SS:60937.2:07222.059
SS:60937.2:07222.059
As filed with the Securities and Exchange Commission on March 18,
1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement Under The
Securities Act of 1933
Boatracs, Inc.
(Exact Name of Registrant as Specified in Its Charter)
California 33-0644381
(State or Other Jurisdiction
of Incorporation or Organization) (I.R.S. Employer
Identification Number)
6440 Lusk Blvd., Suite D201, San Diego, California 92121
(Address of Principal Executive Offices) (Zip Code)
Boatracs, Inc. 1995 Stock Option Plan
(Full Title of the Plan)
Michael Silverman, President
Boatracs, Inc.
6440 Lusk Blvd., Suite D201
San Diego, California 92121
(Name and Address of Agent For Service)
619-587-1981
(Telephone Number, Including Area Code of Agent For Service)
Calculation Of Registration Fee
Proposed
Proposed Maximum
Title of Maximum Aggregate Amount of
Securities to be Amount to be Offering Price
Offering Price Registration
Registered Registered Per Share (1) (1) Fee (1)
Common Stock, 1,000,000 $1.00 $1,000,000 $344.83
no par value
per share, issuable
upon exercise of
Stock Options
(1) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the maximum
number of securities issuable under the plan that are covered by
the registration statement, computed upon the average of the bid
and asked prices of the Company's Common Stock as reported on the
NASDAQ OTC Bulletin Board on March 11, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are on file with the Securities
and Exchange Commission, are incorporated in the Section 10(a)
prospectus under the Securities Act by reference.
(a) The Quarterly
Reports of the Registrant, filed on Form 10-QSB
for the Registrant's Quarters ended March 31, June
30, and September 31, 1995.
(b) The Form S-1, SEC
File Number 33-98810, filed with the Commission on
October 31, 1995.
(c) The Form 8-A filed
with the Commission on November 2, 1987,
describing the class of common stock contained in
this Registration Statement.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be part thereof
from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to provisions of the California Corporations Code,
Article V of the Company's Amended and Restated Articles of
Incorporation provides that the liability of the Company's
directors for monetary damages shall be eliminated to the fullest
extent permissible under California law.
Article VI of the Company's Amended and Restated Bylaws
authorizes the Company to indemnify its directors and officers in
certain circumstances against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in
connection with a proceeding arising out of such person's service
in such capacity, if that person acted in good faith and in a
manner that that person reasonably believed to be in the best
interests of the Company and, in the case of a criminal
proceeding, had no reason to believe was unlawful. The Company
is required to indemnify a director or officer of the Company
against expenses actually and reasonably incurred in the event
such person is successful on the merits in the defense of any
such claim. The indemnification provided by Article VI is not
exclusive of any other rights to which such director or officer
seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise, with respect to action in his or her official capacity
and with respect to action in another capacity while holding such
office, to the extent such additional rights to indemnification
are authorized in the Company's Amended and Restated Articles of
Incorporation.
In addition, employment agreements between the Company and
certain executive officers of the Company provide that such
executive officers shall each be indemnified against all
liabilities, damages, costs, expenses, attorneys' fees and claims
(each, a "Claim"), and all costs, expenses and attorneys' fees
incurred in the defense of any such Claim, arising from certain
circumstances relating to such executive officer's employment,
except to the extent caused by such executive officer's negligent
act, willful misconduct or breach under such agreement. The
Company is required to defend at its sole cost any action or
proceeding brought against such executive officer by reason of
any such Claims upon notice from the executive officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits attached is
incorporated herein by reference.
Item 9. UNDERTAKINGS
The Registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii)to reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement; and
(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) shall
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 pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
The Registrant hereby agrees that, for the purposes of
determining any liability under said Act, 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;
The Registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the Plan.
The Registrant hereby undertakes that, for purpose of determining
any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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.
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 San Diego, and State of California on March 18. 1996.
BOATRACS, INC.
By: /S/ MICHAEL SILVERMAN
Michael Silverman, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael Silverman and Dale
Fisher, or either of them, jointly and severally, his true and
lawful attorneys-in-fact and agents, 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 to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents 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 as 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 their 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:
/S/MICHAEL SILVERMAN
Michael Silverman
Chairman of the Board, Chief Executive Officer
March 18, 1996
/S/ ANNETTE FRISKOPP
Annette Friskopp
Chief Operating Officer, Director
March 18, 1996
/S/ DALE FISHER
Dale Fisher
Chief Financial Officer (Principal Financial Officer &
Accounting Officer)
March 18, 1996
/S/ NORMAN KANE
Norman Kane
Director
March 18, 1996
/S/ LUIS MAIZEL
Luis Maizel
Director
March 18, 1996
EXHIBIT INDEX
Item
4.1 Boatracs, Inc. 1996 Stock Option Plan
4.2 Second Amended Plan of Reorganization of First
National Corporation (Incorporated by reference to
First National Corporation's Current Report on
Form 8-K dated January 9, 1995)
4.3 Bankruptcy Court Order Confirming Second Amended
Plan of Reorganization of First National
Corporation (Incorporated by reference to First
National Corporation's Current Report on Form 8-K
dated January 9, 1995)
5.0 Opinion of Solomon Ward Seidenwurm & Smith
23.1 Consent of Deloitte & Touche
23.2 Consent of Solomon Ward Seidenwurm & Smith (see
Exhibit 5.0)
EXHIBIT 4.1
This Document Constitutes Part of a
Prospectus Covering Securities That
Have Been Registered under The
Securities Act of 1933.
Dated: March 18, 1996
BOATRACS, INC.
1996 STOCK OPTION PLAN
1. Purposes of the Plan.
The Boatracs, Inc. 1996 Stock Option Plan (the "Plan") is
intended to promote the interests of Boatracs, Inc., a California
corporation (the "Company"), by providing a method whereby
(i) employees of the Company (or its parent or subsidiary
corporations) responsible for the management, growth and
financial success of the Company (or its parent or subsidiary
corporations), and (ii) non-employees who provide valuable
services to the Company (or its parent or subsidiary
corporations), as determined by the Plan Administrator, may be
offered incentives and rewards which will encourage them to
acquire a proprietary interest, or otherwise increase their
proprietary interest, in the Company and continue to render
services to the Company (or its parent or subsidiary
corporations).
2. Administration of the Plan.
(a) The Plan shall be administered by the Company's Board
of Directors ("Board") or, to the extent provided by the Board, a
committee ("Committee") appointed by the Board, which shall
consist of not less than two disinterested persons (as such term
is defined in Rule 16b-3, or any successor rule, under the
Securities Exchange Act of 1934), who shall serve at the pleasure
of the Board; provided, however, that if there are not at least
two directors who are disinterested persons and willing to serve
on the Committee, the Plan shall be administered by the Board.
For purposes of the Plan, the term "Plan Administrator" shall
mean the Board, or if the Board delegates responsibility for any
matter to the Committee, the Committee.
(b) Subject to the provisions of the Plan, the Plan
Administrator shall have full power and authority to select the
Optionees (as defined in Section 3) to be granted the options
under the Plan, and to determine (i) whether each granted option
is to be an incentive stock option ("Incentive Stock Option")
which satisfies the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code") or
a non-statutory Stock Option not intended to meet such
requirements, (ii) the number of shares to be subject to such
option; (iii) the exercise prices of such shares, (iv) the terms
of exercise, (v) the expiration dates and (vi) all other terms
and conditions upon which such option may be exercised. The Plan
Administrator shall have the full power and authority (subject to
the provisions of the Plan) to establish such rules and
regulations as it may deem appropriate for the proper
administration of the Plan and to make such determinations under,
and issue such interpretations of, the Plan and any outstanding
option as it may deem necessary or advisable. Decisions of the
Plan Administrator shall be final and binding on all parties who
have an interest in the Plan or any outstanding option. No
person acting under this subsection shall be held liable for any
action or determination made in good faith with respect to the
Plan or any option granted under the Plan.
(c) The Company shall indemnify and hold harmless each
Committee member and each director of the Company, and the estate
and heirs of such Committee member or director, against all
claims, liabilities, expenses, penalties, damages or other
pecuniary losses, including legal fees, which such Committee
member or director, his or her estate or heirs may suffer as a
result of his or her responsibilities, obligations or duties in
connection with the Plan, to the extent that insurance, if any,
does not cover the payment of such items.
3. Eligibility for Option Grants.
The persons eligible to receive option grants pursuant to the
Plan ("Optionees") are as follows:
(i) employees of the Company (or its parent or subsidiary
corporations) who render services which contribute to the
success and growth of the Company (or its parent or
subsidiary corporations) or which may reasonably be
anticipated to contribute to the future success and growth of
the Company (or its parent or subsidiary corporations); and
(ii) non-employees who provide valuable services to the
Company (or its parent or subsidiary corporations).
4. Stock Subject to the Plan.
(a) The stock issuable under the Plan shall be shares of
the Company's authorized but unissued or reacquired common stock
(the "Common Stock"). The aggregate number of shares which may
be issued under the Plan shall not exceed 1,000,000 shares of
Common Stock. The total number of shares issuable under the Plan
shall be subject to adjustment from time to time in accordance
with the provisions of this Section 4.
(b) Should an option be terminated for any reason without
being exercised or surrendered in whole or in part, the shares
subject to the portion of the option not so exercised or
surrendered shall be available for subsequent option grants under
the Plan.
(c) In the event that the outstanding shares of Common
Stock issuable under the Plan as a class are increased or
decreased, or changed into or exchanged for a different number or
kind of shares or securities, as a result of any Corporate
Transactions (as defined in Section 7), stock splits, stock
dividends, or the like affecting the outstanding Common Stock as
a class, then appropriate adjustments shall be made to the
aggregate number of shares issuable under the Plan and to the
number of shares and price per share of the Common Stock subject
to each outstanding option, in order to prevent the dilution or
enlargement of benefits under such outstanding options.
5. Terms and Conditions of Options.
Options granted pursuant to the Plan shall be authorized by
action of the Plan Administrator and may, at the Plan
Administrator's discretion, be either Incentive Stock Options or
non-statutory Stock Options. Individuals who are not employees
of the Company or its parent or subsidiary corporations may only
be granted non-statutory Stock Options. Each granted option
shall be evidenced by one or more written instruments in a form
approved by the Plan Administrator; provided, however, that each
such instrument shall comply with and incorporate the terms and
conditions specified in this Section 5.
(a) Option Price.
(1) The option price per share (the "Option Price"),
(a) with respect to a non-qualified Stock Option, shall be
between eighty-five percent (85%) and one hundred percent (100%)
of the fair market value of a share of Common Stock on the date
of the option grant, as determined by the Company on a case by
case basis and (b) with respect to an Incentive Stock Option,
shall be one hundred percent (100%) of the fair market value of a
share of Common Stock on the date of the option grant.
(2) 10% Shareholder. If any Optionee under the Plan
is on the date of grant of an Incentive Stock Option the owner of
stock (as determined under Section 424(d) of the Internal Revenue
Code) possessing 10% or more of the total combined voting power
of all classes of stock of the Company or any one of its parent
or subsidiary corporations (a "10% Shareholder"), then the option
price per share acquired pursuant to exercise of an Incentive
Stock Option shall not be less than one hundred and ten percent
(110%) of the fair market value of a share of Common Stock on the
date of the option grant.
(3) The option price shall become immediately due
upon exercise of the option and shall, subject to the provisions
of the instrument evidencing the grant, be payable in one of the
alternative forms specified below:
(i) full payment in cash or cash
equivalents; or
(ii) full payment in shares of Common Stock having
a fair market value on the Exercise Date (as defined below)
in an amount equal to the option price; or
(iii) a combination of shares of Common Stock valued
at fair market value on the Exercise Date and cash or cash
equivalents, equal in the aggregate to the option price; or
(iv) any other form of consideration as the Plan
Administrator may approve.
For purposes of this Section 5(a)(3), the Exercise Date shall
be the first date on which the Company shall have received both
written notice of the exercise of the option and payment of the
option price for the purchased shares of Common Stock.
(4) For all valuation purposes under the Plan, the
fair market value of a share of Common Stock shall be determined
in accordance with the following provisions:
(i) If the Common Stock is not at the time listed
or admitted to trading on any stock exchange but is traded in
the over-the-counter market, the fair market value shall be
the mean between the highest bid and lowest asked prices (or,
if such information is available, the closing selling price)
of one share of Common Stock in the over-the-counter market,
as such prices are reported by the National Association of
Securities Dealers through its NASDAQ system or any successor
system, on the date of the option grant or Exercise Date, as
the case may be. If there are no reported bid and asked
prices (or closing selling price) for the Common Stock on the
date in question, then the mean between the highest bid price
and lowest asked price (or the closing selling price) on the
last preceding date for which such quotations exist shall be
determinative of fair market value.
(ii) If the Common Stock is at the time listed or
admitted to trading on any stock exchange, then the fair
market value shall be the closing selling price of one share
of Common Stock on the date in question on the stock exchange
determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in
the composite tape of transactions on such exchange. If
there is no reported sale of Common Stock on such exchange on
the date in question, then the fair market value shall be the
closing selling price on the exchange on the last preceding
date for which such quotation exists.
(iii) If the Common Stock at the time is neither
listed nor admitted to trading on any stock exchange nor
traded in the over-the-counter market, then the fair market
value shall be determined by the Plan Administrator after
taking into account such factors as the Plan Administrator
shall deem appropriate, including one or more independent
professional appraisals.
(b) Option Period. The term of each option shall
commence on the date of grant of the option and shall be seven
years, except that if an Incentive Stock Option is granted to an
Optionee who, immediately before the grant of the Incentive Stock
Option, owns stock representing more than ten percent (10%) of
the total combined voting power of all classes of stock of the
Company or its parent or subsidiary corporations, the exercise
period specified in the option agreement for which the Incentive
Stock Option thereunder is granted, shall not exceed five years
from the date of grant. Subject to other provisions of the Plan,
(a) each Incentive Stock Option shall be exercisable during its
term as to twenty percent (20%) of the Incentive Stock Option
shares during the twelve (12) months beginning on the first
anniversary of the date of grant, and twenty percent (20%)
thereafter during each of the four (4) next successive twelve
(12) month periods, and (b) each non-qualified Stock Option shall
be exercisable over a five year term, as determined by the
Company on a case by case basis, provided, however, that each non-
qualified Stock Option shall be exercisable at a rate of at least
twenty percent (20%) per year over five (5) years from the date
the non-qualified Stock Option is granted. Additionally, if an
Optionee shall not in any period purchase all of the option
shares which the Optionee is entitled to purchase in such period,
then the Optionee may purchase all or any part of such shares
subject to this Agreement at any time after the end of such
period and prior to the expiration of the option.
(c) Effect of Termination.
(1) Subject to the other provisions of the Plan,
should an Optionee cease to be a service provider to the Company
("Service Provider"), or employee or director, for any reason
(including death or permanent disability as defined in
Section 105(d)(4) of the Internal Revenue Code), then any option
or options granted under the Plan to such Optionee and
outstanding on the Cessation Date (as defined below) shall remain
exercisable for a period not to exceed six (6) months from the
date of such cessation of Service Provider, employee or director,
status (the "Cessation Date"), the specific amount of time to be
determined at the time of granting the option; provided, however,
that under no circumstances shall such options be exercisable
after the expiration date of the option term specified in the
instrument evidencing the option grant. Notwithstanding the
foregoing, such shorter period of exercisability following the
Cessation Date, as determined by the Company at the time of
original grant, shall in no event be less than: (i) six
(6) months in the event that employment termination is due to the
death or disability of the Optionee and (ii) thirty (30) days in
the event that employment termination is due to any other reason.
Each such option shall, during such six (6) month or shorter
period, be exercisable to the extent of the number of shares (if
any) for which the option is exercisable on the Cessation Date
(the "Vested Shares"), and to the extent that on the Cessation
Date the number of shares (if any) for which the option is not
exercisable will become exercisable within the following year,
the Optionee may exercise the option for a percentage of such
shares based on the following fraction: the numerator shall be
the number of days from the last anniversary date of the grant of
the option to the Cessation Date and the denominator shall be the
number of days from the last anniversary date of the grant of the
option to the next anniversary date of the grant of the option.
Upon the expiration of such six (6) month or shorter period or
(if earlier) upon the expiration of the option term, the option
shall terminate and cease to be exercisable.
(2) Notwithstanding subparagraph (c)(1) above, the
Plan Administrator shall have complete discretion, exercisable
either at the time the option is granted or at the Cessation Date
to provide that options held by such Optionee may be exercised
not only with respect to Vested Shares as of the Cessation Date,
but also with respect to one or more subsequent installments of
shares for which the option would otherwise have become
exercisable had such cessation of Service Provider status not
occurred.
(3) For purposes of the Plan, the Optionee shall be
deemed to be a Service Provider of the Company for so long as the
Optionee renders periodic services to the Company or one or more
of its parent or subsidiary corporations.
(d) No Employment or Service Contract. Nothing in the
Plan shall confer upon the Optionee any right to continue in the
service of the Company (or any parent or subsidiary corporation
of the Company employing or retaining the Optionee) for any
period of specific duration or interfere with or otherwise
restrict in any way the rights of the Company (or any parent or
subsidiary corporation of the Company employing or retaining
Optionee) or the Optionee, to terminate the service provider
status of Optionee at any time for any reason or no reason
whatsoever, with or without cause.
(e) Stockholder Rights. An Optionee shall have none of
the rights of a stockholder with respect to any shares covered by
the option until such individual shall have duly exercised the
option and paid the option price.
(f) Forfeiture of Right to Exercise Option.
Notwithstanding anything to the contrary in the Plan, the
exercise of any Stock Option by an Optionee shall be subject to
satisfaction of the following conditions precedent, as determined
in good faith by the Committee whose determination shall be final
and binding: (a) such Optionee not be guilty of theft, larceny,
embezzlement, fraud, any acts of dishonesty, illegality, moral
turpitude or gross mismanagement, (b) such Optionee shall not
have breached any confidentiality or similar provision of
Optionee's business relationship with the Company or otherwise
have made any disclosure of the Company's customer lists,
proprietary information, design information, performance
standards, and any other confidential and proprietary information
of the Company or licensed to the Company, including without
limitation, trade secrets and copyrighted materials
("Confidential Material"), (c) such Optionee shall not, within
six (6) months after termination of Optionee's business
relationship with the Company, undertake any employment or
activity competitive with the Company's business, if the duties
or work of, in connection with or related to such competitive
employment or activity, would or may cause the Optionee to reveal
or use any Confidential Material.
6. Exercise of Options.
(a) Each Option may be exercised in whole or in part (but
not as to fractional shares) by delivering it for surrender or
endorsement to the Company, attention of the Corporate Secretary,
at the Company's principal office, together with payment of the
Exercise Price and an executed Notice and Agreement of Exercise
in the form prescribed by the Company.
(b) Exercise of each Option is conditioned upon the
agreement of the Optionee to the terms and conditions of this
Plan and of such Option as evidenced by the Optionee's execution
and delivery of a Notice and Agreement of Exercise in a form to
be determined by the Committee in its discretion. Such Notice
and Agreement of Exercise shall set forth the agreement of the
Optionee that: (a) no Option Shares will be sold or otherwise
distributed in violation of the Securities Act of 1933 (the
"Securities Act") or any other applicable federal or state
securities laws, (b) each Option Share certificate may be
imprinted with legends reflecting any applicable federal and
state securities law restrictions and conditions, (c) the Company
may comply with said securities law restrictions and issue "stop
transfer" instructions to its Transfer Agent and Registrar
without liability, (d) each Optionee will timely file all reports
required under federal securities laws, and (e) each Optionee
will report all sales of Option Shares to the Company in writing
on a form prescribed by the Company.
(c) No Option shall be exercisable unless and until any
applicable registration or qualification requirements of federal
and state securities laws, and all other legal requirements, have
been fully complied with. The Company will use reasonable
efforts to maintain the effectiveness of a Registration Statement
under the Securities Act for the issuance of Options and shares
acquired thereunder, but there may be times when no such
Registration Statement will be currently effective. The exercise
of Options may be temporarily suspended without liability to the
Company during times when no such Registration Statement is
currently effective, or during times when, in the reasonable
opinion of the Committee, such suspension is necessary to
preclude violation of any requirements of applicable law or
regulatory bodies having jurisdiction over the Company. If any
Option would expire for any reason except the end of its term
during such a suspension, then if exercise of such Option is duly
tendered before its expiration, such Option shall be exercisable
and exercised (unless the attempted exercise is withdrawn) as of
the first day after the end of such suspension. The Company
shall have no obligation to file any Registration Statement
covering resales of Option Shares.
(d) Withholding Taxes. The Company shall have the right
at the time of exercise of any Stock Option to make adequate
provision for any federal, state, local, or foreign taxes which
it believes are or may be required by law to be withheld with
respect to such exercise.
(e) Dollar Limitation. The aggregate fair market value
(determined as of the respective date or dates of grant) of the
Common Stock for which one or more options granted to any
Employee under the Plan (or any other option plan of the Company
or its parent or subsidiary corporations) may for the first time
become exercisable as Incentive Stock Options during any one
calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). In the event that Section 422 of the
Internal Revenue Code is amended to alter the limitation set
forth therein so that following such amendment such limitation
shall differ from the $100,000 limitation set forth above, the
dollar limitation of this Section 6(e) shall be automatically
adjusted accordingly. To the extent the Employee holds two or
more such options which become exercisable for the first time in
the same calendar year, the foregoing limitation on the
exercisability thereof as Incentive Stock Options shall be
applied on the basis of the order in which such options are
granted, and any Incentive Stock Options subject to the
limitations of this Section 6(e) shall be treated as non-
qualified Stock Options subject to the applicable terms and
conditions of the Plan.
7. Corporate Transactions.
(a) In the event of any of the following transactions (a
"Corporate Transaction"):
(i) a merger or consolidation in which the Company is
not the surviving entity, except for a transaction the principal
purpose of which is to change the State of the Company's
incorporation,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company, or
(iii) any reverse merger in which the Company is the
surviving entity but in which fifty percent (50%) or more of the
Company's outstanding voting stock is transferred to holders
different from those who held the stock immediately prior to such
merger,
then each outstanding option which is not to be assumed by the
successor corporation or parent thereof (or to be replaced with a
comparable option to purchase shares of the capital stock of such
successor corporation or parent thereof) automatically shall be
accelerated so that each such option, immediately prior to the
specified effective date for such Corporate Transaction, shall
become fully exercisable with respect to the total number of
shares of Common Stock purchasable under such option. Any such
accelerated options not exercised as of the consummation of the
Corporate Transaction shall terminate and cease to be
exercisable, unless assumed by the successor corporation or
parent thereof (or replaced with a comparable option to purchase
shares of the capital stock of such successor corporation or
parent thereof).
(b) In connection with any Corporate Transaction, the
exercisability of any accelerated options under the Plan as an
Incentive Stock Option shall remain subject to the applicable
dollar limitation of Section 6(e).
(c) The Plan Administrator shall have the right and power
at any time to waive in whole or in part, absolutely or
conditionally, any right of the Company contained in any
instrument or option agreement evidencing any options granted
under the Plan.
(d) The grant of options under the Plan shall in no way
affect the right of the Company to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to
merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
8. Amendment of the Plan.
(a) The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects
whatsoever; provided, however, that no such amendment or
modification shall, without the consent of the holders, adversely
affect rights and obligations with respect to options at the time
outstanding under the Plan; and provided further, that the Board
shall not, without the approval of the stockholders of the
Company (i) increase the maximum number of shares issuable under
the Plan, except for permissible adjustments under Section 4(c),
(ii) materially modify the eligibility requirements for the grant
of options under the Plan or (iii) otherwise materially increase
the benefits accruing to participants under the Plan.
(b) The provisions of this Plan pertaining to Incentive
Stock Options are intended to comply with all requirements of the
Internal Revenue Code pertaining to qualification of such
incentive stock options as Incentive Stock Options under the
Internal Revenue Code and all provisions of the Plan with respect
thereto shall be construed in a manner consistent therewith.
9. Effective Date and Term of Plan.
(a) The Plan shall become effective when adopted by the
Board, but no option granted under the Plan shall become
exercisable unless and until the Plan shall have been approved by
the shareholders of the Company. If such shareholder approval is
not obtained within twelve (12) months after the date of the
Board's adoption of the Plan, then all options previously granted
under the Plan shall terminate and no further options shall be
granted. Subject to such limitation, the Plan Administrator may
grant options under the Plan at any time after the Plan effective
date and before the date fixed herein for termination of the
Plan.
(b) Unless sooner terminated in accordance with the
provisions hereof, the Plan shall terminate upon the later of
(i) the expiration of the eight (8) year period measured from the
date of the Board's adoption of the Plan or (ii) the date on
which all shares available for issuance under the Plan shall have
been issued or canceled pursuant to the exercise or surrender of
options granted under the Plan. If the date of termination is
determined under clause (i) above, then options outstanding on
such date shall thereafter continue to have full force and effect
in accordance with the provisions of the instruments evidencing
such options. In no event shall the Plan terminate later than
nine years and eleven (11) months after the inception of the
Plan.
10. Regulatory Approvals.
The implementation of the Plan, the granting of any option
under the Plan, and the issuance of Common Stock upon the
exercise or surrender of any such option, shall be subject to the
procurement by the Company of all approvals and permits required
by regulatory authorities having jurisdiction over the Plan, the
options granted under the Plan and the Common Stock issued
pursuant to the Plan.
11. Requests for Information.
For additional information about the Plan or the Plan
Administrator, please direct all such requests to the Chief
Financial Officer of Boatracs, Inc., 6440 Lusk Boulevard,
Suite D201, San Diego, CA 92121, telephone number (619) 587-1981.
12. Financial Reports.
The Company shall deliver financial and other information
regarding the Company, on an annual or other periodic basis, to
each individual holding an outstanding option under the Plan, to
the extent the Company is required to provide such information
pursuant to Section 260.140.46 (or any successor thereto) of the
Rules of the California Corporations Commissioner.
13. Successors in Interest.
The Company shall not assign or delegate to any other person
this Plan or any rights or obligations under this Plan. Subject
to any restriction on transferability contained in this Plan,
this Plan shall be binding upon and shall inure to the benefit of
the successors-in-interest and assigns of each party to this
Plan. Nothing in this Paragraph shall create any rights
enforceable by any person not a party to this Plan, except for
the rights of the successors-in-interest and assigns of each
party to this Plan, unless such rights are expressly granted in
this Plan to other specifically identified persons.
14. Governing Law.
This Plan shall be construed in accordance with, and governed
by, the laws of the State of California.
15. Attorney's Fees.
In the event any litigation, arbitration, mediation, or other
proceeding ("Proceeding") is initiated by any party(ies) against
any other party(ies) to enforce, interpret or otherwise obtain
judicial or quasi-judicial relief in connection with this Plan
the prevailing party(ies) in such Proceeding shall be entitled to
recover from the unsuccessful party(ies) all costs, expenses, and
actual attorney's and expert witness fees relating to or arising
out of (a) such Proceeding (whether or not such Proceeding
proceeds to judgment), and (b) any post-judgment or post-award
proceeding including without limitation one to enforce any
judgment or award resulting from any such Proceeding. Any such
judgment or award shall contain a specific provision for the
recovery of all such subsequently incurred costs, expenses, and
actual attorney's and expert witness fees.
16. Prior Understandings.
This Plan contains the entire agreement between the parties
with respect to the subject matter of the Plan, is intended as a
final expression with respect to such terms as are included in
the Plan, and supersedes all negotiations, stipulations,
understandings, agreements, representations and warranties, if
any, with respect to such subject matter, which precede or
accompany the execution of the Plan.
17. Arbitration.
All disputes pertaining to this Plan shall be resolved by the
American Arbitration Association pursuant to its rules in San
Diego, California.
18. Option Non-Transferable; Exceptions
This option shall be neither transferable nor assignable by
Optionee other than by will or by the laws of descent and
distribution and may be exercised, during Optionee's lifetime,
only by Optionee.
Exhibit 5.0
March 7, 1996
Boatracs, Inc.
6440 Lusk Boulevard
Suite D201
San Diego, California 92121
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are delivering this opinion and consent to you in connection
with the proposed issuance of up to 1,000,000 shares of common
stock, no par value (the "Plan Shares"), of Boatracs, Inc. (the
"Company"), to be issued pursuant to the Company's 1996 Stock
Option Plan (the "Plan") and to be registered with the Securities
and Exchange Commission on Form S-8 (the "Registration
Statement").
We have examined such documents and have reviewed such questions
of law as we have considered necessary and appropriate for the
purposes of this opinion and, based thereon, we advise you that,
in our opinion, the Plan Shares have been duly authorized by the
Company and, when paid for and delivered in accordance with the
terms of the Plan and the terms of the agreements evidencing the
grants of the options, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced Registration Statement.
Very truly yours,
Norman L. Smith
SOLOMON WARD SEIDENWURM & SMITH
NLS/kap
SS:61251.1:07222.059
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Boatracs, Inc. on Form S-8 of our report dated
January 16, 1995 (March 13, 1996 as to Note 10), appearing in the
Prospectus, which is part of this Registration Statement, and to
the reference to us under the heading "Experts" in such
Prospectus.
San Diego, California
March 13, 1996
