As filed with the Securities and Exchange Commission on December 7, 1999
Registration No. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
IMAGING TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0021693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15175 Innovation Drive
San Diego, California 92128-3401
(Address of Principal Executive Offices) (Zip Code)
1998 STOCK OPTION PLAN
(Full title of the plan)
Brian Bonar, President
Imaging Technologies Corporation
15175 Innovation Drive
San Diego, California 92128-3401
(Name and address of agent for service)
(619) 613-1300
(Telephone number, including area code, of agent for service)
with a copy to:
Martin Eric Weisberg
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
(212) 704-6050
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
EACH CLASS AMOUNT OF OFFERING AGGREGATE AMOUNT OF
OF SECURITIES SHARES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE (2) PRICE (2) FEE (2)
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.005
<S> <C> <C> <C> <C>
per share 283,750 $0.344 $97,610 $ 25.77
247,500 $0.156 $38,610 $ 10.20
222,500 $0.140 $31,150 $ 8.23
203,750 $0.156 $31,785 $ 8.40
542,500 $0.625 $339,063 $ 89.52
- --------------------------------------------------------------------------------------------------------------------
Total 1,500,000 $ 142.12
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1998 Stock Option Plan.
<PAGE>
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of, pursuant to Rules 457(h): (i) with respect to outstanding options
to purchase 283,750 shares under the 1998 Stock Option Plan (the "Plan"),
the exercise price thereof of $0.344 per share; (ii) with respect to
outstanding options to purchase 247,500 shares under the Plan, the exercise
price thereof of $0.156 per share; (iii) with respect to outstanding
options to purchase 222,500 shares under the Plan, the exercise price
thereof of $0.140 per share; (iv) with respect to outstanding options to
purchase 203,750 shares under the Plan, the exercise price thereof of
$0.156 per share; and (v) with respect to 542,500 non-outstanding options
which are subject to future grant under the Plan, the average of the bid
and asked prices per share of the registrant's Common Stock on the Nasdaq
SmallCap Market on December 2, 1999.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the
Securities and Exchange Commission (File No. 0-12641) pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein
by reference:
(a) The registrant's annual reports on Form 10-K for the fiscal
years ended June 30, 1998 and June 30, 1999;
(b) The registrant's definitive proxy statement on Schedule 14A
for the annual meeting of stockholders held on May 27, 1999;
(c) The registrant's quarterly reports on Form 10-Q for the
fiscal quarters ended September 30, 1998, December 31, 1998,
March 31, 1999 and September 30, 1999;
(d) The registrant's current reports on Form 8-K filed on
February 26, 1999 and August 20, 1999; and
(e) The description of the registrant's common stock contained
in the registrant's Registration Statement on Form 8-A filed
on July 6, 1984 under the 1934 Act, including any amendment
or report filed for the purpose of updating such
description.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act 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 a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
II-2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides, in general, that a corporation incorporated under the laws of the
State of Delaware, such as the registrant, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than a derivative action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonable entitled to
indemnity for such expenses.
Our certificate of incorporation provides that directors shall not be
personally liable for monetary damages to our company or our stockholders for
breach of fiduciary duty as a director, except for liability resulting from a
breach of the director's duty of loyalty to our company or our stockholders,
intentional misconduct or willful violation of law, actions or inactions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives improper personal benefit.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission. Our certificate of
incorporation also authorizes us to indemnify our officers, directors and other
agents to the fullest extent permitted under Delaware law. Our bylaws provide
that the registrant shall indemnify our officers, directors and employees. The
rights to indemnity thereunder continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person. In addition, expenses
incurred by a director or officer in defending any action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of our company
shall be paid by the registrant unless such officer, director or employee is
adjudged liable for negligence or misconduct in the performance of his or her
duties.
This means that our certificate of incorporation provides that a
director is not personally liable for monetary damages to us or our stockholders
for breach of his or her fiduciary duties as a director. A director will be held
liable for a breach of his or her duty of loyalty to us or our stockholders, his
or her intentional misconduct or willful violation of law, actions or in actions
not in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director including injunctive relief or
rescission. Our certificate of incorporation authorizes us to indemnify our
officers, directors and other agent to the fullest extent permitted under
Delaware law. We have entered into indemnification agreements with all of our
officers and directors. In some cases, the
II-3
<PAGE>
provisions of these indemnification agreements may be broader than the specific
indemnification provisions contained in our certificate of incorporation or
otherwise permitted under Delaware law. Each indemnification agreement may
require us to indemnify an officer or director against liabilities that may
arise by reason of his status or service as an officer or director, or against
liabilities arising from the director's willful misconduct of a culpable nature.
We maintain a directors and officers liability policy with TIG
Insurance that contains an aggregate limit of liability of $3,000,000.
Furthermore, we maintain an excess directors and officers liability policy with
Philadelphia Insurance Company for liability in excess of $3,000,000 that
contains an aggregate limit of liability of $3,000,000 and also an excess
directors and officers liability policy with Fireman's Fund for liability in
excess of $4,000,000 that contains an aggregate limit of $6,000,000 and Royal
Indemnity Insurance for $5,000,000 in excess of $10,000,000. All of these
policies expire on October 1, 2000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-4
<PAGE>
ITEM 8. EXHIBITS.
Exhibit
NUMBER DESCRIPTION
- ----- -----------
4(a) Certificate of Incorporation of the Company, as amended, and currently
in effect. Incorporated by reference to Exhibit 3(a) to the Company's
1988 Form 10-K.
4(b) By-Laws of the Company, as amended, and currently in effect.
Incorporated by reference to Exhibit 3(b) to the Company's 1987 Form
10-K.
5* Opinion of Parker Chapin Flattau & Klimpl, LLP as to the legality of
the Common Stock being offered and consent.
23(a)* Consent of Boros & Farrington APC.
23(b)* Consent of Parker Chapin Flattau & Klimpl, LLP (included in Exhibit
5).
24+ Powers of Attorney of directors and certain officers of the
registrant.
99(a) Registrant's 1998 Stock Option Plan, as amended. Incorporated by
reference to Exhibit B to the Company's proxy statement on Schedule
14A dated May 27, 1999 (File No. 0-12641).
99(b)* Form of Incentive Stock Option Contract under the 1998 Stock Option
Plan.
99(c)* Form of Non-Qualified Stock Option Contract under the 1998 Stock
Option Plan.
- --------------
* Filed herewith.
+ Filed as part of the signature page of the original filing of this
Registration Statement.
II-5
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, Form F-3, and 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 the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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 herein, 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 provisions described under Item 6
above, 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.
II-6
<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 San Diego, State of California, on the 1st day
of December, 1999.
IMAGING TECHNOLOGIES CORPORATION
By: /S/ Brain Bonar
-------------------------------------------------
Name: Brian Bonar
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian Bonar with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) 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
said attorney-in-facts or their 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 below by the following persons in the
capacities indicated on the 1st day of December, 1999.
SIGNATURE TITLE
--------- -----
/s/ HARRY J. SAAL Chairman of the Board
- --------------------------
Harry J. Saal
/s/ BRIAN BONAR President, Chief Executive Officer
- -------------------------- and Director and (acting) Chief
Brian Bonar Financial Officer and Chief
Accounting Officer
/s/ A. L. DUBROW Director
- --------------------------
A. L. Dubrow
/s/ DAVID M. CARVER Director
- --------------------------
David M. Carver
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
- ------ -----------
4(a) Certificate of Incorporation of the Company, as amended, and currently
in effect. Incorporated by reference to Exhibit 3(a) to the Company's
1988 Form 10-K.
4(b) By-Laws of the Company, as amended, and currently in effect.
Incorporated by reference to Exhibit 3(b) to the Company's 1987 Form
10-K.
5* Opinion of Parker Chapin Flattau & Klimpl, LLP as to the legality of
the Common Stock being offered and consent.
23(a)* Consent of Boros & Farrington APC.
23(b)* Consent of Parker Chapin Flattau & Klimpl, LLP (included in Exhibit
5).
24+ Powers of Attorney of directors and certain officers of the
registrant.
99(a) Registrant's 1998 Stock Option Plan, as amended. Incorporated by
reference to Exhibit B to the Company's proxy statement on Schedule
14A dated May 27, 1999 (File No. 0-12641).
99(b)* Form of Incentive Stock Option Contract under the 1998 Stock Option
Plan.
99(c)* Form of Non-Qualified Stock Option Contract under the 1998 Stock
Option Plan.
- --------------
* Filed herewith.
+ Filed as part of the signature page of the original filing of this
Registration Statement.
II-8
EXHIBIT 5
---------
PARKER CHAPIN FLATTAU & KLIMPL, LLP
1211 Avenue of the Americas
New York, New York 10036
Tel.: (212) 704-6000
Fax: (212) 704-6288
December 6, 1999
Imaging Technologies Corporation
15175 Innovation Drive
San Diego, California 92128-3401
RE: IMAGING TECHNOLOGIES CORPORATION
--------------------------------
Dear Sir or Madam:
We have acted as counsel to Imaging Technologies Corporation
(the "Company") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to the offering of up to 1,500,000 shares of common stock,
par value $.005 per share, (the "Common Stock"), to employees and directors of,
and consultants to, the Company or any parent or subsidiary of the Company upon
the exercise of options which have been, or may from time to time be, granted by
the Company under the Company's 1998 Stock Option Plan (the "Plan"), and such
additional indeterminate number of shares of Common Stock as may be issued under
the anti-dilution provisions of the Plan.
In rendering the opinions expressed below, we have examined the
Certificate of Incorporation of the Company, as amended, the By-laws of the
Company, as amended, and minutes of the corporate proceedings of the Company
relating to the Plan. In addition, we have examined and relied upon such other
matters of law and certificates of public officials and such other documents as
we have deemed relevant to the rendering of this opinion. We have not examined
each option contract in respect of options granted under the Plan. We have,
however, examined the form of option contract which the Company has advised us
is the form of option contract used by it under the Plan. We have been informed
by the Company that each option contract between the Company and option holders
under the Plan is substantially in the form of the option contract we have
examined. In all of our examinations, we have assumed the accuracy of all
information furnished to us, the genuineness of all documents, the conformity to
originals of all documents submitted to us as certified, conformed, facsimile or
photostatic copies and the genuineness of all signatures on all such documents.
Our opinion is limited to the date hereof and we do not in any
event undertake to advise you of any facts or circumstances occurring or coming
to our attention subsequent to the date hereof.
<PAGE>
EXHIBIT 5 (Cont'd)
--------
Finally, we are counsel admitted to practice only in the State of
New York, and we express no opinions other than as to the applicable laws of the
State of New York and the United States of America and the General Corporation
Law of the State of Delaware
Based upon and subject to the foregoing, we are of the opinion
that the shares of the Company's Common Stock to be issued pursuant to the
exercise of options granted or to be granted under the Plan will be, when issued
pursuant to the provisions of the Plan, legally issued, fully paid and
non-assessable.
We consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ PARKER CHAPIN FLATTAU & KLIMPL, LLP
-----------------------------------------
PARKER CHAPIN FLATTAU & KLIMPL, LLP
EXHIBIT 23(a)
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated October 11, 1999 appearing in Imaging
Technologies Corporation's Annual Report on Form 10-K for the fiscal year ended
June 30, 1999.
/s/ Boros & Farrington PC
Boros & Farrington PC
San Diego, California
November 30, 1999
EXHIBIT 99(b)
-------------
INCENTIVE STOCK OPTION CONTRACT UNDER THE
1998 STOCK OPTION PLAN
----------------------
INCENTIVE STOCK OPTION CONTRACT entered into as of ________,
1999, between IMAGING TECHNOLOGIES CORPORATION, a Delaware corporation (the
"Company"), and [EMPLOYEE NAME] (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
1. The Company, in accordance with the allotment made by the
Administrators and subject to the terms and conditions of the 1998 Stock Option
Plan of the Company (the "Plan"), grants to the Optionee an option to purchase
an aggregate of ____shares of the Common Stock, $.01 par value per share, of the
Company (the "Common Stock") at an exercise price of $____per share, being at
least equal to the fair market value of such shares of Common Stock on the date
hereof. This option is intended to constitute an incentive stock option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), although the Company makes no representation or warranty as to such
qualification.
2. The term of this option shall be ten (10) years from the date
hereof, subject to earlier termination as provided in the Plan. The option shall
be exercisable as to one-forty eighth (1/48) of the shares of Common Stock
subject hereto on each monthly anniversary hereof, subject to such earlier
termination and the provisions set forth herein. The right to purchase shares of
Common Stock under this option shall be cumulative, so that if the full number
of shares purchasable in a period shall not be purchased, the balance may be
purchased at any time or from time to time thereafter, but not after the
expiration of the option. Notwithstanding any of the foregoing, in no event may
a fraction of a share of Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then principal office, presently 15175 Innovation Drive, San
Diego, California 92128, Attention: President, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor in
cash or by certified check.
4. The Company may withhold cash and/or shares of Common Stock to be
issued to the Optionee in the amount which the Company determines is necessary
to satisfy its obligation to withhold taxes or other amounts incurred by reason
of the grant or exercise of this option or the disposition of the underlying
shares of Common Stock. Alternatively, the Company may require the Optionee to
pay such amount to the Company and the Optionee agrees to pay such amount to the
Company in cash promptly upon demand.
5. In the event of any disposition of the shares of Common Stock
acquired pursuant to the exercise of this option within two (2) years from the
date hereof or one (1) year from the date of transfer of such shares to him,
then the Optionee shall notify the Company thereof in writing within thirty (30)
days after such disposition. In addition, the Optionee shall provide the Company
on demand with such information as the Company shall reasonably request in
connection with determining the amount and character of the Optionee's income,
the Company's deduction and its obligation to withhold taxes or other amounts
incurred by reason of such disqualifying disposition, including the amount
thereof.
6. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
<PAGE>
current at the time of exercise, or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the Company that,
unless such a Registration Statement is effective and current at the time of
exercise of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his own account,
for investment only and not with a view to the resale or distribution thereof.
In any event, the Optionee shall notify the Company of any proposed resale of
the shares of Common Stock issued to him upon the exercise of this option. Any
subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the sale of shares of Common
Stock being sold, or (y) a specific exemption from the registration requirements
of the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel, in
form and substance satisfactory to the Company, as to the applicability of such
exemption to the proposed sale or distribution. Such representations and
warranties shall also be deemed to be made by the Optionee upon each exercise of
this option. Nothing herein shall be construed as requiring the Company to
register the shares subject to this option under the Securities Act.
7. Notwithstanding anything herein to the contrary, if at any time the
Committee shall determine, in its discretion, that the listing or qualification
of the shares of Common Stock subject to this option on any securities exchange
or under any applicable law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to, or in connection
with, the granting of an option or the issue of shares of Common Stock
hereunder, then this option may not be exercised in whole or in part unless such
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee.
8. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to (a) prevent
a violation of, or to perfect an exemption from, the registration requirements
of the Securities Act, (b) implement the provisions of the Plan or this Contract
or any other agreement between the Company and the Optionee with respect to such
shares of Common Stock, or (c) permit the Company to determine the occurrence of
a "disqualifying disposition," as described in Section 421(b) of the Code, of
the shares of Common Stock transferred upon the exercise of this option.
9. Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or any of its Subsidiaries to terminate such employment at any time for any
reason whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
10. The Company and the Optionee agree that they will both be subject
to and bound by all of the terms and conditions of the Plan, a copy of which is
attached hereto and made a part hereof. Any capitalized term not defined herein
shall have the meaning ascribed to it in the Plan. In the event of a conflict
between the terms of this Contract and the terms of the Plan, the terms of the
Plan shall govern.
11. The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and the grant and exercise of this option
and the disposition of the shares of Common Stock acquired upon exercise of the
option, including without limitation, federal and state securities and "blue
sky" laws.
12. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
<PAGE>
13. This Contract shall be binding upon and inure to the benefit of
any successor or assign of the Company and to any heir, distributee, executor,
administrator or legal representative entitled to the Optionee's rights
hereunder.
14. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of law provisions.
15. The invalidity, illegality or unenforceability of any provision
herein shall not affect the validity, legality or enforceability of any other
provision, all of which shall be valid, legal and enforceable to the fullest
extent permitted by applicable law.
16. The Optionee agrees that the Company may amend the Plan and the
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
17. Notwithstanding anything to the contrary of Section 8 of the Plan,
the Optionee agrees that if the Optionee's relationship with the Company, its
Subsidiaries and Parent, is or has been terminated for any reason (other than as
a result of death or Disability), the Optionee may exercise this option, to the
extent exercisable on the date of termination, at any time within thirty (30)
days after the date of termination, but not thereafter and in no event after the
date the option would otherwise have expired; PROVIDED, HOWEVER, that if such
relationship is terminated either (a) for Cause, or (b) without the consent of
the Company, this option shall terminate immediately.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
of the day and year first above written.
IMAGING TECHNOLOGIES CORPORATION
By:
--------------------------------------
Name:
Title:
-----------------------------------------
[OPTIONEE NAME]
EXHIBIT 99(c)
-------------
NON-QUALIFIED STOCK OPTION CONTRACT UNDER THE
1998 STOCK OPTION PLAN
----------------------
STOCK OPTION CONTRACT entered into as of ________, 1999,
between IMAGING TECHNOLOGIES CORPORATION, a Delaware corporation (the
"Company"), and [EMPLOYEE NAME] (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
1. The Company, in accordance with the allotment made by the
Administrators and subject to the terms and conditions of the 1998 Stock Option
Plan of the Company (the "Plan"), grants to the Optionee an option to purchase
an aggregate of ____shares of the Common Stock, $.01 par value per share, of the
Company (the "Common Stock") at an exercise price of $____per share, being at
least equal to the fair market value of such shares of Common Stock on the date
hereof. This option is not intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. The term of this option shall be ten (10) years from the
date hereof, subject to earlier termination as provided in the Plan. The option
shall be exercisable as to one-forty eighth (1/48) of the shares of Common Stock
subject hereto on each monthly anniversary hereof, subject to such earlier
termination and the provisions set forth herein. The right to purchase shares of
Common Stock under this option shall be cumulative, so that if the full number
of shares purchasable in a period shall not be purchased, the balance may be
purchased at any time or from time to time thereafter, but not after the
expiration of the option. Notwithstanding any of the foregoing, in no event may
a fraction of a share of Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to
the Company at its then principal office, presently 15175 Innovation Drive, San
Diego, California 92128, Attention: President, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor in
cash or by certified check.
4. The Company may withhold cash and/or shares of Common Stock
to be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts incurred
by reason of the grant or exercise of this option or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
Optionee to pay such amount to the Company and the Optionee agrees to pay such
amount to the Company in cash promptly upon demand.
5. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise, or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the Company that,
unless such a Registration Statement is effective and current at the time of
exercise of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his own account,
for investment only and not with a view to the resale or distribution thereof.
In any event, the Optionee shall notify the Company of any proposed resale of
the shares of Common Stock issued to him upon the exercise of this option. Any
subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under
<PAGE>
the Securities Act which is effective and current with respect to the sale of
shares of Common Stock being sold, or (y) a specific exemption from the
registration requirements of the Securities Act, but in claiming such exemption,
the Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company (unless waived by the Company) with a favorable
written opinion of counsel, in form and substance satisfactory to the Company,
as to the applicability of such exemption to the proposed sale or distribution.
Such representations and warranties shall also be deemed to be made by the
Optionee upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
6. Notwithstanding anything herein to the contrary, if at any
time the Committee shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on any
securities exchange or under any applicable law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition to,
or in connection with, the granting of an option or the issue of shares of
Common Stock hereunder, then this option may not be exercised in whole or in
part unless such listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
7. The Company may affix appropriate legends upon the
certificates for shares of Common Stock issued upon exercise of this option and
may issue such "stop transfer" instructions to its transfer agent in respect of
such shares as it determines, in its discretion, to be necessary or appropriate
to (a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act or (b) implement the provisions of the Plan
or this Contract or any other agreement between the Company and the Optionee
with respect to such shares of Common Stock.
8. Nothing in the Plan or herein shall confer upon the
Optionee any right to continue in the employ of the Company, any Parent or any
of its Subsidiaries, or interfere in any way with any right of the Company, any
Parent or any of its Subsidiaries to terminate such employment at any time for
any reason whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
9. The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. Any capitalized term not
defined herein shall have the meaning ascribed to it in the Plan. In the event
of a conflict between the terms of this Contract and the terms of the Plan, the
terms of the Plan shall govern.
10. The Optionee represents and agrees that he will comply
with all applicable laws relating to the Plan and the grant and exercise of this
option and the disposition of the shares of Common Stock acquired upon exercise
of the option, including without limitation, federal and state securities and
"blue sky" laws.
11. This option is not transferable by the Optionee otherwise
than by will or the laws of descent and distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee or the Optionee's
legal representatives.
12. This Contract shall be binding upon and inure to the
benefit of any successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the Optionee's
rights hereunder.
13. This Contract shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to the conflicts of law provisions.
14. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all of which shall be valid, legal and enforceable to the
fullest extent permitted by applicable law.
<PAGE>
15. The Optionee agrees that the Company may amend the Plan
and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
16. Notwithstanding anything to the contrary of Section 8 of
the Plan, the Optionee agrees that if the Optionee's relationship with the
Company, its Subsidiaries and Parent, is or has been terminated for any reason
(other than as a result of death or Disability), the Optionee may exercise this
option, to the extent exercisable on the date of termination, at any time within
thirty (30) days after the date of termination, but not thereafter and in no
event after the date the option would otherwise have expired; PROVIDED, HOWEVER,
that if such relationship is terminated either (a) for Cause, or (b) without the
consent of the Company, this option shall terminate immediately.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the day and year first above written.
IMAGING TECHNOLOGIES CORPORATION
By:
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Name:
Title:
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[OPTIONEE NAME]
