As filed with the Securities and Exchange Commission on November 27, 1996
Registration no.________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Micron Technology, Inc.
(Exact name of registrant as specified in its charter)
Delaware 75-1618004
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8000 South Federal Way
Boise, Idaho 83706-9632
(Address of Principal Executive Offices) (Zip Code)
---------------
NONSTATUTORY STOCK OPTION PLAN
(Full title of the plan)
---------------
Steven R. Appleton
Chairman of the Board, Chief Executive Officer and President
Micron Technology, Inc.
8000 South Federal Way
Boise, Idaho 83706-9632
(Name and address of agent for service)
208-368-4000
(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price(1) fee(1)
Common Stock
$.10 par value
per Share 2,801,544 $31.00 $86,847,864 $26,317.53
(1) Estimated in accordance with Rules 457(c) and 457(h) of
Regulation C solely for the purpose of calculating the
registration fee on the basis of $31.00 per share, average of
the high and low price of the Registrant's Common Stock as
reported on the New York Stock Exchange on November 20, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this
Registration Statement the following documents and information
heretofore filed with the Securities and Exchange Commission:
(a) The Company's latest Annual Report on Form 10-K for the
year ended August 29, 1996, filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")
(File No. 1-10658).
(b) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A, filed
November 9, 1990 pursuant to Section 12(b) of the 1934 Act (File
No. 1-10658).
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the 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 in this
Registration Statement and to be part hereof from the date of
filing 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.
Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporation's Board of
Directors or stockholders to grant, indemnification to directors
and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the
Securities Act of 1933 and for liabilities arising from other
state and federal causes of action. Section 11 of the Company's
Certificate of Incorporation and Article VII of the Company's
Bylaws provide for the mandatory indemnification of its officers,
directors, employees and agents to the extent permitted by
Delaware General Corporation Law. The Company has entered into
agreements with its officers, directors and certain key employees
implementing such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits.
Exhibit
Number
-------
4.1 Nonstatutory Stock Option Plan.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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 to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities
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.
(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
the purpose 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 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against
<PAGE>
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 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 Boise, State of Idaho, on this 25th day of November, 1996.
MICRON TECHNOLOGY, INC.
/s/ W. G. Stover, Jr.
--------------------------------
By: Wilbur G. Stover, Jr.
Vice President of Finance,
and Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Steven R.
Appleton and Wilbur G. Stover, Jr., jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him
in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes,
may 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 by the following
persons in the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Steven R. Appleton Chairman of the Board, Chief
- -------------------------
Steven R. Appleton Executive Officer and President
(Principal Executive Officer) November 25, 1996
/s/ W. G. Stover, Jr. Vice President of Finance and
- -------------------------
Wilbur G. Stover, Jr. Chief Financial Officer (Principal
Financial and Accounting Officer) November 25, 1996
/s/ Jerry M. Hess
- -------------------------
Jerry M. Hess Director November 25, 1996
/s/ Robert A. Lothrop
- -------------------------
Robert A. Lothrop Director November 25, 1996
/s/ Thomas T. Nicholson
- -------------------------
Thomas T. Nicholson Director November 25, 1996
/s/ Don J. Simplot
- -------------------------
Don J. Simplot Director November 25, 1996
- -------------------------
John R. Simplot Director November 25, 1996
/s/ Gordon C. Smith
- -------------------------
Gordon C. Smith Director November 25, 1996
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- ----------------------------------------
4.1 Nonstatutory Stock Option Plan.
5.1 Opinion of counsel as to legality of
securities being registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Exhibit 5.1
November 26, 1996
Micron Technology, Inc.
8000 South Federal Way
Boise, Idaho 83706-9632
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to
be filed by you with the Securities and Exchange Commission on or
about November 26, 1996 (the "Registration Statement") in
connection with the registration under the Securities Act of
1933, as amended, of 2,801,544 shares of Common Stock, $0.10 par
value per share, of Micron Technology, Inc., which shares may be
issued pursuant to the Nonstatutory Stock Option Plan filed as an
exhibit to the Registration Statement. Such shares of Common
Stock are referred to herein as the "Shares," and such plan is
referred to herein as the "Plan." As your counsel in connection
with this transaction, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in
connection with the issuance and sale of the Shares pursuant to
the Plan.
It is our opinion that, when issued and sold in the manner
described in the Plan and pursuant to the agreements which
accompany each grant under the Plan, the Shares will be legally
and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our
name wherever appearing in the Registration Statement and any
amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati P.C.
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration
Statement of Micron Technology, Inc. on Form S-8 of our report
dated September 19, 1996, except as to the Stock Purchase Plans
Note to Consolidated Financial Statements, the date of which is
September 30, 1996, on our audits of the consolidated financial
statements of Micron Technology, Inc., as of August 29, 1996, and
August 31, 1995, and for each of the three years in the period
ended August 29, 1996, which report is included in Micron
Technology, Inc.'s 1996 Annual Report on Form 10-K filed on
October 4, 1996 (File No. 1-10658).
Coopers & Lybrand L.L.P.
/s/ Coopers & Lybrand, L.L.P.
Boise, Idaho
November 26, 1996
Exhibit 4.1
MICRON TECHNOLOGY, INC.
NONSTATUTORY STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Plan are:
to attract and retain the best available personnel for
positions of substantial responsibility,
to provide additional incentive to Employees and
Consultants, and
to promote the success of the Company's business.
Nonstatutory stock options may be granted under the Plan.
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Administrator" means the Board or any of its
Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements
relating to the administration of stock option plans and the
issuance of stock and stock options under federal securities laws,
Delaware corporate and securities laws, the Code, and the
applicable laws of any foreign country or jurisdiction where
options will be or are being granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means the acquisition by any
person or entity, directly, indirectly or beneficially, acting
alone or in concert, of more than thirty-five percent (35%) of the
Common Stock of the Company outstanding at any time.
(e) "Code" means the Internal Revenue Code of 1986, as
amended.
(f) "Committee" means a Committee appointed by the Board
in accordance with Section 4 of the Plan.
(g) "Common Stock" means the Common Stock of the Company.
(h) "Company" means Micron Technology, Inc., a Delaware
corporation.
<PAGE>
(i) "Consultant" means any person, including an advisor,
engaged by the Company or a parent, subsidiary or affiliate to
render services. The term "Consultant" shall not include any
person who is also an Officer of Director of the Company.
(j) "Continuous Status as an Employee or Consultant"
means that the employment or consulting relationship with the
Company, any parent, subsidiary, or affiliate, is not interrupted
or terminated. Continuous Status as an Employee or Consultant
shall not be considered interrupted in the case of (i) any leave
of absence approved by the Company, (ii) transfers between
locations of the Company or between the Company, its Parent, any
Subsidiary, or any successor or (iii) change in status from
either an Employee to a Consultant or a Consultant to an
Employee. A leave of absence approved by the Company shall
include sick leave, military leave, or any other personal leave
approved by an authorized representative of the Company.
(k) "Director" means a member of the Board.
(l) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(m) "Employee" means any person, except Officers and
Directors, employed by the Company or any parent, subsidiary or
affiliate of the Company.
(n) "Fair Market Value" means, as of any date, the
average closing price for the Company's Common Stock (or the
closing bid, if no sales were reported) as quoted on any
established stock exchange, including without limitation the New
York Stock Exchange ("NYSE"), or a national market system (or the
exchange with the greatest volume of trading in Common Stock) for
the five business days preceding the day of determination, as
reported in The Wall Street Journal or such other source as the
Administrator deems reliable.
(o) "Notice of Grant" means a written notice evidencing
certain terms and conditions of an individual Option grant. The
Notice of Grant is subject to the terms and conditions of the
Option Agreement.
(p) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
(q) "Option" means a nonstatutory stock option granted
pursuant to the Plan. Such option is not intended to qualify as
an incentive stock option within the meaning of Section 422 of
the Code and the regulations promulgated thereunder.
(r) "Option Agreement" means a written agreement between
the Company and an Optionee evidencing the terms and conditions
of an individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.
(s) "Option Exchange Program" means a program whereby
outstanding options are surrendered in exchange for options with
a lower exercise price.
<PAGE>
(t) "Optioned Stock" means the Common Stock subject to an
Option.
(u) "Optionee" means an Employee or Consultant who holds
an outstanding Option.
(v) "Plan" means this Nonstatutory Stock Option Plan.
(w) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
3. Stock Subject to the Plan. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares
which may be optioned and sold under the Plan is 2,801,544, which
is the number of Shares with respect to which options under the
1985 Stock Option Plan were cancelled in connection with the
option exchange program that was approved by the Board on
September 30, 1996. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option expires or becomes unexercisable without
having been exercised in full, or is surrendered pursuant to an
Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated).
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by (A) the
Board or (B) a committee designated by the Board, which committee
shall be constituted to satisfy Applicable Laws. Once appointed,
such Board may increase the size of the Committee and appoint
additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and
remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by Applicable
Laws.
(b) Powers of the Administrator. Subject to the
provisions of the Plan, and in the case of a Committee, subject
to the specific duties delegated by the Board to such Committee,
the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common
Stock;
(ii) to select the Consultants and Employees to whom
Options may be granted hereunder;
(iii) to determine whether and to what extent
Options are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each Option granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
<PAGE>
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder. Such terms and conditions include, but are not
limited to, the exercise price, the time or times when Options
may be exercised (which may be based on performance criteria),
any vesting acceleration or waiver of forfeiture restrictions,
and any restriction or limitation regarding any Option or the
shares of Common Stock relating thereto, based in each case on
such factors as the Administrator, in its sole discretion, shall
determine;
(vii) to reduce the exercise price of any Option
to the then current Fair Market Value if the Fair Market Value of
the Common Stock covered by such Option shall have declined since
the date the Option was granted;
(viii) to construe and interpret the terms of the
Plan and awards granted pursuant to the Plan;
(ix) to prescribe, amend, and rescind rules and
regulations relating to the Plan, including rules and regulations
relating to sub-plans established for the purpose of qualifying
for preferred tax treatment under foreign tax laws;
(x) to modify or amend each Option (subject to
Section 14(b) of the Plan), including the discretionary authority
to extend the post-termination exercisability period of Options
longer than is otherwise provided for in the Plan;
(xi) to authorize any person to execute on behalf of
the Company any instrument required to effect the grant of an
Option previously granted by the Administrator;
(xii) to institute and Option Exchange Program;
and
(xiii) to allow Optionees to satisfy withholding
tax obligations by electing to have the Company withhold from the
Shares to be issued upon exercise of an Option that number of
Shares having a Fair Market Value equal to the amount required to
be withheld; and
(xiv) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decision. The
Administrator's decisions, determinations, and interpretations
shall be final and binding on all Optionees and any other holders
of Options.
5. Eligibility. Options may be granted to Employees and
Consultants.
6. Limitations. Neither the Plan nor any Option shall confer
upon an Optionee any right with respect to continuing the
Optionee's employment or consulting relationship with the
Company, nor shall they interfere in any way with the Optionee's
right or the Company's right to terminate such employment or
consulting relationship at any time, with or without cause.
<PAGE>
7. Term of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect until
terminated under Section 14 of the Plan.
8. Term of Option. The term of each Option shall be stated
in the Notice of Grant.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be
determined by the Administrator.
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator shall fix the period within
which the Option may be exercised and shall determine any
conditions which must be satisfied before the Option may be
exercised. In doing so, the Administrator may specify that an
Option may not be exercised until either the completion of a
service period or the achievement of performance criteria with
respect to the Company or the Optionee.
(c) Form of Consideration. The Administrator shall
determine the acceptable form of consideration for exercising an
Option, including the method of payment. Such consideration may
consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares
acquired upon exercise of an option, have been owned by the
Optionee for more than six months on the date of surrender, and
(B) have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) delivery of a properly executed exercise notice
together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of
the Option and delivery to the Company of the sale or loan
proceeds required to pay the exercise price;
(vi) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable
to the Optionee's participation in any Company-sponsored deferred
compensation program or arrangement;
(vii) any combination of the foregoing methods of
payment; or
(viii) such other consideration and method of
payment for the issuance of Shares to the extent permitted by
Applicable Laws.
<PAGE>
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted thereunder shall be exercisable according to the
terms of the Plan and at such times and under such conditions as
determined by the Administrator and set forth in the Option
Agreement.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company
receives: (i) written notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the
Option, and (ii) full payment for the Shares with respect to
which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan.
Shares issued upon exercise of an Option shall be issued in the
name of the Optionee or, if requested by the Optionee, in the
name of the Optionee and his or her spouse. Until the Shares are
issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company),
no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall
issue (or cause to be issued) such Shares, promptly after the
Option is exercised. No adjustment will be made for a dividend
or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease
the number of Shares thereafter available, both for purposes of
the Plan and for sale under the Option, by the number of Shares
as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship.
Upon termination of an Optionee's Continuous Status as an
Employee or Consultant, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option, but only
within such period of time as is specified in the Notice of
Grant, and only to the extent that the Optionee was entitled to
exercise it as the date of termination (but in no event later
than the expiration of the term of such Option as set forth in
the Notice of Grant). In the absence of a specified time in the
Notice of Grant, the Option shall remain exercisable for 30 days
following the Optionee's termination of Continuous Status as an
Employee or Consultant. If, at the date of termination, the
Optionee is not entitled to exercise his or her entire Option,
the Shares covered by the unexercisable portion of the Option
shall revert to the Plan. If, after termination, the Optionee
does not exercise his or her Option within the time specified
herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(c) Disability of Optionee. In the event that an
Optionee's Continuous Status as an Employee or Consultant
terminates as a result of the Optionee's Disability, the Optionee
may exercise his or her Option at any time within twelve (12)
months from the date of such termination, but only to the extent
that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of the
term of such Option as set forth in the Notice of Grant). If, at
the date of termination, the Optionee does not exercise his or
her entire Option, the Shares covered by the unexercisable
portion of the Option shall revert to the Plan. If,
<PAGE>
after termination, the Optionee does not exercise his or her option
within the time specified herein, the Option shall terminate, and
the Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an
Optionee, the Option may be exercised at any time within twelve
(12) months following the date of death (but in no event later
than the expiration of the term of such Option as set forth in
the Notice of Grant), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that the Optionee was
entitled to exercise the Option at the date of death. If, at any
time of death, the Optionee was not entitled to exercise his or
her entire Option, the Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If,
after death, the Optionee's estate or a person who acquired the
right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option
shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Suspension. Any Optionee who is also a participant
in the Retirement at Micron ("RAM") Section 401(k) Plan and who
requests and receives a hardship distribution from the RAM Plan,
is prohibited from making, and must suspend, his or her employee
elective contributions and employee contributions including,
without limitation on the foregoing, the exercise of any Option
granted from the date of receipt by that employee of the RAM
hardship distribution.
11. Non-Transferability of Options. Unless otherwise
specified by the Administrator in the Option Agreement, an Option
may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by laws of
descent or distribution and may be exercised, during the lifetime
of the Optionee, only by the Optionee.
12. Adjustments Upon Changes in Capitalization, Dissolution,
Merger, or Asset Sale.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of shares
of Common Stock covered by each outstanding Option, and the
number of issued shares of Common Stock which have been
authorized for issuance under the Plan but as to which no Options
have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the
price per share of Common Stock covered by each such outstanding
Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock or any other
increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been effected without
receipt of consideration. Such adjustment shall be made by the
Board, whose determination in that respect shall be final,
binding, and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject
to an Option.
<PAGE>
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, to the extent
that an Option has not been previously exercised, it will
terminate immediately prior to the consummation of such proposed
action. The Board may, in the exercise of its sole discretion in
such instances, declare that any Option shall terminate as of a
date fixed by the Board and give each Optionee the right to
exercise his or her Option as to all or any part of the Optioned
stock, including Shares as to which the Option would not
otherwise be exercisable.
(c) Merger or Asset Sale. In the event of a merger of
the Company with or into another corporation, or the sale of
substantially all of the assets of the Company, each outstanding
Option may be assumed or an equivalent option or right may be
substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. The Administrator may,
in lieu of such assumption or substitution, provide for the
Optionee to have the right to exercise the Option as to all or a
portion of the Optioned Stock, including Shares as to which it
would not otherwise be exercisable. If the Administrator makes
an Option exercisable in lieu of assumption or substitution in
the event of a merger or sale of assets, the Administrator shall
notify the Optionee that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice,
and the Option will terminate upon the expiration of such period.
For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets,
the option or right confers the right to purchase, for each Share
of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale
of assets by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or
sale of assets was not solely common stock of the successor
corporation or its Parent, the Administrator may, with the
consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option, for
each Share of Optioned Stock subject to the Option, to be solely
common stock of the successor corporation or its Parent equal in
fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
(d) Change in Control. In the event of a Change in
Control, the unexercised portion of the Option shall become
immediately exercisable.
13. Date of Grant. The date of grant of an Option shall be,
for all purposes, the date on which the Administrator makes the
determination granting such Option, or such other later date as
is determined by the Administrator. Notice of the determination
shall be provided to each Optionee within a reasonable time after
the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend, or terminate the Plan.
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(b) Effect of Amendment or Termination. No amendment,
alteration, suspension, or termination of the Plan shall impair
the rights of any Optionee, unless mutually agreed otherwise
between the Optionee and the Administrator, which agreement must
be in writing and signed by the Optionee and the Company.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such
Option and the issuance and delivery of such Shares shall comply
with all Applicable Laws and the requirements of any stock
exchange or quotation system upon which the Shares may then be
listed or quoted, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option, the Company may require the person
exercising such Option to represent and warrant at the time of
any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the
Company, such a representation is required.
16. Liability of Company. The inability of the Company to
obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. Reservation of Shares. The Company, during the term of
this Plan, will at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
