercisable after the date of termination of the
exercise period of such option specified in Section 8(d).
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<PAGE>
(v) In the event of a change in the Common Stock of the
Corporation as presently constituted, which is limited to a change of all of its
authorized shares with par value into the same number of shares with a different
par value or without par value, the shares resulting from any such change shall
be deemed to be the Common Stock within the meaning of the Plan.
(vi) To the extent that the foregoing adjustments relate to stock
or securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive, provided that each Incentive Stock Option granted pursuant to this
Plan shall not be adjusted in a manner that causes such option to fail to
continue to quality as an Incentive Stock Option within the meaning of Section
422 of the Internal Revenue Code.
(vii) Except as expressly provided in this Section 8(i), the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, consolidation or spin-off of assets or
stock of another corporation; and any issue by the Corporation of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to the option. The
grant of an option pursuant to the Plan shall not affect in any way the right or
power of the Corporation to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure or to merge or to consolidate or
to dissolve, liquidate or sell, or transfer all or part of its business or
assets.
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(j) Rights as Shareholder - Non-Distributive Intent.
(i) Neither a person to whom an option is granted, nor such
person's legal representative, heir, legatee or distributee, shall be deemed to
be the holder of, or to have any rights of a holder with respect to, any shares
subject to such option, until after the option is exercised and the shares are
issued to the person exercising such option.
(ii) Upon exercise of an option at a time when there is no
registration statement in effect under the Securities Act of 1933 relating to
the shares issuable upon exercise, shares may be issued to the Optionee only if
the Optionee represents and warrants in writing to the Corporation that the
shares purchased are being acquired for investment and not with a view to the
distribution thereof.
(iii) No shares shall be issued upon the exercise of an option
unless and until there shall have been compliance with any then applicable
requirements of the Securities and Exchange Commission, or any other regulatory
agencies having jurisdiction over the Corporation.
(iv) No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distribution or
other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 8(i) hereof.
(k) Other Provisions. Option Agreements authorized under the Plan shall
contain such other provisions, including, without limitation, (i) the imposition
of restrictions upon the exercise of an option, and (ii) in the case of an
Incentive Stock Option, the inclusion of any condition not inconsistent with
such option qualifying as an Incentive Stock Option, as the Committee shall deem
advisable.
9. Agreement by Optionee Regarding Withholding Taxes. If the committee
shall so require, as a condition of exercise, each optionee shall agree that:
(a) No later than the date of exercise of any option ranted hereunder,
the Optionee will pay to the Corporation or make arrangements satisfactory to
the Corporation regarding payment of any federal, state or local taxes of any
kind required by law to be withheld upon the exercise of such option; and
(b) The Corporation shall, to the extent permitted or equired by law,
have the right to deduct federal, state and local taxes of any kind required by
law to be withheld upon the exercise of such option from any payment of any kind
otherwise due to the Optionee. If requested by the Optionee at the time of
exercise of an option granted under the Plan, the Committee in its discretion
may permit an Optionee to satisfy tax obligations resulting therefrom, in full
or in part, by the Corporation withholding a sufficient number of shares in
payment therefor.
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(c) The Corporation shall not be obligated to advise any ptionee of the
existence of any tax or the amount which the Corporation will be so required to
withhold.
10. Term of Plan. Options may be granted pursuant to the Plan from time to
time within a period of ten years from the date the Plan is adopted by the
Foard, or the date the Plan is approved by the shareholders of the Corporation,
whichever is earlier.
11. Amendment and Termination of the Plan.
(a)(i) The Board at any time and from time to time may suspend,
terminate, modify or amend the Plan;
(ii) provided, however, that any amendment that would: (A)
materially increase the number of securities issuable under the Plan to persons
who are subject to Section 16 (a) of the l934 Act; or (B) grant eligibility to a
class of persons who are subject to Section 16(a) of the 1934 Act not included
within the terms of the Plan prior to the amendment; (C) materially increase the
benefits accruing to persons who are subject to Section 16(a) of the 1934 Act
under the Plan; or (D) require shareholder approval under applicable state law,
the rules and regulations of any national securities exchange on which the
Corporation's securities then may be listed, the Internal Revenue Code or any
other applicable law, shall be subject to the approval of the shareholders of
the Corporation as provided in Section 12 hereof;
(iii) provided further that any such increase or modification that
may result from adjustments authorized by Section 8(i) hereof or which are
required for compliance with the 1934 Act, the Internal Revenue Code, the
Employee Retirement Income Security Act of 1974, their rules or other laws or
judicial order, shall not require
approval of shareholders.
(b) Except as provided in Section 8 hereof, no suspension, termination,
modification or amendment of the Plan may adversely affect any option previously
granted, unless the written consent of the Optionee is obtained.
12. Approval of Shareholders. The Plan shall take effect upon its adoption
by the Board but shall be subject to approval at a duly called and held meeting
of stockholders in conformance with the vote required by the Corporation's
charter documents, resolution of the Board, any other applicable law and the
rules and regulations thereunder, or the rules and regulations of any national
securities exchange upon which the Corporation's Common Stock is listed and
traded, each to the extent applicable.
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13. Assumption. The terms and conditions of any outstanding options granted
pursuant to this Plan shall be assumed by, be binding upon and inure to the
benefit of any successor corporation to the Corporation and shall continue to be
governed, to the extent applicable, by the terms and conditions of this Plan.
Such successor corporation shall not otherwise be obligated to assume this Plan.
14. Termination of Right of Action. Every right of action arising out of or
in connection with the Plan by or on behalf of the Corporation or of any
Subsidiary Corporation, or by any shareholder of the Corporation or of any
Subsidiary Corporation against any past, present or future member of the Board,
or against any employee, or by an employee (past, present or future) against the
Corporation or any Subsidiary Corporation, will, irrespective of the place where
an action may be brought and irrespective of the place of residence of any such
shareholder, director or employee, cease and be barred by the expiration of
three years from the date of the act or omission in respect of which such right
of action is alleged to have risen.
15. Tax Litigation. The Corporation shall have the right, but not the
obligation, to contest, at its expense, any tax ruling or decision,
administrative or judicial, on any issue which is related to the Plan and which
the Board believes to be important to holders of options issued under the Plan
and to conduct any such contest or any litigation arising therefrom to a final
decision.
16. Adoption.
(a) This Plan was adopted by the Board of Directors of the Corporation
to be effective as of September 1, 1992.
(b) If this Plan is not approved by the shareholders of the
Corporation within 12 months of the date the Plan was approved by the Board of
Directors of the Corporation as required by Section 422(b)(l) of the Internal
Revenue Code, this Plan and the options granted hereunder shall be and remain
effective, but the reference to Incentive Stock Options herein shall be deleted
and all options granted hereunder shall be Non-qualified Stock Options pursuant
to Section 7 hereof.
METRO CABLE CORPORATION
(the Corporation)
By
-------------------------------------
Robert E. Thrailkill, President
ATTEST:
- ------------------------------------
John R. Benesch, Secretary/Treasurer
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Exhibit "A" to
1992 Stock Option Plan of
METRO CABLE CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made as of this ----- day of 199---- , between METRO
CABLE CORPORATION a Colorado corporation (the "Corporation") , and
- ---------------- (the "Optionee").
In accordance with its 1992 Stock Option Plan (the "Plan"), a copy of which
is attached hereto and incorporated herein by reference, the Corporation
desires, in connection with the services of the Optionee, to provide the
Optionee with an opportunity to acquire $.001 par value common stock (the
"Common Stock") or the Corporation on favorable terms and thereby grant the
Optionee a proprietary interest in the continued progress and the success of the
business of the Corporation.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein set forth and other good and valuable consideration, the Corporation and
the Optionee agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination of
Compensation Committee of the Board of Directors of the Corporation (the
"Board") made on -----------, 19--- (the "Date of Grant"), the Corporation,
subject to the terms of the Plan and of this Agreement, confirms that the
Optionee has been irrevocably granted on the Date of Grant, as a matter of
separate inducement and agreement, and in addition to and not in lieu at salary
or other compensation for services, [an Incentive Stock Option pursuant to
Section 6 of the Plan or a Non-qualified Stock Option pursuant to Section 7 of
the Plan] (the "Option") to purchase an aggregate of ------ shares of Common
Stock on the terms and conditions herein set forth, subject to adjustment as
provided in Section 8 hereof.
2. Purchase Price. The purchase price of shares of Common Stock covered by
the Option will be $------ per share (the "Option Price") subject to adjustment
as provided in Section 8 hereof.
3. Exercise of Option. Except as otherwise provided in Section 8 of the
Plan, the Option may be exercised in whole or part at any time during the term
of the Option, provided, however, no Option shall be exercisable after the
expiration of the term thereof, and no Option shall be exercisable unless the
holder shall at the time of exercise have been an employee or director of or a
consultant to the Corporation or of any subsidiary of the Corporation for a
period of at least three months. The Option may not be exercised at any one time
as to fewer than 100 shares (or such number of shares as to which the Option is
then exercisable if such number of shares is less than 100).
1
<PAGE>
The Option may be exercised, as provided in this Section 3, by notice and
payment to the Corporation as provided in Section 10 hereof and Section 8(e) of
the Plan.
4. Term of Option. The term of the Option will be through --------- ----,
- ----- subject to earlier termination or cancellation as provided in this
Agreement. Except as otherwise provided in Section 7 hereof, the Option will not
be exercisable unless the Optionee shall, at the time of exercise, be an
employee or director of or consultant to the Corporation or of a subsidiary. As
used in this Agreement, the term "subsidiary" refers to and includes each
"subsidiary corporation" as defined in the Plan.
The holder of the Option will not have any rights to dividends or any other
rights of a shareholder with respect to any shares of Common Stock subject to
the Option until such shares shall have been issued to him (as evidenced by the
appropriate transfer agent of the Corporation) upon purchase of such shares
through exercise of the Option.
5. Transferability Restriction. The Option may not be assigned, transferred
or otherwise disposed of, or pledged or hypothecated in any way (whether by
operation of law or otherwise) otherwise than by will or the laws of descent and
distribution, or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder, and shall not be subject to execution, attachment,
or other process. Any assignment, transfer, pledge, hypothecation or other
disposition of the Option or any attempt to make any such levy of execution,
attachment or other process will cause the Option to terminate immediately upon
the happening of any such event, provided, however, that any such termination of
the Option under the foregoing provisions of this Paragraph 5 will not prejudice
any rights or remedies which the Corporation or any Subsidiary Corporation may
have under this Agreement or otherwise.
6. Exercise Upon Termination. The Optionee's rights to exercise this Option
upon termination of employment or cessation as a director or consultant shall be
as set forth in Section 8(f) of the Plan.
7. Death, Disability or Retirement of Optionee. The Optionee's rights to
exercise this Option upon the death, disability or retirement of the Optionee
shall be as set forth in Section 8(g) of the Plan.
8. Adjustments. The Option shall be subject to adjustment upon the
occurrence of certain events as set forth in Section 8(i) of the Plan.
9. No Registration Obligation. The Optionee understands that neither the
Option is not registered under the Securities Act of 1933, as amended (the
"Act") and that the Corporation has no obligation to register the shares of
Common Stock subject thereto and issuable upon the exercise thereof under the
Act. The Optionee represents that the Option is being acquired by him and that
such shares of Common Stock will be acquired by him for investment and all
certificates for the shares issued upon exercise of the Option will bear the
following legend unless such shares are registered under the Act prior to their
issuance.
2
<PAGE>
The shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act"), and
are "restricted securities" as that term is defined in Rule
144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred except pursuant to an
effective registration statement under the Act, the
availability of which is to be established to the
satisfaction of the Company.
The Optionee further understands and agrees that the Option may only be
exercised if, at the time of such exercise, the Optionee and the Corporation are
able to establish the existence of an exemption from registration under the Act
and applicable state laws, and both the Optionee and the Corporation agree to
use their best efforts to attempt to establish such exemption.
10. Notices. Each notice relating to this Agreement will be in writing and
delivered in person or by certified mail to the proper address. All notices to
the Corporation shall be addressed to it at its office at 450 South Federal
Boulevard, Riverton, Wyoming 82501. All notices to the Optionee or other person
or persons then entitled to exercise the Option shall be addressed to the
Optionee or such other person or Persons at the Optionee's address below
specified. Anyone to whom a notice may be given under this Agreement may
designate a new address by notice to that effect.
11. Approval of Counsel. The exercise of the Option and the issuance and
delivery of shares of Common Stock pursuant thereto shall be subject to approval
by the Corporation's counsel of all legal matters in connection therewith,
including compliance with the requirements of the Act, the Securities Exchange
Act of 1934, as amended, applicable state securities laws, the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed.
12. Benefits of Agreement. This Agreement will inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon the Optionee and all rights granted to the Corporation under this
Agreement will be binding upon the Optionee's heirs, legal representatives and
successors.
3
<PAGE>
13. Governmental and Other Regulations. The exercise of the Option and
theCorporation's obligation to sell and deliver shares upon the exercise of
rights to purchase shares is subject to all applicable federal and state laws,
rules and regulations, and to such approvals by any regulatory or governmental
agency which may, in the opinion of counsel for the Corporation, be required.
14. lncorporation of the Plan. The Plan is attached hereto and incorporated
herein by reference. In the event that any provision in this Agreement conflicts
with a provision in the Plan, the Plan shall govern.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed
in its name by its President or a Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary or its Assistant Secretary and
the Optionee has hereunto set his hand and seal all as of the date first above
written.
METRO CABLE CORPORATION
(Seal)
ATTEST: By
-------------------------------------------
Robert E. Thrailkill,
President
- -----------------------------------
John R. Benesch, Secretary/Treasurer
The undersigned Optionee understands the terms of this Option Agreement and
the attached Plan and hereby agrees to comply therewith,
Date --------------, 199
----------------------------------
Optionee:
----------------------------------
Tax ID Number:
----------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
4
Exhibit 10.3
AMERICAN RIVERS OIL COMPANY
1995 STOCK OPTION AND STOCK COMPENSATION PLAN
1. Purposes of and Benefits Under the Plan. This 1995 Stock Option and
Stock Compensation Plan (the "Plan") is intended to encourage stock ownership by
employees and officers (whether or not they are employees) of and consultants to
American Rivers Oil Company (the "Corporation"), so that they may acquire or
increase their proprietary interest in the Corporation, and is intended to
facilitate the Corporation's efforts to (i) induce qualified persons to become
employees or officers of or consultants to the Corporation; (ii) compensate
employees, officers and consultants for services to the Corporation; and (iii)
encourage such persons to remain in the employ of or associated with the
Corporation and to put forth maximum efforts for the success of the Corporation.
The Plan also provides the Corporation the opportunity to compensate such
persons through the issuance of shares of its Common Stock, in lieu of cash,
therefore allowing the Corporation to preserve its cash for other purposes.
2. Definitions. As used in this Plan, the following words and phrases shall
have the meanings indicated:
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Committee" shall mean the Compensation Committee appointed by the
Board, if one has been appointed. If no Committee has been appointed, the term
"Committee" shall mean the Board.
(c) "Common Stock" shall mean the Corporation's $.01 par value common
stock.
(d) "Employee" means any person or entity that renders bona fide
services to the Corporation, including, without limitation: (i) a person
employed by the Company; (ii) an officer or director of the Company, (iii) a
person or company engaged by the Company as a consultant or advisor; (iv) a
lawyer, law firm, accountant or accounting firm, engaged by the Company; or (v)
any other person defined as an "employee" herein.
(e) "Recipient" means any person granted an Option or awarded a Award
hereunder.
<PAGE>
3. Administration.
(a) The Plan shall be administered by the Committee. The Committee
shall have the authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to exercise all
the powers and authorities either specifically conferred under the Plan or
necessary or advisable in the administration of the Plan, including the
authority: to grant Options and Awards; to determine the vesting schedule and
other restrictions, if any, relating to Options and Awards; to determine the
purchase price of the shares of Common Stock covered by each Option (the "Option
Price"); to determine the persons to whom, and the time or times at which,
Options and Awards shall be granted; to determine the number of shares to be
covered by each Option or Award; to interpret the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms and
provisions of the Option agreements (which need not be identical) entered into
in connection with Options granted under the Plan; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members or to one or more
agents such administrative duties as it may deem advisable, and the Committee or
any person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan.
(b) Options and Awards granted under the Plan shall be evidenced by
duly adopted resolutions of the Committee included in the minutes of the meeting
at which they are adopted or in a unanimous written consent.
(c) The Committee shall endeavor to administer the Plan and grant
Options and Awards hereunder in a manner that is compatible with the obligations
of persons subject to Section 16 of the U.S. Securities Exchange Act of 1934
(the "1934 Act"), although compliance with Section 16 is the obligation of the
Recipient, not the Corporation. Neither the Committee, the Board nor the
Corporation can assume any legal responsibility for a Recipient's compliance
with his obligations under Section 16 of the 1934 Act.
(d) No member of the Committee or the Board shall be liable for any
action taken or determination made in good faith with respect to the Plan or any
Option or Award granted hereunder.
4. Eligibility.
(a) Subject to certain limitations hereinafter set forth, Options and
Awards may be granted to employees and officers (whether or not they are
employees) of and consultants to the Corporation. In determining the persons to
whom Options or Awards shall be granted and the number of shares to be covered
by each Option or Award, the Committee shall take into account the duties of the
respective persons, their present and potential contributions to the success of
the Corpora tion, and such other factors as the Committee shall deem relevant to
accomplish the purposes of the Plan.
(b) A Recipient shall be eligible to receive more than one grant of an
Option or Award during the term of the Plan, on the terms and subject to the
restrictions herein set forth.
-2-
<PAGE>
5. Stock Reserved.
(a) The stock subject to Options or Awards hereunder shall be shares
of Common Stock. Such shares, in whole or in part, may be authorized but
unissued shares or shares that shall have been or that may be reacquired by the
Corporation. The aggregate number of shares of Common Stock as to which Options
and Awards may be granted from time to time under the Plan shall not exceed
750,000, subject to adjustment as provided in Section 6(f) hereof.
(b) If any Option outstanding under the Plan for any reason expires or
is terminated without having been exercised in full, or if any Award granted is
forfeited because of vesting or other restrictions imposed at the time of grant,
the shares of Common Stock allocable to the unexercised portion of such Option
or the forfeited portion of the Award shall become available for subsequent
grants of Options and Awards under the Plan.
6. Terms and Conditions of Options. Each Option granted pursuant to the
Plan shall be evidenced by a written Option agreement between the Corporation
and the Recipient, which agreement shall be substantially in the form of Exhibit
A hereto as modified from time to time by the Committee in its discretion, and
which shall comply with and be subject to the following terms and conditions:
(a) Number of Shares. Each Option agreement shall state the number of
shares of Common Stock covered by the Option.
(b) Option Price. Each Option agreement shall state the Option Price,
which shall be determined by the Committee subject only to the following
restrictions:
(1) The Option Price shall be subject to adjustment as provided
in Section 6(f) hereof.
(2) The date on which the Committee adopts a resolution expressly
granting an Option shall be considered the day on which such option is granted,
unless a future date is specified in the resolution.
-3-
<PAGE>
(c) Term of Option. Each Option agreement shall state the period
during and times at which the Option shall be exercisable, in accordance with
the following limitations:
(1) The date on which the Committee adopts a resolution expressly
granting an Option shall be considered the day on which such Option is granted,
although such grant shall not be effective until the Recipient has executed an
Option agreement with respect to such Option.
(2) The exercise period of any Option shall not exceed five years
from the date of grant of the Option.
(3) The Committee shall have the authority to accelerate or
extend the exercisability of any outstanding Option at such time and under such
circumstances as it, in its sole discretion, deems appropriate. No exercise
period may be so extended to increase the term of the Option beyond five years
from the date of the grant.
(d) Method of Exercise and Medium and Time of Payment.
(1) An Option may be exercised as to any or all whole shares of
Common Stock as to which it then is exercisable, provided, however, that no
Option may be exercised as to less than 100 shares (or such number of shares as
to which the Option is then exercisable if such number of shares is less than
100).
(2) Each exercise of an Option granted hereunder, whether in
whole or in part, shall be effected by written notice to the Secretary of the
Corporation designating the number of shares as to which the Option is being
exercised, and shall be accompanied by payment in full of the Option Price for
the number of shares so designated, together with any written statements
required by, or deemed by the Corporation's counsel to be advisable pursuant to,
any applicable securities laws.
(3) The Option Price shall be paid in cash, or in shares of
Common Stock having a fair market value equal to such Option Price, or in
property or in a combination of cash, shares and property and, subject to
approval of the Committee, may be effected in whole or in part with funds
received from the Corporation at the time of exercise as a compensatory cash
payment.
(4) The Committee shall have the sole and absolute discretion to
determine whether or not property other than cash or Common Stock may be used to
purchase the shares of Common Stock hereunder and, if so, to determine the value
of the property received.
(5) The Recipient shall make provision for the withholding of
taxes as required by Paragraph 8 hereof.
(e) Transferability Restriction.
-4-
<PAGE>
(1)(A) As a condition to the transfer of any shares of Common
Stock issued upon exercise of an Option granted under this Plan, the Corporation
may require an opinion of counsel, satisfactory to the Corporation, to the
effect that such transfer will not be in violation of the Securities Act of
1933, as amended (the "1933 Act") or any other applicable securities laws or
that such transfer has been registered under federal and all applicable state
securities laws. (B) Further, the Corporation shall be authorized to refrain
from delivering or transferring shares of Common Stock issued under this Plan
until the Committee determines that such delivery or transfer will not violate
applicable securities laws and the Recipient has tendered to the Corporation any
federal, state or local tax owed by the Recipient as a result of exercising the
Option or disposing of any Common Stock when the Corporation has a legal
liability to satisfy such tax. (C) The Corporation shall not be liable for
damages due to delay in the delivery or issuance of any stock certificate for
any reason whatsoever, including, but not limited to, a delay caused by listing
requirements of any securities exchange or any registration requirements under
the 1933 Act, the 1934 Act, or under any other state, federal or provincial law,
rule or regulation. (D) The Corporation is under no obligation to take any
action or incur any expense in order to register or qualify the delivery or
transfer of shares of Common Stock under applicable securities laws or to
perfect any exemption from such registration or qualification unless otherwise
provided in a separate written agreement. (E) Furthermore, the Corporation will
not be liable to any Recipient for failure to deliver or transfer shares of
Common Stock if such failure is based upon the provisions of this paragraph.
(f) Effect of Certain Changes.
(1) If there is any change in the number of shares of outstanding
Common Stock through the declaration of stock dividends, or through a
recapitalization resulting in stock splits or combinations or exchanges of such
shares, the number of shares of Common Stock available for Options and the
number of such shares covered by outstanding Options, and the exercise price per
share of the outstanding Options, shall be proportionately adjusted by the
Committee to reflect any increase or decrease in the number of issued shares of
Common Stock; provided, however, that any fractional shares resulting from such
adjustment shall be eliminated.
(2) In the event of the proposed dissolution or liquidation of
the Corporation, or any corporate separation or division, including, but not
limited to, split-up, split-off or spin-off, or a merger or consolidation of the
Corporation with another corporation, the Committee may provide that the holder
of each Option then exercisable shall have the right to exercise such Option (at
its then current Option Price) solely for the kind and amount of shares of stock
and other securities, property, cash or any combination thereof receivable upon
such dissolution, liquidation, corporate separation or division, or merger or
consolidation by a holder of the number of shares of Common Stock for which such
Option might have been exercised immediately prior to such dissolution,
liquidation, corporate separation or division, or merger or consolidation; or,
in the alternative the Committee may provide that each Option granted under the
Plan shall terminate as of a date fixed by the Committee; provided, however,
that not less than 30 days' written notice of the date so fixed shall be given
to each Recipient, who shall have the right, during the period of 30 days
preceding such termination, to exercise the Option as to all or any part of the
shares of Common Stock covered thereby, including shares as to which such Option
would not otherwise be exercisable.
-5-
<PAGE>
(3) Paragraph (2) of this Section 6(f) shall not apply to a
merger or consolidation in which the Corporation is the surviving corporation
and shares of Common Stock are not converted into or exchanged for stock,
securities of any other corporation, cash or any other thing of value.
Notwithstanding the preceding sentence, in case of any consolidation or merger
of another corporation into the Corporation in which the Corporation is the
surviving corporation and in which there is a reclassification or change
(including a change to the right to receive cash or other property) of the
shares of Common Stock (excluding a change in par value, or from no par value to
par value, or any change as a result of a subdivision or combination, but
including any change in such shares into two or more classes or series of
shares), the Committee may provide that the holder of each Option then
exercisable shall have the right to exercise such Option solely for the kind and
amount of shares of stock and other securities (including those of any new
direct or indirect parent of the Corporation), property, cash or any combination
thereof receivable upon such reclassification, change, consolidation or merger
by the holder of the number of shares of Common Stock for which such Option
might have been exercised.
(4) To the extent that the foregoing adjustments relate to stock
or securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive.
(5) Except as expressly provided in this Section 6(f) the
Recipient shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class, or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class, or by reason
of any dissolution, liquidation, merger, or consolidation or spin-off of assets
or stock of another corporation; and any issue by the Corporation of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to an Option. The
grant of an Option pursuant to the Plan shall not affect in any way the right or
power of the Corporation to make adjustments, reclassifications, reorganizations
or changes of its capital or business structures, or to merge or consolidate, or
to dissolve, liquidate, or sell or transfer all or any part of its business or
assets.
(g) No Rights as Shareholder - Non-Distributive Intent.
(1) Neither a Recipient of an Option nor such Recipient's legal
representative, heir, legatee or distributee, shall be deemed to be the holder
of, or to have any rights of a holder with respect to, any shares subject to
such Option until after the Option is exercised and the shares are issued.
(2) No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 6(f) hereof.
-6-
<PAGE>
(3) Upon exercise of an Option at a time when there is no
registration statement in effect under the 1933 Act relating to the shares
issuable upon exercise, shares may be issued to the Recipient only if the
Recipient represents and warrants in writing to the Corporation that the shares
purchased are being acquired for investment and not with a view to the
distribution thereof and provides the Corporation with sufficient information to
establish an exemption from the registration requirements of the 1933 Act.
(4) No shares shall be issued upon the exercise of an Option
unless and until there shall have been compliance with any then applicable
requirements of the U.S. Securities and Exchange Commission or any other
regulatory agencies having jurisdiction over the Corporation.
(h) Other Provisions. Option Agreements authorized under the Plan may
contain such other provisions as the Committee shall deem advisable, including,
without limitation, the imposition of restrictions upon the vesting and exercise
of an Option.
7. Grant of Stock Awards. In addition to, or in lieu of, the grant of an
Option, the Committee may grant Awards.
(a) At the time of grant of a Award, the Committee may impose a
vesting period of up to five years, and such other restrictions which it deems
appropriate. Unless otherwise directed by the Committee at the time of grant of
a Award, the Recipient shall be considered a shareholder of the Corporation as
to the Award shares which have vested in the grantee at any time regardless of
any forfeiture provisions which have not yet arisen.
(b) The grant of a Award and the issuance and delivery of shares of
Common Stock pursuant thereto shall be subject to approval by the Corporation's
counsel of all legal matters in connection therewith, including compliance with
the requirements of the 1933 Act, the 1934 Act, other applicable securities
laws, rules and regulations, and the requirements of any stock exchanges upon
which the Common Stock then may be listed. Any certificates prepared to evidence
Common Stock issued pursuant to a Award grant shall bear legends as the
Corporation's counsel may seem necessary or advisable.
8. Agreement by Recipient Regarding Withholding Taxes. Each Recipient
agrees that the Corporation, to the extent permitted or required by law, shall
deduct a sufficient number of shares due to the Recipient upon exercise of the
Option or the grant of a Award to allow the Corporation to pay federal,
provincial, state and local taxes of any kind required by law to be withheld
upon the exercise of such Option or payment of such Award from any payment of
any kind otherwise due to the Recipient. The Corporation shall not be obligated
to advise any Recipient of the existence of any tax or the amount which the
Corporation will be so required to withhold.
9. Term of Plan. Options and Awards may be granted under this Plan from
time to time within a period of five years from the date the Plan is adopted by
the Board.
-7-
<PAGE>
10. Amendment and Termination of the Plan. The Committee at any time and
from time to time may suspend, terminate, modify or amend the Plan. No
suspension, termination, modification or amendment of the Plan may adversely
affect any Option or Award previously granted, unless the written consent of the
Recipient is obtained.
11. Assumption. Subject to Section 6, the terms and conditions of any
outstanding Options granted pursuant to this Plan shall be assumed by, be
binding upon and shall inure to the benefit of any successor corporation to the
Corporation and shall, to the extent applicable, continue to be governed by the
terms and conditions of this Plan. Such successor corporation may, but shall not
be obligated to, assume this Plan.
12. Termination of Right of Action. Every right of action arising out of or
in connection with the Plan by or on behalf of the Corpora tion, or by any
shareholder of the Corporation against any past, present or future member of the
Board or the Committee, or against any employee, or by an employee (past,
present or future) against the Corporation, irrespective of the place where an
action may be brought and of the place of residence of any such shareholder,
director or employee, will cease and be barred by the expiration of three years
from the date of the act or omission in respect of which such right of action is
alleged to have arisen or such shorter period as may be provided by law.
13. Tax Litigation. The Corporation shall have the right, but not the
obligation, to contest, at its expense, any tax ruling or decision,
administrative or judicial, on any issue which is related to the Plan and which
the Board believes to be important to holders of Options or Common Stock issued
pursuant to Awards granted under the Plan and to conduct any such contest or any
litigation arising therefrom to a final decision.
14. Adoption. This Plan was approved by the Board of Directors of the
Corporation effective December 8, 1995.
-8-
<PAGE>
Exhibit A
FORM OF STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made as of this --- day of -------, 199---, by and
between American Rivers Oil Company, a Wyoming (the "Corpora tion"), and
- ----------------- (the "Recipient").
In accordance with the Corporation's 1995 Stock Option and Stock Award Plan
(the "Plan"), a copy of which is attached hereto and is incorporated herein by
reference, the Corporation desires, in connection with the services of the
Recipient, to provide the Recipient with an opportunity to acquire shares of the
Corporation's $.01 par value common stock ("Common Stock") on favorable terms
and thereby increase the Recipient's proprietary interest in the Corporation and
incentive to put forth maximum efforts for the success of the business of the
Corpora tion. Capitalized terms used but not defined herein are used as defined
in the Plan.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth and other good and valuable consideration, the Corporation and
the Recipient agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination of the
Committee or, in the absence of a Committee, by the Board of Directors of the
Corporation made on ---------, 19--- (the "Date of Grant"), the Corporation,
subject to the terms of the Plan and of this Agreement, confirms that the
Recipient has been irrevocably granted on the Date of Grant, as a matter of
separate inducement and agreement, a Stock Option (the "Option") exercisable to
purchase an aggregate of ---- -- shares of Common Stock on the terms and
conditions herein set forth, subject to adjustment as provided in Paragraph 8
hereof.
2. Option Price. The Option Price of shares of Common Stock covered by the
Option will be $_____ per share (the "Option Price") subject to adjustment as
provided in Paragraph 8 hereof.
3. Exercise of Option. Except as otherwise provided herein or in Section 6
of the Plan, the Option may be exercised in whole or in part at any time during
the term of the Option. The Option may not be exercised at any one time as to
fewer than 100 shares (or such number of shares as to which the Option is then
exercisable if such number of shares is less than 100). The Option may be
exercised by written notice to the Secretary of the Corporation accompanied by
payment in full of the Option Price as provided in Section 6(d) of the Plan.
4. Term of Option. The term of the Option will be through ------ ----,
- ----, subject to earlier termination or cancellation as provided in this
Agreement. The holder of the Option will not have any rights to dividends or any
other rights of a shareholder with respect to any shares of Common Stock subject
to the Option until such shares shall have been issued (as evidenced by the
appropriate transfer agent of the Corporation) upon purchase of such shares
through exercise of the Option.
<PAGE>
5. Adjustments. The Option shall be subject to adjustment upon the
occurrence of certain events as set forth in Section 6(f) of the Plan.
6. No Registration Obligation. The Recipient understands that the Option is
not registered under the 1933 Act and, unless by separate written agreement, the
Corporation has no obligation to so register the Option or any of the shares of
Common Stock subject to and issuable upon the exercise of the Option, although
it may from time to time register under the 1933 Act the shares issuable upon
exercise of Options granted pursuant to the Plan. The Recipient represents that
the Option is being acquired for the Recipient's own account and that unless
registered by the Corporation, the shares of Common Stock issued on exercise of
the Option will be acquired by the Recipient for investment. The Recipient
understands that the Option is, and the underlying securities may be, issued to
the Recipient in reliance upon exemptions from the 1933 Act, and acknowledges
and agrees that all certificates for the shares issued upon exercise of the
Option will bear the following legends unless such shares are registered under
the 1933 Act prior to their issuance:
The shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "1933 Act"), and are "restricted
securities" as that term is defined in Rule 144 under the 1933 Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the 1933
Act or pursuant to an exemption from registration under the 1933 Act,
the availability of which is to be established to the satisfaction of
the Company.
The Recipient further understands and agrees that the Option may be
exercised only if at the time of such exercise the underlying shares are
registered and/or the Recipient and the Corporation are able to establish the
existence of an exemption from registration under the 1933 Act and applicable
state or other laws.
7. Notices. Each notice relating to this Agreement will be in writing and
delivered in person or by certified mail to the proper address. Notices to the
Corporation shall be addressed to the Corporation, attention: President, at
- ------------------------, or at such other address as may constitute the
Corporation's principal place of business at the time, with a copy to:
- ------------------------------ , -----------------. Notices to the Recipient or
other person or persons then entitled to exercise the Option shall be addressed
to the Recipient or such other person or persons at the Recipient's address
below specified. Anyone to whom a notice may be given under this Agreement may
designate a new address by notice to that effect given pursuant to this
Paragraph 10.
A-2
<PAGE>
8. Approval of Counsel. The exercise of the Option and the issuance and
delivery of shares of Common Stock pursuant thereto shall be subject to approval
by the Corporation's counsel of all legal matters in connection therewith,
including compliance with the requirements of the 1933 Act, the Securities
Exchange Act of 1934, as amended, applicable state and other securities laws,
the rules and regulations thereunder, and the requirements of any national
securities exchange(s) upon which the Common Stock then may be listed.
9. Benefits of Agreement. This Agreement will inure to the benefit of and
be binding upon each successor and assignee of the Corporation. All obligations
imposed upon the Recipient and all rights granted to the Corporation under this
Agreement will be binding upon the Recipient's heirs, legal representatives and
successors.
10. Effect of Governmental and Other Regulations. The exercise of the
Option and the Corporation's obligation to sell and deliver shares upon the
exercise of the Option are subject to all applicable federal and state laws,
rules and regulations, and to such approvals by any regulatory or governmental
agency which may, in the opinion of counsel for the Corporation, be required.
11. Incorporation of the Plan. The Plan is attached hereto and incorporated
herein by reference. In the event that any provision in this Agreement conflicts
with a provision in the Plan, the provisions of the Plan shall govern.
Executed in the name and on behalf of the Corporation by one of its duly
authorized officers and by the Recipient all as of the date first above written.
AMERICAN RIVERS OIL COMPANY
Date , 19 By
------------- ----- ----------------------------------,
President
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<PAGE>
The undersigned Recipient has read and understands the terms of this Option
Agreement and the attached Plan and hereby agrees to comply therewith.
Date , 19 -------------------------------------
Signature of Recipient
Tax ID Number:
-----------------------
Address:
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Exhibit 23.1
Consent of Brenman Key & Bromberg, P.C. - See Exhibit 5.1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
American Rivers Oil Company (formerly Metro Capital Corporation) on Form S-8 of
our report dated May 26, 1995, on our audits of the consolidated financial
statements of Metro Capital Corporation and subsidiaries (the "Company"), as of
March 31, 1995, and for the years ended March 31, 1995 and 1994, which report is
included in the Company's 1995 Annual Report on Form 10-KSB.
We also consent to the incorporation by reference of our report dated September
12, 1995, on our audits of the financial statements of KTOC Contributed
Properties as of December 31, 1994 and for the years ended December 31, 1994 and
1993, and our report dated September 8, 1995, on our audits of the Historical
Summaries of Oil and Gas Revenues and Direct Operating Expenses of the Option
Properties for the years ended December 31, 1994 and 1993, which reports are
included in the current report on Form 8-K dated December 8, 1995 for American
Rivers Oil Company.
HEIN + ASSOCIATES LLP
Denver, Colorado
March 7, 1996
