Filed with the Securities and Exchange Commission on September 30, 1996
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
...........................
FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
...........................
DCX, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-0868815
-------------------------------- ---------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
DCX 1995 Stock Incentive Plan
DCX 1991 Stock Option Plan
(Full title of the plans)
3002 North State Highway 83, Franktown, Colorado 80016-0659 (303)688-6070
--------------------------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's office)
Jeanne M. Anderson, President
3002 North State Highway 83, Franktown, Colorado 80016-0659 (303)688-6070
-------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Timothy J. O'Connor, Esq., O'Connor & Associates, P.C.
7730 E. Belleview Avenue, Suite 102, Englewood, Colorado 80111
Telephone (303)741-6100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share (1) price (1) registration fee (1)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
(no par value) (2) 400,000 shares $2.85 $1,140,000 $394
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock
(no par value) (3) 300,000 shares $2.85 $ 855,000 $295
- ---------------------------------------------------------------------------------------------------------------------------
Total $689
- ---------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 457(c), the maximum offering price was calculated based
upon the average of the bid and ask prices of the common stock as
reported on the NASDAQ SmallCap market on September 25, 1996.
(2) Shares issuable under the DCX 1995 Stock Incentive Plan.
(3) Shares issuable under the DCX 1991 Stock Option Plan.
===========================================================================================================================
1
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. See Item 2.
-----------------
Item 2. Registrant Information and Employee Plan Annual Information.
------------------------------------------------------------
The document(s) containing the information specified in Items 1 and 2 of
Part I of Form S-8 will be sent or given to participants in the DCX 1995 Stock
Incentive Plan (the "1995 Plan") and the DCX 1991 Stock Option Plan ("1991
Plan"), respectively, in accordance with Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"). Such document(s) are not being filed with the
Commission in compliance with the Note to Part 1 of Form S-8, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The documents listed in (a) through (c) below are incorporated by reference
in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13 (c), 14 and 15 (d) of the Securities
Exchange Act of 1934, as amended (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 in the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) The Registrant's annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act for the fiscal year ended September
30, 1995.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the report referred to
in (a) above.
(c) The description of the Common Stock of the Company that is
contained in the Registration Statement filed by the Company under the
Securities and Exchange Act of 1934 including any amendment or report filed for
the purpose of updating such description.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
2
<PAGE>
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article VII of the Articles of incorporation of the Company provides as
follows:
"The Corporation shall indemnify any and all of its directors, officers,
employees, authorized agents or former directors or officers or any person who
may have served at its request as a director or officer of another corporation
in which it owns shares of capital stock or of which it is a creditor, against
expenses actually and necessarily incurred by them to the fullest extent
permitted under Colorado Corporate Code, in connection with the defense of any
action, suit or proceeding in which they or any of them, are made parties, or a
party, by reason of being or having been directors or officers of the
Corporation, or of such other corporation, except in relation to matters to
which any such director or officer or former director or person shall be
adjudged in such action, suit or proceeding to be liable for gross negligence or
willful misconduct in the performance of duty. Such indemnification shall not be
deemed exclusive of any other rights to which those indemnified may be entitled,
under any by-law agreement, vote of shareholders or otherwise.
In addition no officer, director, employee or authorized agent shall be
personally liable for any injury to person or property arising out of a tort
committed by an employee unless such officer or director was personally involved
in the situation giving rise to the litigation or unless such officer or
director committed a criminal offense. The protection afforded hereby shall not
restrict other common law protection and rights that an officer or director may
have. This Article shall not restrict the Corporation's right to eliminate or
limit the personal liability of a director to the Corporation or to its
shareholders for monetary damages for breach of fiduciary duty as a director,
and the personal liability of directors to the Corporation and to its
shareholders for monetary damages shall be eliminated or limited, to the full
extent permitted by the Colorado Corporation Code, except for monetary damages
for: Any breach of the director's duty of loyalty to the Corporation or to its
shareholders; acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; acts specified in Section 7-5-114 of
the Colorado Corporation Code; or any transaction from which the director
derived an improper personal benefit. Nor shall the liability of a director of
the Corporation be eliminated or limited to the Corporation or to its
shareholders for monetary damages for any act or omission occurring prior to the
effective date of this Article."
Article VI of the Bylaws of the Company provides as follows:
"Each Director and Officer of this Corporation, and each person who shall
serve at its request as a Director or Officer of another corporation in which
this Corporation owns shares of capital stock or of which it is a creditor,
whether or not then in office, and his personal representatives, shall be
indemnified by the Corporation against all costs and expenses actually and
necessarily incurred by him in connection with the defense of any action, suit
or proceeding in which he may be involved or to which he may be made a party by
reason of his being or having been such Director or Officer, except in relation
to matters as to which he shall be finally adjudged in such action, suit or
proceeding to be liable for negligence or misconduct in the performance of duty.
Such costs and expenses shall include amounts reasonably paid in settlement for
the purpose of curtailing the costs of litigation, but only if the Corporation
is advised in writing by its counsel that in his opinion the person indemnified
did not commit such negligence or misconduct. The foregoing right of
indemnification shall not be exclusive of other rights to which he may be
entitled as a matter of law or by agreement."
Item 7. Exemption from Registration Claimed
------------------------------------
Not applicable.
3
<PAGE>
Item 8. Exhibits
Exhibit Description
(4)(a)(1) DCX 1995 Stock Incentive Plan
(4)(a)(2) DCX 1991 Stock Option Plan
(5) Opinion of O'Connor & Associates, P.C. relating to the original
issuance of common stock pursuant to the DCX 1995 Stock Incentive
Plan and the DCX 1991 Stock Option Plan
(24.1) Consent of O'Connor & Associates, P.C. included in the opinion
filed as Exhibit (5) hereto
(24.2) Consent of BDO Seidman, independent certified public accountants
(24.3) Consent of Wenner, Silvestain & Company, independent certified
public accountants
Item 9. Undertakings
------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
additional or changed material information with respect to the plan of
distribution;
(b) That, for the purposes of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering;
and
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the end of the
offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
4
<PAGE>
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 Franktown and the State of Colorado, on the 30th day
of September, 1996.
DCX, INC.
By: /s/ Jeanne M. Anderson
------------------------------------
Jeanne M. Anderson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
President, Principal September 30, 1996
/s/ Jeanne M. Anderson Executive Officer and
- ------------------------ Director
Jeanne M. Anderson
September 30, 1996
/s/ John G. Anderson Chairman of the Board
- ------------------------
John G. Anderson
Principal Financial and September 30, 1996
/s/ Frederick G. Beisser Accounting Officer,
- ------------------------- Secretary, Treasurer and
Frederick G. Beisser Director
September __, 1996
- ------------------------- Director
Stephen Carreker
September 30, 1996
/s/ D. Scott McReynolds Director
- -------------------------
D. Scott McReynolds
5
<PAGE>
As filed with the Securities and Exchange Commission on September 30, 1996.
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
---------------
DCX, Inc.
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
EXHIBIT INDEX
Exhibit
Number Description
(4)(a)(1) DCX 1995 Stock Incentive Plan
(4)(a)(2) DCX 1991 Stock Option Plan
(5) Opinion of O'Connor & Associates, P.C. relating to the issuance
of shares of securities pursuant to the DCX 1995 Stock Incentive
Plan and the DCX 1991 Stock Option Plan
(24.1) Consent of O'Connor & Associates, P.C. included in the opinion
filed as Exhibit (5) hereto
(24.2) Consent of BDO Seidman, independent certified public accountants
(24.3) Consent of Wenner, Silvestain & Company, independent certified
public accountants
===============================================================================
6
---------------
Exhibit 4(a)(1)
DCX 1995 Stock Incentive Plan
---------------
DCX 1995 STOCK INCENTIVE PLAN
1. Purpose of the Plan. The DCX 1995 STOCK INCENTIVE PLAN (hereinafter
referred to as the "Plan") is intended to provide a means whereby key
individuals providing services to DCX, INC. (the "Company") and its related
corporations may develop and sustain a sense of proprietorship and personal
involvement in the continued development and financial success of the Company,
and to encourage them to devote their best efforts to the business of the
Company, thereby advancing the interests of the Company and its shareholders.
Accordingly, non-director, officers, employees, consultants and/or agents will
be eligible to acquire common stock of the Company (hereinafter referred to as
"Shares") or otherwise participate in the financial success of the Company, on
the terms and conditions established herein. For purposes of the Plan, a
corporation shall be deemed a related corporation to the Company if such
corporation would be a parent or subsidiary corporation with respect to the
Company as defined in Section 424(e) or (f), respectively, of the Internal
Revenue Code of 1986, as amended (hereinafter referred to as the "Code").
2. Administration of the Plan. The Plan shall be administered by the DCX
1995 Stock Incentive Plan Administrative Committee (hereinafter referred to as
the "Committee") which shall be comprised of at least two (2) directors
appointed by the Board of Directors of the Company (hereinafter referred to as
the "Board"). The Committee shall have sole authority to select the individuals
from among those eligible to whom awards shall be made under the Plan, to
establish the amount of such award for each such individual and the time when
certificates for Shares shall be issued, and to prescribe the legend to be
affixed to the certificate. The Committee is authorized, subject to Board
approval, to interpret the Plan and may from time to time adopt such rules,
regulations, forms and agreements, not inconsistent with the provisions of the
Plan, as it may deem advisable to carry out the Plan. All decisions made by the
Committee in administering the Plan shall be subject to Board review.
3. Shares Subject to the Plan. The aggregate number of Shares that may be
awarded to individuals under the Plan shall be 1,150,000 Shares. Any Shares that
remain unissued at the termination of the Plan shall cease to be subject to the
Plan, but until termination of the Plan, the Company shall at all times make
available sufficient Shares to meet the requirements of the Plan. The aggregate
number of Shares which may be awarded under the Plan shall be adjusted to
reflect a change in capitalization of the Company, such as a stock dividend or
stock split.
4. Stock Options
a. Type of Options. The Company may issue options that do not constitute
Incentive Stock Options under Section 422 of the Code ("Nonqualified Options")
to individuals under the Plan. The grant of each option shall be confirmed by a
stock option agreement that shall be executed by the Company and the optionee as
soon as practicable after such grant. The stock option agreement shall expressly
state or incorporate by reference the provisions of the Plan.
b. Terms of Options. Except as provided in Subparagraph (c) below, each
option granted under the Plan shall be subject to the terms and conditions set
forth by the Committee in the stock option agreement including, but not limited
to, option price, option term and transferability.
7
<PAGE>
c. Additional Terms Applicable to Options. Each option shall be subject to
the following terms and conditions:
(i) Written Notice. An option may be exercised only by giving written
notice to the Company specifying the number of Shares to be
purchased.
(ii) Method of Exercise. The aggregate option price may, subject to the
terms and conditions set forth by the Committee in the stock option
agreement, be paid in any one or a combination of cash, personal
check, personal note, Shares already owned or Plan awards which the
optionee has an immediate right to exercise.
(iii) Death of Optionee. If an optionee terminates employment due to
death, disability or retirement, prior to exercise in full of any
options, the optionee or his successor shall have the right to
exercise the options within a period of twelve months after the
date of such termination to the extent that the right was
exercisable at the date of such termination, or subject to such
other terms as may be determined by the Committee.
(iv) Transferability. No option may be transferred, assigned or
encumbered by an optionee, except in the event of the death of the
optionee by will or the laws of descent and distribution, or in the
event the option is granted to a corporation to the principal
shareholder(s) thereof.
5. Stock Appreciation Rights
a. Grants. Stock Appreciation Rights ("SARs") are rights entitling the
grantee to receive cash or Shares having a fair market value equal to the
appreciation in market value of a stated number of Shares from the date of
grant, or in the case of rights granted in tandem with or by reference to an
option granted prior to the grant of such rights, from the date of grant of the
related option to the date of exercise, which may be granted to such eligible
officers and employees as may be selected by the Committee.
b. Terms of Grant. SARs may be granted in tandem with or with reference to
a related option, in which event the grantee may elect to exercise either the
option or the SAR, but not both, as to the same Share subject to the option and
the SAR, or the SAR may be granted independently of a related option. In the
event of a grant with a related option, the SAR shall be subject to the terms
and conditions of the related option. In the event of an independent grant, the
SAR shall be subject to the terms and conditions determined by the Committee.
SARs shall not be transferred, assigned or encumbered, except that SARs may be
exercised by the executor, administrator or personal representative of the
deceased grantee within twelve months of the death of the grantee and SARs
granted to a corporation may be transferred to the principal shareholder(s)
thereof.
c. Payment Upon Exercise. Upon exercise of an SAR, the grantee shall be
paid the excess of the then fair market value of the number of Shares to which
the SAR relates over the fair market value of such number of Shares at the date
of grant of the SAR or of the related option, as the case may be. Such excess
shall be paid in cash or in Shares having a fair market value equal to such
excess or in such combination thereof as the Committee shall determine.
6. Right of First Refusal. If any Shares issued under the Plan are not
readily tradable on an established market on the date an owner intends to sell
such Shares, such owner shall first offer such Shares to the Company for
purchase and the Company shall have 30 days to exercise its right to purchase
such Shares. The owner shall give written notice to the Company stating that he
has a bona fide offer for the purchase of such Shares, stating the number of
Shares to be sold, the name and address of the person(s) offering to purchase
the Shares and the purchase price and terms of payment of such sale. The owner
shall be entitled to receive the same purchase price offered by such person(s)
offering to purchase such Shares. Payment may be in a lump sum or, if the lump
sum exceeds $100,000, in substantially equal annual or more frequent
installments over a period not exceeding 5 years in the discretion of the
Committee. If a method of deferred payments is selected, the unpaid
8
<PAGE>
balance shall earn interest at a rate that is substantially equal to the rate at
which the Company could borrow the amount due and shall be secured by a pledge
of the Shares purchased or such other adequate security as agreed to by the
Company and the owner. For purposes of this Paragraph, Shares shall be
considered not readily tradable on an established market if such Shares are not
publicly tradable or because such Shares are subject to a trading limitation
under any Federal or State securities law or regulation that would make such
Shares less freely tradable than stock not so restricted. For purposes of this
Paragraph, an owner shall include any person who acquires Shares from any other
person and for any reason; including, but not limited to, by gift, death or
sale.
7. Amendment or Termination of the Plan. The Board may amend, suspend or
terminate the Plan or any portion thereof at any time; provided, however, that
no such amendment, suspension or termination shall impair the rights of any
individual, without his consent, in any award theretofore made pursuant to the
Plan.
8. Term of Plan. The Plan shall be effective upon the date of its adoption
by the Board. Unless sooner terminated under the provisions of Paragraph 7,
Shares and SARs shall not be awarded under the Plan after the expiration of 10
years from the effective date of the Plan.
9. Delivery and Registration of Stock. The Company's obligation to deliver
Shares with respect to an award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the individual to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933 or any other federal, state or local
securities legislation or regulation. It may be provided that any representation
requirement shall become inoperative upon a registration of the Shares or other
action eliminating the necessity of such representation under securities
legislation. The Company shall not be required to deliver any Shares under the
Plan prior to (i) the admission of such Shares to listing on any stock exchange
on which Shares may then be listed, and (ii) the completion of such registration
or other qualification of such Shares under any state or federal law, rule or
regulation, as the Committee shall determine to be necessary or advisable.
10. Rights as Stockholder. Upon delivery of any Share to an individual,
such individual shall have all of the rights of a stockholder of the Company
with respect to such Share, including the right to vote such Share and to
receive all dividends or other distributions paid with respect to such Share.
11. Merger or Consolidation. In the event the Company is merged or
consolidated with another corporation and the Company is not the surviving
corporation, all outstanding options and SARs shall become immediately and fully
exercisable and unrestricted, and the surviving corporation may exchange options
and SARs issued under this Plan for options and SARs (with the same aggregate
option price) to acquire and participate in that number of shares in the
surviving corporation that have a fair market value equal to the fair market
value (determined on the date of such merger or consolidation) of Shares that
the grantee is entitled to acquire and participate in under this Plan on the
date of such merger, consolidation or change of control.
12. Employment Relationship. Nothing herein shall confer on any individual
the right to be considered to be in the employment of the Company or a related
corporation or to continue employment with the Company or related corporation or
affect the right of the Company or related corporation to terminate such
employment.
13. Withholding of Tax. To the extent the award, issuance or exercise of
Shares or SARs results in the receipt of compensation by an individual, the
Company is authorized to withhold from any other cash compensation then or
thereafter payable to such individual or to withhold sufficient Shares to pay
any tax required to be withheld by reason of the receipt of the compensation.
Alternatively, the individual may tender a personal check in the amount of tax
required to be withheld.
END OF PLAN
9
Exhibit 4(a)(2)
DCX 1991 Stock Option Plan
---------------
DCX 1991 STOCK OPTION PLAN
1. Establishment and Purpose
(a) DCX Inc., a Colorado corporation (the "Company'), hereby establishes a
stock option plan to be named 1991 Stock Option Plan (the "Plan") which has been
adopted by the Company's Board of Directors on April 12, 1991.
(b) The purpose of the Plan is to induce key employees, authorized agents,
officers and directors of the Company to continue their service to the Company,
to offer said people incentives and rewards in recognition of their share in the
Company's progress and to encourage said people to continue to promote the best
interests of the Company.
2. Administration
(a) The plan shall be administered by the Company's Board of Directors or
by a committee of the Board acting on behalf of the Board of Directors (the
"Option Committee"). The Option Committee shall hold its meetings at such times
and places as it may determine.
(b) The Company shall grant options under the Plan in accordance with
determinations made by the Option Committee pursuant to the provisions of the
Plan. The Option Committee, from time to time, may adopt (and thereafter amend
and rescind) such rules and regulations for carrying out the Plan and take
action in the administration of the Plan, not inconsistent with the provision
hereof, as it shall deem proper. The interpretation and construction of any
provisions of the Plan by the Option committee are to be final and conclusive
and not be subject to further review and approval.
(c) No member of the Company's Board of Directors (or the Option Committee)
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted under it. A member of the Company's Board of
Directors (or the Option Committee) shall be eligible for indemnification from
the Company, and insurer, if any, for any expenses, judgments or other costs
incurred as a result of a lawsuit filed against him claiming any rights or
remedies due to his participation in the administration of this Plan.
3. Total Option Shares Available
(a) The maximum number of shares of common stock (no par value) of the
Company which may be issued pursuant to this plan shall not exceed 300,000,
subject to adjustment as provided in Paragraph 6, below. The shares sold under
the Plan may be either issued shares reacquired by the Company at any time, or
authorized, but unissued shares, as the Option Committee from time to time may
determined. Additionally, the shares sold under the Plan may be either
registered or unregistered shares of the Company. The Company has no obligation
to register the shares underlying the options or the options.
(b) In the event that any outstanding options under the Plan for any reason
expire or are terminated, the shares of common stock of the Company allocable to
the unexercised portion of all such options may again be subject to an option
under the Plan.
(c) No options shall be granted pursuant to this Plan to any Optionee after
the tenth anniversary of the date on which this plan is adopted by the Board of
Directors.
10
<PAGE>
4. Eligibility
(a) Options to purchase shares may be granted pursuant to this Plan only to
employees, officers and directors of the Company, or qualifying subsidiaries
(the "Optionee), selected by the Option Committee. An employee, for purposes of
this Plan shall be defined as any individual working on behalf of the Company,
or qualifying subsidiary. A director shall be defined as any lawfully elected
director currently serving the Company or qualifying subsidiary in that
capacity.
(b) The Option Committee will, in its discretion, determine the persons to
be granted options, the time or times at which options shall be granted, the
number of shares subject to each option and the manner in which options may be
exercised, provided, however, the Option Committee shall not grant to any
Optionee any option which has terms or conditions inconsistent with those stated
in Paragraphs 3 and 6 hereof. In making such determination, the Option Committee
may take into consideration the value of the services rendered by the
prospective Optionee, their present and potential contributions to the success
of the Company and such other factors which the Committee may deem relevant in
accomplishing the purpose of the Plan.
5. Terms and Conditions of Options
(a) Each option granted under the Plan shall be evidenced by a Stock Option
Agreement in such form not inconsistent with the Plan as the Option Committee
shall determine, provided that the substance of the terms and conditions set
forth herein be included therein.
(b) Option Price. The price at which each share of common stock covered by
such option may be purchased shall be the fair market value on the date of
grant.
(c) Limitation on Exercise. No option granted hereunder may, by its terms,
be exercised more than five years subsequent to the date of the grant or the
option. The exercise period may be less than five years as the Option Committee
deems appropriate. An option shall be treated as outstanding until such option
is exercised in full or expires by reason of lapse of time.
(d) Participation Limitation. The Option Committee shall not grant an
option to any Director, Officer, authorized agent or employee for such number of
shares of stock that, immediately after the grant, causes the total number of
shares of stock subject to his control through options exercisable, ownership
directly or indirectly through brothers and sisters, spouse, ancestors, and
lineal descendants to exceed ten percent of the voting power of the Company; and
the stock owned, directly or indirectly, by or for a corporation, partnership,
estate, or trust shall be considered as being owned proportionately by or for
its shareholders, partners or beneficiaries.
(e) Nontransferability. No option granted hereunder is transferable in
whole or in part other than by will or the laws of descent and distribution.
(f) Manner of Payment. The aggregate option price may, subject to the terms
and conditions set forth by the Board or the Option Committee in the stock
option agreement, be paid in any one or a combination of cash, personal check,
personal note, shares already owned or awards under the Plan which the optionee
has an immediate right to exercise.
(g) Termination of Relationship. If the holder of an option ceases their
relationship with the Company, other than by reason of death, disability, or
retirement, such option shall terminate on the date of termination of such
relationship. In the event of termination due to a permanent disability with the
meaning of Section 105(d)(4) of the Internal Revenue Code, such option shall
terminate no later than one year from the date of termination of relationship,
but in any event no later than its specified expiration date. In the event of
retirement, such option shall terminate no later than three months from the date
of termination of such relationship, but in any event no later than its
specified expiration date. If the holder of an option dies, such option may be
exercised, to the extent of the number of shares of common stock with respect to
which such holder could have exercised such option on the date or death, by such
holder's estate, personal representative or beneficiary who acquires such option
11
<PAGE>
by will or by laws of descent and distribution, at any time prior to the earlier
of such option's specified expiration date or the first anniversary of such
holders death. On the earlier of such dates, such option shall terminate. An
option may terminate prior to these dates at the discretion of the option
Committee.
(i) Withholding Taxes. The Optionee must remit to the Company or a
subsidiary an amount necessary to satisfy any federal, state, local or other
withholding requirements prior to the delivery of any certificate or
certificates for the shares of stock purchased upon exercise of the option or
portion of such option. Alternatively, the Company or a subsidiary is
authorized, at its option, to deduct from any payment of any kind owed to the
Optionee any federal, state, local or other taxes required by law to be withheld
with respect to the shares of stock being purchased upon exercise of the option.
6. Changes in Stock, Adjustments, etc.
(a) In the event that the outstanding shares of common stock of the Company
are hereafter increased or decreased, changed into or exchanged for a different
number of shares or other securities of the Company or of another Corporation by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split, combination of shares, or a dividend payable in
capital stock, appropriate adjustment may be made by the Option Committee in the
number and kind of shares for the purchase of which options may be granted under
the Plan, including the maximum number that may be granted to any other person.
In addition, the Option Committee may make appropriate adjustment in the number
and kind of shares as to which outstanding options or portions thereof then
unexercised, shall be exercisable, to the end that the Optionee's proportionate
interest shall be maintained as before the occurrence or such event, and such
adjustment and outstanding options shall be made without change of the total
price applicable to the unexercised portion of the option and with a
corresponding adjustment in the option price per share. Any such adjustment made
by the Option Committee shall be in the full discretion of the Option Committee,
whose decisions in this regard shall be conclusive.
(b) The grant of an option pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassification,
reorganizations or changes of its capital or business structure, to merge,
consolidate, or dissolve, liquidate or sell, or transfer all or any part of
business or assets.
(c) In the event of a material change in Company ownership, including, but
not limited to, sale, reorganization, merger, and consolidation, the Committee
may fully vest all outstanding options. If the Company's common stock is
publicly registered and traded, there will be no change in vesting, but the fair
market value will then be defined as in Paragraph 5(b), above.
7. Duration, Amendment, and Termination
The Board of Directors of the Company may at any time terminate the Plan or
make such amendments thereof as it shall deem advisable and in the best
interests of the Company, without further action on the plan of the stockholders
of the Company; provided, however, that no such termination or amendment shall,
without the consent of the individual to whom any option shall heretofore have
been granted, subject to the provisions of Paragraph 2 hereof, affect or impair
the rights of such individual under such option and, provided further, that
unless the stockholders of the Company shall have first approved thereof, no
amendment of this Plan shall be made whereby (i) the total number of shares
which may be optioned under the Plan to all individuals, or any of them, shall
be increased, except by the operation of the adjustment provisions of Paragraph
6 hereof, (ii) the authority to administer the Plan by a committee consisting of
directors of the Company shall be withdrawn, (iii) the term of the options shall
be extended, or (iv) the class of Optionees to whom options may be granted shall
be changed.
8. Effectiveness of Plan
This Plan became effective on June 21, 1991, when the Plan was adopted by
the required vote of the holders of the outstanding shares of the Company
entitled to vote at a meeting of the stockholders duly held in accordance with
the laws of the State of Colorado.
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9. Date of Granting of Options
The granting of an option pursuant to the Plan shall take place on the date
the Option Committee decides to grant the option. The Company shall use its best
efforts within thirty days of the granting of the option, to notify the
Optionee, of the grant of the option and submit to the Optionee a Stock Option
Agreement duly executed by, and on behalf of the Company, with the request that
the Optionee execute the agreement within thirty days after the mailing or hand
delivery to the Optionee at the Optionee's place of employment of the notice to
the Option. In the event the Optionee fails to execute the Stock Option
Agreement with the thirty day period, such person's option shall be
automatically terminated.
10. Application of Funds
The proceeds received by the Company from the sale of stock subject to the
option are to be added to the general funds of the Company and used for its
corporate purposes as the Board of Directors shall determine.
11. Sale of Stock
Any sale of option stock must comply with applicable securities laws and
the terms of the plan.
12. Other Matters
(a) The granting of Options will not obligate the Company to register the
Option shares under applicable securities laws, to maintain any such
registration, or to list the Option shares on any securities exchange. The
Option Committee may require any party exercising an Option, as a condition
precedent to the issuance of Option shares, (i) to represent that the Option
shares are being acquired for investment and not for distribution or resale and
to make other representations as the Option Committee deems necessary to quality
them for exemption from registration or other compliance with applicable
securities laws, and (ii) to represent that such party will not dispose of the
Option shares in violation of applicable securities laws and applicable Plan and
Option restriction.
(b) The Company may require placement of a legend on certificates
evidencing Option shares purchased, reflecting any applicable restrictions on
the transfer thereof or other matters required to be stated thereon under
applicable law.
(c) The granting of an Option will not obligate the Option holder to
exercise it.
(d) Neither this Plan, nor the granting of Options or issuance of Option
shares, will confer any right of continuing relationship with the Company on the
Option holder or affect the Company's right to terminate the Option holder's
relationship.
- End -
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Exhibit 5
Opinion of O'Connor & Associates, P.C. relating to the issuance of shares
of common stock pursuant to the DCX 1995 Stock Incentive Plan
and the DCX 1991 Stock Option Plan
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[GRAPHIC OF LETTERHEAD OMITTED]
September 25, 1996
DCX, Inc. Board of Directors
3002 North State Highway 83
Franktown, Colorado 80016-0659
We have acted as counsel to DCX, Inc. (the "Corporation") in connection
with the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed on or about September 30, 1996 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to 400,000 shares (the "Securities") of common
stock, no par value, of the Corporation which may be issued from time to time
pursuant to the DCX 1995 Stock Incentive Plan (the "1995 Plan"), and with
respect to 300,000 shares (the "Securities") of common stock, no par value, of
the Corporation which may be issued from time to time pursuant to the DCX 1991
Stock Option Plan (the "1991 Plan").
We have examined the 1995 Plan, the 1991 Plan, and the originals or
photostatic or certified copies of such records of the Corporation, certificates
of officers of the Corporation and of public officials and such other documents
as we have deemed relevant and necessary as the basis for the opinion set forth
below. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as photostatic or
certified copies and the authenticity of the originals of such copies. We have
also made inquiries of officers and employees of the Corporation and of such
others as deemed necessary for purposes of this opinion.
Based upon our examination and inquiries referred to above and subject to
the requirements stated below, we are of the opinion that the Securities will be
legally issued, fully paid and nonassessable.
Our opinion is subject to the following requirements: Options to purchase
the Securities, or other awards under the 1995 Plan and the 1991 Plan
(collectively referred to as the "Plans"), must be duly authorized by the
administrators of the respective Plans and the board of directors of the
Corporation, and, as applicable, duly executed, authenticated, issued and
delivered by the Corporation; the Registration Statement, as it may be amended,
must be effective under the Securities Act and, in the case of control
securities, must include a reoffer prospectus; there must be compliance with
applicable securities or blue sky laws of various jurisdictions; the Securities
must be duly executed, authenticated, issued and delivered against
14
<PAGE>
payment therefor in accordance with the terms of the Plans, with the terms of
the particular options being exercised or the other awards granted under the
Plans, as applicable, and with the administrative procedures duly required by
the administrators of the Plans; the final terms of the Securities must be in
compliance with then applicable law.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
/s/O'Connor & Associates, P.C.
O'CONNOR & ASSOCIATES, P.C.
15
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Exhibit 24.1
- --------------------------------------------------------------------------------
Consent of O'Connor & Associates, P.C. included in the opinion
filed as Exhibit (5) hereto
16
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Exhibit 24.2
Consent of BDO Seidman, independent certified public accountants
- --------------------------------------------------------------------------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
DCX, Inc.
Franktown,Colorado
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated January
5, 1996, relating to the consolidated financial statements and schedules of DCX,
Inc. appearing in the company's Annual Report on Form 10-K for the year ended
September 30, 1995.
BDO SEIDMAN, LLP
Denver, Colorado
September 27, 1996
17
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Exhibit 24.3
Consent of Wenner, Silvestain & Company,
independent certified public accountants
- -------------------------------------------------------------------------------
[GRAPHIC OF LETTERHEAD OMITTED]
Consent of Independent Certified Public Accountants
We consent to the inclusion in the registration statement on Form S-8 of our
report dated November 22, 1993, on our audit of the financial statements of DCX,
Inc. We also consent to the reference to our firm as "Experts."
/S/ Wenner, Silvestain and Company
- ------------------------------------
Wenner, Silvestain and Company
Englewood, Colorado
September 25, 1996
