As filed with the Securities and Exchange Commission on
January 23, 1998.
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Marshall Industries
(Exact name of registrant as specified in its charter)
___________________
California 95-2048764
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9320 Telstar Avenue
El Monte, California 91731-2895
(626) 307-6000
(Address of principal executive offices)
MARSHALL INDUSTRIES 1997 STOCK OPTION PLAN
(Full title of the plan)
Henry W. Chin
Vice President, Finance,
Chief Financial Officer and Secretary
Marshall Industries
9320 Telstar Avenue
El Monte, California 91731-2895
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(626) 307-6000
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
Common Stock, 500,000<1>,<2> $29.75<2> $14,875,000<2> $4,389<2>
par value shares
$1.00 per share
________________
<FN>
<1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, options
and other rights to purchase or acquire the shares of
Common Stock covered by the Prospectus and, pursuant to
Rule 416(c) under the Securities Act of 1933, an
indeterminate number of shares which by reason of certain
events specified in the Plan may become subject to the
Plan.
<2> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on January 16, 1998, as
reported on the New York Stock Exchange and published in
the Western Edition of the Wall Street Journal.
</FN>
</TABLE>
<PAGE>
The Exhibit Index for this Registration Statement is at
page S-3.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to optionees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with
the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. These documents, which include the
statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof),
taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Marshall Industries (the
"Company") filed with the Commission are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1997, filed with the
Commission on August 26, 1997;
(b) The Company's Current Report on Form 8-K, filed with
the Commission on October 3, 1997;
(c) The Company's Quarterly Reports on Forms 10-Q for the
quarterly periods ended August 31, 1997 and November
30, 1997, filed with the Commission on October 14,
1997 and January 14, 1998, respectively;
(d) The Description of the Company's Common Stock included
in a Registration Statement on Form 8-A filed with the
Commission on January 10, 1986;
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into the prospectus
and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock is registered pursuant to
Section 12 of the Exchange Act, and, therefore, the
description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation provide (i)
that the liability of the Company's directors is eliminated to
the fullest extent permissible under California law, (ii) that
the Company is authorized to indemnify its agents (as defined
in Section 317 of the California General Corporations Law (the
"Law")) for breach of duty to the Company and its
shareholders, and (iii) that the Company is authorized to
purchase and maintain insurance on behalf of its agents
against liability asserted against or incurred by the agents
in such capacity or arising out of an agent's status as such.
The Company's By-laws provide that the Company must, to the
maximum extent permitted by the Law, indemnify each of its
directors against expenses, judgements, fines, settlements,
and other amounts actually and reasonably incurred in
connection with any proceeding arising by reason of the fact
that such person is or was an agent of the Company. The
Company's By-laws also provide that the Company may, to the
extent and in the manner permitted by the Law, indemnify each
of its officers, employees and agents against expenses,
judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding arising
by reason of the fact that such person is or was an agent of
the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page S-3.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of this 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 this Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in this
Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
with or furnished to the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new regis-
tration 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; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities 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 Securities Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 El Monte, State of California, on January 20,
1998.
By: /s/ Gordon S. Marshall
Gordon S. Marshall
Its: Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Robert Rodin and Richard D. Bentley, or either of
them individually, his true and lawful attorney-in-fact and
agent, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents, or either of them
individually, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or
either of them individually, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates
indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Gordon S. Marshall Chairman of the Board January 20, 1998
Gordon S. Marshall
/s/ Robert Rodin Director, President and January 20, 1998
Robert Rodin Chief Executive
Officer (Principal
Executive Officer)
/s/ Richard D. Bentley Director and Executive January 20, 1998
Richard D. Bentley Vice President
/s/ Richard C. Colyear Director January 20, 1998
Richard C. Colyear
/s/ Jean Fribourg Director January 20, 1998
Jean Fribourg
/s/ Lathrop Hoffman Director January 20, 1998
Lathrop Hoffman
Director
Jose Menendez
Director
Raymond G. Rinehart
/s/ Howard C. White Director January 20, 1998
Howard C. White
/s/ Henry W. Chin Vice President, Finance, January 20, 1998
Henry W. Chin Chief Financial Officer
and Secretary (Principal
Financial and Accounting
Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Marshall Industries 1997 Stock Option Plan.
4.2 Form of Employee Nonqualified Stock Option
Agreement.
4.3 Form of Employee Incentive Stock Option
Agreement.
5. Opinion of O'Melveny & Myers LLP (opinion
re legality).
23.1 Consent of Arthur Andersen LLP (consent of
independent auditors).
23.2 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this
Registration Statement under "Signatures").
EXHIBIT A
MARSHALL INDUSTRIES
1997 STOCK OPTION PLAN
1. PURPOSE
The purpose of this Marshall Industries 1997 Stock Option
Plan is to promote the interests of Marshall Industries and its
shareholders by providing additional incentives to those key
employees and directors of the Company whose judgement,
initiative and efforts are largely responsible for Marshall
Industries' successful operation. By encouraging ownership of
its Common Stock, the Company seeks to motivate these key
employees and directors by giving them an increased proprietary
interest in Marshall Industries and its success. This Plan is
also intended to enable Marshall Industries to compete with other
enterprises for the services of new personnel needed to carry on
its operations and to ensure the continued development of its
business.
2. CERTAIN DEFINITIONS
The following terms used in this Plan are defined as
follows:
2.1 "BOARD" means the Board of Directors of Marshall
Industries as elected and constituted from time to time.
2.2 "CHANGE IN CONTROL EVENT" means any of the following:
(1) The acquisition by any individual, entity, or
group (within the meaning of Section 13(d) or 14(d)(2) of
the Exchange Act, each a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either (i)the then
outstanding shares of Common Stock (the "Outstanding Company
Common Stock"), or (ii)the combined voting power of the then
outstanding voting securities of the Company entitled to
vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however
that any of the preceding events shall not constitute a
Change in Control Event unless, within 6 months of such an
event, the conditions of paragraph (2) below are satisfied;
and provided further, that for purposes of this
paragraph(1), the following acquisitions shall not
constitute a Change in Control Event:
(i) any acquisition directly from the Company
(including, without limitation, a secondary offering of
securities made by the Company);
(ii) any acquisition by the Company (including,
without limitation, a repurchase or redemption of
Company securities by the Company);
(iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company;
or
(iv) any acquisition by any corporation pursuant
to a transaction which complies with subparagraphs (i),
(ii), and (iii)of paragraph (3)below;
(2) The failure of individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a member of
the Board subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, has
been approved by a vote of at least a majority of the
members then comprising the Incumbent Board shall be
considered as though such individual was a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of members or other
actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board;
(3) Approval by the shareholders of the Company of a
reorganization, merger, consolidation, or sale or other
disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless,
following such Business Combination:
(i) all or substantially all of the individuals
and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own,
directly or indirectly, more than 70% of, respectively,
the then outstanding shares of common stock and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election
of directors, as the case may be, of the corporation
resulting from such Business Combination (including,
without limitation, a corporation which as a result of
such transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be;
(ii) no Person (excluding any employee benefit
plan (or related trust) of the Company or such
corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more
of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities of such corporation
except to the extent that such ownership existed prior
to the Business Combination; and
(iii) at least a majority of the members of
the board of directors of the corporation resulting
from such Business Combination were members of the
Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board,
providing for such Business Combination; or
(4) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
2.3 "CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
2.4 "COMMITTEE" means the Board or the Stock Option
Committee appointed by the Board to administer this Plan, which
committee shall consist of only two or more directors or such
greater number of directors as may be required under applicable
law, each of whom (a)in respect of any decision at a time when
the Participant affected by the decision may be subject to
Section 162(m) of the Code, shall be an "outside" director within
the meaning of Section 162(m) of the Code, and (b)in respect of
any decision affecting a transaction at a time when the
Participant involved in the transaction may be subject to Section
16 of the Exchange Act, shall be a "non-employee director" within
the meaning of Rule 16b-3(b)(3) promulgated under the Exchange
Act.
2.5 "COMMON STOCK" means the common stock of the Company.
2.6 "COMPANY" means Marshall Industries, a California
corporation.
2.7 "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
2.8 "FAIR MARKET VALUE" means (a)if the Common Stock is
then listed on an established stock exchange or exchanges, the
last reported closing price per share on the principal exchange
on which the Common Stock is traded, as reported in The Wall
Street Journal; or (b)if the Common Stock is not then listed on
an exchange, the average of the last reported closing bid and
asked prices per share for the Common Stock in the
over-the-counter market as quoted on NASDAQ; or (c)if the Common
Stock is not then listed on an exchange or listed on NASDAQ, an
amount determined in good faith by the Committee.
2.9 "INCENTIVE STOCK OPTION" means an Option to purchase
shares of the Company's Common Stock which meets the requirements
of Section 422 of the Code and the regulations issued thereunder,
as such Section and regulations may be amended from time to time.
2.10 "NON-EMPLOYEE DIRECTOR" means a member of the Board
who is not an officer or employee of the Company.
2.11 "NONQUALIFIED STOCK OPTION" means an Option to
purchase shares of the Company's Common Stock which is not an
Incentive Stock Option, and shall include any Option intended as
an Incentive Stock Option that fails to meet the applicable legal
requirements thereof. Any Option which is not expressly
designated as an Incentive Stock Option shall be deemed to be
designated and intended as a Nonqualified Stock Option.
2.12 "OPTION" or "OPTIONS" means Incentive Stock Options
and Nonqualified Stock Options granted pursuant to this Plan
individually or collectively.
2.13 "OPTION AGREEMENT" means the written Stock Option
Agreement which evidences the terms and conditions of each Option
granted to a Participant by the Committee.
2.14 "PARTICIPANT" or "OPTIONEE" means a full-time employee
of the Company or a Non-Employee Director who is eligible
pursuant to Article 5 of this Plan to receive Options under this
Plan and who is granted one or more Options under this Plan.
2.15 "PERMANENT DISABILITY" or "PERMANENTLY DISABLED" means
a physical or mental impairment as defined in Section 22(e)(3)of
the Code.
2.16 "PLAN" means this Marshall Industries 1997 Stock
Option Plan.
2.17 "SUBSIDIARY" means any corporation or other entity at
least 50% of the outstanding voting stock or voting power of
which is beneficially owned directly or indirectly by the
Company.
3. ADMINISTRATION
3.1 The Stock Option Committee. This Plan shall be
administered by the Committee. The Board, from time to time, in
its sole discretion, may remove members from, or add members to,
the Committee. Vacancies on the Committee however caused shall
be filled by the Board. The Committee shall select one of its
members as chairman and shall hold meetings at such times and
places as it may determine. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members
present at any meeting at which there is a quorum, or acts
reduced to or approved in writing by a majority of the members of
the Committee, shall be valid acts of the Committee. The Board
may at any time change or assume the administration of this Plan.
3.2 Authority of the Committee. Subject to the express
provisions and limitations of this Plan, the Committee shall have
the sole power to grant Options pursuant to this Plan, including
the determination of the persons to whom Options shall be
granted, the type of Options to be granted, the exercise price of
each Option, the period during which each Option may be
exercised, the terms on which each Option may be exercised, and
the number of shares to be subject to each Option. In addition,
the Committee shall have the sole power and discretionary
authority, subject to the express provisions and limitations of
this Plan, to construe this Plan and the Option Agreements
entered into with respect to Options granted hereunder, to adopt,
prescribe, amend and rescind rules and regulations relating to
this Plan, to make all determinations necessary or advisable for
administering this Plan, to approve the forms of Option
Agreements (which need not be identical), and to extend or
accelerate the exercisability or extend the term of any or all
outstanding Options (subject to the limits imposed by Section
6.5). The interpretation by the Committee of any provision of
this Plan or of any Option Agreement entered into hereunder in
respect of Incentive Stock Options shall be in accordance with
Section 422 of the Code and the regulations issued thereunder, as
such section or regulations may be amended from time to time, in
order that the Incentive Stock Options granted hereunder and
evidenced by such Option Agreements shall constitute "incentive
stock options" within the meaning of such section. The
interpretation and construction by the Committee of any provision
of this Plan or of any Option granted hereunder shall be final
and conclusive, unless otherwise determined by the Board. No
member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to this
Plan or any Option granted hereunder.
4. SHARES OF STOCK SUBJECT TO THE PLAN
The stock available for grant of Options under this Plan
shall be shares of the Company's authorized but unissued Common
Stock. The aggregate number of shares of Common Stock which may
be issued upon the exercise of all Options granted under this
Plan shall not exceed 500,000 shares of Common Stock. The
maximum number of shares of Common Stock subject to those Options
that are granted during any calendar year to any individual shall
be limited to 150,000 shares of Common Stock. Each of the two
foregoing numerical limits shall be subject to adjustment as
contemplated by this Article 4 and Article 7. If any Option
granted under this Plan expires or terminates for any reason, the
unpurchased or unissued shares subject to such expired or
terminated Option shall again be available for the grant of
Options under this Plan, as if no Option previously had been
granted with respect to such shares.
5. ELIGIBILITY
Key employees, including officers and directors who are
full-time employees of the Company and Non-Employee Directors of
the Company shall be eligible to receive Options under this Plan;
provided, however, that (i)no person, who, immediately after the
grant of any Option, would own (within the meaning of Section
422(b)(6) of the Code), directly or indirectly, stock possessing
more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company, shall be eligible to receive
an Incentive Stock Option under this Plan, unless at the time
such Incentive Stock Option is granted, the option price on the
date of grant is at least one hundred ten percent (110%) of the
Fair Market Value of the shares subject to the Option and such
Option by its terms is not exercisable after the expiration of
five (5)years from the date such Option is granted, and
(ii)Incentive Stock Options shall be granted only to persons
employed by the Company. A Participant may receive more than one
Option under this Plan, and a Participant may receive both
Incentive Stock Options and Nonqualified Stock Options under this
Plan. Subject to the foregoing, the Committee shall have full
authority and discretion to select from the eligible class of
persons, those persons to whom Options shall be granted. In
making such determination, the Committee shall take into account
the nature of services rendered by the person in the past and
presently being rendered and the potential contribution by the
person to the Company's success as well as such other factors as
the Committee deems relevant. Status as an eligible person shall
not be construed as a commitment that any Option will be granted
under this Plan to such person or to eligible persons generally.
6. TERMS AND CONDITIONS APPLICABLE TO ALL OPTIONS
6.1 Grants. Subject to the express provisions and
limitations of this Plan, the Committee may grant Options to
Participants in any of the following forms: (a)Incentive Stock
Options; (b) Nonqualified Stock Options; or (c)any combination of
Incentive Stock Options and Nonqualified Stock Options.
6.2 Duration of Grants. Options granted pursuant to this
Plan must be granted within ten (10)years from the date this Plan
is adopted by the Board.
6.3 Written Agreement. Each Option granted pursuant to
this Plan shall be evidenced by a written Option Agreement signed
by an officer of the Company and the Participant. Subject to the
terms and conditions of the Plan, each Option Agreement shall be
in such form and shall contain such provisions consistent with
the Plan as the Committee shall from time to time approve. No
Option Agreement need be identical with any other Option
Agreement executed pursuant to this Plan; provided, however, that
such varied or different terms and provisions are not
inconsistent with the purposes and provisions of this Plan.
6.4 Number of Shares Subject to the Option and Option
Price. Each Option Agreement shall state the number of shares to
which it pertains and the option price, which shall be determined
at the time of the grant of the Option. The Committee shall have
full authority and discretion in fixing the option price for
Nonqualified Stock Options. The option price for Incentive Stock
Options granted under this Plan shall be not less than one
hundred percent (100%) of the Fair Market Value of the shares
covered by the Incentive Stock Option on the date of grant.
Subject to the foregoing, the Committee shall have full authority
and discretion in establishing the option price.
6.5 Option Period. No Option shall be exercisable after
the expiration of the earliest of (a)ten (10)years after the date
the Option is granted in the case of an Incentive Stock Option or
ten (10)years after the Option is first exercisable in the case
of a Nonqualified Stock Option; (b)three (3)months after the date
the Participant's employment or services with the Company
terminates if such termination is for any reason other than
Permanent Disability, death, or cause (as determined by the Board
in its sole discretion); (c)the date the Participant's employment
or services with the Company terminates if such termination is
for cause, as determined by the Board, in its sole discretion; or
(d)one (1)year after the date the Participant's employment or
services with the Company terminates, if such termination is a
result of death or Permanent Disability; provided, however, that
the Option Agreement for any Option may, if so determined by the
Committee, provide for shorter periods in each of the foregoing
instances.
6.6 Termination of Participant's Employment, Disability, or
Death. If a Participant ceases to be an employee of the Company
(or, with respect to a Non-Employee Director, ceases to be a
member of the Board) for any reason (other than dismissal for
cause, as determined by the Board in its sole discretion) while
still living, any Option or unexercised portion thereof granted
to the Participant may, to the extent such Option would have been
exercisable by the Participant on the date on which he ceases to
be an employee (or a Non-Employee Director), be exercised by the
Participant within three (3)months from the date on which he
ceases to be an employee (or a Non-Employee Director), but in any
event not later than the expiration date of the Option.
Notwithstanding the foregoing, if a Participant's employment or
services with the Company is terminated for cause as determined
by the Board in its sole discretion, all Options held by the
Participant shall expire on the date of termination of such
employment and thereafter shall not be exercisable in whole or in
part. If the Participant dies or becomes Permanently Disabled
while he is an employee of the Company (or, with respect to a
Non-Employee Director, while he is a member of the Board), any
Option or unexercised portion thereof granted to the Participant,
to the extent exercisable by him on the date of death or
Permanent Disability, may be exercised by the Participant, or if
the Participant is then deceased, by the Participant's personal
representative, heirs, or legatees, at any time prior to the
expiration of one (1)year from the date on which the Participant
ceases to be an employee (or a Non-Employee Director) of the
Company but in any event, not later than the date of the
expiration of the Option. The Committee may provide, in its sole
discretion and in an Option Agreement or otherwise, that upon a
Participant's death or Permanent Disability while he is an
employee (or a Non-Employee Director) of the Company, such
Participant's Option shall become fully vested and exercisable.
6.7 Exercise of Option. No Option shall be exercisable
during the lifetime of a Participant by any person other than the
Participant. Any Option granted under this Plan may be
exercisable in whole or in part immediately upon the grant
thereof, or, in the discretion of the Committee, may be
exercisable only in installments, which installments may be equal
or otherwise, and which installments may vary as to the number
thereof as well as to whether any unexercised installments are
cumulative throughout the life of a particular Option. The
Committee may, in its discretion, subsequent to the grant of any
Option, accelerate the date on which any or all of the
installments may be exercised. To the extent that a Participant
has the right to exercise an Option and purchase shares pursuant
thereto, the Option may be exercised from time to time by written
notice to the Company, setting forth which Option is being
exercised and stating the number of shares being purchased with
respect to the Option, and accompanied by payment in full of the
purchase price for such shares.
6.8 Medium and Time of Payment. The purchase price for any
shares purchased upon exercise of an Option granted under this
Plan shall be paid in full upon exercise of the Option in cash,
by check in United States dollars, or, at the discretion of the
Committee, and upon such terms and conditions as the Committee
may approve, by transferring to the Company for redemption,
Common Stock of the Company at its Fair Market Value. Shares of
Common Stock transferred to the Company upon exercise of an
Option shall not increase the number of shares available for
issuance under this Plan. If shares of Common Stock of the
Company are used in partial or in full payment for the shares to
be acquired upon exercise of the Option, such shares shall be
valued for the purpose of such exchange at their Fair Market
Value as of the date the Option is exercised. Any certificates
for shares of outstanding Common Stock of the Company used to pay
the purchase price shall be duly endorsed by the registered
holder of the certificates or accompanied by satisfactory
instruments of transfer (with the signatures thereon guaranteed).
If the certificates tendered by the Participant in such payment
cover more shares than are required for such payment, the
certificates shall be accompanied by instructions by the
Participant to the Company's transfer agent with respect to
disposition of the balance of the shares covered thereby.
6.9 Loans to Participants. The Company may make loans, or
arrange for the extension and maintenance of loans, to any
Participant designated by the Committee to permit said
Participant to finance the purchase of shares upon the exercise
of any Option or to meet the immediate tax consequences of any
Option exercise. The Committee, in its sole discretion, shall
determine all terms and conditions of such loans, including the
principal amount thereof, subject to applicable regulations of
the Federal Reserve Board and any other laws or regulations in
effect at the time such loan is made. No loan shall be made
hereunder if the receipt of such loan would disqualify an
Incentive Stock Option as an "incentive stock option" for
purposes of Section 422 of the Code.
6.10 Additional Provisions. Each Option and the Option
Agreements evidencing such Options may contain such other terms,
provisions and conditions not inconsistent with the Plan as may
be determined by the Committee, including without limitation,
restrictions upon the exercise of Options or restrictions upon
the sale, transfer or disposition of shares acquired pursuant to
the exercise of an Option. Any such Option Agreement in respect
of an Incentive Stock Option shall contain such limitations and
restrictions as shall be necessary in order that the Incentive
Stock Option will be an "incentive stock option" as defined in
Section 422 of the Code, or to conform to any change in the law.
6.11 Designation of Options. Each Option granted pursuant
to this Plan shall be clearly identified as to its status as
either an Incentive Stock Option or a Nonqualified Stock Option,
and such designation shall be set forth as to each Option in each
Option Agreement executed pursuant to this Plan.
6.12 Modification, Extension or Renewal of Options.
Subject to the terms and conditions and within the limitations of
this Plan, the Committee may modify, extend or renew outstanding
Options granted under this Plan, accept the surrender of
outstanding Options (to the extent not theretofore exercised),
and authorize the granting of new Options and substitutions
therefor (to the extent not theretofore exercised). The
Committee, however, shall not modify any outstanding Incentive
Stock Option in any manner which would cause it to fail to
qualify as an "incentive stock option" within the meaning of
Section 422 of the Code. Notwithstanding the foregoing, no
Committee modification of an Option pursuant to the foregoing
shall, without the consent of the Participant, alter or impair in
a manner materially adverse to the Participant any rights or
obligations under the Option.
6.13 Transferability of Options. No Option granted under
this Plan shall be transferable by a Participant other than by
will or by the laws of descent and distribution. No transfer of
an Option by will or by the laws of descent and distribution
shall be effective, nor shall any designation of a person who may
exercise the Option after the Participant's death be effective to
bind the Company unless the Company is furnished with a written
notice thereof and a copy of the will or such other evidence as
the Company may deem necessary to establish the validity of the
transfer and the acceptance of the terms and conditions of the
Option by the transferee or designee.
6.14 Limits on Incentive Stock Options. To the extent that
the aggregate Fair Market Value of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time
by any individual during any calendar year (under all plans of
the Company) exceeds $100,000, such Options shall be treated as
Nonqualified Stock Options. For this purpose, the Fair Market
Value of any Common Stock shall be determined as of the time the
Option with respect to such Common Stock is granted. In reducing
the number of options treated as Incentive Stock Options to meet
the $100,000 limit, the most recently granted options shall be
reduced first. To the extent a reduction of simultaneously
granted options is necessary to meet the $100,000 limit, the
Committee may, in the manner and to the extent permitted by law,
designate which shares are to be treated as shares acquired
pursuant to the exercise of an Incentive Stock Option.
7. ADJUSTMENTS; ACCELERATION OF OPTIONS; POSSIBLE EARLY
TERMINATION OF OPTIONS
7.1 Adjustments. If there shall occur any extraordinary
dividend or other extraordinary distribution in respect of the
Common Stock (whether in the form of cash, Common Stock, other
securities, or other property), or any reclassification,
recapitalization, stock split (including a stock split in the
form of a stock dividend), reverse stock split, reorganization,
merger, combination, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Common Stock or other
securities of the Company, or there shall occur any similar,
unusual or extraordinary corporate transaction or event in
respect of the Common Stock or a sale of substantially all the
assets of the Company as an entirety, then the Committee shall,
in such manner and to such extent (if any) as it deems
appropriate and equitable (1)proportionately adjust any or all of
(a)the number and type of shares of Common Stock (or other
securities) which thereafter may be made the subject of Options
(including the specific maxima and numbers of shares set forth
elsewhere in this Plan), (b)the number, amount and type of shares
of Common Stock (or other securities or property) subject to any
or all outstanding Options, (c)the grant, purchase, or exercise
price of any or all outstanding Options, or (d) the securities,
cash or other property deliverable upon exercise of any
outstanding Options, or (2)in the case of an extraordinary
dividend or other distribution, recapitalization,
reclassification, merger, reorganization, consolidation,
combination, sale of assets, split up, exchange, or spin off,
make provision for a cash payment or for the substitution or
exchange of any or all outstanding Options or the cash,
securities or property deliverable to the holder of any or all
outstanding Options based upon the distribution or consideration
payable to holders of the Common Stock of the Company upon or in
respect of such event; provided, however, in each case, that with
respect to Incentive Stock Options, no such adjustment shall be
made which would cause the Plan to violate Section 422(a) of the
Code or any successor provisions thereto without the written
consent of holders materially adversely affected thereby. In any
of such events, the Committee may take such action sufficiently
prior to such event if necessary to permit the Participant to
realize the benefits intended to be conveyed with respect to the
underlying shares in the same manner as is available to
shareholders generally.
7.2 Acceleration of Options Upon Change in Control. Upon
the occurrence of a Change in Control Event each Option shall
become fully vested and immediately exercisable. The Committee
may override the acceleration provisions in this Section 7.2 by
express provision in an Option Agreement, may establish an
earlier date for acceleration in anticipation of a Change in
Control Event, and may accord any Participant a right to refuse
any acceleration, whether pursuant to the Option Agreement or
otherwise, in such circumstances as the Committee may approve.
Any acceleration of Options shall comply with applicable
regulatory requirements, including without limitation Section 422
of the Code.
7.3 Possible Early Termination of Accelerated Options. Any
Option or other right to acquire Common Stock under this Plan
that has been fully accelerated under Section 7.2 but is not
exercised prior to (i)a dissolution of the Company, or (ii)an
event described in Section 7.1 that the Company does not survive,
or (iii)the consummation of an event described in Section 7.1
that results in a Change of Control Event approved by the Board,
such Option or right shall thereupon terminate, subject to any
provision that has been expressly made by the Committee for the
survival, substitution, exchange or other settlement of such
Option or right.
7.4 Authority to Adjust; No Limit on Company Rights. Any
adjustment, acceleration, or termination of Options made by the
Committee pursuant to Section 7.1, 7.2, or 7.3 is subject to the
approval of the Board. The grant of an Option pursuant to this
Plan shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations
or changes in its capital structure; to merge, consolidate or
dissolve; to change its business structure; or to liquidate, sell
or transfer all or any part of its business or assets.
8. MISCELLANEOUS PROVISIONS
8.1 Rights as Shareholder. A Participant or a permitted
transferee of an Option shall have no rights with respect to any
shares covered by an Option until the date of the issuance of the
stock certificate to him for such shares. 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 Article 7 hereof.
8.2 No Rights to Employment. Nothing in this Plan, or in
any instrument executed pursuant hereto shall confer upon any
Participant the right to continue in the employ or service of the
Company, affect the right of the Company to terminate the
employment or service of any Participant with or without cause,
or be evidence of any agreement or understanding, expressed or
implied, that the Company will employ or continue to employ a
Participant in a particular position or at a particular rate of
remuneration.
8.3 Compliance With Securities Laws. The granting,
vesting, and exercise of Options and the issuance and delivery of
shares upon exercise thereof and/or payment of money or other
property under this Plan shall be subject to compliance with all
applicable Federal and state laws, rules, and regulations
(including, without limitation, compliance with all Federal and
state securities laws and Federal margin requirements) and to
such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities
delivered under this Plan shall be subject to such restrictions,
and the person acquiring such securities shall, if requested by
the Company, provide such assurances and representations to the
Company as the Company may deem necessary or desirable to assure
compliance with all legal requirements. The Company may, from
time to time, change its requirements with respect to enforcing
compliance with applicable laws (including, without limitation,
the request for, and enforcement of, letters of investment
intent). These changes may be made with respect to any
particular Option or shares issued upon the exercise thereof
prior to or after the exercise of such Option.
8.4 Plan Not Funded. Options payable under this Plan shall
be payable in shares or from the general assets of the Company,
and (other than any reservation of shares for Plan purposes) no
special or separate reserve, fund or deposit shall be made to
assure payment of Options. No Participant, beneficiary or other
person shall have any right, title or interest in any fund or in
any specific asset (including shares of Common Stock, except as
expressly provided otherwise) of the Company by reason of any
Option granted hereunder. Neither the provisions of this Plan
(or of any related documents), nor the creation or adoption of
this Plan, nor any action taken pursuant to the provisions of
this Plan shall create, or be construed to create, a trust of any
kind or a fiduciary relationship between the Company and any
Participant, beneficiary, or other person. To the extent that a
Participant, beneficiary, or other person acquires a right to
receive payment pursuant to any Option hereunder, such right
shall be no greater than the right of any unsecured general
creditor of the Company.
8.5 Fractional Shares. The Company shall not be required
to issue fractional shares upon the exercise of an Option under
any circumstances.
8.6 Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board or the
Committee, the Company shall indemnify the members of the Board
or the Committee, to the fullest extent permitted by law, against
reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any
action, suit or proceeding or in connection with any appeal
therein, to which they or any of them may be a party by reason of
any action taken, or not taken, under or in connection with this
Plan or any Option granted hereunder, and against all amounts
paid by them in settlement thereof or paid by them in
satisfaction of a judgment in any action, suit, or proceeding,
provided that within sixty (60) days after institution of any
such action, suit or proceeding, the members shall offer the
Company, in writing, the opportunity, at its own expense to
handle and defend such actions.
8.7 Governing Law/Construction/Severability. This Plan,
the Options, all documents evidencing Options and all other
documents shall be governed by, and construed in accordance with
the laws of the state of California. If any provision shall be
held by a court of competent jurisdiction to be invalid and
unenforceable, the remaining provisions of this Plan shall
continue in effect.
It is the intent of the Company that transactions in and
affecting Options in the case of Participants who are or may be
subject to Section 16 of the Exchange Act satisfy any then
applicable requirements of Rule 16b-3 promulgated under the
Exchange Act ("Rule 16b-3") so that such persons (unless they
otherwise agree) will be entitled to the benefits of Rule 16b-3
or other exemptive rules under Section 16 of the Exchange Act in
respect of those transactions and will not be subjected to
avoidable liability thereunder. If any provision of this Plan or
of any Option would otherwise frustrate or conflict with the
intent expressed above, that provision to the extent possible
shall be interpreted as to avoid such conflict. If the conflict
remains irreconcilable, the Committee may disregard the provision
if it concludes that to do so furthers the interest of the
Company and is consistent with the purposes of this Plan as to
such persons in the circumstances.
It is the further intent of the Company that Options with an
exercise price not less than Fair Market Value on the date of
grant qualify as performance-based compensation under Section
162(m) of the Code, and this Plan shall be interpreted consistent
with such intent.
8.8 Tax Withholding. Upon any exercise, vesting, or
payment of any Option or upon the disposition of shares of Common
Stock acquired pursuant to the exercise of an Incentive Stock
Option prior to satisfaction of the holding period requirements
of Section 422 of the Code, the Company shall have the right at
its option to (a)require the Participant (or other person holding
such Option or shares) to pay or provide for payment of the
amount of any taxes which the Company may be required to withhold
with respect to such Option event or payment or (b)deduct from
any amount payable in cash the amount of any taxes which the
Company may be required to withhold with respect to such cash
payment. In any case where a tax is required to be withheld in
connection with the delivery of shares of Common Stock under this
Plan, the Committee may in its sole discretion grant (either at
the time of the Option or thereafter) to the Participant the
right to elect, pursuant to such rules and subject to such
conditions as the Committee may establish, to have the Company
reduce the number of shares to be delivered by (or otherwise
reacquire) the appropriate number of shares valued at their then
Fair Market Value, to satisfy such withholding obligation. Shares
of Common Stock transferred to the Company pursuant to this
Section 8.8 shall not increase the number of shares available for
issuance under this Plan.
8.9 Captions. Captions and headings are given to the
articles, sections and subsections of this Plan solely as a
convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or
interpretation of this Plan or any provision thereof.
8.10 Non-Exclusivity of Plan. Nothing in this Plan shall
limit or be deemed to limit the authority of the Board or the
Committee to grant awards or authorize any other compensation,
with or without reference to the Common Stock, under any other
plan or authority.
9. TERMINATION AND AMENDMENT OF THE PLAN
The Board may, at any time, suspend, amend or terminate this
Plan. No Options shall be granted during any suspension of this
Plan or after the termination of this Plan, but the Committee
shall retain jurisdiction as to Options then outstanding in
accordance with the terms of this Plan. Any amendment that would
(a)materially increase the benefits accruing to Participants
under this Plan, (b)materially increase the aggregate number of
securities that may be issued under this Plan, or (c) materially
modify the requirements as to eligibility for participation in
this Plan, shall be subject to shareholder approval only to the
extent then required by Section 422 of the Code or applicable
law, or deemed necessary or advisable by the Board.
The amendment or termination of this Plan shall not, without
the consent of the affected Participant, alter or impair in a
manner materially adverse to the Participant, any rights or
obligations under any Option previously granted hereunder.
Changes contemplated by Article 7 shall not be deemed to
constitute amendments for purposes of the foregoing sentence.
10. EFFECTIVE DATE AND TERM OF PLAN
This Plan shall be effective as of the date it is approved
by the Board, subject to shareholder approval within 12 months
thereafter.
No Option shall be granted under this Plan after more than
ten years after the effective date of this Plan (the "termination
date"). Unless otherwise expressly provided in this Plan or in
an applicable Option Agreement, any Option granted prior to the
termination date may extend beyond such date, and all authority
of the Committee with respect to Options hereunder, including the
authority to amend an Option, shall continue during any
suspension of this Plan and in respect of Options outstanding on
the termination date.
Employee:
Grant Date:
No. Shares:
FMV Per Share on Date
of Grant:
Exercise Price
Per Share:
MARSHALL INDUSTRIES
1997 STOCK OPTION PLAN
EMPLOYEE NONQUALIFIED STOCK OPTION AGREEMENT
1. Identification. This Employee Nonqualified Stock
Option Agreement (this "Agreement") is made by and between
Marshall Industries, a California corporation (the "Company"),
and _____________ (the "Employee") as of __________, 199__.
2. Recitals.
2.1 The Company maintains the Marshall Industries 1997
Stock Option Plan (the "Plan") providing for the grant of
incentive stock options and nonqualified stock options to
directors and key employees of the Company.
2.2 Employee is a key employee of the Company to whom
options may be granted under the Plan.
2.3 The Stock Option and Compensation Committee (the
"Committee") of the Company has authorized the grant to Employee
of an option to purchase the Company's Common Stock upon the
terms and conditions hereinafter set forth.
2.4 In consideration of the mutual promises and
covenants made herein and the mutual benefits to be derived
herefrom, the parties agree as set forth below.
3. Grant of Option. Pursuant to the action of the
Committee, and subject to the terms and conditions of this
Agreement and the terms and conditions of the Plan, the Company
grants to Employee an option to purchase all or any part of
______________________ (___) shares of the Company's authorized
and unissued Common Stock from the Company at the price of
_____________________ Dollars ($_____) per share (the "Option").
The Option is intended to be a nonqualified stock option and
shall not be deemed to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended.
4. Term of Option. The Option was granted on ___________,
199__ (the "Grant Date"). Unless previously exercised pursuant
to Article 5 hereof and subject to earlier termination under
Section 6.6 or Article 7 of the Plan, the Option shall terminate
on, and shall not be exercisable after, the day before the
______________, (_____) anniversary of the Grant Date [not to
exceed ten (10) years].
5. Exercise.
5.1 Exercisability. Subject to the terms and
conditions of this Agreement, the Option shall become exercisable
in _______________ equal cumulative installments of ______________
(_______) shares of the Company's common Stock (individually an
"Installment" and collectively the "Installments"). Employee may
exercise the Option with respect to each Installment on or after
each successive annual anniversary of the Grant Date according to
the following schedule:
Installment (number
of shares becoming
exercisable) Exercise Date
First
Anniversary
Second
Anniversary
Third
Anniversary
Fourth
Anniversary
Fifth
Anniversary
Sixth
Anniversary
Seventh
Anniversary
Eighth
Anniversary
Ninth
Anniversary
To the extent Employee does not in any year purchase
all or any part of the shares to which Employee is entitled,
Employee has the right cumulatively thereafter to purchase any
shares not so purchased and such right shall continue until the
Option terminates or expires. Fractional share interests shall
be disregarded.
5.2 Notice of Exercise. Employee shall exercise the
option by (i) notifying the Company of Employee's election to
exercise the Option, (ii) paying in full the purchase price as
provided in Section 5.3 hereof, and (iii) satisfying the tax
withholding requirements of Section 8.8 of the Plan.
5.3 Payment of Purchase Price. The purchase price for
any shares of Common Stock with respect to which Employee
exercises the Option shall be paid in full promptly after
Employee gives notice of exercise as provided in Section 5.2
hereof. The purchase price shall be paid: (a) in cash or by
check in United States dollars, or (b) if, and only if, the
Committee so authorizes in its sole discretion, at the time
Employee gives notice of exercise, by transferring to the Company
for redemption, Common Stock of the Company at its "Fair Market
Value" (as defined in the Plan), with share certificates duly
endorsed and accompanied by instruments of transfer with
signatures guaranteed. If Employee desires to pay the purchase
price for the shares by transferring to the Company Common Stock
for redemption, Employee shall so notify the Secretary of the
Company with the notice of Employee's election to exercise the
Option in accordance with Section 5.2 hereof. Promptly after
receipt of Employee's notice of exercise and request for payment
by redemption, the Company shall notify Employee of its decision
as to whether it will permit Employee to pay the purchase price
by transferring the Company's Common Stock to it for redemption.
If the Committee does not authorize the proposed payment by
redemption, Employee shall pay the purchase price in cash or by
check in United States dollars as provided above.
6. Issuance of Shares. Subject to Section 8.3 of the
Plan, promptly after the Company's receipt of notification of
exercise provided for in Section 5.2 hereof and Employee's
payment in full of the purchase price, the Company shall deliver,
or cause to be delivered, to Employee a certificate for the whole
number of shares with respect to which the Option is being
exercised by Employee. Shares shall be registered in the name of
Employee. If any law or regulation of the Securities and
Exchange Commission or of any other federal or state governmental
body having jurisdiction shall require the Company or Employee to
take any action prior to the issuance to Employee of the shares
of Common Stock of the Company specified in the written notice of
election to exercise, the date for the delivery of such shares
shall be adjourned until the completion of such action.
7. Termination Of Employment. If Employee's employment
with the Company is terminated for any reason the Option shall
terminate in accordance with and at the time set forth in Section
6.6 of the Plan. [If the Employee dies or becomes Permanently
Disabled (as defined in the Plan) while he or she is employed by
the Company, the Option shall become fully vested and
exercisable.]
8. Assignment or Transfer. The Option is not assignable
or transferable except by will or by the laws of descent and
distribution and during Employee's lifetime the Option may be
exercised only by Employee. No transfer of the Option by will or
by the laws of descent and distribution shall be effective, nor
shall any designation of a person who may exercise the Option
after Employee's death be effective to bind the Company unless
the Company is furnished with a written notice thereof and a copy
of the will or such other evidence as the Company deems necessary
to establish the validity of the transfer and the acceptance of
the terms and conditions of the Option by the transferee or
designee.
9. No Rights as Shareholder. Employee shall have no
rights as a shareholder with respect to shares of the Common
Stock covered by the Option until the date of the issuance of a
stock certificate or stock certificates evidencing issuance of
such shares pursuant to Employee's exercise of the Option. 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 Article 10 hereof and in Article 7 of the Plan.
10. Modification and Termination.
10.1 The rights of Employee under this Agreement are
subject to modification and termination as provided in the Plan.
10.2 The number of shares of Common Stock set forth in
Article 3 hereof and the Option are subject to adjustment,
acceleration, and possible early termination under Article 7 of
the Plan.
11. No Right to Employment. Nothing in this Agreement, the
Plan, or any instrument executed pursuant to the Plan shall
confer upon Employee the right to continue in the employ or
service of the Company, affect the right of the Company to
terminate the employment or services of Employee with or without
cause, or be evidence of any agreement or understanding, express
or implied, that the Company will employ or continue to employ
Employee in a particular position or at a particular rate of
remuneration.
12. Compliance with Securities Laws. At the time the
Option is exercised, the Company may require Employee to execute
any documents or take any action which may be then necessary to
comply with the Securities Act of 1933, as amended, and the rules
and regulations adopted thereunder, or any other applicable
federal or state laws for the purpose of regulating the sale and
issuance of securities. The Company reserves the right to change
its requirements with respect to enforcing compliance with
federal and state securities laws, including the request for, and
enforcement of, letters of investment intent, such requirements
to be determined by the Company in its judgment as necessary to
assure compliance with such laws. Such changes may be made, with
respect to the Option, upon exercise hereof, or prior to or after
the exercise of the Option. The Company shall not be obligated
to issue any shares upon the exercise of the Option unless the
issuance, in the judgment of the Board of Directors of the
Company, is in full compliance with all applicable laws,
governmental rules and regulations, undertakings of the Company
made under the Securities Act of 1933, as amended, any state
securities laws, and stock exchange agreements of the Company.
13. General Provisions.
13.1 Subject to Plan. The Option and all rights of
Employee thereunder are subject to, and Employee agrees to be
bound by all of the terms and conditions of the Plan,
incorporated herein by this reference. Employee acknowledges
receipt of a copy of the Plan, attached hereto as Exhibit A,
which is made a part hereof by this reference, and agrees to be
bound by the terms thereof. Unless otherwise expressly provided
in other sections of this Agreement, provisions of the Plan that
confer discretionary authority on the Committee do not (and shall
not be deemed to) create any rights in Employee unless such
rights are expressly set forth herein or are otherwise in the
sole discretion of the Committee so conferred by appropriate
action of the Committee under the Plan after the date hereof.
13.2 Further Acts. Employee agrees to perform all
further acts and to execute and deliver any other and additional
documents as may be reasonably necessary to carry out the
provisions of this Agreement.
13.3 Notices. Any notice to be given under the terms
of this Agreement to the Company shall be in writing and
addressed to Marshall Industries, 9830 Telstar Avenue, El Monte,
California 91731 to the attention of the Secretary and to
Employee at the address given beneath Employee's signature
hereto, or at such other address as either party may hereafter
designate in writing to the other.
IN WITNESS WHEREOF, this Agreement is executed by the
parties on the date and at the place indicated below.
"COMPANY"
MARSHALL INDUSTRIES,
a California corporation
Executed on ____________, 199_
at _______________, __________. By: ___________________
Its: __________________
"EMPLOYEE"
Executed on ____________, 199_
at _______________, __________. ________________________
Signature
________________________
Print Name
________________________
Address
________________________
City, State, Zip Code
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Employee Nonqualified Stock Option Agreement by Marshall
Industries, I, _________________________________, the spouse of
the Employee therein named, do hereby join with my spouse in
executing the foregoing Employee Nonqualified Stock Option
Agreement and do hereby agree to be bound by all of the terms and
provisions thereof and of the Plan.
DATED: ______________, 199__. ___________________________
Signature of Spouse
Employee:
Grant Date:
No. Shares:
FMV Per Share on Date
of Grant:
Exercise Price
Per Share:
MARSHALL INDUSTRIES
1997 STOCK OPTION PLAN
EMPLOYEE INCENTIVE STOCK OPTION AGREEMENT
1. Identification. This Employee Incentive Stock Option
Agreement (this "Agreement") is made by and between Marshall
Industries, a California corporation (the "Company"), and
_________________ (the "Employee") as of _________________,
199__.
2. Recitals.
2.1 The Company maintains the Marshall Industries 1997
Stock Option Plan (the "Plan") providing for the grant of
incentive stock options and nonqualified stock options to
directors and key employees of the Company.
2.2 Employee is a key employee of the Company to whom
options may be granted under the Plan.
2.3 The Stock Option and Compensation Committee (the
"Committee") of the Company has authorized the grant to Employee
of an option to purchase the Company's Common Stock upon the
terms and conditions hereinafter set forth.
2.4 In consideration of the mutual promises and
covenants made herein and the mutual benefits to be derived
herefrom, the parties agree as set forth below.
3. Grant of Option. Pursuant to the action of the
Committee, and subject to the terms and conditions of this
Agreement and the terms and conditions of the Plan, the Company
grants to Employee an option to purchase all or any part of
______________________ (___) shares of the Company's authorized
and unissued Common Stock from the Company at the price of
_____________________ Dollars ($_____) per share (the "Option").
It is the intent of the Company that the Option constitute an
incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
4. Term of Option. The Option was granted on ________,
199__ (the "Grant Date"). Unless previously exercised pursuant
to Article 5 hereof and subject to earlier termination under
Section 6.6 or Article 7 of the Plan, the Option shall terminate
on, and shall not be exercisable after, the day before the
______________, (_____) anniversary of the Grant Date [not to
exceed ten (10) years].
5. Exercise.
5.1 Exercisability. Subject to the terms and
conditions of this Agreement, the Option shall become exercisable
in _______________ equal cumulative installments of __________
(_______) shares of the Company's common Stock (individually an
"Installment" and collectively the "Installments"). Employee may
exercise the Option with respect to each Installment on or after
each successive annual anniversary of the Grant Date according to
the following schedule:
Installment (number
of shares
becoming exercisable) Exercise Date
First
Anniversary
Second
Anniversary
Third
Anniversary
Fourth
Anniversary
Fifth
Anniversary
Sixth
Anniversary
Seventh
Anniversary
Eighth
Anniversary
Ninth
Anniversary
To the extent Employee does not in any year purchase
all or any part of the shares to which Employee is entitled,
Employee has the right cumulatively thereafter to purchase any
shares not so purchased and such right shall continue until the
Option terminates or expires. Fractional share interests shall
be disregarded.
5.2 Notice of Exercise. Employee shall exercise the
option by (i) notifying the Company of Employee's election to
exercise the Option, (ii) paying in full the purchase price as
provided in Section 5.3 hereof, and (iii) satisfying the tax
withholding requirements of Section 8.8 of the Plan.
5.3 Payment of Purchase Price. The purchase price for
any shares of Common Stock with respect to which Employee
exercises the Option shall be paid in full promptly after
Employee gives notice of exercise as provided in Section 5.2
hereof. The purchase price shall be paid: (a) in cash or by
check in United States dollars, or (b) if, and only if, the
Committee so authorizes in its sole discretion, at the time
Employee gives notice of exercise, by transferring to the Company
for redemption, Common Stock of the Company at its "Fair Market
Value" (as defined in the Plan), with share certificates duly
endorsed and accompanied by instruments of transfer with
signatures guaranteed. If Employee desires to pay the purchase
price for the shares by transferring to the Company Common Stock
for redemption, Employee shall so notify the Secretary of the
Company with the notice of Employee's election to exercise the
Option in accordance with Section 5.2 hereof. Promptly after
receipt of Employee's notice of exercise and request for payment
by redemption, the Company shall notify Employee of its decision
as to whether it will permit Employee to pay the purchase price
by transferring the Company's Common Stock to it for redemption.
If the Committee does not authorize the proposed payment by
redemption, Employee shall pay the purchase price in cash or by
check in United States dollars as provided above.
5.4 Limitation on Exercise. In the event Employee is
granted incentive stock options (whether under this Agreement or
any other incentive stock option agreement) and the aggregate
fair market value (determined as of the respective dates of grant
of such options) of the Common Stock with respect to which such
options are first exercisable in any calendar year exceeds
$100,000, the most recently granted options shall be treated as
nonqualified stock options to the extent of the excess. In
addition, in the case of simultaneously granted options, the
Company may, in the manner and to the extent permitted by law,
designate which shares are to be treated as stock acquired
pursuant to the exercise of an incentive stock option.
6. Issuance of Shares. Subject to Section 8.3 of the
Plan, promptly after the Company's receipt of notification of
exercise provided for in Section 5.2 hereof and Employee's
payment in full of the purchase price, the Company shall deliver,
or cause to be delivered, to Employee a certificate for the whole
number of shares with respect to which the Option is being
exercised by Employee. Shares shall be registered in the name of
Employee. If any law or regulation of the Securities and
Exchange Commission or of any other federal or state governmental
body having jurisdiction shall require the Company or Employee to
take any action prior to the issuance to Employee of the shares
of Common Stock of the Company specified in the written notice of
election to exercise, the date for the delivery of such shares
shall be adjourned until the completion of such action.
7. Termination Of Employment. If Employee's employment
with the Company is terminated for any reason the Option shall
terminate in accordance with and at the time set forth in Section
6.6 of the Plan. [If the Employee dies or becomes Permanently
Disabled (as defined in the Plan) while he or she is employed by
the Company, the Option shall become fully vested and
exercisable.]
8. Assignment or Transfer. The Option is not assignable
or transferable except by will or by the laws of descent and
distribution and during Employee's lifetime the Option may be
exercised only by Employee. No transfer of the Option by will or
by the laws of descent and distribution shall be effective, nor
shall any designation of a person who may exercise the Option
after Employee's death be effective to bind the Company unless
the Company is furnished with a written notice thereof and a copy
of the will or such other evidence as the Company deems necessary
to establish the validity of the transfer and the acceptance of
the terms and conditions of the Option by the transferee or
designee.
9. No Rights as Shareholder. Employee shall have no
rights as a shareholder with respect to shares of the Common
Stock covered by the Option until the date of the issuance of a
stock certificate or stock certificates evidencing issuance of
such shares pursuant to Employee's exercise of the Option. 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 Article 10 hereof and in Article 7 of the Plan.
10. Modification and Termination.
10.1 The rights of Employee under this Agreement are
subject to modification and termination as provided in the Plan.
10.2 The number of shares of Common Stock set forth in
Article 3 hereof and the Option are subject to adjustment,
acceleration, and possible early termination under Article 7 of
the Plan.
11. No Right to Employment. Nothing in this Agreement, the
Plan, or any instrument executed pursuant to the Plan shall
confer upon Employee the right to continue in the employ or
service of the Company, affect the right of the Company to
terminate the employment or services of Employee with or without
cause, or be evidence of any agreement or understanding, express
or implied, that the Company will employ or continue to employ
Employee in a particular position or at a particular rate of
remuneration.
12. Compliance with Securities Laws. At the time the
Option is exercised, the Company may require Employee to execute
any documents or take any action which may be then necessary to
comply with the Securities Act of 1933, as amended, and the rules
and regulations adopted thereunder, or any other applicable
federal or state laws for the purpose of regulating the sale and
issuance of securities. The Company reserves the right to change
its requirements with respect to enforcing compliance with
federal and state securities laws, including the request for, and
enforcement of, letters of investment intent, such requirements
to be determined by the Company in its judgment as necessary to
assure compliance with such laws. Such changes may be made, with
respect to the Option, upon exercise hereof, or prior to or after
the exercise of the Option. The Company shall not be obligated
to issue any shares upon the exercise of the Option unless the
issuance, in the judgment of the Board of Directors of the
Company, is in full compliance with all applicable laws,
governmental rules and regulations, undertakings of the Company
made under the Securities Act of 1933, as amended, any state
securities laws, and stock exchange agreements of the Company.
13. General Provisions.
13.1 Subject to Plan. The Option and all rights of
Employee thereunder are subject to, and Employee agrees to be
bound by all of the terms and conditions of the Plan,
incorporated herein by this reference. Employee acknowledges
receipt of a copy of the Plan, attached hereto as Exhibit A,
which is made a part hereof by this reference, and agrees to be
bound by the terms thereof. Unless otherwise expressly provided
in other sections of this Agreement, provisions of the Plan that
confer discretionary authority on the Committee do not (and shall
not be deemed to) create any rights in Employee unless such
rights are expressly set forth herein or are otherwise in the
sole discretion of the Committee so conferred by appropriate
action of the Committee under the Plan after the date hereof.
13.2 Further Acts. Employee agrees to perform all
further acts and to execute and deliver any other and additional
documents as may be reasonably necessary to carry out the
provisions of this Agreement.
13.3 Notices. Any notice to be given under the terms
of this Agreement to the Company shall be in writing and
addressed to Marshall Industries, 9830 Telstar Avenue, El Monte,
California 91731 to the attention of the Secretary and to
Employee at the address given beneath Employee's signature
hereto, or at such other address as either party may hereafter
designate in writing to the other.
13.4 Notice of Disposition. Employee agrees to notify
the Company of any sale or other disposition of any shares of
Common Stock received upon exercise of the Option, if such sale
or disposition occurs within two years after the Grant Date or
within one year after the date of such exercise.
IN WITNESS WHEREOF, this Agreement is executed by the
parties on the date and at the place indicated below.
"COMPANY"
MARSHALL INDUSTRIES,
a California corporation
Executed on ____________, 199_
at _______________, __________. By: _____________________
Its: ____________________
"EMPLOYEE"
Executed on ____________, 199_
at _______________, __________. _________________________
Signature
_________________________
Print Name
_________________________
Address
__________________________
City, State, Zip Code
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Employee Incentive Stock Option Agreement by Marshall Industries,
I, ___________________________________, the spouse of the
Employee therein named, do hereby join with my spouse in
executing the foregoing Employee Incentive Stock Option Agreement
and do hereby agree to be bound by all of the terms and
provisions thereof and of the Plan.
DATED: ______________, 199__. ____________________________
Signature of Spouse
[O'Melveny & Myers LLP Letterhead]
January
20th
1 9 9 8
544,350-999
NB1-332706.V1
(213) 669-6000
Marshall Industries
9320 Telstar Avenue
El Monte, California 91731
Re: Registration on Form S-8 of Marshall
Industries (the "Company")
Ladies and Gentlemen:
At your request, we have examined the Registration
Statement on Form S-8 to be filed with the Securities and
Exchange Commission in connection with the registration under
the Securities Act of 1933, as amended, of 500,000 shares of
Common Stock, par value $1.00 per share, of the Company (the
"Common Stock"), to be issued pursuant to the Marshall
Industries 1997 Stock Option Plan (the "Plan"). We have
examined the proceedings heretofore taken and to be taken
in connection with the authorization of the Plan and the
Common Stock to be issued pursuant to and in accordance
with the Plan.
Based upon such examination and upon such matters
of fact and law as we have deemed relevant, we are of the
opinion that the Common Stock has been duly authorized by
all necessary corporate action on the part of the Company
and, when issued in accordance with such authorization, the
provisions of the Plan and relevant agreements duly
authorized by and in accordance with the terms of the Plan,
will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an
exhibit to the Registration Statement.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated July 18, 1997,
included in Marshall Industries' Form 10-K for the year ended May 31, 1997
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
January 22, 1998
<PAGE>
