Registration No. 33-
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXAR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 941741481
(State of Incorporation) (I.R.S. Employer Identification No.)
48720 Kato Road
Fremont, CA 94538-1167
(Address of principal executive offices)
1996 Non-Employee Directors' Stock Option Plan
1997 Equity Incentive Plan
(Full title of the plans)
48720 Kato Road
Fremont, CA 94538-1167
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Robert L. Jones, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMUM
TITLE OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING PRICE REGISTRATION
REGISTERED REGISTERED PER SHARE (1) (1) FEE
Stock Options and
Common Stock (par 975,000 $26.625 $25,959,375.00 $7,866.50
value $.001)
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and
aggregate offering price are based upon the average of the high and low
prices of Registrant's Common Stock on October 2, 1997 as reported on the
Nasdaq National Market.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Exar Corporation (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
The Company's latest annual report on Form 10-K filed pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or either (1) the Company's latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Act"), that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed, or (2) the Company's effective registration
statement on Form 10 or 20-F filed under the Exchange Act containing audited
financial statements for the Company's latest fiscal year.
All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation and Bylaws include provisions to
(i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of a corporation, and,
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate liability for breach of the director's duty of
loyalty to the Registrant or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for any
transaction from which the director derived an improper personal benefit or for
any willful or negligent payment of any unlawful dividend or any unlawful stock
purchase agreement or redemption.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its listed enterprises, subject to certain limitations set
forth in such agreements. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder. The Registrant has purchased an insurance policy covering the
officers and directors of the Registrant with respect to certain liabilities
arising under the Securities Act or otherwise.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
23.3 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney is contained on the signature pages
99.1 1996 Non-Employee Directors' Stock Option Plan
99.2 1997 Equity Incentive Plan
99.3 Irrevocable Notice of Option Exercise/Payment Authorization
99.4 Incentive Stock Option Agreement; Supplemental Stock Option Agreement
UNDERTAKINGS
The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
To include any prospectus required by section 10(a)(3) of the
Securities Act;
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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (S 230.424(b) of this chapter)
if, in the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
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.
To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Fremont, State of California, on September 30,
1997.
EXAR CORPORATION
By s/Donald L. Ciffone, Jr.
Donald L. Ciffone, Jr.
Title: Chief Executive Officer,
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald W. Guire and Donald L. Ciffone,
Jr., and each or any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
s/Donald L. Ciffone, Jr.
Chief Executive Officer, September 30, 1997
(Donald L. Ciffone, Jr.) President and Director
s/Ronald W. Guire
Executive Vice President,September 30, 1997
(Ronald W. Guire) Chief Financial Officer
and Director (Principal
Financial and Accounting
Officer)
s/Raimon L. Conlisk
Director and Chairman of September 30, 1997
(Raimon L. Conlisk) the Board
s/James E. Dykes
Director September 30, 1997
(James E. Dykes)
s/George D. Wells
Director September 30, 1997
(George D. Wells)
EXHIBIT INDEX
DESCRIPTION
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Deloitte & Touch LLP
23.2 Consent of Cooley Godward LLP is contained in
Exhibit 5.1 to this Registration Statement
23.3 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney is contained on the signature pages
99.1 1996 Non-Employee Directors' Stock Option Plan
99.2 1997 Equity Incentive Plan
99.3 Irrevocable Notice of Option Exercise/Payment Authorization
99.4 Incentive Stock Option Agreement; Supplemental Stock Option Agreement
EXHIBIT 5.1
Robert L. Jones
650 843-5034
[email protected]
October 7, 1997
VIA FEDERAL EXPRESS
Exar Corporation
48720 Kato Road
Fremont, CA 94538-1167
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Exar Corporation (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 975,000 shares of the Company's Common
Stock, $.001 par value, (the "Shares") pursuant to its 1996 Non-Employee
Directors' Stock Option Plan and the 1997 Equity Incentive Plan (together, the
"Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: s/Robert L. Jones
Robert L. Jones
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
EXAR Corporation and subsidiaries on Form S-8 of our report dated April 30,
1997, included in the Annual Report on Form 10-K of EXAR Corporation for the
year ended March 31, 1997.
DELOITTE & TOUCHE LLP
San Jose, California
October 3, 1997
21375027
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement, on
Form S-8 for the 1996 Non-Employee Director's Stock Option Plan, of Exar
Corporation, of our report dated May 2, 1996, relating to the consolidated
balance sheet of Exar Corporation and subsidiaries as of March 31, 1996, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for each of the years in the two-year period ended March 31, 1996, and the
related consolidated financial statement schedule, which report appears in the
March 31, 1997, annual report on Form 10-K of Exar Corporation.
KPMG PEAT MARWICK LLP
Palo Alto, California
October 6, 1997
EXHIBIT 99.1
EXAR CORPORATION
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ADOPTED JULY 23, 1996
APPROVED BY STOCKHOLDERS AUGUST 29, 1996
AMENDED AND RESTATED MARCH 20, 1997
AMENDED AND RESTATED JUNE 12, 1997
AMENDED AND RESTATED SEPTEMBER 18, 1997
1. PURPOSE.
(a) The purpose of the Exar Corporation 1996 Non-Employee Directors' Stock
Option Plan (the "Plan") is to provide a means by which each director of Exar
Corporation, a Delaware corporation (the "Company") who is not otherwise an
employee of the Company or of any Affiliate of the Company (each such person
being hereafter referred to as a "Non-Employee Director") will be given an
opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now serving as Non-Employee Directors of the Company, to secure and
retain the services of persons capable of serving in such capacity, and to
provide incentives for such persons to exert maximum efforts for the success of
the Company.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 11 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to options granted under
the Plan shall not exceed in the aggregate one hundred fifty thousand (150,000)
shares of the Company's common stock. If any option granted under the Plan
shall for any reason expire or otherwise terminate without having been exercised
in full, the stock not purchased under such option shall again become available
for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
4. ELIGIBILITY.
Options shall be granted only to Non-Employee Directors of the Company.
5. NON-DISCRETIONARY GRANTS.
(a) Each person who is elected for the first time to be a Non-Employee
Director after the effective date of the Plan shall, on the date of initial
election as a Non-Employee Director by the Board or shareholders of the Company,
automatically be granted an option to purchase twenty-two thousand five hundred
(22,500) shares of the Company's common stock (subject to adjustment as provided
in paragraph 11 hereof) on such date upon the terms and conditions set forth
herein.
On each yearly anniversary date of each Non-Employee Director's
initial grant pursuant to subparagraph 5(a) or pursuant to the Company's 1991
Non-Employee Directors' Stock Option Plan (or the next day that the Company's
stock is traded should the stock not trade on such date), an option to purchase
seven thousand five hundred (7,500) shares of the Company's common stock
(subject to adjustment as provided in paragraph 11 hereof) shall automatically
be granted to such person provided that such person (i) is at that time a Non-
Employee Director, and (ii) has served continuously as a Non-Employee Director
for the entire preceding twelve (12) months.
6. DEFERRED DIRECTOR FEE GRANTS.
(a) Each Non-Employee Director may elect to apply a percentage of his or
her fees for any calendar year otherwise payable in cash for his or her service
on the Board or a committee of the Board ("Directors' Fees"), in an amount
equal to at least twenty-five percent (25%) but in no event more than fifty
percent (50%), to the acquisition of an option to purchase shares of the
Company's common stock pursuant to the terms of this paragraph 6 ("Deferred
Fee Option"). Such election is irrevocable and must be filed with the Board
or a delegate of the Board prior to the commencement of the calendar year in
which the Directors' Fees to be deferred are earned. Notwithstanding the
foregoing, a newly elected Non-Employee Director may file such an irrevocable
election with the Board or a delegate of the Board within thirty (30) days of
the date the Non-Employee Director is elected to the Board.
Each Non-Employee Director who files such a timely election shall
automatically be granted an option under this paragraph 6 on (i) the first
trading day in January of the calendar year for which the deferral election is
to be in effect; or (ii) for a newly elected Non-Employee Director, the first
trading day of the month following the month in which the Non-Employee Director
files such election.
Notwithstanding the foregoing, if the number of shares remaining available
for the grant of options under the Plan is not sufficient to cover non-
discretionary option grants under paragraph 5 and Deferred Fee Options, the
available shares shall be first allocated to non-discretionary option grants
under paragraph 5 and then ratably among the Non-Employee Directors eligible to
receive a Deferred Fee Option based on their relative deferred fees.
(b) The purchase price per share of common stock of the Company for the
shares to be purchased pursuant to the exercise of any Deferred Fee Option shall
be 33-1/3% of the fair market value of the stock on the date such Deferred Fee
Option is granted.
(c) The number of shares of common stock of the Company subject to a
Deferred Fee Option shall be determined pursuant to the following formula
(rounded down to the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the maximum amount of the Directors' Fees subject to the
Non-Employee Director's deferral election, and
B is the fair market value per share of stock on the option grant
date.
(d) Each Deferred Fee Option shall vest (become exercisable) in
installments on each date that Directors' Fees would have been payable in cash
had no deferral election been in effect under this paragraph 6 with respect to
the number of shares equal to (1) the aggregate shares subject to the Deferred
Fee Option multiplied by (2) the fraction in which the numerator is the
Directors' Fees that the Non-Employee Director would have received in cash on
such date absent a deferral election and the denominator is the aggregate
Directors' Fees that the Non-Employee Director would have received for the
calendar year in cash absent a deferral election.
Each Deferred Fee Option shall be fully vested and exercisable in the event
the Non-Employee Director dies or becomes disabled within the meaning of Section
22(e)(3) of the Code while a director or immediately prior to the consummation
of a corporate reorganization event as described in paragraph 11(b).
(e) If a Non-Employee Director's term as a director for the Company shall
terminate for any reason, any Deferred Fee Option then held by such Non-Employee
Director, to the extent then exercisable, shall remain exercisable after the
termination of his or her service as a Non-Employee Director for a period of
three (3) years (but in no event beyond seven years from the date of grant of
the Deferred Fee Option). If the Deferred Fee Option is not exercised during
the applicable period, it shall be deemed to have been forfeited and of no
further force or effect.
7. OPTION PROVISIONS.
Each option shall be subject to the following terms and conditions:
(a) The term of each option commences on the date it is granted and,
unless sooner terminated as set forth herein, expires on the date ("Expiration
Date") seven (7) years from the date of grant. If the optionee's service as a
Non-Employee Director terminates for any reason or for no reason, the option
shall terminate on the earlier of the Expiration Date or the date twelve
(12) months following the date of termination of such service; provided,
however, that if a Non-Employee Director becomes an employee or consultant of
the Company while holding an option issued under the Plan, the option shall
terminate on the earlier of the Expiration Date or the date twelve (12) months
after the date on which both the directorship and the employment or consulting
relationship of the optionee with the Company terminate. Notwithstanding the
foregoing, if such termination is due to the optionee's death or permanent and
total disability, within the meaning of Section 422(c)(6) of the Code, the
option shall terminate on the earlier of the Expiration Date or twelve (12)
months following termination of such directorship or service. In any and all
circumstances, an option may be exercised following termination of the
optionee's service as a Non-Employee Director or employee of or consultant to
the Company or any Affiliate only as to that number of shares as to which it was
exercisable on the date of termination of such service under the provisions of
subparagraph 7(e).
(b) The exercise price of each option shall be one hundred percent (100%)
of the fair market value of the stock subject to such option on the date such
option is granted.
(c) Payment of the exercise price of each option is due in full in cash at
the time of exercise.
(d) An option shall not be transferable except by will or by the laws of
descent and distribution, or pursuant to a domestic relations order satisfying
the requirements of Rule 16(a)-12 under the Securities Exchange Act of 1934 and
shall be exercisable during the lifetime of the person to whom the option is
granted only by such person (or by his guardian or legal representative) or
transferee pursuant to such an order. Notwithstanding the foregoing, the
optionee may, by delivering written notice to the Company in a form satisfactory
to the Company, designate a third party who, in the event of the death of the
optionee, shall thereafter be entitled to exercise the option.
(e) The option shall become exercisable in annual installments over a
period of four (4) years from the date of grant, with twenty-five percent (25%)
becoming exercisable at the end of each anniversary of the date of grant,
provided that the optionee has, during the entire period prior to such vesting
date, continuously served as a Non-Employee Director or employee of or
consultant to the Company or any Affiliate of the Company, whereupon such option
shall become fully exercisable in accordance with its terms with respect to that
portion of the shares represented by that installment.
(f) The Company may require any optionee, or any person to whom an option
is transferred under subparagraph 7(d), as a condition of exercising any such
option: (i) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters; and
(ii) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then-currently-effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii), as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then-applicable securities laws.
(g) Notwithstanding anything to the contrary contained herein, an option
may not be exercised unless the shares issuable upon exercise of such option are
then registered under the Securities Act or, if such shares are not then so
registered, the Company has determined that such exercise and issuance would be
exempt from the registration requirements of the Securities Act.
8. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan, or any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such options.
9. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under the Plan
shall constitute general funds of the Company.
10. MISCELLANEOUS.
(a) Neither an optionee nor any person to whom an option is transferred
under subparagraph 7(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option unless
and until such person has satisfied all requirements for exercise of the option
pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant thereto
shall confer upon any Non-Employee Director any right to continue in the service
of the Company or any Affiliate or shall affect any right of the Company, its
Board or shareholders or any Affiliate to terminate the service of any Non-
Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a group, and
no beneficiary or other person claiming under or through him, shall have any
right, title or interest in or to any option reserved for the purposes of the
Plan except as to such shares of common stock, if any, as shall have been
reserved for him pursuant to an option granted to him.
(d) In connection with each option made pursuant to the Plan, it shall be
a condition precedent to the Company's obligation to issue or transfer shares to
a Non-Employee Director, or to evidence the removal of any restrictions on
transfer, that such Non-Employee Director make arrangements satisfactory to the
Company to insure that the amount of any federal or other withholding tax that
may be required to be withheld with respect to such sale or transfer, or such
removal or lapse, is made available to the Company for timely payment of such
tax.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and price per
share of stock subject to outstanding options.
(b) In the event of: (1) a dissolution or liquidation of the Company;
(2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; or (4) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged, excluding in each case a capital
reorganization in which the sole purpose is to change the state of incorporation
of the Company, then all outstanding options shall become exercisable in full
for a period of at least ten (10) days prior to such event. Outstanding options
which have not been exercised prior to such event shall terminate on the date of
such event unless assumed by a successor corporation.
12. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
Except as provided in paragraph 11 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company where stockholder approval is necessary for the Plan to comply with
the requirements of Rule 16b-3 or Nasdaq or securities exchange listing
requirements.
(b) Rights and obligations under any option granted before any amendment
of the Plan shall not be impaired by such amendment unless (i) the Company
requests the consent of the person to whom the option was granted and (ii) such
person consents in writing.
13. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. No options
may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any option granted while the Plan is in
effect shall not be impaired by suspension or termination of the Plan, except
with the consent of the person to whom the option was granted.
14. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
The Plan shall become effective on the date approved by the Board, provided
that no options may be exercised unless and until the Plan is approved by the
stockholders of the Company.
EXHIBIT 99.2
EXAR CORPORATION
1997 EQUITY INCENTIVE PLAN
ADOPTED BY THE BOARD JUNE 12, 1997
APPROVED BY THE STOCKHOLDERS SEPTEMBER 18, 1997
AMENDED BY THE BOARD SEPTEMBER 18, 1997
1. PURPOSE.
(a) The purpose of the 1997 Equity Incentive Plan (the "Plan") is to
provide a means by which selected employees and directors of and consultants to
Exar Corporation, a Delaware corporation (the "Company"), and its Affiliates, as
defined in subparagraph 1(b), may be given an opportunity to benefit from
increases in value of the stock of the Company through the granting of
(i) incentive stock options, (ii) nonstatutory stock options, and (iii) stock
bonuses, all as defined below and collectively referred to as "Stock Awards".
(b) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
(the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now employed by or serving as consultants or directors to the Company,
to secure and retain the services of persons capable of filling such positions,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that the Stock Awards issued under the Plan shall,
in the discretion of the Board of Directors of the Company (the "Board") or any
committee to which responsibility for administration of the Plan has been
delegated pursuant to subparagraph 2(c), be either incentive stock options as
that term is used in Section 422 of the Code ("Incentive Stock Options"),
options which do not qualify as Incentive Stock Options ("Nonstatutory Stock
Options") or stock bonuses as described in paragraph 6 hereof ("Stock Bonuses").
All options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and in such form as issued
pursuant to paragraph 5, and a separate certificate or certificates will be
issued for shares purchased on exercise of each type of option. An option
designated as a Nonstatutory Stock Option shall not be treated as an Incentive
Stock Option.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until the Board
delegates administration to a committee, as provided in subparagraph 2(c).
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how Stock Awards shall be
granted; whether a Stock Award will be an Incentive Stock Option, a Nonstatutory
Stock Option, a Stock Bonus or a combination of the foregoing; the provisions of
each Stock Award granted (which need not be identical), including the time or
times when a person shall be permitted to receive stock pursuant to a Stock
Award; and the number of shares with respect to which Stock Awards shall be
granted to each such person.
(2) To construe and interpret the Plan and Stock Awards granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award Agreement in
a manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective. "Stock Award Agreement" means a written agreement between the
Company and a holder of a Stock Award evidencing the terms and conditions of an
individual Stock Award grant. Each Stock Award Agreement shall be subject to
the terms and conditions of the Plan.
(3) To amend the Plan as provided in paragraph 12.
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company.
(c) The Board may delegate administration of the Plan to one or more
committees, provided, however, that if such a committee is authorized to
administer Stock Awards with respect to officers and directors of the Company,
such committee shall be composed of not fewer than two (2) members of the Board,
all of whom may be, in the discretion of the Board, non-employee directors as
defined in subparagraph 2(d) or outside directors as defined in subparagraph
2(e). These committees are referred to herein as the "Committee," as
applicable. If administration is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan or the administration of
Stock Awards with respect to officers and directors, as the case may be, the
powers theretofore possessed by the Board, subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. The Board may abolish the Committee at any time
and revest in the Board the administration of the Plan. Notwithstanding
anything in this paragraph to the contrary, the Board or the Committee may
delegate to a committee of one or more members of the Board the authority to
grant options to eligible persons who (1) are not then subject to Section 16 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and/or (2)
are either (i) not then covered employees (as defined in subparagraph 2(f)) and
are not expected to be covered employees at the time of recognition of income
resulting from such option, or (ii) not persons with respect to whom the Company
wishes to comply with Section 162(m) of the Code.
(d) The term "non-employee director," as used in this Plan, shall mean a
director who either (i) is not a current employee or officer of the Company or
its parent or subsidiary, does not receive compensation (directly or indirectly)
from the Company or its parent or subsidiary for services rendered as a
consultant or in any capacity other than as director (except for an amount as to
which disclosure would not be required under Item 404(a) of Regulation S-K
promulgated pursuant to the Securities Act ("Regulation S-K")), does not possess
an interest in any other transaction as to which disclosure would be required
under Item 404(a) of Regulation S-K, and is not engaged in a business
relationship as to which disclosure would be required under Item 404(b) of
Regulation S-K; or (ii) is otherwise considered a "non-employee director" for
purposes of Rule 16b-3 promulgated under the Exchange Act.
(e) The term "outside director," as used in this Plan, shall mean a
director who either (i) is not a current employee of the Company or an
"affiliated corporation" (as defined in the Treasury regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an
affiliated corporation receiving compensation for prior services (other than
benefits under a tax qualified pension plan), was not an officer of the Company
or an affiliated corporation at any time, and is not currently receiving direct
or indirect enumeration from the Company or an affiliated corporation for
personal services in any capacity other than as a director, or (ii) is otherwise
considered an "outside director" for purposes of Section 162(m) of the Code.
(f) The term "covered employee," as used in this Plan, shall mean the
chief executive officer and the four (4) other highest compensated officers of
the Company.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 11 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to Stock Awards granted
under the Plan shall not exceed in the aggregate Eight Hundred Twenty Five
Thousand (825,000) shares of the Company's $.0001 par value common stock, plus
any shares of such common stock that would have become available under the
Company's 1991 Stock Option Plan due to the expiration or other termination of
any stock award thereunder. If any Stock Award granted under the Plan shall for
any reason expire or otherwise terminate prior to the issuance of the stock
subject to such Stock Award (or fail to vest in the case of a Stock Bonus), the
stock not issued pursuant to such Stock Award shall again become available for
the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to employees (including
officers) of the Company or its Affiliates. A director of the Company shall not
be eligible to receive Incentive Stock Options unless such director is also an
employee (including an officer) of the Company or any Affiliate. Nonstatutory
Stock Options and Stock Bonuses may be granted only to employees (including
officers) of, directors of or consultants to the Company or its Affiliates.
(b) No person shall be eligible for the grant of an Incentive Stock Option
under the Plan if, at the time of grant, such person owns (or is deemed to own
pursuant to Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of any of its Affiliates unless the exercise price of such Incentive Stock
Option is at least one hundred ten percent (110%) of the fair market value of
such stock at the date of grant and the option is not exercisable after the
expiration of five (5) years from the date of grant.
(c) Subject to the provisions of paragraph 11 relating to adjustments upon
changes in stock, no person shall be eligible to be granted options covering
more than Three Hundred Thousand (300,000) shares of the Company's common stock
in any calendar year.
5. OPTION PROVISIONS.
Each option shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate. The provisions
of separate options need not be identical, but each option shall include
(through incorporation of provisions hereof by reference in the option or
otherwise) the substance of each of the following provisions:
(a) No option shall be exercisable after the expiration of a date
specified in the option (which date shall be no more than ten (10) years from
the date the option was granted).
(b) The exercise price of each Incentive Stock Option shall be not less
than one hundred percent (100%) of the fair market value of the stock subject to
the option on the date the option is granted. Except as provided with respect
to Deferred Salary Grants under paragraph 7. The exercise price of each
Nonstatutory Stock Option shall be not less than fifty percent (50%) of the fair
market value of the stock subject to the option on the date the option is
granted. Notwithstanding the foregoing, an option (whether an Incentive Stock
Option or a Nonstatutory Stock Option) may be granted with an exercise price
lower than that set forth in the preceding sentence if such option is granted
pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the Code.
(c) The purchase price of stock acquired pursuant to an option shall be
paid, to the extent permitted by applicable statutes and regulations, either
(i) in cash at the time the option is exercised, or (ii) at the discretion of
the Board or the Committee, either at the time of the grant or exercise of the
option, (A) by delivery to the Company of other common stock of the Company,
(B) according to a deferred payment or other arrangement (which may include,
without limiting the generality of the foregoing, the use of other common stock
of the Company) with the person to whom the option is granted or to whom the
option is transferred pursuant to subparagraph 5(d), or (C) in any other form of
legal consideration that may be acceptable to the Board or the Committee.
In the case of any deferred payment arrangement, interest shall be payable
at least annually and shall be charged at the minimum rate of interest necessary
to avoid the treatment as interest, under any applicable provisions of the Code,
of any amounts other than amounts stated to be interest under the deferred
payment arrangement.
(d) An option shall not be transferable except by will or by the laws of
descent and distribution, and shall be exercisable during the lifetime of the
person to whom the option is granted only by such person; provided, however,
that a Nonstatutory Stock Option may be transferred to the extent provided in
the option agreement. The person to whom the option is granted may designate,
by delivering written notice of the same to the Company (in a form acceptable to
the Company) during such person's lifetime, a third party who, in the event of
the death of the optionee, shall thereafter be entitled to exercise the option
and receive any and all proceeds thereof.
(e) The total number of shares of stock subject to an option may, but need
not, be allotted in periodic installments (which may, but need not, be equal).
From time to time during each of such installment periods, the option may become
exercisable ("vest") with respect to some or all of the shares allotted to that
period, and may be exercised with respect to some or all of the shares allotted
to such period and/or any prior period as to which the option was not fully
exercised. During the remainder of the term of the option (if its term extends
beyond the end of the installment periods), the option may be exercised from
time to time with respect to any shares then remaining subject to the option.
The provisions of this subparagraph 5(e) are subject to any option provisions
governing the minimum number of shares as to which an option may be exercised.
(f) The Company may require any optionee, or any person to whom an option
is transferred under subparagraph 5(d), as a condition of exercising any such
option, (1) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters and/or to
employ a purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters, and that he or
she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the option; and (2) to give
written assurances satisfactory to the Company stating that such person is
acquiring the stock subject to the option for such person's own account and not
with any present intention of selling or otherwise distributing the stock.
These requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (i) the issuance of the shares upon the exercise of the
option has been registered under a then currently effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
or (ii) as to any particular requirement, a determination is made by counsel for
the Company that such requirement need not be met in the circumstances under the
then applicable securities laws.
(g) An option shall terminate three (3) months after termination of the
optionee's employment or relationship as a consultant or director with the
Company or an Affiliate, unless (i) such termination is due to such person's
permanent and total disability, within the meaning of Section 422(c)(6) of the
Code, in which case the option may, but need not, provide that it may be
exercised at any time within one (1) year following such termination of
employment or relationship as a consultant or director; or (ii) the optionee
dies while in the employ of or while serving as a consultant or director to the
Company or an Affiliate, or within not more than three (3) months after
termination of such relationship, in which case the option may, but need not,
provide that it may be exercised at any time within eighteen (18) months
following the death of the optionee by the person or persons entitled to
exercise the option pursuant to subparagraph 5(d) hereof; or (iii) the option by
its terms specifies either (A) that it shall terminate sooner than three (3)
months after termination of the optionee's employment or relationship as a
consultant or director, or (B) that it may be exercised more than three (3)
months after termination of such relationship with the Company or an Affiliate.
This subparagraph 5(g) shall not be construed to extend the term of any option
or to permit anyone to exercise the option after expiration of its term, nor
shall it be construed to increase the number of shares as to which any option is
exercisable from the amount exercisable on the date of termination of the
optionee's employment or relationship as a consultant or director.
(h) The option may, but need not, include a provision whereby the optionee
may elect at any time during the term of his or her employment or relationship
as a consultant or director with the Company or any Affiliate to exercise the
option as to any part or all of the shares subject to the option prior to the
stated vesting date of the option or of any installment or installments
specified in the option. Any shares so purchased from any unvested installment
or option may be subject to a repurchase right in favor of the Company or to any
other restriction the Board or the Committee determines to be appropriate.
(i) To the extent provided by the terms of an option, the optionee may
satisfy any federal, state or local tax withholding obligation relating to the
exercise of such option by any of the following means or by a combination of
such means: (1) tendering a cash payment; (2) authorizing the Company to
withhold from the shares of the common stock otherwise issuable to the
participant as a result of the exercise of the stock option a number of shares
having a fair market value equal to the amount of the withholding tax
obligation; or (3) delivering to the Company owned and unencumbered shares of
the common stock having a fair market value equal to the amount of the
withholding tax obligation.
6. STOCK BONUS PROVISIONS.
Each Stock Bonus agreement shall be in such form and shall contain such
terms and conditions as the Board or the Committee shall deem appropriate. The
terms and conditions of Stock Bonus agreements may change from time to time, and
the terms and conditions of separate agreements need not be identical, but each
Stock Bonus agreement shall include (through incorporation of provisions hereof
by reference in the agreement or otherwise) the substance of each of the
following provisions as appropriate:
(a) The purchase price of stock under each Stock Bonus agreement shall be
such amount as the Board or Committee shall determine and designate in such
agreement. Notwithstanding the foregoing, the Board or the Committee may
determine that eligible participants in the Plan may be awarded stock pursuant
to a Stock Bonus agreement in consideration for past services actually rendered
to the Company or for its benefit.
(b) No rights under a Stock Bonus agreement shall be assignable by any
participant under the Plan, either voluntarily or by operation of law, except
where such assignment is required by law or expressly authorized by the terms of
the applicable Stock Bonus agreement.
(c) The purchase price, if any, of stock acquired pursuant to a Stock
Bonus agreement shall be paid either: (i) in cash at the time of purchase;
(ii) at the discretion of the Board or the Committee, according to a deferred
payment or other arrangement with the person to whom the stock is sold; or
(iii) in any other form of legal consideration that may be acceptable to the
Board or the Committee in their discretion. Notwithstanding the foregoing, the
Board or the Committee to which administration of the Plan has been delegated
may award stock pursuant to a Stock Bonus agreement in consideration for past
services actually rendered to the Company or for its benefit.
(d) Shares of stock sold or awarded under a Stock Bonus agreement may, but
need not, be subject to a repurchase option in favor of the Company in
accordance with a vesting schedule to be determined by the Board or the
Committee.
(e) In the event an employee, director or consultant's employment or
relationship with the Company is interrupted or terminated by the Company or any
Affiliate, the Company may repurchase or otherwise reacquire any or all of the
shares of stock held by that person which have not vested as of the date of
termination under the terms of the Stock Bonus agreement between the Company and
such person.
(f) To the extent provided by the terms of the Stock Bonus agreement, the
recipient may satisfy any federal, state or local tax withholding obligation
relating to the receipt of the Stock Bonus by any of the following means or by a
combination of such means: (1) tendering a cash payment; (2) authorizing the
Company to withhold from the shares of the common stock otherwise issuable to
the recipient as a result of the Stock Bonus a number of shares having a fair
market value equal to the amount of the withholding tax obligation; or
(3) delivering to the Company owned and unencumbered shares of the common stock
having a fair market value equal to the amount of the withholding tax
obligation.
7. DEFERRED SALARY GRANTS.
(a) Any employee (including officers), director or consultant who is
selected by the Board or Committee ("Deferral Participant") may elect to apply a
portion of his or her base salary, in an amount equal to at least five thousand
dollars ($5,000) but in no event more than fifty thousand dollars ($50,000), to
the acquisition of an option to purchase shares of the Company's common stock
pursuant to the terms of this paragraph 7 ("Deferred Salary Option"). Such
election is irrevocable and must be filed with the Company prior to the
commencement of the calendar year in which the base salary to be deferred is
earned. Notwithstanding the foregoing, a newly hired, elected or appointed
Deferral Participant may file an irrevocable election with the Company within
thirty (30) days of the date the Deferral Participant commences service to the
Company.
Each Deferral Participant who files such a timely election shall
automatically be granted an option under this paragraph 7 on (i) the first
trading day in January of the calendar year for which the deferral election is
to be in effect; or (ii) for a newly hired, elected or appointed Deferral
Participant, the first trading day of the month following the month the Deferral
Participant files such election.
(b) The number of shares of Company common stock subject to a Deferred
Salary Option shall be determined pursuant to the following formula (rounded
down to the nearest whole number):
X= A / (B x 66-2/3%), where
X is the number of option shares,
A is the maximum amount of base salary subject to the deferral
election, and
B is the fair market value per share of the common stock on the option
grant date.
(c) The purchase price per share of common stock of the Company for the
shares to be purchased pursuant to the exercise of any Deferred Salary Option
shall be thirty three and one third percent (33-1/3%) of the fair market value
of the Company's common stock on the date such Deferred Salary Option is
granted.
(d) Each Deferred Salary Option shall vest (become exercisable) equally
over the twelve (12) month period that is the calendar year in which salary is
deferred, and shall terminate on the earlier of (i) ten (10) years from the
date the option was granted, or (ii) three (3) years following termination of
the Deferral Participant's employment or relationship as a consultant or
director with the Company or an Affiliate. If the Deferred Salary Option is not
exercised during the applicable period, it shall be deemed to have been
forfeited and of no further force or effect.
8. COVENANTS OF THE COMPANY.
(a) During the terms of the Stock Awards, the Company shall keep available
at all times the number of shares of stock required to satisfy such Stock Awards
up to the number of shares of stock authorized under the Plan.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock under the Stock Awards granted under the Plan;
provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any Stock Award granted under
the Plan or any stock issued or issuable pursuant to any such Stock Award. If,
after reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell stock
under such Stock Awards unless and until such authority is obtained.
9. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Stock Awards granted under the
Plan shall constitute general funds of the Company.
10. MISCELLANEOUS.
(a) The Board or the Committee shall have the power to accelerate the time
at which a Stock Award may first be exercised or the time during which a Stock
Award or any part thereof will vest, notwithstanding the provisions in the Stock
Award stating the time at which it may first be exercised or the time during
which it will vest.
(b) The holder of a Stock Award (including any person to whom an option is
transferred under subparagraph 5(d)) shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any shares subject to
such Stock Award unless and until such person has satisfied all requirements for
acquisition of the shares subject to the Stock Award pursuant to the terms of
the Stock Award Agreement.
(c) Nothing in the Plan or any instrument executed or Stock Award granted
pursuant thereto shall confer upon any eligible employee, consultant or director
or the holder of Stock Awards any right to continue in the employ of the Company
or any Affiliate (or to continue acting as a consultant or director) or shall
affect the right of the Company or any Affiliate to terminate the employment or
consulting relationship or directorship of any eligible employee, consultant or
director or other holder of Stock Awards with or without cause. In the event
that a holder of Stock Awards is permitted or otherwise entitled to take a leave
of absence, the Company shall have the unilateral right to (i) determine whether
such leave of absence will be treated as a termination of employment or
relationship as consultant or director for purposes of the Plan and
corresponding provisions of any outstanding Stock Awards, and (ii) suspend or
otherwise delay the time or times at which the shares subject to the Stock
Awards would otherwise vest.
(d) To the extent that the aggregate fair market value (determined at the
time of grant) of stock with respect to which incentive stock options (as
defined in the Code) granted after 1986 are exercisable for the first time by
any optionee during any calendar year under all plans of the Company and its
Affiliates exceeds one hundred thousand dollars ($100,000), the options or
portions thereof which exceed such limit (according to the order in which they
were granted) shall be treated as Nonstatutory Stock Options.
(e) (1) The Board shall have the authority to effect, at any time and
from time to time (i) the repricing of any outstanding options under the Plan
and/or (ii) with the consent of the affected holders of options, the
cancellation of any outstanding options and the grant in substitution therefor
of new options under the Plan covering the same or different numbers of shares
of common stock, but having an exercise price per share not less than fifty
percent (50%) of the fair market value (one hundred percent (100%) of the fair
market value in the case of an Incentive Stock Option generally or, in the case
of an Incentive Stock Option granted to a ten percent (10%) stockholder (as
defined in subparagraph 4(b)), not less than one hundred and ten percent (110%)
of the fair market value) per share of common stock on the new grant date.
Notwithstanding the foregoing: (i) in no event shall this subparagraph 10(e)
apply to any option held by a director or officer (corporate and Section 16
insider) of the Company, and (ii) no more than twenty percent (20%) of the
options reserved for issuance under the Plan shall be repriced or canceled
pursuant to this subparagraph 10(e).
(2) Shares subject to an option canceled under this subparagraph
10(e) shall continue to be counted against the maximum award of options
permitted to be granted pursuant to subparagraph 4(c) of the Plan. The
repricing of an outstanding option by the Board, resulting in a reduction of the
exercise price, shall be deemed to be a cancellation of the original option and
the grant of a substitute option; in the event of such repricing, both the
original and the substituted options shall be counted against the maximum awards
of options permitted to be granted pursuant to subparagraph 4(c) of the Plan.
The provisions of this subparagraph 10(e) shall be applicable only to the extent
required by Section 162(m) of the Code.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to
any Stock Award granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
Stock Awards will be appropriately adjusted in the class(es) and maximum number
of shares subject to the Plan and the class(es) and number of shares and price
per share of stock subject to outstanding Stock Awards.
(b) In the event of: (1) a dissolution or liquidation of the Company;
(2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; or (4) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged, excluding in each case a capital
reorganization in which the sole purpose is to change the state of incorporation
on the Company, then all outstanding options shall become exercisable in full
for a period of at least ten (10) days, and all stock bonuses shall be fully
vested, prior to such event. Outstanding options which have not been exercised
prior to such event shall terminate on the date of such event unless assumed by
a successor corporation.
12. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 11 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of
the Company to the extent such amendment requires stockholder approval in order
for the Plan to satisfy the requirements of Section 422 of the Code, to comply
with the requirements of Rule 16b-3 promulgated under the Exchange Act or to
satisfy any Nasdaq or securities exchange listing requirements.
(b) The Board may in its sole discretion submit any other amendment to
the Plan for stockholder approval, including, but not limited to, amendments
to the Plan intended to satisfy the requirements of Section 162(m) of the
Code and the regulations promulgated thereunder regarding the exclusion of
performance-based compensation from the limit on corporate deductibility of
compensation paid to certain executive officers.
(c) It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide optionees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee Incentive Stock
Options and/or to bring the Plan and/or Incentive Stock Options granted under it
into compliance therewith.
(d) Rights under any Stock Award granted before amendment of the Plan
shall not be impaired by any amendment of the Plan unless (i) the Company
requests the consent of the person to whom the Stock Award was granted and (ii)
such person consents in writing.
13. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on the day before the tenth
anniversary of the date the Plan is adopted or the date the Plan is approved by
the stockholders, whichever is earlier. No Stock Awards may be granted under
the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Stock Award granted while the Plan is
in effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Stock Award was granted.
14. EFFECTIVE DATE OF PLAN.
The Plan becomes effective on the date approved by the Board, but no stock
bonuses shall be granted and no options shall be exercised unless and until the
Plan has been approved by the stockholders of the Company, which approval shall
be within twelve (12) months before or after the date the Plan is adopted by the
Board.
EXHIBIT 99.3
EXAR CORPORATION
IRREVOCABLE NOTICE OF OPTION EXERCISE/PAYMENT AUTHORIZATION
NAME: PHONE:
HOME ADDRESS: ZIP CODE:
OPTION EXERCISE REQUEST
This constitutes irrevocable notice under my stock option that I elect to
purchase the following number of shares for the price set forth below:
Grant Date Number of Shares Option Price
I hereby request , ("the Broker"), to assist me in
exercising the aforementioned option(s). I understand that it is my
responsibility to notify the Broker of my specific selling instructions.
PAYMENT AUTHORIZATION
I hereby request the Broker to issue a check payable to Exar Corporation in the
amount of $ from my account as payment for purchase of the above
stock options. Please deliver payment to Exar via:
CHECK (Payable to:) JOURNAL (To account:)
EXAR Corp. EXAR Corp.
48720 Kato Road Stock Plan Account
Fremont, CA 94538 Prudential Securities
Acc't #TEY-95994
I hereby authorize taxes be witheld from all non-qualified options and
designated ISO's at the following rates and that the Broker issue a check to
EXAR Corporation for the total dollar amount :
Federal: % State: % FICA: %
I hereby irrevocably authorize EXAR to deliver stock from the aforementioned
option exercise to the Broker and registered in the name of the Broker. I
hereby acknowledge that the aforementioned disbursement from my brokerage
account is in payment of the amount due to EXAR upon the exercise of option(s)
for the stock granted to me by EXAR, plus applicable taxes. Further, I
understand that the Broker may charge interest on funds advanced to EXAR.
The balance of the proceeds, less applicable commissions or fees, should be:
paid directly to me by check deposited in my brokerage account
In consideration of the Broker and EXAR acting in accordance with my above
authorizations, I hereby indemnify both parties and further grant a security
interest in the stock to the Broker.
Signature of Optionee: Date:
Social Security Number:
COMPANY ACKNOWLEDGEMENT
Upon written confirmation of exercise, EXAR will promptly direct the Transfer
Agent to immediately deliver/transfer to the Broker the number of shares being
exercised as indicated by Optionee above. The options represented are fully
vested and available for exercise and simultaneous sale. The above employee's
options are registered pursuant to an S-8 Registration Statement and Exar is
current with all SEC filings.
(Signed) Date
Title: /EXAR CORPORATION Rev. 1/23/96)
EXHIBIT 99.4
EXAR CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
Exar Corporation (the "Company"), pursuant to its 1997 Equity Incentive Plan
(the "Plan") has this day granted to the undersigned optionee ("Optionee"), an
option to purchase shares of the $.0001 per value common stock of the Company
("Common Stock") as described herein. This option is subject to all of the
terms and conditions as set forth herein and on Attachments I, II and III
hereto, which are incorporated herein in their entirety.
Optionee:
Date of Grant:
Number of Shares Subject to Option:
Exercise Price Per Share:
Expiration Date:
Vesting Schedule: Date of
Number of Shares Earliest Exercise
(Installments) Vesting
The Optionee hereby acknowledges (i) receipt of this option and all attachments
referenced herein and understands that all rights and liabilities with respect
to this option are set forth in this option and said attachments (ii) that as
of the date of grant of this option, it sets forth the entire understanding
between the Optionee and the Company and its affiliates regarding the
acquisition of stock in the Company and supersedes all prior oral and written
agreements on that subject with the exception of (A) any stock option or stock
purchase plan maintained by the Company, and (B) the following agreements only:
None Other
(Initials)
EXAR CORPORATION
By
Duly authorized on behalf of Optionee
the Board of Directors
Address:
EXAR CORPORATION
SUPPLEMENTAL STOCK OPTION AGREEMENT
Exar Corporation (the "Company"), pursuant to its 1997 Equity Incentive (the
"Plan") has this day granted to the undersigned optionee ("Optionee"), an option
to purchase shares of the $.0001 per value common stock of the Company ("Common
Stock") as described herein. This option is subject to all of the terms and
conditions as set forth herein and on Attachments I, II and III hereto, which
are incorporated herein in their entirety.
Optionee:
Date of Grant:
Number of Shares Subject to Option:
Exercise Price Per Share:
Expiration Date:
Vesting Schedule: Date of
Number of Shares Earliest Exercise
(Installments) Vesting
The Optionee hereby acknowledges (i) receipt of this option and all attachments
referenced herein and understands that all rights and liabilities with respect
to this option are set forth in this option and said attachments (ii) that as
of the date of grant of this option, it sets forth the entire understanding
between the Optionee and the Company and its affiliates regarding the
acquisition of stock in the Company and supersedes all prior oral and written
agreements on that subject with the exception of (A) any stock option or stock
purchase plan maintained by the Company, and (B) the following agreements only:
None Other
(Initials)
EXAR CORPORATION
By
Duly authorized on behalf of Optionee
the Board of Directors
Address:
