As filed with the Securities and Exchange Commission on November 14, 1995
Registration Statement No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ELXSI Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
77-0151523
------------------------------------
(I.R.S. Employer Identification No.)
4209 Vineland Road, Suite J-1, Orlando, Florida 32811
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(Address of Principal Executive Offices)
ELXSI Corporation 1995 Incentive Stock Option Plan
(Full Title of the Plan)
Alexander M. Milley
President and Chief Executive Officer
4209 Vineland Road, Suite J-1
Orlando, Florida 32811
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(Name and Address of Agent For Service)
(407) 849-1090
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(Telephone Number, Including Area Code, of Agent for Service)
Copy to: Claude A. Baum, Esq.
Dechert Price & Rhoads
477 Madison Avenue
New York, New York 10022-5891
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock 125,000 $6.125 $765,625 $264.01
(par value shares
$.001 per
share)
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(1) This estimate is made solely for the purpose of determining the amount of
the registration fee pursuant to Rule 457(c) under the Securities Act of
1933 and is based upon the average of the high and low prices of the
Company's Common Stock reported in the NASDAQ National Market System on
November 10, 1995.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with the Introductory
Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with the Introductory
Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents of ELXSI Corporation (the "Registrant") and the 1995
Incentive Stock Option Plan are hereby incorporated by reference in this
Registration Statement as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the Registrant's
fiscal year ended December 31, 1994, as amended by the Company's
Form 10-K/A Amendment No. 1 thereto dated August 24, 1995 and the
Company's Form 10-K/A Amendment No. 2 thereto dated September 13,
1995, including the portions of the Company's Proxy Statement dated
April 14, 1995 incorporated by reference into Part III of such Form
10-K;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1995;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1995; and
(d) The Registrant's Current Report on Form 8-K dated July 18, 1995.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment to this Registration Statement 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 herein and to be a part hereof from the date of filing of such reports
and documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
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<PAGE>
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
Item 4. Description of Securities.
The authorized capital stock of the Registrant consists of 165,000,000 shares of
capital stock, 160,000,000 of such shares being Common Stock, par value $.001
per share, and 5,000,000 of such shares being preferred stock, par value $.002
per share ("Preferred Stock"). At August 4, 1995: (i) there were outstanding
4,792,340 shares of Common Stock and no shares of Preferred Stock, and (ii) the
Registrant had granted to directors, officers and employees options to purchase
464,900 shares of Common Stock.
The Registrant's Certificate of Incorporation authorizes the Registrant's Board
of Directors to provide for the issuance, from time to time, of Preferred Stock
in one or more series, to establish the number of shares to be included in each
such series and to fix the designations, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereon. Because the Board of Directors has the power to establish the
preferences and rights of the shares of each series of Preferred Stock, it may
afford the holders of any Preferred Stock preferences, powers and rights
(including voting rights) senior to the rights of the holders of Common Stock,
which could adversely affect the rights, including voting rights, of holders of
Common Stock. The Registrant has authorized the issuance of 604,656 shares of
Series A Non-Voting Convertible Preferred Stock, par value $.002 per share. If
and when issued, the Series A Preferred Stock will be convertible under certain
specified conditions into 241,862 shares of the Registrant's Common Stock. The
Series A Preferred Stock will carry a liquidation preference of $.01 per share
and will be non-voting, except as otherwise required by law.
Subject to the rights of holders of Preferred Stock, holders of Common Stock are
entitled to receive dividends when, as and if declared by the Board of
Directors, to share ratably in the assets of the Registrant legally available
for distribution to holders of Common Stock in the event of liquidation and to
one vote per share on all matters to be voted upon by the stockholders. Holders
of Common Stock do not have cumulative voting rights in the election of
directors and have no preemptive, subscription, redemption or conversion rights.
The transfer agent and registrar for the Registrant's Common Stock is
Continental Stock Transfer & Trust Company.
Item 5. Interest of Named Experts and Counsel.
LEGAL OPINION
The legality of the shares of Common Stock of the Registrant offered hereby has
been passed upon for the Company by Dechert Price & Rhoads, 477 Madison Avenue,
New York, New York 10022-5891.
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<PAGE>
EXPERTS
The consolidated financial statements incorporated in this Registration
Statement by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
Item 6. Indemnification of Directors and Officers.
As provided in Article XI of the Registrant's By-Laws, the Registrant shall, to
the fullest extent permitted by the Delaware General Corporation Law, indemnify
all nonemployee directors. The Registrant shall have the power to indemnify its
officers, employees and other agents as set forth in the Delaware General
Corporation Law. The Registrant has obtained a directors and officers liability
insurance policy which insures such persons against loss arising from certain
claims made by reason of their being directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit No. Description
- ----------- -----------
4.1 ELXSI Corporation 1995 Incentive Stock Option Plan
5.1 Opinion of Dechert Price & Rhoads
23.1 Consent of Dechert Price & Rhoads (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP, independent accountants
24.1 Power of Attorney (included on page II-7)
Item 9. Undertakings.
Undertakings required by Item 512(a) of Regulation S-K
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:
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<PAGE>
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(b) 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 (Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.); and
(c) 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 (1)(a) and (1)(b) 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 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; 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.
Undertakings required by Item 512(b) of Regulation S-K
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The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 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.
Undertakings required by Item 512(h) of Regulation S-K
- ------------------------------------------------------
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
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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 Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by 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 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 of 1933 and will be governed by the final
adjudication of such.
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SIGNATURE
Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Orlando, Florida on October 4, 1995.
ELXSI CORPORATION
By:/s/ Alexander M. Milley
-----------------------
Alexander M. Milley
President and Chief
Executive Officer
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<PAGE>
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints
Alexander M. Milley, Thomas R. Druggish and David M. Doolittle, and each of
them, his true and lawful attorney-in-fact and agent, with full power 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 all documents in connection therewith, with the Securities
and Exchange Commission under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
Signature Title Date
/s/ Alexander M. Milley Chairman, President and October 4, 1995
- ------------------------- Chief Executive Officer
Alexander M. Milley (Principal Executive
Officer)
/s/ Thomas R. Druggish Vice President, Treasurer October 4, 1995
- ------------------------- and Secretary (Principal
Thomas R. Druggish Financial and Accounting
Officer)
/s/ Robert C. Shaw Director October 4, 1995
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Robert C. Shaw
/s/ Farrokh K. Kavarana Director October 4, 1995
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Farrokh K. Kavarana
/s/ Kevin P. Lynch Director October 4, 1995
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Kevin P. Lynch
/s/ John C. Savage Director October 4, 1995
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John C. Savage
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EXHIBIT INDEX
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Exhibit No. Description Page
----------- ----------- ----
4.1 ELXSI Corporation 1995 Incentive Stock Option Plan
5.1 Opinion of Dechert Price & Rhoads
23.1 Consent of Dechert Price & Rhoads (included
in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included on page II-7)
<PAGE>
Exhibit 4.1
ELXSI CORPORATION
1995 INCENTIVE STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to advance the interests of ELXSI
Corporation by providing an opportunity to selected directors, officers and key
employees of the Company and its Subsidiaries to purchase shares of Common Stock
through the exercise of options granted pursuant to this Plan, which may be
either Incentive Options or Nonqualified Options. By encouraging such stock
ownership, the Company seeks to establish as close an identity as feasible
between the interests of the Company and its Subsidiaries and those of such
directors, officers and key employees and also seeks to attract, retain,
motivate and reward persons of superior ability, training and experience.
2. Definitions
(1) Board means the Board of Directors of the Company.
(2) Code means the Internal Revenue Code of 1986 and regulations
thereunder, as amended from time to time.
(3) Committee means the committee appointed by the Board
responsible for administering the Plan or, in the absence of the such an
appointment, the Compensation Committee of the Board.
(4) Common Stock means the common stock of the Company, par value
$.001 per share.
(5) Company means ELXSI Corporation, a Delaware corporation.
(6) Director means each individual who is serving as a member of
the Board as of the time of reference.
(7) Eligible Person means an individual who is serving in any one
or more of the following capacities: Director, director of a Subsidiary,
officer of the Company, officer of any Subsidiary, or Key Employee.
(8) Employee means an employee of the Company or any Subsidiary
within the meaning of Code Section 3401(c).
(9) Incentive Option means a stock option granted to an Employee
and intended to qualify as an "incentive stock option" within the meaning of
Code Section 422 and designated as such.
(10) Key Employee means an executive, managerial or administrative
Employee.
(11) Nonqualified Option means a stock option not intended to be an
Incentive Option and designated as nonqualified, the federal income tax
treatment of which is determined generally under Code Section 83.
<PAGE>
(12) Option means either an Incentive Option or a Nonqualified
Option granted pursuant to this Plan.
(13) Plan means this ELXSI Corporation 1995 Incentive Stock Option
Plan as set forth herein, and as amended from time to time.
(14) Securities Act means the Securities Act of 1933, as amended,
and rules and regulations promulgated pursuant thereto, as amended from time to
time.
(15) Subsidiary means a "subsidiary" of the Company within the
meaning of Code Section 424(f), which generally is defined as any corporation
(other than the Company) in an unbroken chain of corporations beginning with the
Company if, at the relevant time, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in the chain.
3. Effective Date. This Plan was approved and adopted by the Board on
March 16, 1995. The effective date of this Plan shall be May 18, 1995, the date
of the annual meeting of stockholders of the Company, so long as this Plan is
approved by the stockholders of the Company on said date.
4. Stock Subject to Plan. The maximum aggregate number of shares of Common
Stock that may be made subject to Options granted hereunder is 125,000 shares,
which number shall be adjusted in accordance with Section 9 in the event of any
change in the Company's capital structure. Shares of Common Stock issued
pursuant to this Plan may consist, in whole or in part, of either authorized and
unissued shares or issued shares held in the Company's treasury. Any shares
subject to an Option that for any reason expires or is terminated unexercised as
to such shares may again be the subject of an Option under this Plan.
5. Administration. The Plan shall be administered by a Committee appointed
by the Board consisting of not fewer than two individuals who are Directors. The
Board shall have the discretion to remove and appoint members of the Committee
from time to time. The Committee shall have full power and discretion, subject
to the express provisions of this Plan, (i) to determine the Eligible Persons to
whom Options are to be granted, the time or times at which Options are to be
granted, the number of shares of Common Stock to be made subject to each Option,
whether each Option is to be an Incentive Option or a Nonqualified Option, the
exercise price per share under each Option, and the maximum term of each Option;
(ii) to interpret and construe the Plan and to prescribe, amend and rescind
rules and regulations for its administration; (iii) to determine the terms and
provisions of each option agreement evidencing an Option; and (iv) to make all
other determinations the Committee deems necessary or advisable for
administering this Plan. All decisions of the Committee shall be made by a
majority of its members, which shall constitute a quorum, and shall be reflected
in minutes of its meetings.
6. Eligibility. Options may be granted to such Eligible Persons as the
Committee selects.
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7. Terms and Conditions of Options. Options granted pursuant to this Plan
shall be evidenced by stock option agreements in such form and containing such
terms and conditions as the Committee shall determine. If an Eligible Person to
whom an Option is granted does not execute an option agreement evidencing that
Option in the form prescribed by the Committee within the later of (i) thirty
days from the date of grant of the Option or (ii) ten days after the Eligible
Person's receipt of an option agreement from the Company, the Option shall be
void and of no further force or effect. Each option agreement evidencing an
Option shall contain among its terms and conditions the following:
(1) Price. Subject to the conditions on Incentive Options contained
in Section 8(2), if applicable, the purchase price per share of Common Stock
payable upon the exercise of each Option granted hereunder shall be as
determined by the Committee in its discretion but shall not be less than the
fair market value (or, in the case of Nonqualified Options, 75% of the fair
market value) of the Common Stock on the day the Option is granted or, if
greater, the book value of the Common Stock on that date. The fair market value
of Common Stock shall be as determined by the Committee in its discretion in
accordance with any applicable laws or rules.
(2) Number of Shares and Kind of Option. Each option agreement shall
specify the number of shares to which it pertains and shall specify whether the
Option is a Nonqualified Option or an Incentive Option.
(3) Terms of Exercise. Subject to the conditions on Incentive
Options contained in Section 8(2), if applicable, and to Section 10, each Option
shall be exercisable for the full amount or for any part thereof and at such
intervals or in such installments as the Committee may determine at the time it
grants such Option; provided, however, that (i) no Option shall be exercised as
to fewer than 25 shares of Common Stock or, if less, the total number of shares
of Common Stock remaining unexercised under the Option, and (ii) no Option shall
be exercisable with respect to any shares earlier than six months from the date
the Option is granted or later than ten years after the date the Option is
granted, except to the extent permitted in the event of the death of the holder
of a Nonqualified Option under Section 7(7).
(4) Notice of Exercise and Payment. An Option shall be exercisable
only by delivery of a written notice to the Company's Treasurer, or any other
officer of the Company that the Committee designates to receive such notices,
specifying the number of shares of Common Stock for which the Option is being
exercised. If the shares of Common Stock acquired upon exercise of an Option are
not at the time of exercise effectively registered under the Securities Act, the
optionee shall provide to the Company or Committee, as a condition to the
optionee's exercise of the Option, a letter, in form and substance satisfactory
to the Company, to the effect that the shares are being purchased for the
optionee's own account for investment and not with a view to distribution or
resale, and to such other effects as the Company deems necessary or appropriate
to comply with federal and applicable state securities laws. Payment shall be
made in full at the time the Option is exercised. Payment shall be made by:
(i) cash;
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(ii) delivery and assignment to the Company of shares of
Common Stock owned by the optionee;
(iii) delivery and assignment to the Company of other
securities of the Company owned by the optionee;
(iv) delivery of a written exercise notice, including
irrevocable instructions to the Company to deliver the stock certificates
issuable upon exercise of the Option directly to a broker named in the notice
that has agreed to participate in a "cashless" exercise on behalf of the
optionee.
(v) a combination of (i), (ii) and (iii).
Upon the optionee's satisfaction of all conditions required for the exercise of
the Option and payment in full of the purchase price for the shares being
acquired as aforesaid, the Company shall, within a reasonable period of time
following such exercise, deliver a certificate representing the shares of Common
Stock so acquired; provided, that the Company may postpone issuance and delivery
of shares upon any exercise of an Option to the extent necessary or advisable to
comply with applicable exchange listing requirements, National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") requirements, or
federal or state securities laws.
(5) Withholding Taxes. The Company's obligation to deliver shares of
Common Stock upon exercise of an Option, in whole or in part, shall be subject
to the optionee's satisfaction of all applicable federal, state and local tax
withholding obligations, if any.
(6) Nontransferability of Option. No Option shall be transferable by
the optionee otherwise than by will or the laws of descent and distribution and
shall be exercisable during the optionee's lifetime only by the optionee (or the
optionee's guardian or legal representative).
(7) Termination of Options. Each option agreement evidencing an
Option shall contain provisions for the termination of the Option if the
optionee ceases for any reason to be an Eligible Person, which provisions shall
be no more favorable to the optionee than the following:
(i) Termination With Consent. If the optionee ceases to be an
Eligible Person and the Company consents in writing to the optionee's exercise
of an Option following such termination, then the optionee may, at any time
within a period of 90 days following the date of such termination, exercise such
Option to the extent that the Option was exercisable on the date the optionee
ceased to be an Eligible Person;
(ii) Retirement. If the optionee ceases to be an Eligible
Person by reason of retirement, then the optionee may, at any time within a
period of 90 days following the date of such termination, exercise each Option
held by the optionee on such date to the full extent of the Option;
(iii) Death or Disability. In the event of the optionee's
death or disability (within the meaning of Code Section 22(e)(3)) either
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(x) while an Employee or (y) with respect only to Nonqualified Options, while
eligible to exercise a Nonqualified Option under Subsections 7(7)(i) or
(ii) above, then the optionee (or the optionee's legal representative,
executor, administrator, or person acquiring an Option by bequest or
inheritance) may, at any time within a period of one year following the date of
the optionee's death or commencement of disability, exercise each Option held
by the optionee on such date to the full extent of the Option; and
(iv) Other Termination. If the optionee ceases to be an
Eligible Person for any reason other than those enumerated in Subsections
7(7)(i) through (iii) above, each Option granted to the optionee, to the extent
outstanding on the date of such termination, shall terminate immediately on such
termination and may not be exercised thereafter;
provided, however, that no Option may be exercised to any extent by anyone after
the date of expiration of the Option's term, except that a Nonqualified Option
shall remain exercisable as provided in Subsection 7(7)(iii) regardless of the
Option's term.
(8) Legends. Any restriction on transfer of shares of Common Stock
provided in this Plan or in the option agreement evidencing any Option shall be
noted or referred to conspicuously on each certificate evidencing such shares.
8. Restrictions on Incentive Options. Incentive Options (but not
Nonqualified Options) granted under this Plan shall be subject to the
following restrictions:
(1) Limitation on Number of Shares. The aggregate fair market value,
determined as of the date an Incentive Option is granted, of the shares with
respect to which Incentive Options are exercisable for the first time by an
Employee during any calendar year shall not exceed $100,000. If an Incentive
Option is granted pursuant to which the aggregate fair market value of shares
with respect to which it first becomes exercisable in any calendar year by an
Employee exceeds the aforementioned $100,000 limitation, the portion of such
Option which is in excess of the $100,000 limitation shall be treated as a
Nonqualified Option pursuant to Code Section 422(d)(1). In the event that an
Employee is eligible to participate in any other stock option plan of the
Company or a Subsidiary which is also intended to comply with the provisions of
Code Section 422, the $100,000 limitation shall apply to the aggregate number of
shares for which Incentive Options may be granted under all such plans.
(2) 10% Stockholder. If any Employee to whom an Incentive Option is
granted pursuant to the provisions of this Plan is on the date of grant the
owner of stock (as determined under Code Section 424(d)) possessing more than
10% of the total combined voting power of all classes of stock of the Company or
a Subsidiary, then the following special provisions shall be applicable to the
Incentive Option granted to such individual:
(i) The Option price per share subject to such Incentive
Option shall not be less than 110% of the fair market value of one share on the
date of grant; and
(ii) The Incentive Option shall not have a term in excess of
five (5) years from its date of grant.
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<PAGE>
9. Adjustment for Changes in Capitalization. Appropriate and equitable
adjustment shall be made in the maximum number of shares of Common Stock subject
to this Plan under Section 4 and, subject to Section 10, in the number, kind and
option price of shares of Common Stock subject to then outstanding Options to
give effect to any changes in the outstanding Common Stock by reason of any
stock dividend, stock split, stock combination, merger, consolidation,
reorganization, recapitalization or any other change in the capital structure of
the Company affecting the Common Stock after the effective date of this Plan.
10. Change in Control, Merger, Etc.
(1) Change in Control. Upon the occurrence of any of the events
listed below, all outstanding Incentive Options and Nonqualified Options held by
all optionees pursuant to this Plan which are not otherwise exercisable in whole
or in part shall become immediately exercisable in full, unless and to the
extent otherwise determined by the Committee. The events are as follows:
(i) The sale by the Company of all or substantially all of
its assets;
(ii) Any of the following events if, immediately following
such event, a majority of the Directors consists of persons who were not
Directors immediately prior to the date of such event:
(a) the sale of 50% or more of the outstanding shares
of Common Stock of the Company in a single transaction;
(b) the consummation of a tender offer (by a party
other than the Company) for more than 50% of the outstanding shares of Common
Stock of the Company; or
(c) subject to Section 10(2) below, the consummation
of a merger or consolidation involving the Company; or
(iii) An election of new Directors if immediately following
such election a majority of the Directors consists of persons who were not
nominated by management to stand for election as Directors in such election.
(2) Where Company Does Not Survive. In the event of a merger or
consolidation to which the Company is a party but is not the surviving company,
the Committee in its discretion may vote to negate and give no effect to the
acceleration of Options pursuant to Section 10(1)(ii)(c), but only if and to the
extent that an executed agreement of merger or consolidation provides that the
optionee holding such an Option shall receive the same merger consideration as
the optionee would have received as a stockholder of the Company had the
exercisability of the Option been accelerated in accordance with Section
10(1)(ii)(c) and had the optionee, immediately prior to the merger or
consolidation, exercised the Option for the full number of shares subject
thereto, paid the exercise price in full, and satisfied all other conditions for
the exercise of the Option.
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(3) Liquidation or Dissolution. The provisions of Section 9 and
Subsections 10(1) and (2) shall not cause any Option to terminate other than in
accordance with other applicable provisions of this Plan. However, in the event
of the liquidation or dissolution of the Company, each outstanding Option shall
terminate, except to the extent otherwise specifically provided in the option
agreement evidencing the Option.
11. Rights of Optionee. No Eligible Person shall have a right to be
granted an Option or, having received an Option, a right again to be granted an
Option. An optionee shall have no rights as a stockholder with respect to any
shares of Common Stock covered by his or her Option until the date the Option
has been exercised and the full purchase price for such shares has been received
by the Company. Nothing in this Plan or in any Option granted pursuant to the
Plan shall confer on any individual any right to continue in the employ of or to
continue as an officer or director of, this Company or any Subsidiary or to
interfere in any way with the right of the Company or any Subsidiary to
terminate or modify the terms or conditions of the Option holder's employment or
other relationship with the Company or any Subsidiary.
12. Amendment and Termination of the Plan. Unless sooner terminated by the
Board, this Plan shall terminate, so that no Options may be granted pursuant to
it thereafter, on March 16, 2005. The Board may at any time amend, suspend or
terminate this Plan in its discretion without further action on the part of the
stockholders of the Company, except that:
(1) no such amendment, suspension or termination of the Plan shall
adversely affect or impair any then outstanding Option without the consent of
the optionee holding the Option; and
(2) any such amendment, suspension or termination that requires
approval by the stockholders of the Company to comply with applicable provisions
of the Code, applicable federal or state securities laws or NASDAQ or exchange
listing requirements shall be subject to approval by the stockholders of the
Company within the applicable time period prescribed thereunder, and shall be
null and void if such approval is not obtained.
7
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Exhibit 5.1
November 13, 1995
ELXSI Corporation
4209 Vineland Road
Suite J-1
Orlando, Florida 32811
Form S-8 Registration Statement
Gentlemen:
We refer you to the Registration Statement on Form S-8 dated October 4,
1995 (the "Registration Statement") of ELXSI Corporation, a Delaware corporation
(the "Company"), under which the Company is registering under the Securities Act
of 1933, as amended (the "Act"), 125,000 shares (the "Plan Shares") of its
Common Stock, par value $.001 per share, issuable upon exercise of the options
("Plan Options") granted under the Company's 1995 Incentive Stock Option Plan
(the "Plan").
We have familiarized ourselves with such corporate affairs of the Company
and have examined such corporate documents and other records as we have deemed
necessary to provide a basis for the opinions expressed hereinbelow. In
connection therewith, we have examined the originals or photostatic, facsimile,
conformed or certified copies of the Plan and such certificates of officers of
the Company and other documents, records and instruments as we have deemed
relevant and necessary for purposes of rendering such opinions. In our
examination, we have assumed and relied upon the genuineness of all signatures,
the authenticity of all certificates, documents, instruments and records
submitted to us as originals and the conformity to the originals of all
photocopies and facsimile and conformed copies of all certificates, documents,
instruments and records examined by us. In our examination of such certificates,
documents, instruments and records, we have also assumed and relied upon: (a)
the correctness of the factual information contained therein, (b) the authority
of all persons executing documents, agreements, instruments, certificates and
letters, and (c) the legal capacity of all persons executing documents,
agreements, instruments, certificates and letters.
<PAGE>
We are members of the Bar of the State of New York and do not purport to
be expert in, and express no opinions with respect to, the laws of any
jurisdiction other than the federal laws of the United States of America, the
laws of the State of New York and, to the extent necessary to render the
opinions expressed hereinbelow, the General Corporation Law of the State of
Delaware.
To the extent that the opinions hereinafter expressed relate to actions
and events that are to be performed or may take place in the future, such
opinions are generally qualified in that they are based on facts and conditions
presently prevailing and laws and regulations presently in effect.
Based upon and subject to the foregoing, we are of the opinion that the
Plan Shares, when issued and delivered upon exercise of Plan Options in
accordance with the terms of the Plan, will be legally issued, fully paid, and
non-assessable shares of the capital stock of the Company.
We hereby consent to the filing of this opinion letter as an Exhibit to,
and to the reference to us under the heading "Legal Opinion" in, the
Registration Statement. In giving such consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the Act
and the rules and regulations thereunder.
Very truly yours,
DECHERT PRICE & RHOADS
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 24, 1995 appearing on page F-1
of ELXSI Corporation's Annual Report on Form 10-K, at Exhibit 99.1 of ELXSI
Corporation's Form 10-K/A Amendment No. 1 and on page F-1 of ELXSI Corporation's
Form 10-K/A Amendment No. 2, each for the year ended December 31, 1994. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
PRICE WATERHOUSE LLP
Tampa, Florida
November 10, 1995
<PAGE>
