As Filed with the Securities and Exchange Commission on March 10, 1995
Registration No. 33-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ELEXSYS INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 95-3534864
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
18522 Von Karman Avenue
Irvine, California 92715
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(Address of principal executive offices) (zip code)
Diceon Electronics, Inc. Directors' Stock Option Plans
Diceon Electronics, Inc. 1994 Non-Qualified Stock Option Plan
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(Full Title of the Plans)
Milan Mandaric
Chairman, President and Chief Executive Officer
Elexsys International, Inc.
18522 Von Karman Avenue
Irvine, California 92715
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(Name and address of agent for service)
714-833-0870
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(Telephone number, including area code, of agent for service)
With a copy to:
Sherwin L. Samuels, Esq.
Sidley & Austin
555 W. Fifth St., Suite 4000
Los Angeles, California 90013
(213) 896-6000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
Registered registered share price fee
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Common Stock 137,000(1) (2) $ 261,250(2) $ 90.00
($1.00 par value)
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(1) Issuable upon exercise of options granted pursuant to the Diceon
Electronics, Inc. 1994 Non-Qualified Stock Option Plan and the Diceon
Electronics, Inc. Directors' Stock Option Plans (collectively, the
"Plans"). The number of shares issuable upon exercise of the options is
subject to adjustment pursuant to the terms of the Plans.
(2) The proposed maximum aggregate offering price, estimated solely for the
purpose of calculating the registration fee pursuant to Rule 457(h) under
the Securities Act of 1933, is based on an exercise price of $1.25 per
share with respect to options to purchase 97,000 shares of Common Stock
and an exercise price of $3.50 per share with respect to options to
purchase 40,000 shares of Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by Elexsys
International, Inc., formerly known as Diceon Electronics, Inc. (the "Company"
or the "Registrant"), with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference herein and shall be deemed to be
a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended
September 30, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1994; and
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-B, declared effective
on June 1, 1987, by which the Company's shares of Common Stock
were registered under Section 12 of the Exchange Act, and any
other amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement 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 made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made by this Registration Statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
Registration Statement.
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Sidley & Austin, counsel to the Company, has rendered a legal opinion
as to the validity of the securities being registered hereby and has reviewed
certain other matters in connection therewith. Sherwin L. Samuels, whose
professional corporation is a partner with Sidley & Austin, is primarily
responsible for Sidley & Austin's engagement by the Company. Mr. Samuels is a
stockholder and former director of the Company and holds 30,000 stock options
which he received pursuant to the Company's directors' stock option plans. The
shares underlying such stock options are being registered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") provides that a corporation may indemnify any persons, including directors
and officers, who are (or are threatened to be made) parties to any threatened,
pending or completed legal action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of their being directors or officers
of such corporation. The indemnity may include expenses, attorneys' fees,
judgments, fines and amounts paid in settlement, provided such sums were
actually and reasonably incurred in connection with such action, suit or
proceeding and provided the director or officer acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation's best interests and, in the case of criminal proceedings, he or she
had no reasonable cause to believe that his or her conduct was unlawful. The
corporation may indemnify directors and officers in a derivative action (in
which suit is brought by a stockholder on behalf of the corporation) under the
same conditions, except that no indemnification is permitted without judicial
approval if the director or officer is adjudged liable to the corporation. If
the director or officer is successful on the merits or otherwise in defense of
any such actions referred to above, the corporation must indemnify him or her
against the expenses and attorneys' fees he or she actually and reasonably
incurred.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate"), provides a non-exclusive right of
indemnification by the Registrant of its officers and directors to the full
extent allowed under the Delaware GCL or, in the event that the law of a
jurisdiction other than Delaware applies, to the fullest extent of the laws of
such other jurisdiction.
Article VIII of the Certificate provides that a director shall not be
personally liable for monetary damages for breach of fiduciary duty as a
director, except that such provision shall not eliminate or limit a director's
liability for (i) any breach of duty of loyalty, (ii) actions or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) violations of Section 174 of the Delaware GCL (payment of unlawful
dividends and
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unlawful stock purchases or redemptions), or (iv) for any transaction from
which such director derived an improper personal benefit.
Article X of the Registrant's Amended and Restated Bylaws provides for
indemnification by the Registrant of its officers and directors to the full
extent permitted under applicable law. If a director or officer has been
successful on the merits or otherwise in defense of any covered action, suit or
proceeding or any claim, issue or matter therein, such person shall be
indemnified against expense actually and reasonably incurred therewith, without
the necessity of authorization in the specific case. Any indemnification (unless
order by a court) shall be made only as authorized in the specific case upon a
determination that the director or officer has met the applicable standard of
conduct, which are the standards described above as required by Section 145 of
the Delaware GCL. The Registrant is entitled to require an undertaking by or on
behalf of an officer or director to repay amounts advanced in connection with
defending or investigating a threatened or pending proceeding prior to its final
disposition, if it shall ultimately be determined that such person is not
entitled to indemnification.
The Registrant has entered into Indemnification Agreements (the
"Indemnification Agreements") with each of its directors. Pursuant to the
Indemnification Agreements, the Registrant is required to maintain directors'
and officers' liability insurance comparable to that obtained by comparable
public companies, unless the Board of Directors determines in good faith that
such insurance is not reasonably available. Each director is entitled to be
indemnified by the Registrant to the full extent permitted under the Delaware
GCL and from all losses and expense incurred in connection with an action taken
or inaction omitted by such director in his capacity as a director, except in
connection with any claim (i) for the return by the director of any illegal
remuneration, (ii) for an accounting to recover short-swing profits under
Section 16(b) of the Exchange Act or similar state law provisions, (iii)
resulting from the director's knowingly fraudulent, deliberately dishonest or
intentional misconduct; or (iv) if such payment is not permitted by applicable
law.
The Registrant's officers and directors are covered by a directors'
and officers' liability insurance policy maintained by the Registrant. Under the
insurance policy the Registrant is entitled to be reimbursed for indemnity
payments that it is required or permitted to make to its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement.
Exhibit Description
Number -----------
------
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4.1 Form of Non-Qualified Stock Option Agreement for the
Registrant's 1994 Non-Qualified Stock Option Plan.
4.2 Non-Qualified Stock Option Agreement dated as of November
15, 1990 between Sherwin L. Samuels and the Registrant.
4.3 Non-Qualified Stock Option Agreement dated as of March 9,
1993 between C. Stephen Mansfield and the Registrant.
4.4 Non-Qualified Stock Option Agreement dated as of November
11, 1993 between C. Stephen Mansfield and the Registrant.
4.5 Amendment to Non-Qualified Stock Option Agreements dated as
of June 6, 1994 between C. Stephen Mansfield and the
Registrant.
5 Opinion of Sidley & Austin regarding legality of the shares
of Common Stock.
23.1 Consent of Sidley & Austin, incorporated by reference to
Exhibit 5 hereof.
23.2 Consent of Deloitte & Touche.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes
(a) (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, as amended (the "Securities Act");
(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;
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provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act each such post-effective amendment shall be deemed
to be a new 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain
unsold at the termination of the offering.
(b) That, for the purposes of determining any liability under the
Securities Act, each filing of the Company's Annual Report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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 Irvine, State of California, on the 10th day of
March, 1995.
ELEXSYS INTERNATIONAL, INC.
By: /s/ MILAN MANDARIC
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Milan Mandaric, Chairman of the Board,
President and Chief Executive Officer
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 dates indicated.
Signature Title Date
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/s/ MILAN MANDARIC Chairman of the Board, March 10, 1995
- ----------------------- President and Chief
Milan Mandaric Executive Officer
(Principal Executive Officer)
/s/ ROLAND G. MATTHEWS Director March 10, 1995
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Roland G. Matthews
/s/ PETER S. JONAS Director March 10, 1995
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Peter S. Jonas
/s/ CHARLES H. HANDLEY Director March 10, 1995
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Charles H. Handley
/s/ MICHAEL SHIMADA Chief Financial March 10, 1995
- ----------------------- Officer (Principal
Michael Shimada Financial Officer)
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- ------------
4.1 Form of Non-Qualified Stock Option Agreement for the
Registrant's 1994 Non-Qualified Stock Option Plan.
4.2 No-nQualified Stock Option Agreement dated as of November
15, 1990 between Sherwin L. Samuels and the Registrant.
4.3 Non-Qualified Stock Option Agreement dated as of March 9,
1993 between C. Stephen Mansfield and the Registrant.
4.4 Non-Qualified Stock Option Agreement dated as of November
11, 1993 between C. Stephen Mansfield and the Registrant.
4.5 Amendment to Non-Qualified Stock Option Agreements dated as
of June 6, 1994 between C. Stephen Mansfield and the
Registrant.
5 Opinion of Sidley & Austin regarding legality of the
shares of Common Stock.
23.1 Consent of Sidley & Austin, incorporated by reference to
Exhibit 5 hereof.
23.2 Consent of Deloitte & Touche.
DICEON ELECTRONICS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 11th day of November, 1993 (the "Grant
Date") by and between Diceon Electronics, Inc., a Delaware corporation
(hereinafter called the "Corporation") , and C. Stephen Mansfield (hereinafter
called "Optionee").
W I T N E S S E T H:
The Board of Directors of the Corporation has determined that it is in the
best interests of the Corporation and its stockholders to grant a non-qualified
stock option to optionee, a director of the Corporation.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set forth
in this Agreement, the Corporation hereby grants to Optionee, as of the Grant
Date, a non-qualified stock option to purchase up to 10,000 shares of the common
stock, $1.00 par value per share, of the Corporation ("Common Stock") (the
"Optioned Shares") from time to time during the option term at the option price
of $1.25 per share.
2. Option Term. The specified term of this option shall be the period
commencing on the Grant Date and, unless earlier terminated in accordance with
Paragraphs 5 or 7 hereof, terminating at 5:00 P.M., Irvine, California time on
November 11, 2003, the "Expiration Time"). Upon the expiration of the option
term or upon its earlier termination under Paragraph 5 hereof, this option shall
cease to be exercisable and shall have no further force or effect.
3. Option Nontransferable; Exceptions. This option may be transferred or
assigned by Optionee (or in the event of his death or disability, by his
personal representative or successor) in whole or from time to time in part;
provided, however, that each such transfer or assignment shall be for not less
than 5,000 Optioned Shares. Except as provided in the immediately succeeding
sentence, no transferee or assignee of Optionee may transfer or assign this
option, in whole or in part. This option also may be transferred or assigned by
the will of Optionee or his transferee or assignee or by the laws of descent and
distribution. This option may be exercised during Optionee's lifetime only by
optionee, his legal representative if optionee is disabled, or the transferees
or assignees to which this option is transferred or assigned in
accordance with the first sentence of this paragraph.
4. Exercisability. Except as otherwise provided in Paragraph 7(a) hereof,
this option shall be exercisable in accordance with the following schedule:
<PAGE>
(i) This option is immediately exercisable with respect to 5,000
optioned Shares; and
(ii) This option shall become exercisable with respect to an
additional 5,000 Optioned Shares on November 11, 1994.
In the event optionee resigns as a director of the Corporation for any
reason other than his disability, then during the remaining term of this option,
Optionee may only exercise this option with respect to that number of Optioned
Shares for which his option was exercisable on the date of his resignation
(after giving effect to the acceleration provisions of Paragraphs 5 or 7, if
applicable) . Exercisable installments may be exercised in whole or in part and
to the extent not exercised shall accumulate and be exercisable at any time on
or before the Expiration Time or earlier termination of the option term. In no
event shall the Corporation be obligated to issue fractional shares.
5. Accelerated Termination of Option Term. The option term specified in
Paragraph 2 hereof shall terminate prior to the Expiration Time should Optionee
be removed as a director of the Corporation for cause. Notwithstanding anything
herein in this Paragraph 5 to the contrary, should optionee die or become
disabled while this option is outstanding and while optionee is a director of
the Corporation, the executors or administrators of optionee's estate, his heirs
or legatees, or optionee or his legal representatives, as the case may be, shall
have the right to exercise this option prior to the Expiration Time with respect
to the full number of Optioned Shares without regard to the exercise schedule
provided by Paragraph 4 hereof.
6. Adjustment in Optioned Shares. In the event of any change in the Common
Stock (whether by reason of merger, consolidation, split, stock dividend,
combination of shares, exchange of shares, or any other change in corporate
structure effected without receipt of consideration), then the Board of
Directors of the Corporation (the "Board") shall in good faith make appropriate
adjustments to the number and/or class of shares subject to this option and the
option price per share in order to prevent the dilution of benefits under this
Agreement and to provide to the extent practicable benefits identical to those
provided under this Agreement.
7. Acceleration and Termination of Option.
7.1 In the event the Corporation or its stockholders enter into any
agreement to dispose of all or substantially all of the assets of the
Corporation or outstanding Common Stock by sale, exchange, merger,
consolidation, reorganization, dissolution or liquidation or in the event of a
tender offer (by the Corporation or a third party) to purchase a substantial
part of the outstanding Common Stock (individually, an
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"Accelerating Event"), then this option shall, to the extent not fully
exercisable under Paragraph 4, become exercisable a number of days (which shall
not be less than fifteen (15) days) immediately prior to the scheduled
consummation of the Accelerating Event as determined by resolution of the Board,
with respect to the full number of the Optioned Shares without regard for the
exercise schedule provided by Paragraph 4. If the Board does not determine by
resolution the subject time of exercisability, then this option shall, to the
extent not fully exercisable under Paragraph 4, become exercisable fifteen (15)
days prior to the scheduled consummation of the Accelerating Event.
7.2 Any exercise of this option during the exercise period determined under
Paragraph 7.1 shall be conditioned upon the consummation of the Accelerating
Event and shall be effective only immediately before such consummation, provided
that the person exercising this option may indicate, in writing, that such
exercise is unconditional with respect to all or part of this option then
exercisable without regard to the acceleration provisions of this Paragraph 7.
7.3 In the event that optionee does not exercise this option prior to the
consummation of the Accelerating Event, provision shall be made so that Optionee
shall thereafter be entitled to receive, upon exercise of this option (but only
to the extent this option is exercised), the amount of cash, the number of
shares of stock or other securities, or other property resulting from such
Accelerating Event to which a holder of Common Stock or other securities,
deliverable upon exercise of this option would have been entitled as a result of
such Accelerating Event. Such provisions also shall provide for adjustments for
events subsequent to the effective date of the Accelerating Event, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Paragraph 6 hereof and this Paragraph 7.3.
7.4 The grant of this option under this Agreement shall in no way affect
the right of the Corporation to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or seek or transfer all or any part of its business or assets.
7.5 Notwithstanding anything herein to the contrary, the Board may permit
Optionee to exercise this option with respect to the full number of Optioned
Shares without regard to the exercise schedule provided in Paragraph 4 hereof in
the event and to the extent that the Board determines that to permit such
accelerated exercise of this option is appropriate to afford Optionee the full
benefits intended under this option.
8.A Manner of Exercising Option. This option may be exercised with respect
to all or any part of the Optioned Shares for which this option is then
exercisable, by Optionee (or in the case of exercise after optionee's death or
disability, the
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Optionee's executor, administrator, heir or legatee or legal representative, as
the case may be, or Optionee's transferee or assignee in the event this option
is transferred or assigned pursuant to Paragraph 3 hereof) as follows:
8.1 Provide the Secretary of the Corporation with written notice of such
exercise, specifying the number of Optioned Shares with respect to which the
option is being exercised;
8.2 Pay the option price in one or more of the following alternative forms:
(i) full payment, in cash or check payable to the order of the Corporation, of
the option price for the Optioned Shares being purchased; (ii) full payment in
shares of Common Stock having a fair market value on the "Exercise Date" (as
such term is defined below) equal to the option price for the Optioned Shares
being purchased; or (iii) full payment by a combination of such shares of Common
Stock valued at fair market value on the Exercise Date and cash or check payable
to the order of the Corporation, equal in the aggregate to the option price for
the Optioned Shares being purchased; and
8.3 Furnish to the Corporation appropriate documentation that the person or
persons exercising the option, if other than the Optionee, have the right to
exercise this option on behalf of and for Optionee.
8B. Third Party Instructions. To the extent Optionee or any permitted
successor desires to exercise this option with funds supplied by a third party,
including a broker-dealer, under instructions to immediately sell all the
Optioned Shares subject to such exercise, the Corporation will take all
necessary and appropriate steps to assist in such exercise, including
confirmation that the exercise is permissible and that stock certificates will
be delivered as requested.
9. Successors and Assigns. Subject to Paragraph 3 hereof, the provisions of
this Agreement shall inure to the benefit of, and be binding upon, the
successors, administrators, heirs, devisees and legal representatives of
Optionee and the successors and assigns of the Corporation.
10. Issuance of Common Stock. The Corporation shall take all actions
reasonably necessary to obtain approval from any regulatory body having
authority deemed by the Corporation or its counsel to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option, and until such
approval is obtained the Corporation shall not be obligated to issue any shares
of Common Stock upon exercise of this option.
11. Taxes and Withholding. Optionee hereby agrees to make appropriate
arrangements with the Corporation which, in the judgment of the Corporation or
its counsel, are required for the satisfaction of any federal, state or local
income tax withholding
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requirements and federal social security and other employment tax requirements
applicable to the exercise of this option. At the election of Optionee any
requirements for income tax withholdings and social security or other employment
taxes may be satisfied, in whole or in part, in Optioned Shares issuable upon
exercise of this option or otherwise in shares of Common Stock. For purposes of
satisfying such requirements, Optioned Shares or shares of Common Stock shall be
valued at-their fair market value on the Exercise Date. optionee further
acknowledges that the exercise of this option may subject Optionee to federal
and state income tax, and optionee agrees that the Corporation shall no be
liable therefor.
12. Certain Definitions.
12.1 For purposes of this Agreement, the fair market value of an
Optioned Share or a share of Common Stock shall be the closing price of a
share of Common Stock on the business day which immediately precedes the
Exercise Date on the principal exchange on which the shares of Common Stock
are then listed or admitted to trading, as such price is officially
reported by the composite tape of transactions on such exchange. If there
are no reported sales of shares of Common Stock on the principal exchange
on such day, then the closing price on such exchange on the next preceding
day for which there do exist such reported sales shall be determinative of
fair market value. If the shares of Common Stock are not then listed or
admitted to trading on any such exchange, the fair market value of a share
on any relevant day shall be either (i) the closing sales price as reported
n the National Market System of the National Association of Securities
Dealers, Inc. through NASDAQ, or (ii) if such sales are not reported on
said National Market System, the average of the closing bid and asked
prices of a share of Common Stock as furnished by the National Association
of Securities Dealers, Inc., through NASDAQ or a similar organization if
NASDAQ is no longer reporting such information. In the event the fair
market value of a share of Common Stock cannot be determined under the
foregoing, then said fair market value shall be determined in good faith by
the Board under any method deemed by it to be appropriate.
12.2 The Exercise Date shall be the date on which written notice of
the exercise of this option is given by optionee.
13. Governing Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California.
14. Stockholder Rights. Neither optionee nor his transferee or assignee, if
any, shall have any rights of a stockholder with respect to any shares covered
by this option unless such shares have been issued to Optionee or his transferee
or assignee by the Corporation pursuant to the valid exercise of
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the option and the full payment by Optionee or such transferee or assignee of
the option price therefor.
15. Notice. All notices to the Corporation provided for in this Agreement
shall be addressed to the President or Chief Financial officer of the
Corporation.at the principal office of the Corporation, and all notices to
Optionee shall be addressed to optionee at the address of Optionee on file with
the Corporation, or to such other address as either may designate to the other
in writing. A notice shall be deemed to be duly given if and when enclosed in a
properly addressed, sealed envelope deposited, postage prepaid, with the United
States Postal Service. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee or to
the President or Chief Financial Officer of the Corporation.
16. Registration Rights.
16.1 The Corporation agrees that upon a written request (the "Registration
Request") from Optionee or in the event of his death or disability, optionee's
executor, administrator, heir, legatee or legal representative, as the case may
be (hereinafter in this Paragraph 16, the "Option Holder"), the Corporation
shall, with reasonable promptness, but in no event later than 120 days after
receipt by the Corporation of such request, file a registration statement on
Form S-1 (or on Form S-2 or Form S-3 if either such Form can be used) under the
Securities Act of 1933 (the "1933 Act") or any comparable form then in force
(the "Registration Statement"), for any or all of the Optioned Shares and shall
use its best efforts to cause the Registration Statement to become effective
subject to the following:
16.1.1 Option Holder is fully responsible for the underwriting of his
Optioned Shares. No underwriting for such shares shall be arranged by the
Corporation;
16.1.2 Option Holder shall pay the reasonable legal fees, accounting
expenses and printing costs of the Corporation, all underwriting discounts
and commissions applicable to the Optioned Shares and all legal fees and
expenses of his own counsel;
16.1.3 The Corporation shall not be required to file the Registration
Statement unless either: (a) in the opinion of counsel to the Corporation
or to Option Holder, registration under the 1933 Act of the Optioned Shares
proposed to be sold or otherwise disposed of by Option Holder is required
for such sale or other disposition, or (b) Option Holder advises the
Corporation in writing that, in the opinion of an independent investment
banker satisfactory to the Corporation, in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
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<PAGE>
16.1.4 If the corporation, at the time it receives the Registration
Request, is filing or is contemplating the filing of a Registration
Statement for an offering of its securities or is engaged in any other
material transaction and the Board reasonably believes that such offering
or other material transaction would be adversely affected by the
Registration Request, the Corporation shall be entitled to postpone the
filing of any such requested Registration Statement for a reasonable time
not exceeding 120 days after the effective date of the Registration
Statement for the Corporation's offering, or in the case of a contemplated
filing or other material transaction, 200 days after the receipt of a
Registration Request; and
16.1.5 The Corporation shall not be required to file any such
Registration Statement within six months after the effective date of an
earlier Registration Statement pursuant to this Paragraph 16.1, nor shall
it be required to file a total of more than two Registration Statements
pursuant to this Paragraph 16.1, nor shall it be required to file any such
Registration Statement if over 75% of the Optioned Shares have already been
registered pursuant to this Paragraph 16.1, nor shall it be required to
file any such Registration Statement after November 11, 2005.
16.2 In the event that at any time while any of the Optioned Shares are
outstanding, the Corporation proposes to file a Registration Statement under the
1933 Act registering shares of Common Stock and on a form other than Form S-8,
Form S-14 or Form S-15, it will give written notice to Option Holder at least 30
days prior to the date of filing of the proposed Registration Statement. Upon
written request by option Holder within 15 days after receipt of such notice,
the Corporation will include in the securities to be registered by such
Registration Statement all of the Optioned Shares that Option Holder desires to
sell, subject to the following:
16.2.1 The Corporation shall pay the expense of such registration,
except that Option Holder shall pay all underwriting discounts and
commissions applicable to this Optioned Shares and all legal fees and
expenses of his own counsel, if any; provided that if the expense of such
registration is being borne by a person other than the corporation, Option
Holder shall pay his pro rata share of the incremental expense of his
securities being included in such registration;
16.2.2 The Corporation shall have received (a) an opinion of counsel
to Option Holder or of counsel to the Corporation stating that registration
under the 1933 Act of the Optioned Shares proposed to be sold or otherwise
disposed of by Optionee is required or (ii) option Holder advises the
Corporation in writing that in the opinion of an independent
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<PAGE>
investment banker satisfactory to the Corporation that in order to effect
the proposed disposition of the Optioned Shares, registration is
desirable even if not legally necessary;
16.2.3 If such Registration Statement is for a prospective
underwritten offering, Option Holder agrees to sell his Optioned Shares if
the Corporation so requests, on the same basis as that on which the other
securities covered by such Registration Statement are being sold. If such
Registration Statement is for a prospective underwritten offering by the
Corporation of its own account and in the opinion of the prospective
underwriters the inclusion in any Registration Statement of all of the
Optioned Shares required by Option Holder would be detrimental to the
proposed offering, the Corporation may reduce the amount of securities to
be included from Option Holder and any other holders who requested to be
included (in making such reduction each holder requesting inclusion shall
have included in the Registration Statement the same proportion of the
shares he requested to be included to the total number of shares requested
to be included by all requesting holders).
The Corporation may withdraw any such Registration Statement before it
becomes effective or postpone the offering of securities contemplated by
such Registration Statement without any obligation to option Holder;
16.2.4 The Corporation shall not be required to file any such
Registration Statement after March 9, 2005.
16.3 In connection with any Registration Statement filed pursuant to this
Paragraph 16, the Corporation shall file any post-effective amendment or
amendments to the Registration Statement which may be required to effect the
distribution contemplated thereby, provided that the Corporation shall not be
required to file any post-effective amendment to any Registration Statement more
than 90 days after the effective date of the Registration Statement.
16.4 During the period for which the Corporation is required to file and
keep effective a Registration Statement pursuant to this Paragraph 16, the
Corporation shall furnish Option Holder with the number of copies of the
Registration Statement (the "Prospectus") that he reasonably requests for the
purposes contemplated by the 1933 Act. The Corporation shall notify option
Holder during the period such Registration Statement is required to remain
effective or any time when a Prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as a result of which
the Registration Statement or Prospectus, as then in effect, includes an untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of circumstances
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<PAGE>
then existing. Option Holder agrees, upon receipt of such notice, forthwith to
cease making offers and sales of such securities pursuant to such Registration
Statement or deliveries of the Prospectus contained therein for any purposes and
to return to the Corporation the copies of such Registration Statement and
Prospectus not theretofore delivered by Option Holder. Subject to Paragraph 16.3
above, at the request of Option Holder, the Corporation shall prepare and
furnish to Option Holder a reasonable number of copies of any supplement to or
an amendment of such Registration Statement or Prospectus that may be necessary
so that, as thereafter delivered to the purchaser of such shares, such
Registration Statement and Prospectus shall not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances then existing. The Corporation shall promptly notify Option Holder
of any stop order or similar proceeding initiated by State or federal regulatory
bodies and, subject to Paragraph 16.3 above ' use its best efforts to take all
necessary steps expeditiously to remove such stop order or similar proceeding.
16.5 As a condition to the Corporation's obligations under Paragraph 16.1,
16.2 and 16.3 to cause the Registration Statement or an amendment to be filed or
shares to be included in the Registration Statement, option Holder shall provide
such information and execute such documents (including any agreement or
undertaking relating to expenses, indemnification or other matters contemplated
by this Paragraph 16) as may be required by the Corporation in connection with
such registration.
16.6 Notwithstanding the foregoing, in connection with any Registration
Statement provided for in this Paragraph 16, the Corporation shall not be
obligated to furnish any audited financial statements other than the audited
financial statements customarily prepared at the end of its fiscal year or to
furnish any unaudited or pro forma financial information with respect to any
period other than interim quarter periods.
16.7 In connection with the offering of any optioned Shares registered
pursuant to this Paragraph 16 the Corporation shall use its best efforts to
qualify or register the securities to be sold under the securities or "Blue Sky"
Laws of such jurisdictions as may be reasonably requested by Option Holder;
provided, however, that the Corporation shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction in which
it is not then qualified or to file any general consent to service of process.
The expenses of such qualification of registration shall be borne by the party
or parties bearing the expenses of the related registration under the 1933 Act.
16.8 In connection with any registration of securities pursuant to this
Agreement, to the extent permitted by
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<PAGE>
law, the Corporation shall indemnify the Option Holder and such option Holder
shall indemnify the Corporation in the manner provided in this Paragraph 16.8.
16.8.1 The Corporation shall indemnify and hold harmless Option Holder
for the sale or distribution of the Optioned Shares against all losses,
claims, damages or liabilities, joint or several to which option Holder may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
a material fact contained in any Registration Statement, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements herein, in the light of the circumstances
under which they are made, not misleading and subject to Paragraph 16.8.3
hereof, the Corporation shall reimburse Option Holder for any legal or
other expenses reasonably incurred by Option Holder in connection with
investigating or defending such loss, claim, damage, liability or action;
provided, however, that the Corporation shall not be required to indemnify
and hold harmless or reimburse option Holder to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or omission in any document made in reliance upon and in
conformity with information furnished to the Corporation by or on behalf of
Option Holder for use in the preparation of such documents.
16.8.2 Option Holder shall indemnify and hold harmless the
Corporation, each of its directors and officers,, each person, if any, who
controls the Corporation within the meaning of the 1933 Act, and each
underwriter against all losses, claim, damages or liabilities to which the
Corporation or any such director or officer, or controlling person or
underwriter may become subject, under the 1933 Act or otherwise, insofar as
such losses, claim, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a material fact
contained in any Registration Statement, Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission to state
therein a material,fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are
made, not misleading, in any case, to the extent, but only to the extent,
that such untrue statement or omission was made in.reliance upon and in
conformity with information furnished to the Corporation by and on behalf
of option Holder for use in the preparation thereof; and subject to
Paragraph 16.8.3, Option Holder shall reimburse the Corporation or any such
director or officer, controlling person or underwriter for any legal or
other expenses reasonably incurred by the Corporation or any such director
or officer, controlling person or
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<PAGE>
underwriter in connection with investigating or defending against any such
loss, claim, damage, liability or action.
16.8.3 Promptly after receipt by an indemnified party under Paragraphs
16.8.1 or 16.8.2 above, of notice of the commencement of any action, the
indemnified party shall notify the indemnifying party. The failure to so
notify the indemnifying party shall relieve it from any liability hereunder
to the extent any such failure to notify causes damages to the indemnifying
party, but not for any other liability which it may have to any party. In
case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to assume and control the defense of
the action at its expense provided the indemnifying party can establish to
the indemnified party's satisfaction, which shall not be unreasonably
withheld, that it is financially capable of supporting both the costs of
the defense and the potential liability, and if the indemnifying party
gives notice to such indemnified party of its election to assume and
control the defense and it is to the satisfaction of the indemnified party,
the indemnifying party shall not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense or investigation of the action.
17. Warranties and obligations of Optionee.
17.1 optionee represents, warrants and agrees that Optionee will acquire
and hold this option and the Optioned Shares for his own account and not with
the view to the resale or distribution thereof, except for resales or
distributions in accordance with federal and state securities laws and that
optionee will not, at any time, directly or indirectly, offer, sell, distribute,
pledge, or otherwise grant a security interest in or otherwise dispose of or
transfer all, any portion of, or any interest in this option or the Optioned
Shares (or solicit an offer to buy, take in pledge or otherwise acquire or
receive, all or any portion thereof) , except pursuant to either (i) a
Registration Statement on an appropriate form under the 1933 Act,, which
Registration Statement has become effective and is current with respect to this
option or the Optioned Shares being offered or sold, as the case may be, or (ii)
a specific exemption from the registration requirements of the 1933 Act, the
availability of which exemption shall be the subject matter of an opinion of
counsel for Optionee, such counsel and opinion to be reasonably satisfactory to
the Corporation, that no registration under the 1933 Act is required with
respect to such offer, sale, distribution, pledge, grant or other disposition or
transfer.
17.2 Optionee acknowledges that he understands that (i). this option and
the Optioned Shares must be held indefinitely unless they are registered or an
exemption from registration
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becomes available under the 1933 Act and the securities laws of any state; (ii)
the Corporation is under no obligation to register this option and the Optioned
Shares except as provided in Paragraph 16 hereof or to comply with any exemption
from such registration, including those portions of Rule 144 under the 1933 Act
to be complied with by the issuer; (iii) if and to the extend Rule 144 is
available for sales of this option and the Optioned Shares, such sales in
reliance upon Rule 144 may be made only after this option and the Optioned
Shares have been held for the requisite holding period and then only in limited
amounts in accordance with the conditions of that rule,, all of which must be
met; and (iv) Optionee must, therefore, continue to bear the economic risks of
the investment in such shares for an indefinite period of time after the
exercise of the option.
17.3 Immediately prior to the exercise of all or any portion of the option
by optionee, optionee shall deliver to the Corporation a signed statement, in a
form satisfactory to the Corporation, confirming that each of the
representations, warranties,, acknowledgments and agreements contained in this
Paragraph 17 is true as to Optionee as of the date of such exercise. Such
statement will be satisfactory to the Corporation if made in the form of Exhibit
A attached hereto.
17.4 In the event of the death or disability of optionee or the transfer or
assignment of this Option in accordance with Paragraph 3 hereof, the person
exercising this option shall execute and deliver to the Corporation a statement
similar to that set forth in Exhibit A hereto, setting forth certain
representations, warranties, acknowledgments and agreements with respect to the
Optioned Shares.
17.5 Optionee understands that all certificates representing shares
transferred pursuant to this Agreement, unless made pursuant to an appropriate
Registration Statement under the 1933 Act, will bear the following restrictive
legend:
"The shares represented by this certificate have not been
registered under the securities Act of 1933 and may not be
transferred or hypothecated without prior registration under
said Act or any exemption therefrom established to the
satisfaction of the issuer."
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<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in duplicate on its behalf by its duly authorized officer and optionee
has also executed this Agreement in duplicate, all as of the day and year first
above written.
DICEON ELECTRONICS, INC.
By /S/ PETER S. JONAS
------------------------------
Peter S. Jonas
President
/S/ C. STEPHEN MANSFIELD
------------------------------
C. Stephen Mansfield
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<PAGE>
EXHIBIT "A"
Diceon Electronics, Inc.
18522 Von Karman Avenue
Irvine, CA 92715
Gentlemen:
I am the holder of an option (the "Option") granted by Diceon Electronics, Inc.,
a Delaware corporation (the "Corporation"), on November 11, 1993, to purchase up
to an aggregate of 10,000 shares of the Corporation's Common Stock, pursuant to
the terms of a Non-Qualified Stock Option Agreement ("Agreement") dated November
11, 1993 between the Corporation and C. Stephen Mansfield. I hereby exercise my
Option with respect to ____________________ shares of Common Stock subject to
the Option at the price of $1.25 per share, subject to adjustment as provided
for in the Agreement, and I present herewith funds payable to the order of the
Corporation in the amount of $_______, and/or _____________________ shares of
Common Stock, which represents the full purchase price for the number of shares
purchased upon this exercise.
I hereby represent and warrant that I am purchasing the foregoing shares for my
own account and not with a view to the distribution thereof, and that I shall
neither offer nor sell any or all of such shares except pursuant to either (i) a
Registration Statement on an appropriate form under the Securities Act of 1933
(the "Act") I which Registration Statement has become effective and is current
with respect to the shares being offered or sold, or (ii) a specific exemption
from the registration requirements of the Act, the availability of which
exemption shall be the subject matter of an opinion of my counsel, which counsel
and opinion shall be reasonably satisfactory to the Corporation. I understand
and agree that such shares must be held indefinitely unless they are registered
or an exemption from registration becomes available under the Act and the
securities laws of any state. I acknowledge receipt from the Corporation of copy
of its most recent annual report to stockholders, the proxy statement filed in
connection with that report, its most recent annual report filed with the
Securities and Exchange Commission on Form 10-K, if requested and insofar as it
is not included in such annual report to stockholders, together with copies of
all reports required to be filed by the Corporation under Sections 13(a), 14(a),
14(c) and 15(d) of the Securities Exchange Act of 1934 since the filing of such
annual report ref erred to above. I further represent and warrant that I have
had the opportunity to ask questions of, and to receive answers from, the
officers and representatives of the Corporation concerning all material
information concerning the Corporation and the terms and conditions of the
transaction in which I am acquiring the shares of Common Stock.
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DICEON ELECTRONICS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 15th day of November 1990 (the "Grant
Date") by and between Diceon Electronics, Inc., a Delaware corporation
(hereinafter called the "Corporation"), and Sherwin L. Samuels (hereinafter
called "Optionee").
W I T N E S S E T H:
The Board of Directors of the Corporation has determined that it is in the
best interests of the Corporation and its stockholders to grant a non-qualified
stock option to Optionee, a director of the Corporation.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
forth in this Agreement, the Corporation hereby grants to Optionee, as of the
Grant Date, a non-qualified stock option to purchase up to 30,000 shares of the
common stock, $1.00 par value per share, of the Corporation ("Common Stock")
(the "Optioned Shares") from time to time during the option term at the option
price of $3.50 per share.
2. Option Term. The specified term of this option shall be the period
commencing on the Grant Date and, unless earlier terminated in accordance with
Paragraphs 5 or 7 hereof, terminating at 5:00 P.M., Los Angeles, California time
on November 14, 2000 (the "Expiration Time"). Upon the expiration of the option
term or upon its earlier termination under Paragraph 5 hereof, this option shall
cease to be exercisable and shall have no further force or effect.
3. Option Nontransferable; Exceptions. This option may be transferred or
assigned by Optionee (or in the event of his death or disability, by his
personal representative or successor) in whole or from time to time in part;
provided, however, that each such transfer or assignment shall be for not less
than 5,000 Optioned Shares. Except as provided in the immediately succeeding
sentence, no transferee or assignee of Optionee may transfer or assign this
option, in whole or in part. This option also may be transferred or assigned by
the will of Optionee or his transferee or assignee or by the laws of descent and
distribution. This option may be exercised during Optionee's lifetime only by
Optionee, his legal representative if Optionee is disabled, or the transferees
or assignees to which this option is transferred or assigned in accordance with
the first sentence of this paragraph.
<PAGE>
4. Exercisability. Except as otherwise provided in Paragraph 7(a) hereof,
this option shall be exercisable in accordance with the following schedule:
(i) This option is immediately exercisable with respect to 10,000
Optioned Shares;
(ii) This option shall become exercisable with respect to an
additional 10,000 Optioned Shares on November 15, 1991; and
(iii) This option shall become exercisable with respect to the
remaining 10,000 Optioned Shares on November 15, 1992.
In the event Optionee resigns as a director of the Corporation for any
reason other than his disability, then during the remaining term of this option,
Optionee may only exercise this option with respect to that number of Optioned
Shares for which his option was exercisable on the date of his resignation
(after giving effect to the acceleration provisions of Paragraphs 5 or 7, if
applicable). Exercisable installments may be exercised in whole or in part and
to the extent not exercised shall accumulate and be exercisable at any time on
or before the Expiration Time or earlier termination of the option term. In no
event shall the Corporation be obligated to issue fractional shares.
5. Accelerated Termination of Option Term. The option term specified in
Paragraph 2 hereof shall terminate prior to the Expiration Time should Optionee
be removed as a director of the Corporation for cause. Notwithstanding anything
herein in this Paragraph 5 to the contrary, should Optionee die or become
disabled while this option is outstanding and while Optionee is a director of
the Corporation, the executors or administrators of Optionee's estate, his heirs
or legatees, or Optionee or his legal representatives, as the case may be, shall
have the right to exercise this option prior to the Expiration Time with respect
to the full number of Optioned Shares without regard to the exercise schedule
provided by Paragraph 4 hereof.
6. Adjustment in Optioned Shares. In the event of any change in the
Common Stock (whether by reason of merger, consolidation, split, stock dividend,
combination of shares, exchange of shares, or any other change in corporate
structure effected without receipt of consideration), then the Board of the
Directors of the Corporation (the "Board") shall in good faith make appropriate
adjustments to the number and/or class of shares subject to this option and the
option price per share in order to prevent the dilution of benefits under this
Agreement and to provide to the extent practicable benefits identical to those
provided under this Agreement.
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<PAGE>
7. Acceleration and Termination of Option.
7.1 In the event the Corporation or its stockholders enter into any
agreement to dispose of all or substantially all of the assets of the
Corporation or outstanding Common Stock by sale, exchange, merger,
consolidation, reorganization, dissolution or liquidation or in the event of a
tender offer (by the Corporation or a third party) to purchase a substantial
part of the outstanding Common Stock (individually, an "Accelerating Event"),
then this option shall, to the extent not fully exercisable under Paragraph 4,
become exercisable a number of days (which shall not be less than fifteen (15)
days) immediately prior to the scheduled consummation of the Accelerating Event
as determined by resolution of the Board, with respect to the full number of the
Optioned Shares without regard for the exercise schedule provided by Paragraph
4. If the Board does not determine by resolution the subject time of
exercisability, then this option shall, to the extent not fully exercisable
under Paragraph 4, become exercisable fifteen (15) days prior to the scheduled
consummation of the Accelerating Event.
7.2 Any exercise of this option during the exercise period determined
under Paragraph 7.1 shall be conditioned upon the consummation of the
Accelerating Event and shall be effective only immediately before such
consummation, providedthat the person exercising this option may indicate, in
writing, that suchexercise is unconditional with respect to all or part of this
option then exercisable without regard to the acceleration provisions of this
Paragraph 7.
7.3 In the event that Optionee does not exercise this option prior to the
consummation of the Accelerating Event, provision shall be made so that Optionee
shall thereafter be entitled to receive, upon exercise of this option (but only
to the extent this option is exercised), the amount of cash, the number of
shares of stock or other securities, or other property resulting from such
Accelerating Event to which a holder of Common Stock, or other securities,
deliverable upon exercise of this option would have been entitled as a result of
such Accelerating Event. Such provisions also shall provide for adjustments for
events subsequent to the effective date of the Accelerating Event, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Paragraph 6 hereof and this Paragraph 7.3.
7.4 The grant of this option under this Agreement shall in no way affect
the right of the Corporation to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or seek or transfer all or any part of its business or assets.
7.5 Notwithstanding anything herein to the contrary, the Board may permit
Optionee to exercise this option with
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<PAGE>
respect to the full number of Optioned Shares without regard to the exercise
schedule provided in Paragraph 4 hereof in the event and to the extent that the
Board determines that to permit such accelerated exercise of this option is
appropriate to afford Optionee the full benefits intended under this option.
8A. Manner of Exercising Option. This option may be exercised with respect
to all or any part of the Optioned Shares for which this option is then
exercisable, by Optionee (or in the case of exercise after Optionee's death or
disability, the Optionee's executor, administrator heir or legatee or legal
representative as the case may be, or Optionee's transferee or assignee in the
event this option is transferred or assigned pursuant to Paragraph 3 hereof) as
follows:
8.1 Provide the Secretary of the Corporation with written notice of such
exercise, specifying the number of Optioned Shares with respect to which the
option is being exercised;
8.2 Pay the option price in one or more of the following alternative forms:
(i) full payment, in cash or check payable to the order of the Corporation, of
the option price for the Optioned Shares being purchased; (ii) full payment in
shares of Common Stock having a fair market value on the "Exercise Date" (as
such term is defined below) equal to the option price for the Optioned Shares
being purchased; or (iii) full payment by a combination of such shares of Common
Stock valued at fair market value on the Exercise Date and cash or check payable
to the order of the Corporation, equal in the aggregate to the option price for
the Optioned Shares being purchased; and
8.3 Furnish to the Corporation appropriate documentation that the person
or persons exercising the option, if other than the Optionee, have the right to
exercise this option on behalf of and for Optionee.
8B. Third Party Instructions. To the extent Optionee or any permitted
successor desires to exercise this option with funds supplied by a third party,
including a broker-dealer, under instructions to immediately sell all the
Optioned Shares subject to such exercise, the Corporation will take all
necessary and appropriate steps to assist in such exercise, including
confirmation that the exercise is permissible and that stock certificates will
be delivered as requested.
9. Successors and Assigns. Subject to Paragraph 3 hereof, the provisions
of this Agreement shall inure to the benefit of, and be binding upon, the
successors, administrators, heirs, devisees and legal representatives of
Optionee and the successors and assigns of the Corporation.
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<PAGE>
10. Issuance of Common Stock. The Corporation shall take all actions
reasonably necessary to obtain approval from any regulatory body having
authority deemed by the Corporation or its counsel to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option, and until such
approval is obtained the Corporation shall not be obligated to issue any shares
of Common Stock upon exercise of this option.
11. Taxes and Withholding. Optionee hereby agrees to make appropriate
arrangements with the Corporation which, in the judgment of the Corporation or
its counsel, are required for the satisfaction of any federal, state or local
income tax withholding requirements and federal social security and other
employment tax requirements applicable to the exercise of this option. At the
election of Optionee any requirements for income tax withholdings and social
security or other employment taxes may be satisfied, in whole or in part, in
Optioned Shares issuable upon exercise of this option or otherwise in shares of
Common Stock. For purposes of satisfying such requirements, Optioned Shares or
shares of Common Stock shall be valued at their fair market value on the
Exercise Date. Optionee further acknowledges that the exercise of this option
may subject Optionee to federal and state income tax and Optionee agrees that
the Corporation shall not be liable therefor.
12. Certain Definitions.
12.1 For purposes of this Agreement, the fair market value of an Optioned
Share or a share of Common Stock shall be the closing price of a share of Common
Stock on the business day which immediately precedes the Exercise Date on the
principal exchange on which the shares of Common Stock are then listed or
admitted to trading, as such price is officially reported by the composite tape
of transactions on such exchange. If there are no reported sales of shares of
Common Stock on the principal exchange on such day, then the closing price on
such exchange on the next preceding day for which there do exist such reported
sales shall be determinative of fair market value. If the shares of Common Stock
are not then listed or admitted to trading on any such exchange, the fair market
value of a share on any relevant day shall be either (i) the closing sales price
as reported on the National Market System of the National Association of
Securities Dealers, Inc. through NASDAQ, or (ii) if such sales are not reported
on said National Market System, the average of the closing bid and asked prices
of a share of Common Stock as furnished by the National Association of
Securities Dealers, Inc., through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information. In the event the fair market value of a
share of Common Stock cannot be determined under the foregoing, then said fair
market value shall be determined in good faith by the Board under any method
deemed by it to be appropriate.
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<PAGE>
12.2 The Exercise Date shall be the date on which written notice of the
exercise of this option is given by Optionee.
13. Governing Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California.
14. Stockholder Rights. Neither Optionee nor his transferee or assignee,
if any, shall have any rights of a stockholder with respect to any shares
covered by this option unless such shares have been issued to Optionee or his
transferee or assignee by the Corporation pursuant to the valid exercise of the
option and the full payment by Optionee or such transferee or assignee of the
option price therefor.
15. Notice. All notices to the Corporation provided for in this Agreement
shall be addressed to the President, Executive Vice President or Chief Financial
Officer of the Corporation at the principal office of the Corporation and all
notices to Optionee shall be addressed to Optionee at the address of Optionee on
file with the Corporation, or to such other address as either may designate to
the other in writing. A notice shall be deemed to be duly given if and when
enclosed in a properly addressed, sealed envelope deposited, postage prepaid,
with the United States Postal Service. In lieu of giving notice by mail as
aforesaid, written notices under this Agreement may be given by personal
delivery to Optionee or to the President, Executive Vice President or Chief
Financial Officer of the Corporation.
16. Registration Rights.
16.1 The Corporation agrees that upon a written request (the "Registration
Request") from Optionee or in the event of his death or disability, Optionee's
executor, administrator, heir, legatee or legal representative, as the case may
be (hereinafter in this Paragraph 16, the "Option Holder"), the Corporation
shall, with reasonable promptness, but in no event later than 120 days after
receipt by the Corporation of such request, file a registration statement on
Form S-1 (or on Form S-2 or Form S-3 if either such Form can be used) under the
Securities Act of 1933 (the "1933 Act") or any comparable form then in force
(the "Registration Statement"), for any or all of the Optioned Shares and shall
use its best efforts to cause the Registration Statement to become effective
subject to the following:
16.1.1 Option Holder is fully responsible for the underwriting of his
Optioned Shares. No underwriting for such shares shall be arranged by the
Corporation;
16.1.2 Option Holder shall pay the reasonable legal fees, accounting
expenses and printing costs of the
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Corporation, all underwriting discounts and commissions applicable to the
Optioned Shares and all legal fees and expenses of his own counsel;
16.1.3 The Corporation shall not be required to file the Registration
Statement unless either: (a) in the opinion of counsel to the Corporation
or to Option Holder, registration under the 1933 Act of the Optioned Shares
proposed to be sold or otherwise disposed of by Option Holder is required
for such sale or other disposition, or (b) Option Holder advises the
Corporation in writing that, in the opinion of an independent investment
banker satisfactory to the Corporation, in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
16.1.4 If the Corporation, at the time it receives the Registration
Request, is filing or is contemplating the filing of a Registration
Statement for an offering of its securities or is engaged in any other
material transaction and the Board reasonably believes that such offering
or other material transaction would be adversely affected by the
Registration Request, the Corporation shall be entitled to postpone the
filing of any such requested Registration Statement for a reasonable time
not exceeding 120 days after the effective date of the Registration
Statement for the Corporation's offering, or in the case of a contemplated
filing or other material transaction, 200 days after the receipt of a
Registration Request; and
16.1.5 The Corporation shall not be required to file any such
Registration Statement within six months after the effective date of an
earlier Registration Statement pursuant to this Paragraph 16.1, nor shall
it be required to file a total of more than two Registration Statements
pursuant to this Paragraph 16.1, nor shall it be required to file any such
Registration Statement if over 75% of the Optioned Shares have already been
registered pursuant to this Paragraph 16.1, nor shall it be required to
file any such Registration Statement after November 15, 2002.
16.2 In the event that, at any time while any of the Optioned Shares are
outstanding, the Corporation proposes to file a Registration Statement under the
1933 Act registering shares of Common Stock and on a form other than Form S-8,
Form S-14 or Form S-15, it will give written notice to Option Holder at least 30
days prior to the date of filing of the proposed Registration Statement. Upon
written request by Option Holder within 15 days after receipt of such notice,
the Corporation will include in the securities to be registered by such
Registration Statement all of the Optioned Shares that Option Holder desires to
sell, subject to the following:
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16.2.1 The Corporation shall pay the expense of such registration,
except that Option Holder shall pay all underwriting discounts and
commissions applicable to his Optioned Shares and all legal fees and
expenses of his own counsel, if any; provided that if the expense of such
registration is being borne by a person other than the Corporation, Option
Holder shall pay his pro rata share of the incremental expense of his
securities being included in such registration;
16.2.2 The Corporation shall have received (a) an opinion of counsel
to Option Holder or of counsel to the Corporation stating that registration
under the 1933 Act of the Optioned Shares proposed to be sold or otherwise
disposed of by Optionee is required or (ii) Option Holder advises the
Corporation in writing that in the opinion of an independent investment
banker satisfactory to the Corporation that in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
16.2.3 If such Registration Statement is for a prospective
underwritten offering, Option Holder agrees to sell his Optioned Shares if
the Corporation so requests, on the same basis as that on which the other
securities covered buy such Registration Statement are being sold. If such
Registration Statement is for a prospective underwritten offering by the
Corporation of its own account and in the opinion of the prospective
underwriters the inclusion in any Registration Statement of all of the
Optioned Shares requested by Option Holder would be detrimental to the
proposed offering, the Corporation may reduce the amount of securities to
be included from Option Holder and any other holders who requested to be
included (in making such reduction each holder requesting inclusion shall
have included in the Registration Statement the same proportion of the
shares he requested to be included to the total number of shares requested
to be included by all requesting holders).
The Corporation may withdraw any such Registration Statement before it
becomes effective or postpone the offering of securities contemplated by
such Registration Statement without any obligation to Option Holder;
16.2.4 The Corporation shall not be required to file any such
Registration Statement after November 15, 2002.
16.3 In connection with any Registration Statement filed pursuant to this
Paragraph 16, the Corporation shall file any post-effective amendment or
amendments to the Registration Statement which may be required to effect the
distribution
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<PAGE>
contemplated thereby, provided that the Corporation shall not be required to
file any post-effective amendment to any Registration Statement more than 90
days after the effective date of the Registration Statement.
16.4 During the period for which the Corporation is required to file and
keep effective a Registration Statement pursuant to this Paragraph 16, the
Corporation shall furnish Option Holder with the number of copies of the
Registration Statement and the prospectus which is filed as part of the
Registration Statement (the "Prospectus") that he reasonably requests for the
purposes contemplated by the 1933 Act. The Corporation shall notify Option
Holder during the period such Registration Statement is required to remain
effective or any time when a Prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as a result of which
the Registration Statement or Prospectus, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of circumstances then existing. Option Holder agrees, upon receipt of such
notice, forthwith to cease making offers and sales of such securities pursuant
to such Registration Statement or deliveries of the Prospectus contained therein
for any purposes and to return to the Corporation the copies of such
Registration Statement and Prospectus not theretofore delivered by Option
Holder. Subject to Paragraph 16.3 above, at the request of Option Holder, the
Corporation shall prepare and furnish to Option Holder a reasonable number of
copies of any supplement to or an amendment of such Registration Statement or
Prospectus that may be necessary so that, as thereafter delivered to the
purchaser of such shares, such Registration Statement and Prospectus shall not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of circumstances then existing. The Corporation
shall promptly notify option Holder of any stop order or similar proceeding
initiated by State or federal regulatory bodies and, subject to Paragraph 16.3
above, use its best efforts to take all necessary steps expeditiously to remove
such stop order or similar proceeding.
16.5 As a condition to the Corporation's obligations under Paragraphs 16.1,
16.2 and 16.3 to cause the Registration Statement or an amendment to be filed or
shares to be included in the Registration Statement, Option Holder shall provide
such information and execute such documents (including any agreement or
undertaking relating to expenses, indemnification or other matters contemplated
by this Paragraph 16) as may be required by the Corporation in connection with
such registration.
16.6 Notwithstanding the foregoing, in connection with any Registration
Statement provided for in this Paragraph 16, the
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Corporation shall not be obligated to furnish any audited financial statements
other than the audited financial statements customarily prepared at the end of
its fiscal year or to furnish any unaudited or pro forma financial information
with respect to any period other than interim quarter periods.
16.7 In connection with the offering of any Optioned Shares registered
pursuant to this Paragraph 16 the Corporation shall use its best efforts to
qualify or register the securities to be sold under the securities or "Blue Sky"
Laws of such jurisdictions as may be reasonably requested by Option Holder;
provided, however, that the Corporation shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction in which
it is not then qualified or to file any general consent to service of process.
The expenses of such qualification of registration shall be borne by the party
or parties bearing the expenses of the related registration under the 1933 Act.
16.8 In connection with any registration of securities pursuant to this
Agreement, to the extent permitted by law, the Corporation shall indemnify the
Option Holder and such Option Holder shall indemnify the Corporation in the
manner provided in this Paragraph 16.8.
16.8.1 The Corporation shall indemnify and hold harmless Option
Holder for the sale or distribution of the Optioned Shares against all
losses, claims, damages or liabilities, joint or several to which Option
become subject, under the 1933 Act or otherwise, insofar as such losses,
Holder may claims, damages or liabilities (or actions in respect thereof)
arise out of a material fact contained in any Registration Statement, the
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading and subject to
Paragraph 16.8.3 hereof, the Corporation shall reimburse Option Holder for
any legal or other expenses reasonably incurred by Option Holder in
connection with investigating or defending such loss, claim, damage,
liability or action; provided, however, that the Corporation shall not be
required to indemnify and hold harmless or reimburse Option Holder to the
extent that any such loss, claim, damage, liability or expense arises out
of or is based upon an untrue statement or omission in any document made in
reliance upon and in conformity with information furnished to the
Corporation by or on behalf of Option Holder for use in the preparation of
such documents.
16.8.2 Option Holder shall indemnify and hold harmless the
Corporation, each of its directors and officers, each person, if any, who
controls the Corporation
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within the meaning of the 1933 Act, and each underwriter against all
losses, claim, damages or liabilities to which the Corporation or any such
director of officer, or controlling person or underwriter may become
subject, under the 1933 Act or otherwise, insofar as such losses, claim,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, in any case, to the extent, but only to the extent, that such
untrue statement or omission was made in reliance upon and in conformity
with information furnished to the Corporation by and on behalf of Option
Holder for use in the preparation thereof; and subject to Paragraph 16.8.3,
Option Holder shall reimburse the Corporation or any such director or
officer, controlling person or underwriter for any legal or other expenses
reasonably incurred by the Corporation or any such director or officer,
controlling person or underwriter in connection with investigating or
defending against any such loss, claim, damage, liability or action.
16.8.3 Promptly after receipt by an indemnified party under
Paragraphs 16.8.1 or 16.8.2 above, of notice of the commencement of any
action, the indemnified party shall notify the indemnifying party. The
failure to so notify the indemnifying party shall relieve it from any
liability hereunder to the extent any such failure to notify causes damages
to the indemnifying party, but not for any other liability which it may
have to any party. In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to assume
and control the defense of the action at its expense provided the
indemnifying party can establish to the indemnified party's satisfaction,
which shall not be unreasonably withheld, that it is financially capable of
supporting both the costs of the defense and the potential liability, and
if the indemnifying party gives notice to such indemnified party of its
election to assume and control the defense and it is to the satisfaction of
the indemnified party, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense or investigation of
the action.
17. Warranties and Obligations of Optionee.
17.1 Optionee represents, warrants and agrees that Optionee will
acquire and hold this option and the Optioned
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Shares for his own account and not with the view to the resale or
distribution thereof, except for resales or distributions in accordance
with federal and state securities laws, and that Optionee will not, at any
time, directly or indirectly, offer, sell, distribute, pledge, or otherwise
grant a security interest in or otherwise dispose of or transfer all, any
portion of, or any interest in this option or the Optioned Shares (or
solicit an offer to buy, take in pledge or otherwise acquire or receive,
all or any portion thereof), except pursuant to either (i) a Registration
Statement on an appropriate form under the 1933 Act, which Registration
Statement has become effective and is current with respect to this option
or the Optioned Shares being offered or sold, as the case may be, or (ii) a
specific exemption from the registration requirements of the 1933 Act, the
availability of which exemption shall be the subject matter of an opinion
of counsel for Optionee, such counsel and opinion to be reasonably
satisfactory to the Corporation, that no registration under the 1933 Act is
required with respect to such offer, sale, distribution, pledge, grant or
other disposition or transfer.
17.2 Optionee acknowledges that he understands that this option and the
Optioned Shares must be held indefinitely unless they are registered or an
exemption from registration becomes available under the 1933 Act and the
securities laws of any state; (ii) the Corporation is under no obligation to
register this option and the Optioned Shares except as provided in Paragraph 16
hereof or to comply with any exemption from such registration, including those
portions of Rule 144 under the 1933 Act to be complied with by the issuer; (iii)
if and to the extent Rule 144 is available for sales of this option and the
Optioned Shares, such sales in reliance upon Rule 144 may be made only after
this option and the Optioned Shares have been held for the requisite holding
period and then only in limited amounts in accordance with the conditions of
that rule, all of which must be met; and (iv) Optionee must, therefore continue
to bear the economic risks of the investment in such shares for an indefinite
period of time after the exercise of the option.
17.3 Immediately prior to the exercise of all or any portion of the option
by Optionee, Optionee shall deliver to the Corporation a signed statement, in a
form satisfactory to the Corporation, confirming that each of the
representations, warranties, acknowledgments and agreements contained in this
Paragraph 17 is true as to Optionee as of the date of such exercise. Such
statement will be satisfactory to the Corporation if made in the form of Exhibit
A attached hereto.
17.4 In the event of the death or disability of Optionee or the transfer
or assignment of this Option in accordance with Paragraph 3 hereof, the person
exercising this option shall execute and deliver to the Corporation a statement
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similar to that set forth in Exhibit A hereto, setting forth certain
representations, warranties, acknowledgments and agreements with respect to the
Optioned Shares.
17.5 Optionee understands that all certificates representing shares
transferred pursuant to this Agreement, unless made pursuant to an appropriate
Registration Statement under the 1933 Act, will bear the following restrictive
legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be
transferred or hypothecated without prior registration under
said Act or any exemption therefrom established to the
satisfaction of the issuer."
18. Cancellation of Other Options. Optionee hereby consents and agrees to
the cancellation of that certain option to purchase 30,000 shares of Common
Stock at an exercise price of $7.00 per share granted to the Optionee on
November 16, 1989.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in duplicate on its behalf by its duly authorized officer and Optionee
has also executed this Agreement in duplicate, all as of the day and year first
above written.
DICEON ELECTRONICS, INC.
By:/S/ PETER S. JONAS
---------------------------
Peter S. Jonas,
Executive Vice President
/S/ SHERWIN L. SAMUELS
--------------------------
Sherwin L. Samuels
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EXHIBIT "A"
Diceon Electronics, Inc.
______________________________
______________________________
Gentlemen:
I am the holder of an option (the "Option") granted by Diceon Electronics,
Inc. (the "Corporation"), on November 15, 1990, to purchase up to an aggregate
of 30,000 shares of the Corporation's Common Stock, pursuant to the terms of a
Non- Qualified Stock Option Agreement dated November 15, 1990 between the
Corporation and Sherwin L. Samuels. I hereby exercise my option with respect to
shares of Common Stock subject to the Option at the price of $3.50 per share,
subject to adjustment as provided for in the Agreement, and I present herewith
funds payable to the order of the Corporation in the amount of $_______________,
and/or __________________________ shares of Common Stock, which represents the
full purchase price for the number of shares purchased upon this exercise.
I hereby represent and warrant that I am purchasing the foregoing shares
for my own account and not with a view to the distribution thereof, and that I
shall neither offer nor sell any or all of such shares except pursuant to either
(i) a Registration Statement on an appropriate form under the Securities Act of
1933 (the "Act"), which Registration Statement has become effective and is
current with respect to the shares being offered or sold, or (ii) a specific
exemption from the registration requirements of the Act, the availability of
which exemption shall be the subject matter of an opinion of my counsel, which
counsel and opinion shall be reasonably satisfactory to the Corporation. I
understand and agree that such shares must be held indefinitely unless they are
registered or an exemption from registration become available under the Act and
the securities laws of any states. I acknowledge receipt from the Corporation of
a copy of its most recent annual report to stockholders, the proxy statement
filed in connection with that report, its most recent annual report filed with
the Securities and Exchange Commission on Form 10-K, if requested and insofar as
it is not included in such annual report to stockholders, together with copies
of all reports required to be filed by the Corporation under Sections 13(a),
14(a), 14(c) and 15(d) of the Securities Exchange Act of 1934 since the filing
of such annual report referred to above. I further represent and warrant I have
had the opportunity to ask questions of, and to receive answers from, the
officers and representatives of the Corporation concerning all material
information concerning the
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Corporation and the terms and conditions of the transaction in which I am
acquiring the shares of Common Stock.
The certificates evidencing the shares purchased upon this exercise should
be registered in my name and delivered to me. I understand that such
certificates may bear a legend to the effect that the shares have not been
registered under the Act and may be offered for sale and sold or hypothecated
only upon the terms and conditions set forth in the preceding paragraph.
Very truly yours,
______________________________
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DICEON ELECTRONICS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 9th day of March, 1993 (the "Grant Date")
by and between Diceon Electronics, Inc., a Delaware corporation (hereinafter
called the "Corporation"), and C. Stephen Mansfield (hereinafter called
"Optionee").
W I T N E S S E T H:
The Board of Directors of the Corporation has determined that it is in the
best interests of the Corporation and its stockholders to grant a non-qualified
stock option to optionee, a director of the Corporation.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
forth in this Agreement, the Corporation hereby grants to optionee, as of the
Grant Date, a non-qualified stock option to purchase up to 10,000 shares of the
common stock, $1.00 par value per share, of the Corporation ("Common Stock")
(the "Optioned Shares") from time to time during the option term at the option
price of $3.50 per share.
2. Option Term. The specified term of this option shall be the period
commencing on the Grant Date and, unless earlier terminated in accordance with
Paragraphs 5 or 7 hereof, terminating at 5:00 P.M., Irvine, California time on
March 8, 2003 (the "Expiration Time") . Upon the expiration of the option term
or upon its earlier termination under Paragraph 5 hereof, this option shall
cease to be exercisable and shall have no further force or effect.
3. Option Nontransferable; Exceptions. This option may be transferred or
assigned by Optionee (or in the event of his death or disability, by his
personal representative or successor) in whole or from time to time in part;
provided, however, that each such transfer or assignment shall be for not less
than 5,000 Optioned Shares. Except as provided in the immediately succeeding
sentence, no transferee or assignee of optionee may transfer or assign this
option, in whole or in part. This option also may be transferred or assigned by
the will of optionee or his transferee or assignee or by the laws of descent and
distribution. This option may be exercised during Optionee's lifetime only by
Optionee, his legal representative if optionee is disabled, or the transferees
or assignees to which this option is transferred or assigned in accordance with
the first sentence of this paragraph.
4. Exercisability. Except as otherwise provided in Paragraph 7(a) hereof,
this option shall be exercisable in accordance with the following schedule:
<PAGE>
(i) This option is immediately exercisable with respect to 3,000
Optioned Shares;
(ii) This option shall become exercisable with respect to an
additional 3,500 Optioned Shares On March 9, 1994; and
(iii) This option shall become exercisable with respect to the
remaining 3,500 Optioned Shares on March 9, 1995.
In the event optionee resigns as a director of the Corporation for any
reason other than his disability, then during the remaining term of this option,
Optionee may only exercise this option with respect to that number of Optioned
Shares for which his option was exercisable on the date of his resignation
(after giving effect to the acceleration provisions of Paragraphs 5 or 7, if
applicable). Exercisable installments may be exercised in whole or in part and
to the extent not exercised shall accumulate and be exercisable at any time on
or before the Expiration Time or earlier termination of the option term. In no
event shall the Corporation be obligated to issue fractional shares.
5. Accelerated Termination of Option Term. The option term specified in
Paragraph 2 hereof shall terminate prior to the Expiration Time should Optionee
be removed as a director of the Corporation for cause. Notwithstanding anything
herein in this Paragraph 5 to the contrary, should Optionee die or become
disabled while this option is outstanding and while Optionee is a director of
the Corporation, the executors or administrators of Optionee's estate, his heirs
or legatees, or Optionee or his legal representatives, as the case may be, shall
have the right to exercise this option prior to the Expiration Time with respect
to the full number of Optioned Shares without regard to the exercise schedule
provided by Paragraph 4 hereof.
6. Adjustment in Optioned Shares. In the event of any change in the
Common Stock (whether by reason of merger, consolidation, split, stock dividend,
combination of shares, exchange of shares, or any other change in corporate
structure effected without receipt of consideration), then the Board of
Directors of the Corporation (the "Board") shall in good faith make appropriate
adjustments to the number and/or class of shares subject to this option and the
option price per share in order to prevent the dilution of benefits under this
Agreement and to provide to the extent practicable benefits identical to those
provided under this Agreement.
7. Acceleration and Termination of Option.
7.1 In the event the Corporation or its stockholders enter into any
agreement to dispose of all or substantially all of the assets of the
Corporation or outstanding
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Common Stock by sale, exchange, merger, consolidation, reorganization,
dissolution or liquidation or in the event of a tender offer (by the Corporation
or a third party) to purchase a substantial part of the outstanding Common Stock
(individually, an "Accelerating Event"), then this option shall, to the extent
not fully exercisable under Paragraph 4, become exercisable a number of days
(which shall not be less than fifteen (15) days) immediately ' prior to the
scheduled consummation of the Accelerating Event as determined by resolution of
the Board, with respect to the full number of the Optioned Shares without regard
for the exercise schedule provided by Paragraph 4. If the Board does not
determine by resolution the subject time of exercisability, then this option
shall, to the extent not fully exercisable under Paragraph 4, become exercisable
fifteen (15) days prior to the scheduled consummation of the Accelerating Event.
7.2 Any exercise of this option during the exercise period determined under
Paragraph 7.1 shall be conditioned upon the consummation of the Accelerating
Event and shall be effective only immediately before such consummation, provided
that the person exercising this option may indicate, in writing, that such
exercise is unconditional with respect to all or part of this option then
exercisable without regard to the acceleration provisions of this Paragraph 7.
7.3 In the event that Optionee does not exercise this option prior to the
consummation of the Accelerating Event, provision shall be made so that Optionee
shall thereafter be entitled to receive, upon exercise of this option (but only
to the extent this option is exercised) , the amount of cash, the number of
shares of stock or other securities, or other property resulting from such
Accelerating Event to which a holder of Common Stock or other securities,,
deliverable upon exercise of this option would have been entitled as a result of
such Accelerating Event. Such provisions also shall provide for adjustments for
events subsequent to the effective date of the Accelerating Event, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Paragraph 6 hereof and this Paragraph 7.3.
7.4 The grant of this option under this Agreement shall in no way affect
the right of the Corporation to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or seek or transfer all or any part of its
business or assets.
7.5 Notwithstanding anything herein to the contrary, the Board may permit
optionee to exercise this option with respect to the full number of Optioned
Shares without regard to the exercise schedule provided in Paragraph 4 hereof in
the event and to the extent that the Board determines that to permit
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<PAGE>
such accelerated exercise of this option is appropriate to afford optionee the
full benefits intended under this option.
8.A. Manner of Exercising Option. This option may be exercised with
respect to all or any part of the Optioned Shares for which this option is then
exercisable, by Optionee (or in the case of exercise after Optionee's death or
disability, the Optionee's executor, administrator, heir or legatee or legal
representative, as the case may be, or optionee's transferee or assignee in the
event this option is transferred or assigned pursuant to Paragraph 3 hereof) as
follows:
8.1 Provide the Secretary of the Corporation with written notice of such
exercise, specifying the number of Optioned Shares with respect to which the
option is being exercised;
8.2 Pay the option price in one or more of the following alternative
forms: (i) full payment, in cash or check payable to the order of the
Corporation, of the option price for the Optioned Shares being purchased; (ii)
full payment in shares of Common Stock having a fair market value on the
"Exercise Date" (as such term is defined below) equal to the option price for
the Optioned Shares being purchased; or (iii) full payment by a combination of
such shares of Common Stock valued at fair market value on the Exercise Date and
cash or check payable to the order of the Corporation, equal in the aggregate to
the option price for the Optioned Shares being purchased; and
8.3 Furnish to the Corporation appropriate documentation that the person
or persons exercising the option, if other than the Optionee, have the right to
exercise this option on behalf of and for optionee.
8B. Third Party Instructions. To the extent Optionee or any permitted
successor desires to exercise this option with funds supplied by a third party,
including a broker-dealer, under instructions to immediately sell all the
Optioned Shares subject to such exercise, the Corporation will take all
necessary and appropriate steps to assist in such exercise, including
confirmation that the exercise is permissible and that stock certificates will
be delivered as requested.
9. Successors and Assigns. Subject to Paragraph 3 hereof, the provisions
of this Agreement shall inure to the benefit of, and be binding upon, the
successors, administrators, heirs, devisees and legal representatives of
Optionee and the successors and assigns of the Corporation.
10. Issuance of Common Stock. The Corporation shall take all actions
reasonably necessary to obtain approval from any regulatory body having
authority deemed by the Corporation or its counsel to be necessary to the lawful
issuance and sale of any
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<PAGE>
Common Stock pursuant to this option, and until such approval is obtained the
Corporation shall not be obligated to issue any shares of Common Stock upon
exercise of this option.
11. Taxes and Withholding. Optionee hereby agrees to make appropriate
arrangements with the Corporation which, in the judgment of the Corporation or
its counsel, are required for the satisfaction of any federal, state or local
income tax withholding requirements and federal social security and other
employment tax requirements applicable to the exercise of this option. At the
election of Optionee any requirements for income tax withholdings and social
security or other employment taxes may be satisfied, in whole or in part, in
optioned Shares issuable upon exercise of this option or otherwise in shares of
Common Stock. For purposes of satisfying such requirements, Optioned Shares or
shares of Common Stock shall be valued at their fair market value on the
Exercise Date. Optionee further acknowledges that the exercise of this option
may subject Optionee to federal and state income tax, and Optionee agrees that
the Corporation shall no be liable therefor.
12. Certain Definitions.
12.1 For purposes of this Agreement, the fair market value of an Optioned
Share or a share of Common Stock shall be the closing price of a share of Common
Stock on the business day which immediately precedes the Exercise Date on the
principal exchange on which the shares of Common Stock are then listed or
admitted to trading, as such price is officially reported by the composite tape
of transactions on such exchange. If there are no reported sales of shares of
Common Stock on the principal exchange on such day, then the closing price on
such exchange on the next preceding day for which there do exist such reported
sales shall be determinative of fair market value. If the shares of Common Stock
are not then listed or admitted to trading on any such exchange, the fair market
value of a share on any relevant day shall be either (i) the closing sales price
as reported n the National Market System of the National Association of
Securities Dealers, Inc. through NASDAQ, or (ii) if such sales are not reported
on said National Market System, the average of the closing bid and asked prices
of a share of Common Stock as furnished by the National Association of
Securities Dealers, Inc., through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information. In the event the fair market value of a
share of Common Stock cannot be determined under the foregoing, then said fair
market value shall be determined in good faith by the Board under any method
deemed by it to be appropriate.
12.2 The Exercise Date shall be the date on which written notice of the
exercise of this option is given by optionee.
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<PAGE>
13. Governing Law. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of the State of California.
14. Stockholder Rights. Neither optionee nor his transferee or assignee,
if any, shall have any rights of a stockholder with respect to any shares
covered by this option unless such shares have been issued to Optionee or his
transferee or assignee by the Corporation pursuant to the valid exercise of the
option and the full payment by optionee or such transferee or assignee of the
option price therefor.
15. Notice. All notices to the Corporation provided for in this Agreement
shall be addressed to the President or Chief Financial officer of the
Corporation at the principal office of the Corporation, and all notices to
Optionee shall be addressed to Optionee at the address of optionee on file with
the Corporation, or to such other address as either may designate to the other
in writing. A notice shall be deemed to be duly given if and when enclosed in a
properly addressed, sealed envelope deposited, postage prepaid, with the United
States Postal Service. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee or to
the President or Chief Financial Officer of the Corporation.
16. Registration Rights.
16.1 The Corporation agrees that upon a written request (the "Registration
Request") from Optionee or in the event of his death or disability, optionee's
executor, administrator, heir, legatee or legal representative, as the case may
be (hereinafter in this Paragraph 16, the "Option Holder"), the Corporation
shall, with reasonable promptness, but in no event later than 120 days after
receipt by the Corporation of such request, file a registration statement on
Form S-1 (or on Form S-2 or Form S-3 if either such Form can be used) under the
Securities Act of 1933 (the "1933 Act") or any comparable form then in force
(the "Registration Statement"), for any or all of the Optioned Shares and shall
use its best efforts to cause the Registration Statement to become effective
subject to the following:
16.1.1 Option Holder is fully responsible for the underwriting of his
Optioned Shares. No underwriting for such shares shall be arranged by the
Corporation;
16.1.2 Option Holder shall pay the reasonable legal fees, accounting
expenses and printing costs of the Corporation, all underwriting discounts
and commissions applicable to the Optioned Shares and all legal fees and
expenses of his own counsel;
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16.1.3 The Corporation shall not be required to file the Registration
Statement unless either: (a) in the opinion of counsel to the Corporation
or to option Holder, registration under the 1933 Act of the Optioned Shares
proposed to be sold or otherwise disposed of by Option Holder is required
for such sale or other disposition, or (b) option Holder advises the
Corporation in writing that, in the opinion of an independent investment
banker satisfactory to the Corporation, in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
16.1.4 If the corporation, at the time it receives the Registration
Request, is filing or is contemplating the filing of a Registration
Statement for an offering of its securities or is engaged in any other
material transaction and the Board reasonably believes that such offering
or other material transaction would be adversely affected by the
Registration Request, the Corporation shall be entitled to postpone the
filing of any such requested Registration Statement for a reasonable time
not exceeding 120 days after the effective date of the Registration
Statement for the Corporation's offering, or in the case of a contemplated
filing or other material transaction, 200 days after the receipt of a
Registration Request; and
16.1.5 The Corporation shall not be required to file any such
Registration Statement within six months after the effective date of an
earlier Registration Statement pursuant to this Paragraph 16.1, nor shall
it be required to file a total of more than two Registration Statements
pursuant to this Paragraph 16.1, nor shall it be required to file any such
Registration Statement if over 75% of the Optioned Shares have already been
registered pursuant to this Paragraph 16.1, nor shall it be required to
file any such Registration Statement after March 9, 2005.
16.2 In the event that at any time while any of the Optioned Shares are
outstanding, the Corporation proposes to file a Registration Statement under the
1933 Act registering shares of Common Stock and on a form other than Form S-8,
Form S- 14 or Form S-15, it will give written notice to Option Holder at least
30 days prior to the date of filing of the proposed Registration Statement. Upon
written request by Option Holder within 15 days after receipt of such notice,
the Corporation will include in the securities to be registered by such
Registration Statement all of the Optioned Shares that Option Holder desires to
sell, subject to the following:
16.2.1 The Corporation shall pay the expense of such registration,
except that Option Holder shall pay all underwriting discounts and
commissions
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applicable to this Optioned Shares and all legal fees and expenses of his
own counsel, if any; provided that if the expense of such registration is
being borne by a person other than the Corporation, Option Holder shall
pay his pro rata share of the incremental expense of his securities being
included in such registration;
16.2.2 The Corporation shall have received (a) an opinion of counsel
to Option Holder or of counsel to the Corporation stating that registration
under the 1933 Act of the Optioned Shares proposed to be sold or otherwise
disposed of by optionee is required or (ii) option Holder advises the
Corporation in writing that in the opinion of an independent investment
banker satisfactory to the Corporation that in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
16.2.3 If such Registration Statement is for a prospective
underwritten offering, Option Holder agrees to sell his Optioned Shares if
the Corporation so requests, on the same basis as that on which the other
securities covered by such Registration Statement are being sold. If such
Registration Statement is for a prospective underwritten offering by the
Corporation of its own account and in the opinion of the prospective
underwriters the inclusion in any Registration Statement of all of the
Optioned Shares required by Option Holder would be detrimental to the
proposed offering, the Corporation may reduce the amount of securities to
be included from option Holder and any other holders who requested to be
included (in making such reduction each holder requesting inclusion shall
have included in the Registration Statement the same proportion of the
shares he requested to be included to the total number of shares requested
to be included by all requesting holders).
The Corporation may withdraw any such Registration Statement before it
becomes effective or postpone the offering of securities contemplated by
such Registration Statement without any obligation to option Holder;
16.2.4 The Corporation shall not be required to file any such
Registration Statement after March 9, 2005.
16.3 In connection with any Registration Statement filed pursuant to this
Paragraph 16, the Corporation shall file any post-effective amendment or
amendments to the Registration Statement which may be required to effect the
distribution contemplated thereby, provided that the Corporation shall not be
required to file any post-effective amendment to any Registration
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<PAGE>
Statement more than 90 days after the effective date of the Registration
Statement.
16.4 During the period for which the corporation is required to file and
keep effective a Registration Statement pursuant to this Paragraph 16, the
Corporation shall furnish option Holder with the number of copies of.the
Registration Statement (the "Prospectus") that he reasonably requests for the
purposes contemplated by the 1933, Act. The Corporation shall notify option
Holder during the period such Registration Statement is required to remain
effective or any time when a Prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as a result of which
the Registration Statement or Prospectus, as then in effect, includes an untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of circumstances then
existing. Option Holder agrees, upon receipt of such notice, forthwith to cease
making offers and sales of such securities pursuant to such Registration
Statement or deliveries of the Prospectus contained therein for any purposes and
to return to the Corporation the copies of such Registration Statement and
Prospectus not theretofore delivered by Option Holder. Subject to Paragraph 16.3
above, at the request of Option Holder, the Corporation shall prepare and
furnish to Option Holder a reasonable number of copies of any supplement to or
an amendment of such Registration Statement or Prospectus that may be necessary
so that, as thereafter delivered to the purchaser of such shares, such
Registration Statement and Prospectus shall not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances then existing. The Corporation shall promptly notify Option Holder
of any stop order or similar proceeding initiated by State or federal regulatory
bodies and, subject to Paragraph 16.3 above, use its best efforts to take all
necessary steps expeditiously to remove such stop order or similar proceeding.
16.5 As a condition to the Corporation's obligations under Paragraph 16.1,
16.2 and 16.3 to cause the Registration Statement or an amendment to be filed or
shares to be included in the Registration Statement, Option Holder shall provide
such information and execute such documents (including any agreement or
undertaking relating to expenses, indemnification or other matters contemplated
by this Paragraph 16) as may be required by the Corporation in connection with
such registration.
16.6 Notwithstanding the foregoing, in connection with any Registration
Statement provided for in this Paragraph 16, the Corporation shall not be
obligated to furnish any audited financial statements other than the audited
financial statements customarily prepared at the end of its fiscal year or to
furnish
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any unaudited or pro forma financial information with respect to any period
other than interim quarter periods.
16.7 In connection with the offering of any Optioned Shares registered
pursuant to this Paragraph 16 the Corporation shall use its best efforts to
qualify or register the securities to be sold under the securities or "Blue Sky"
Laws of such jurisdictions as may be reasonably requested by Option Holder;
provided, however, that the Corporation shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction in which
it is not then qualified or to file any general consent to service of process.
The expenses of such qualification of registration shall be borne by the party
or parties bearing the expenses of the related registration under the 1933 Act.
16.8 In connection with any registration of securities pursuant to this
Agreement, to the extent permitted by law, the Corporation shall indemnify the
Option Holder and such option Holder shall indemnify the corporation in the
manner provided in this Paragraph 16.8.
16.8.1 The Corporation shall indemnify and hold harmless option Holder
for the sale or distribution of the Optioned Shares against all losses,
claims, damages or liabilities, joint or several to which option Holder may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
a material fact contained in any Registration Statement, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements herein, in the light of the circumstances
under which they are made, not misleading and subject to Paragraph 16.8.3
hereof, the Corporation shall reimburse Option Holder for any legal or
other expenses reasonably incurred by Option Holder in connection with
investigating or defending such loss, claim, damage, liability or action;
provided, however, that the Corporation shall not be required to indemnify
and hold harmless or reimburse Option Holder to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or omission in any document made in reliance upon and in
conformity with information furnished to the Corporation by or on behalf of
Option Holder for use in the preparation of such documents.
16.8.2 Option Holder shall indemnify and hold harmless the
Corporation, each of its directors and officers, each person, if any, who
controls the Corporation within the meaning of the 1933 Act, and each
underwriter against all losses, claim, damages or liabilities to which the
Corporation or any such director or officer, or
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<PAGE>
controlling person or underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claim, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement of a material fact contained in any Registration Statement,
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, in any case, to
the extent, but only to the extent, that such untrue statement or omission
was made in reliance upon and in conformity with information furnished to
the Corporation by and on behalf of Option Holder for use in the
preparation thereof; and subject to Paragraph 16.8.3, Option Holder shall
reimburse the Corporation or any such director or officer, controlling
person or underwriter for any legal or other expenses reasonably incurred
by the Corporation or any such director or officer, controlling person or
underwriter in connection with investigating or defending against any such
loss, claim, damage, liability or action.
16.8.3 Promptly after receipt by an indemnified party under Paragraphs
16.8.1 or 16.8.2 above, of notice of the commencement of any action, the
indemnified party shall notify the indemnifying party. The failure to so
notify the indemnifying party shall relieve it from any liability hereunder
to the extent any such failure to notify causes damages to the indemnifying
party, but not for any other liability which it may have to any party. In
case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to assume and control the defense of
the action at its expense provided the indemnifying party can establish to
the indemnified party's satisfaction, which shall not be unreasonably
withheld, that it is financially capable of supporting both the costs of
the defense and the potential liability, and if the indemnifying party
gives notice to such indemnified party of its election to assume and
control the defense and it is to the satisfaction of the indemnified party,
the indemnifying party shall not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense or investigation of the action.
17. Warranties and obligations of Optionee.
17.1 Optionee represents, warrants and agrees that optionee will acquire
and hold this option and the Optioned Shares for his own account and not with
the view to the resale or distribution thereof, except for resales or
distributions in accordance with federal and state securities laws and that
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<PAGE>
Optionee will not, at any time, directly or indirectly, offer, sell, distribute,
pledge, or otherwise grant a security interest in or otherwise dispose of or
transfer all, any portion of, or any interest in this option or the Optioned
Shares (or solicit an offer to buy, take in pledge or otherwise acquire or
receive, all or any portion thereof), except pursuant to either (i) a
Registration Statement on an appropriate form under the 1933 Act, which
Registration Statement has become effective and is current with respect to this
option or the Optioned Shares being offered or sold, as the case may be, or (ii)
a specific exemption from the registration requirements of the 1933 Act, the
availability of which exemption shall be the subject matter of an opinion of
counsel for Optionee, such counsel and opinion to be reasonably satisfactory to
the Corporation, that no registration under the 1933 Act is required with
respect to such offer, sale, distribution, pledge, grant or other disposition or
transfer.
17.2 Optionee acknowledges that he understands that (i) this option and the
Optioned, Shares must be held indefinitely unless they are registered or an
exemption from registration becomes available under the 1933 Act and the
securities laws of any state; (ii) the Corporation is under no obligation to
register this option and the Optioned Shares except as provided in Paragraph 16
hereof or to comply with any exemption from such registration, including those
portions of Rule 144 under the 1933 Act to be complied with by the issuer; (iii)
if and to the extend Rule 144 is available for sales of this option and the
Optioned Shares, such sales in reliance upon Rule 144 may be made only after
this option and the Optioned Shares have been held for the requisite holding
period and then only in limited amounts in accordance with the conditions of
that rule, all of which must be met; and (iv) Optionee must, therefore, continue
to bear the economic risks of the investment in such shares for an indefinite
period of time after the exercise of the option.
17.3 Immediately prior to the exercise of all or any portion of the option
by Optionee, Optionee shall deliver to the Corporation a signed statement, in a
form satisfactory to the Corporation, confirming that each of the
representations, warranties, acknowledgments and agreements contained in this
Paragraph 17 is true as to Optionee as of the date of such exercise. Such
statement will be satisfactory to the Corporation if made in the form of Exhibit
A attached hereto.
17.4 In the event of the death or disability of optionee or the transfer or
assignment of this option in accordance with Paragraph 3 hereof, the person
exercising this option shall execute and deliver to the Corporation a statement
similar to that set forth in Exhibit A hereto, setting forth certain
representations, warranties, acknowledgments and agreements with respect to the
Optioned Shares.
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<PAGE>
17.5 Optionee understands that all certificates representing shares
transferred pursuant to this Agreement, unless made pursuant to an appropriate
Registration Statement under the 1933 Act, will bear the following restrictive
legend:
"The shares represented by this certificate have not been
registered under the securities Act of 1933 and may not be
transferred or hypothecated without prior registration under
said Act or any exemption therefrom established to the
satisfaction of the issuer."
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in duplicate on its behalf by its duly authorized officer and Optionee
has also executed this Agreement in duplicate, all as of the day and year first
above written.
DICEON ELECTRONICS, INC.
By /S/ PETER S. JONAS
------------------------
Peter S. Jonas
President
/S/ C. STEPHEN MANSFIELD
------------------------
C. Stephen Mansfield
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EXHIBIT "A"
Diceon Electronics, Inc.
18522 Von Karman Avenue
Irvine, CA 92715
Gentlemen:
I am the holder of an option (the "Option") granted by Diceon Electronics, Inc.,
a Delaware corporation (the "Corporation"), on March 9, 1993, to purchase up to
an aggregate of 10,000 shares of the Corporation's Common Stock, pursuant to the
terms of a Non- Qualified Stock Option Agreement ("Agreement") dated March 9,
1993 between the Corporation and C. Stephen Mansfield. I hereby exercise my
Option with respect to ______________ shares of Common Stock subject to the
Option at the price of $3.50 per share, subject to adjustment as provided for in
the Agreement, and I present herewith funds payable to the order of the
Corporation in the amount of $________________________, and/or _______________
shares of Common Stock, which represents the full purchase price for the number
of shares purchased upon this exercise.
I hereby represent and warrant that I am purchasing the foregoing shares for my
own account and not with a view to the distribution thereof, and that I shall
neither offer nor sell any or all of such shares except pursuant to either (i) a
Registration Statement on an appropriate form under the Securities Act of 1933
(the "Act") I which Registration Statement has become effective and is current
with respect to the shares being offered or sold, or (ii) a specific exemption
from the registration requirements of the Act, the availability of which
exemption shall be the subject matter of an opinion of my counsel, which counsel
and opinion shall be reasonably satisfactory to the Corporation. I understand
and agree that such shares must be held indefinitely unless they are registered
or an exemption from registration becomes available under the Act and the
securities laws of any state. I acknowledge receipt from the Corporation of copy
of its most recent annual report to stockholders, the proxy statement filed in
connection with that report, its most recent annual report filed with the
Securities and Exchange commission on Form 10-K, if requested and insofar as it
is not included in such annual report to stockholders, together with copies of
all reports required to be filed by the Corporation under Sections 13 (a) , 14
(a) , 14 (c) and 15(d) of the Securities Exchange Act of 1934 since the filing
of such annual report referred to above. I further represent and warrant that I
have had the opportunity to ask questions of, and to receive answers from, the
officers and representatives of the Corporation concerning all material
information concerning the Corporation and the terms and conditions of the
transaction in which I am acquiring the shares of Common Stock.
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The certificates evidencing the shares purchased upon this exercise should be
registered in my name and delivered to me. I understand that such certificates
may bear a legend to the effect that the shares have not been registered under
the Act and may be offered for sale and sold or hypothecated only upon the terms
and conditions set forth in the preceding paragraph.
Very truly yours,
---------------------------
C. Stephen Mansfield
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DICEON ELECTRONICS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 11th day of November, 1993 (the "Grant
Date") by and between Diceon Electronics, Inc., a Delaware corporation
(hereinafter called the "Corporation") , and C. Stephen Mansfield (hereinafter
called "Optionee").
W I T N E S S E T H:
The Board of Directors of the Corporation has determined that it is in the
best interests of the Corporation and its stockholders to grant a non-qualified
stock option to optionee, a director of the Corporation.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set forth
in this Agreement, the Corporation hereby grants to Optionee, as of the Grant
Date, a non-qualified stock option to purchase up to 10,000 shares of the common
stock, $1.00 par value per share, of the Corporation ("Common Stock") (the
"Optioned Shares") from time to time during the option term at the option price
of $1.25 per share.
2. Option Term. The specified term of this option shall be the period
commencing on the Grant Date and, unless earlier terminated in accordance with
Paragraphs 5 or 7 hereof, terminating at 5:00 P.M., Irvine, California time on
November 11, 2003, the "Expiration Time"). Upon the expiration of the option
term or upon its earlier termination under Paragraph 5 hereof, this option shall
cease to be exercisable and shall have no further force or effect.
3. Option Nontransferable; Exceptions. This option may be transferred or
assigned by Optionee (or in the event of his death or disability, by his
personal representative or successor) in whole or from time to time in part;
provided, however, that each such transfer or assignment shall be for not less
than 5,000 Optioned Shares. Except as provided in the immediately succeeding
sentence, no transferee or assignee of Optionee may transfer or assign this
option, in whole or in part. This option also may be transferred or assigned by
the will of Optionee or his transferee or assignee or by the laws of descent and
distribution. This option may be exercised during Optionee's lifetime only by
optionee, his legal representative if optionee is disabled, or the transferees
or assignees to which this option is transferred or assigned in
accordance with the first sentence of this paragraph.
4. Exercisability. Except as otherwise provided in Paragraph 7(a) hereof,
this option shall be exercisable in accordance with the following schedule:
<PAGE>
(i) This option is immediately exercisable with respect to 5,000
optioned Shares; and
(ii) This option shall become exercisable with respect to an
additional 5,000 Optioned Shares on November 11, 1994.
In the event optionee resigns as a director of the Corporation for any
reason other than his disability, then during the remaining term of this option,
Optionee may only exercise this option with respect to that number of Optioned
Shares for which his option was exercisable on the date of his resignation
(after giving effect to the acceleration provisions of Paragraphs 5 or 7, if
applicable) . Exercisable installments may be exercised in whole or in part and
to the extent not exercised shall accumulate and be exercisable at any time on
or before the Expiration Time or earlier termination of the option term. In no
event shall the Corporation be obligated to issue fractional shares.
5. Accelerated Termination of Option Term. The option term specified in
Paragraph 2 hereof shall terminate prior to the Expiration Time should Optionee
be removed as a director of the Corporation for cause. Notwithstanding anything
herein in this Paragraph 5 to the contrary, should optionee die or become
disabled while this option is outstanding and while optionee is a director of
the Corporation, the executors or administrators of optionee's estate, his heirs
or legatees, or optionee or his legal representatives, as the case may be, shall
have the right to exercise this option prior to the Expiration Time with respect
to the full number of Optioned Shares without regard to the exercise schedule
provided by Paragraph 4 hereof.
6. Adjustment in Optioned Shares. In the event of any change in the Common
Stock (whether by reason of merger, consolidation, split, stock dividend,
combination of shares, exchange of shares, or any other change in corporate
structure effected without receipt of consideration), then the Board of
Directors of the Corporation (the "Board") shall in good faith make appropriate
adjustments to the number and/or class of shares subject to this option and the
option price per share in order to prevent the dilution of benefits under this
Agreement and to provide to the extent practicable benefits identical to those
provided under this Agreement.
7. Acceleration and Termination of Option.
7.1 In the event the Corporation or its stockholders enter into any
agreement to dispose of all or substantially all of the assets of the
Corporation or outstanding Common Stock by sale, exchange, merger,
consolidation, reorganization, dissolution or liquidation or in the event of a
tender offer (by the Corporation or a third party) to purchase a substantial
part of the outstanding Common Stock (individually, an
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"Accelerating Event"), then this option shall, to the extent not fully
exercisable under Paragraph 4, become exercisable a number of days (which shall
not be less than fifteen (15) days) immediately prior to the scheduled
consummation of the Accelerating Event as determined by resolution of the Board,
with respect to the full number of the Optioned Shares without regard for the
exercise schedule provided by Paragraph 4. If the Board does not determine by
resolution the subject time of exercisability, then this option shall, to the
extent not fully exercisable under Paragraph 4, become exercisable fifteen (15)
days prior to the scheduled consummation of the Accelerating Event.
7.2 Any exercise of this option during the exercise period determined under
Paragraph 7.1 shall be conditioned upon the consummation of the Accelerating
Event and shall be effective only immediately before such consummation, provided
that the person exercising this option may indicate, in writing, that such
exercise is unconditional with respect to all or part of this option then
exercisable without regard to the acceleration provisions of this Paragraph 7.
7.3 In the event that optionee does not exercise this option prior to the
consummation of the Accelerating Event, provision shall be made so that Optionee
shall thereafter be entitled to receive, upon exercise of this option (but only
to the extent this option is exercised), the amount of cash, the number of
shares of stock or other securities, or other property resulting from such
Accelerating Event to which a holder of Common Stock or other securities,
deliverable upon exercise of this option would have been entitled as a result of
such Accelerating Event. Such provisions also shall provide for adjustments for
events subsequent to the effective date of the Accelerating Event, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Paragraph 6 hereof and this Paragraph 7.3.
7.4 The grant of this option under this Agreement shall in no way affect
the right of the Corporation to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or seek or transfer all or any part of its business or assets.
7.5 Notwithstanding anything herein to the contrary, the Board may permit
Optionee to exercise this option with respect to the full number of Optioned
Shares without regard to the exercise schedule provided in Paragraph 4 hereof in
the event and to the extent that the Board determines that to permit such
accelerated exercise of this option is appropriate to afford Optionee the full
benefits intended under this option.
8.A Manner of Exercising Option. This option may be exercised with respect
to all or any part of the Optioned Shares for which this option is then
exercisable, by Optionee (or in the case of exercise after optionee's death or
disability, the
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Optionee's executor, administrator, heir or legatee or legal representative, as
the case may be, or Optionee's transferee or assignee in the event this option
is transferred or assigned pursuant to Paragraph 3 hereof) as follows:
8.1 Provide the Secretary of the Corporation with written notice of such
exercise, specifying the number of Optioned Shares with respect to which the
option is being exercised;
8.2 Pay the option price in one or more of the following alternative forms:
(i) full payment, in cash or check payable to the order of the Corporation, of
the option price for the Optioned Shares being purchased; (ii) full payment in
shares of Common Stock having a fair market value on the "Exercise Date" (as
such term is defined below) equal to the option price for the Optioned Shares
being purchased; or (iii) full payment by a combination of such shares of Common
Stock valued at fair market value on the Exercise Date and cash or check payable
to the order of the Corporation, equal in the aggregate to the option price for
the Optioned Shares being purchased; and
8.3 Furnish to the Corporation appropriate documentation that the person or
persons exercising the option, if other than the Optionee, have the right to
exercise this option on behalf of and for Optionee.
8B. Third Party Instructions. To the extent Optionee or any permitted
successor desires to exercise this option with funds supplied by a third party,
including a broker-dealer, under instructions to immediately sell all the
Optioned Shares subject to such exercise, the Corporation will take all
necessary and appropriate steps to assist in such exercise, including
confirmation that the exercise is permissible and that stock certificates will
be delivered as requested.
9. Successors and Assigns. Subject to Paragraph 3 hereof, the provisions of
this Agreement shall inure to the benefit of, and be binding upon, the
successors, administrators, heirs, devisees and legal representatives of
Optionee and the successors and assigns of the Corporation.
10. Issuance of Common Stock. The Corporation shall take all actions
reasonably necessary to obtain approval from any regulatory body having
authority deemed by the Corporation or its counsel to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option, and until such
approval is obtained the Corporation shall not be obligated to issue any shares
of Common Stock upon exercise of this option.
11. Taxes and Withholding. Optionee hereby agrees to make appropriate
arrangements with the Corporation which, in the judgment of the Corporation or
its counsel, are required for the satisfaction of any federal, state or local
income tax withholding
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requirements and federal social security and other employment tax requirements
applicable to the exercise of this option. At the election of Optionee any
requirements for income tax withholdings and social security or other employment
taxes may be satisfied, in whole or in part, in Optioned Shares issuable upon
exercise of this option or otherwise in shares of Common Stock. For purposes of
satisfying such requirements, Optioned Shares or shares of Common Stock shall be
valued at-their fair market value on the Exercise Date. optionee further
acknowledges that the exercise of this option may subject Optionee to federal
and state income tax, and optionee agrees that the Corporation shall no be
liable therefor.
12. Certain Definitions.
12.1 For purposes of this Agreement, the fair market value of an
Optioned Share or a share of Common Stock shall be the closing price of a
share of Common Stock on the business day which immediately precedes the
Exercise Date on the principal exchange on which the shares of Common Stock
are then listed or admitted to trading, as such price is officially
reported by the composite tape of transactions on such exchange. If there
are no reported sales of shares of Common Stock on the principal exchange
on such day, then the closing price on such exchange on the next preceding
day for which there do exist such reported sales shall be determinative of
fair market value. If the shares of Common Stock are not then listed or
admitted to trading on any such exchange, the fair market value of a share
on any relevant day shall be either (i) the closing sales price as reported
n the National Market System of the National Association of Securities
Dealers, Inc. through NASDAQ, or (ii) if such sales are not reported on
said National Market System, the average of the closing bid and asked
prices of a share of Common Stock as furnished by the National Association
of Securities Dealers, Inc., through NASDAQ or a similar organization if
NASDAQ is no longer reporting such information. In the event the fair
market value of a share of Common Stock cannot be determined under the
foregoing, then said fair market value shall be determined in good faith by
the Board under any method deemed by it to be appropriate.
12.2 The Exercise Date shall be the date on which written notice of
the exercise of this option is given by optionee.
13. Governing Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California.
14. Stockholder Rights. Neither optionee nor his transferee or assignee, if
any, shall have any rights of a stockholder with respect to any shares covered
by this option unless such shares have been issued to Optionee or his transferee
or assignee by the Corporation pursuant to the valid exercise of
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<PAGE>
the option and the full payment by Optionee or such transferee or assignee of
the option price therefor.
15. Notice. All notices to the Corporation provided for in this Agreement
shall be addressed to the President or Chief Financial officer of the
Corporation.at the principal office of the Corporation, and all notices to
Optionee shall be addressed to optionee at the address of Optionee on file with
the Corporation, or to such other address as either may designate to the other
in writing. A notice shall be deemed to be duly given if and when enclosed in a
properly addressed, sealed envelope deposited, postage prepaid, with the United
States Postal Service. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee or to
the President or Chief Financial Officer of the Corporation.
16. Registration Rights.
16.1 The Corporation agrees that upon a written request (the "Registration
Request") from Optionee or in the event of his death or disability, optionee's
executor, administrator, heir, legatee or legal representative, as the case may
be (hereinafter in this Paragraph 16, the "Option Holder"), the Corporation
shall, with reasonable promptness, but in no event later than 120 days after
receipt by the Corporation of such request, file a registration statement on
Form S-1 (or on Form S-2 or Form S-3 if either such Form can be used) under the
Securities Act of 1933 (the "1933 Act") or any comparable form then in force
(the "Registration Statement"), for any or all of the Optioned Shares and shall
use its best efforts to cause the Registration Statement to become effective
subject to the following:
16.1.1 Option Holder is fully responsible for the underwriting of his
Optioned Shares. No underwriting for such shares shall be arranged by the
Corporation;
16.1.2 Option Holder shall pay the reasonable legal fees, accounting
expenses and printing costs of the Corporation, all underwriting discounts
and commissions applicable to the Optioned Shares and all legal fees and
expenses of his own counsel;
16.1.3 The Corporation shall not be required to file the Registration
Statement unless either: (a) in the opinion of counsel to the Corporation
or to Option Holder, registration under the 1933 Act of the Optioned Shares
proposed to be sold or otherwise disposed of by Option Holder is required
for such sale or other disposition, or (b) Option Holder advises the
Corporation in writing that, in the opinion of an independent investment
banker satisfactory to the Corporation, in order to effect the proposed
disposition of the Optioned Shares, registration is desirable even if not
legally necessary;
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<PAGE>
16.1.4 If the corporation, at the time it receives the Registration
Request, is filing or is contemplating the filing of a Registration
Statement for an offering of its securities or is engaged in any other
material transaction and the Board reasonably believes that such offering
or other material transaction would be adversely affected by the
Registration Request, the Corporation shall be entitled to postpone the
filing of any such requested Registration Statement for a reasonable time
not exceeding 120 days after the effective date of the Registration
Statement for the Corporation's offering, or in the case of a contemplated
filing or other material transaction, 200 days after the receipt of a
Registration Request; and
16.1.5 The Corporation shall not be required to file any such
Registration Statement within six months after the effective date of an
earlier Registration Statement pursuant to this Paragraph 16.1, nor shall
it be required to file a total of more than two Registration Statements
pursuant to this Paragraph 16.1, nor shall it be required to file any such
Registration Statement if over 75% of the Optioned Shares have already been
registered pursuant to this Paragraph 16.1, nor shall it be required to
file any such Registration Statement after November 11, 2005.
16.2 In the event that at any time while any of the Optioned Shares are
outstanding, the Corporation proposes to file a Registration Statement under the
1933 Act registering shares of Common Stock and on a form other than Form S-8,
Form S-14 or Form S-15, it will give written notice to Option Holder at least 30
days prior to the date of filing of the proposed Registration Statement. Upon
written request by option Holder within 15 days after receipt of such notice,
the Corporation will include in the securities to be registered by such
Registration Statement all of the Optioned Shares that Option Holder desires to
sell, subject to the following:
16.2.1 The Corporation shall pay the expense of such registration,
except that Option Holder shall pay all underwriting discounts and
commissions applicable to this Optioned Shares and all legal fees and
expenses of his own counsel, if any; provided that if the expense of such
registration is being borne by a person other than the corporation, Option
Holder shall pay his pro rata share of the incremental expense of his
securities being included in such registration;
16.2.2 The Corporation shall have received (a) an opinion of counsel
to Option Holder or of counsel to the Corporation stating that registration
under the 1933 Act of the Optioned Shares proposed to be sold or otherwise
disposed of by Optionee is required or (ii) option Holder advises the
Corporation in writing that in the opinion of an independent
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<PAGE>
investment banker satisfactory to the Corporation that in order to effect
the proposed disposition of the Optioned Shares, registration is
desirable even if not legally necessary;
16.2.3 If such Registration Statement is for a prospective
underwritten offering, Option Holder agrees to sell his Optioned Shares if
the Corporation so requests, on the same basis as that on which the other
securities covered by such Registration Statement are being sold. If such
Registration Statement is for a prospective underwritten offering by the
Corporation of its own account and in the opinion of the prospective
underwriters the inclusion in any Registration Statement of all of the
Optioned Shares required by Option Holder would be detrimental to the
proposed offering, the Corporation may reduce the amount of securities to
be included from Option Holder and any other holders who requested to be
included (in making such reduction each holder requesting inclusion shall
have included in the Registration Statement the same proportion of the
shares he requested to be included to the total number of shares requested
to be included by all requesting holders).
The Corporation may withdraw any such Registration Statement before it
becomes effective or postpone the offering of securities contemplated by
such Registration Statement without any obligation to option Holder;
16.2.4 The Corporation shall not be required to file any such
Registration Statement after March 9, 2005.
16.3 In connection with any Registration Statement filed pursuant to this
Paragraph 16, the Corporation shall file any post-effective amendment or
amendments to the Registration Statement which may be required to effect the
distribution contemplated thereby, provided that the Corporation shall not be
required to file any post-effective amendment to any Registration Statement more
than 90 days after the effective date of the Registration Statement.
16.4 During the period for which the Corporation is required to file and
keep effective a Registration Statement pursuant to this Paragraph 16, the
Corporation shall furnish Option Holder with the number of copies of the
Registration Statement (the "Prospectus") that he reasonably requests for the
purposes contemplated by the 1933 Act. The Corporation shall notify option
Holder during the period such Registration Statement is required to remain
effective or any time when a Prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as a result of which
the Registration Statement or Prospectus, as then in effect, includes an untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of circumstances
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<PAGE>
then existing. Option Holder agrees, upon receipt of such notice, forthwith to
cease making offers and sales of such securities pursuant to such Registration
Statement or deliveries of the Prospectus contained therein for any purposes and
to return to the Corporation the copies of such Registration Statement and
Prospectus not theretofore delivered by Option Holder. Subject to Paragraph 16.3
above, at the request of Option Holder, the Corporation shall prepare and
furnish to Option Holder a reasonable number of copies of any supplement to or
an amendment of such Registration Statement or Prospectus that may be necessary
so that, as thereafter delivered to the purchaser of such shares, such
Registration Statement and Prospectus shall not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances then existing. The Corporation shall promptly notify Option Holder
of any stop order or similar proceeding initiated by State or federal regulatory
bodies and, subject to Paragraph 16.3 above ' use its best efforts to take all
necessary steps expeditiously to remove such stop order or similar proceeding.
16.5 As a condition to the Corporation's obligations under Paragraph 16.1,
16.2 and 16.3 to cause the Registration Statement or an amendment to be filed or
shares to be included in the Registration Statement, option Holder shall provide
such information and execute such documents (including any agreement or
undertaking relating to expenses, indemnification or other matters contemplated
by this Paragraph 16) as may be required by the Corporation in connection with
such registration.
16.6 Notwithstanding the foregoing, in connection with any Registration
Statement provided for in this Paragraph 16, the Corporation shall not be
obligated to furnish any audited financial statements other than the audited
financial statements customarily prepared at the end of its fiscal year or to
furnish any unaudited or pro forma financial information with respect to any
period other than interim quarter periods.
16.7 In connection with the offering of any optioned Shares registered
pursuant to this Paragraph 16 the Corporation shall use its best efforts to
qualify or register the securities to be sold under the securities or "Blue Sky"
Laws of such jurisdictions as may be reasonably requested by Option Holder;
provided, however, that the Corporation shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction in which
it is not then qualified or to file any general consent to service of process.
The expenses of such qualification of registration shall be borne by the party
or parties bearing the expenses of the related registration under the 1933 Act.
16.8 In connection with any registration of securities pursuant to this
Agreement, to the extent permitted by
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<PAGE>
law, the Corporation shall indemnify the Option Holder and such option Holder
shall indemnify the Corporation in the manner provided in this Paragraph 16.8.
16.8.1 The Corporation shall indemnify and hold harmless Option Holder
for the sale or distribution of the Optioned Shares against all losses,
claims, damages or liabilities, joint or several to which option Holder may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
a material fact contained in any Registration Statement, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements herein, in the light of the circumstances
under which they are made, not misleading and subject to Paragraph 16.8.3
hereof, the Corporation shall reimburse Option Holder for any legal or
other expenses reasonably incurred by Option Holder in connection with
investigating or defending such loss, claim, damage, liability or action;
provided, however, that the Corporation shall not be required to indemnify
and hold harmless or reimburse option Holder to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or omission in any document made in reliance upon and in
conformity with information furnished to the Corporation by or on behalf of
Option Holder for use in the preparation of such documents.
16.8.2 Option Holder shall indemnify and hold harmless the
Corporation, each of its directors and officers,, each person, if any, who
controls the Corporation within the meaning of the 1933 Act, and each
underwriter against all losses, claim, damages or liabilities to which the
Corporation or any such director or officer, or controlling person or
underwriter may become subject, under the 1933 Act or otherwise, insofar as
such losses, claim, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a material fact
contained in any Registration Statement, Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission to state
therein a material,fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are
made, not misleading, in any case, to the extent, but only to the extent,
that such untrue statement or omission was made in.reliance upon and in
conformity with information furnished to the Corporation by and on behalf
of option Holder for use in the preparation thereof; and subject to
Paragraph 16.8.3, Option Holder shall reimburse the Corporation or any such
director or officer, controlling person or underwriter for any legal or
other expenses reasonably incurred by the Corporation or any such director
or officer, controlling person or
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<PAGE>
underwriter in connection with investigating or defending against any such
loss, claim, damage, liability or action.
16.8.3 Promptly after receipt by an indemnified party under Paragraphs
16.8.1 or 16.8.2 above, of notice of the commencement of any action, the
indemnified party shall notify the indemnifying party. The failure to so
notify the indemnifying party shall relieve it from any liability hereunder
to the extent any such failure to notify causes damages to the indemnifying
party, but not for any other liability which it may have to any party. In
case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to assume and control the defense of
the action at its expense provided the indemnifying party can establish to
the indemnified party's satisfaction, which shall not be unreasonably
withheld, that it is financially capable of supporting both the costs of
the defense and the potential liability, and if the indemnifying party
gives notice to such indemnified party of its election to assume and
control the defense and it is to the satisfaction of the indemnified party,
the indemnifying party shall not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense or investigation of the action.
17. Warranties and obligations of Optionee.
17.1 optionee represents, warrants and agrees that Optionee will acquire
and hold this option and the Optioned Shares for his own account and not with
the view to the resale or distribution thereof, except for resales or
distributions in accordance with federal and state securities laws and that
optionee will not, at any time, directly or indirectly, offer, sell, distribute,
pledge, or otherwise grant a security interest in or otherwise dispose of or
transfer all, any portion of, or any interest in this option or the Optioned
Shares (or solicit an offer to buy, take in pledge or otherwise acquire or
receive, all or any portion thereof) , except pursuant to either (i) a
Registration Statement on an appropriate form under the 1933 Act,, which
Registration Statement has become effective and is current with respect to this
option or the Optioned Shares being offered or sold, as the case may be, or (ii)
a specific exemption from the registration requirements of the 1933 Act, the
availability of which exemption shall be the subject matter of an opinion of
counsel for Optionee, such counsel and opinion to be reasonably satisfactory to
the Corporation, that no registration under the 1933 Act is required with
respect to such offer, sale, distribution, pledge, grant or other disposition or
transfer.
17.2 Optionee acknowledges that he understands that (i). this option and
the Optioned Shares must be held indefinitely unless they are registered or an
exemption from registration
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becomes available under the 1933 Act and the securities laws of any state; (ii)
the Corporation is under no obligation to register this option and the Optioned
Shares except as provided in Paragraph 16 hereof or to comply with any exemption
from such registration, including those portions of Rule 144 under the 1933 Act
to be complied with by the issuer; (iii) if and to the extend Rule 144 is
available for sales of this option and the Optioned Shares, such sales in
reliance upon Rule 144 may be made only after this option and the Optioned
Shares have been held for the requisite holding period and then only in limited
amounts in accordance with the conditions of that rule,, all of which must be
met; and (iv) Optionee must, therefore, continue to bear the economic risks of
the investment in such shares for an indefinite period of time after the
exercise of the option.
17.3 Immediately prior to the exercise of all or any portion of the option
by optionee, optionee shall deliver to the Corporation a signed statement, in a
form satisfactory to the Corporation, confirming that each of the
representations, warranties,, acknowledgments and agreements contained in this
Paragraph 17 is true as to Optionee as of the date of such exercise. Such
statement will be satisfactory to the Corporation if made in the form of Exhibit
A attached hereto.
17.4 In the event of the death or disability of optionee or the transfer or
assignment of this Option in accordance with Paragraph 3 hereof, the person
exercising this option shall execute and deliver to the Corporation a statement
similar to that set forth in Exhibit A hereto, setting forth certain
representations, warranties, acknowledgments and agreements with respect to the
Optioned Shares.
17.5 Optionee understands that all certificates representing shares
transferred pursuant to this Agreement, unless made pursuant to an appropriate
Registration Statement under the 1933 Act, will bear the following restrictive
legend:
"The shares represented by this certificate have not been
registered under the securities Act of 1933 and may not be
transferred or hypothecated without prior registration under
said Act or any exemption therefrom established to the
satisfaction of the issuer."
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<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in duplicate on its behalf by its duly authorized officer and optionee
has also executed this Agreement in duplicate, all as of the day and year first
above written.
DICEON ELECTRONICS, INC.
By /S/ PETER S. JONAS
------------------------------
Peter S. Jonas
President
/S/ C. STEPHEN MANSFIELD
------------------------------
C. Stephen Mansfield
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<PAGE>
EXHIBIT "A"
Diceon Electronics, Inc.
18522 Von Karman Avenue
Irvine, CA 92715
Gentlemen:
I am the holder of an option (the "Option") granted by Diceon Electronics, Inc.,
a Delaware corporation (the "Corporation"), on November 11, 1993, to purchase up
to an aggregate of 10,000 shares of the Corporation's Common Stock, pursuant to
the terms of a Non-Qualified Stock Option Agreement ("Agreement") dated November
11, 1993 between the Corporation and C. Stephen Mansfield. I hereby exercise my
Option with respect to ____________________ shares of Common Stock subject to
the Option at the price of $1.25 per share, subject to adjustment as provided
for in the Agreement, and I present herewith funds payable to the order of the
Corporation in the amount of $_______, and/or _____________________ shares of
Common Stock, which represents the full purchase price for the number of shares
purchased upon this exercise.
I hereby represent and warrant that I am purchasing the foregoing shares for my
own account and not with a view to the distribution thereof, and that I shall
neither offer nor sell any or all of such shares except pursuant to either (i) a
Registration Statement on an appropriate form under the Securities Act of 1933
(the "Act") I which Registration Statement has become effective and is current
with respect to the shares being offered or sold, or (ii) a specific exemption
from the registration requirements of the Act, the availability of which
exemption shall be the subject matter of an opinion of my counsel, which counsel
and opinion shall be reasonably satisfactory to the Corporation. I understand
and agree that such shares must be held indefinitely unless they are registered
or an exemption from registration becomes available under the Act and the
securities laws of any state. I acknowledge receipt from the Corporation of copy
of its most recent annual report to stockholders, the proxy statement filed in
connection with that report, its most recent annual report filed with the
Securities and Exchange Commission on Form 10-K, if requested and insofar as it
is not included in such annual report to stockholders, together with copies of
all reports required to be filed by the Corporation under Sections 13(a), 14(a),
14(c) and 15(d) of the Securities Exchange Act of 1934 since the filing of such
annual report ref erred to above. I further represent and warrant that I have
had the opportunity to ask questions of, and to receive answers from, the
officers and representatives of the Corporation concerning all material
information concerning the Corporation and the terms and conditions of the
transaction in which I am acquiring the shares of Common Stock.
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DICEON ELECTRONICS, INC.
Amendment to Non-Qualified Stock Option Agreements
This Amendment to Non-Qualified Stock Option Agreements ("Amendment")
is made as of June 6, 1994 between Diceon Electronics, Inc., a Delaware
corporation (the "Company"), and C. Stephen Mansfield ("Optionee").
WHEREAS, the Company and Optionee are parties to a Non-Qualified Stock
Option Agreement dated as of March 9, 1993 and to a Non-Qualified Stock Option
Agreement dated November 11, 1993 (collectively, the "Agreements"); and
WHEREAS, the Company and Optionee desire to amend certain provisions
of the Agreements as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is hereby agreed as follows:
1. Section 4 of each of the Agreements is hereby amended by deleting
such Sections in their entirety and inserting in lieu thereof the following
sentence:
"To the extent not previously vested, this Option
shall become fully exercisable on June 29, 1994."
2. Except to the extent expressly provided herein, the Agreements and
any and all instruments executed in connection therewith shall continue
unmodified and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
DICEON ELECTRONICS, INC.
By: /S/ PETER S. JONAS
------------------------------
Peter S. Jonas
President
/S/ C. STEPHEN MANSFIELD
------------------------------
C. Stephen Mansfield
March 10, 1995
Elexsys International, Inc.
18522 Von Karman Avenue
Irvine, California 92715
Re: 137,000 Shares of Common Stock, $1.00 par value
Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by Elexsys International, Inc. (formerly known as Diceon
Electronics, Inc.), a Delaware corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") on March 10, 1995 relating to the
registration under the Securities Act of 1933, as amended, of 137,000 shares of
Common Stock, par value $1.00 per share (the "New Shares"), of the Company in
connection with the 1994 non-qualified stock option plan and the directors'
stock option plans (collectively, the "Plans").
We have acted as special counsel to the Company in connection with the
Plans and the proposed issuance and sale of the New Shares and have examined
such records, documents and questions of law, and satisfied ourselves as to such
matters of fact, as we have considered relevant and necessary as a basis for
this opinion. In addition, we have examined the originals, or photocopies, of
such other corporate records of the Company, certificates of public officials
and of officers of the Company and such agreements, instruments and other
documents as we have deemed necessary as a basis for the opinions expressed
below. As to the questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied upon a
certificate of the Company or its officers or of public officials.
Based on the foregoing, we are of the opinion that:
<PAGE>
Elexsys International, Inc.
March 10, 1995
Page 2
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. The New Shares will be, as and when acquired in accordance with the
terms and conditions of the Plans, legally issued, fully paid and nonassessable.
We do not find it necessary for purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
"Blue Sky" laws of the various states to the sale of the New Shares. This
opinion is limited to the federal laws of the United States of America and the
General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to our firm in the Registration
Statement.
Very truly yours,
/s/ SIDLEY & AUSTIN
----------------------
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
of Elexsys International, Inc. (formerly Diceon Electronics, Inc.) on Form S-8
of our reports dated October 17, 1994, appearing in the Annual Report on
Form 10-K, of Diceon Electronics, Inc. for the year ended September 30, 1994.
Costa Mesa, California
March 10, 1995
/s/ DELOITTE & TOUCHE, LLP
