As filed with the Securities and Exchange Commission on May , 1998
Registration No. 33-
----------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
Registration Statement Under The Securities Act of 1933
---------------
GO-VIDEO, INC.
(Exact name of registrant as specified in its charter)
Delaware 86-0492122
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7835 East McClain Drive 85260
Scottsdale, Arizona (Zip Code)
(Address of Principal Executive Offices)
---------------
GO-VIDEO, INC. 1993 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
---------------
Roger B. Hackett Copy of Communications to:
Chairman, Chief Executive Officer, Jon S. Cohen
President and Chief Operating Officer Samuel C. Cowley
Go-Video, Inc. Snell & Wilmer
7835 East McClain Drive One Arizona Center
Scottsdale, Arizona 85260 Phoenix, Arizona 85004-0001
(Name and address of agent for service)
(602) 998-3400
(Telephone number, including area code,
of agent for service)
---------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
========================================================================================================
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Registered Offering Price per Aggregate Offering Fee
Share* Price*
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par 1,000,000 $2.66 $2,660,000 $784.70
value shares
========================================================================================================
</TABLE>
* Estimated pursuant to Rule 457(c) and 457(h) solely for the
purpose of calculating the registration fee on the basis of
the average of the high and low prices for shares of the
Registrant's Common Stock on May 6, 1998.
The Index to Exhibits is located on page 7.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
----------------------------------------------------
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed with the Securities and Exchange
Commission by Go-Video, Inc. (the "Company") are hereby incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
March 31, 1997, filed on June 30, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997, filed on August 12, 1997.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, filed on November 13, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997, filed on February 13, 1998.
(e) The description of the Company's Common Stock included in
Post-Effective Amendment No. 6 to the Company's Registration
Statement on Form S-2 (No. 33-33033) as filed on April 21,
1992.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Officers and Directors
-----------------------------------------
In 1987, legislation was adopted in Delaware which allows Delaware
corporations to include in their certificates of incorporation a provision that
limits or eliminates personal liability of directors for breaches of their
fiduciary duty of care, unless the director has also breached his or her duty of
loyalty, failed to act
-3-
<PAGE>
in good faith, engaged in intentional misconduct or a knowing violation of law,
paid a dividend or approved a stock repurchase in violation of the Delaware
general corporation law, or obtained an improper personal benefit. The Company's
Certificate of Incorporation contains such a provision which eliminates the
liability of directors of the Company to the Company or any of its stockholders,
subject to such exceptions. In addition, the Company's Bylaws provide that the
Company shall indemnify its officers, directors, employees, and agents, in
accordance with the above provisions.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Company out of the foregoing indemnification provisions, subject
to certain exclusions and to the policy limits.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
Exhibit No. Description
----------- -----------
4.1 Portion of Certificate of Incorporation of
Go-Video, Inc. relating to the rights of
holders of Go-Video, Inc. common stock,
incorporated by reference to Exhibit 4-A to
Registration Statement on Form S-2 (File No.
33-33033).
4.2 Bylaws of Go-Video, Inc. as amended on
January 23, 1991, incorporated by reference
to Exhibit 4-B to Registration Statement on
Form S-2 (File No. 33-38445).
5.1 Opinion of Snell & Wilmer.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Snell & Wilmer (included in the
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included in signature
page).
99 1993 Employee Stock Option Plan.
Item 9. Undertakings
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
-4-
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. 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) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on May 11, 1998.
GO-VIDEO, INC.
By /s/ Roger B. Hackett
--------------------------------------
Roger B. Hackett
Chairman of the Board of Directors,
Chief Executive Officer, President
and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the date indicated. Each person whose signature
appears below hereby authorizes Roger B. Hackett and Douglas P. Klein, and each
of them, as attorneys-in-fact, to sign his or her name on his or her behalf,
individually and in each capacity designated below, and to file any amendments,
including post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Name and Signature Title Date
------------------ ----- ----
<S> <C> <C>
/s/ Roger B. Hackett Chairman of the Board May 11, 1998
- ----------------------------- of Directors, Chief Executive
Roger B. Hackett Officer, President and Chief
Operating Officer
/s/ Douglas P. Klein Vice-President, Chief May 11, 1998
- ----------------------------- Financial Officer, Secretary
Douglas P. Klein and Treasurer
/s/ Carmine F. Adimando Director May 11, 1998
- -----------------------------
Carmine F. Adimando
/s/ Thomas F. Hartley, Jr. Director May 11, 1998
- -----------------------------
Thomas F. Hartley, Jr.
/s/ Thomas E. Linnen Director May 11, 1998
- -----------------------------
Thomas E. Linnen
/s/ William T. Walker, Jr. Director May 11, 1998
- -----------------------------
William T. Walker, Jr.
</TABLE>
-6-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page in Sequential
Numbering System in
Manually Signed
Exhibit Original on Which
Number Description Exhibits May Be Found
- ------ ----------- ---------------------
<S> <C> <C>
4.1 Certificate of Incorporation Incorporated by reference to
of the Company Exhibit 4-A to Registration Statement on
Form S-2 (File No. 33-33033)
4.2 Bylaws, as amended Incorporated by reference to
Exhibit 4-B to Registration Statement on
Form S-2 (File No. 33-38445)
5.1 Opinion of Snell & Wilmer Page 8
23.1 Consent of Deloitte & Touche Page 9
23.2 Consent of Snell & Wilmer Included in Exhibit 5.1
(included in Exhibit 5.1)
24.1 Power of Attorney Included in signature page
99 1993 Employee Stock Option Plan Page 10
</TABLE>
-7-
Exhibit 5.1
May 11, 1998
VIA FEDERAL EXPRESS
- -------------------
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Go-Video, Inc. 1993 Employee Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Go-Video, Inc., a Delaware corporation (the
"Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, relating to
the registration of 1,000,000 shares of its Common Stock, $.001 par value (the
"Shares"), issuable pursuant to the Company's 1993 Employee Stock Option Plan
(the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Articles of Incorporation and Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
i. The Company has been duly organized and is validly
existing as a corporation under the laws of the State
of Delaware.
ii. The Shares, when issued and sold in accordance with
the terms of the Plan, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SNELL & WILMER L.L.P.
-8-
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
Board of Directors
Go-Video, Inc.
Scottsdale, Arizona
We consent to the incorporation by reference in this Registration Statement of
Go-Video, Inc. on Form S-8 of our report dated May 1, 1997 appearing in this
Annual Report on Form 10-K of Go-Video, Inc. for the year ended March 31, 1997.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
February 3, 1998
-9-
Exhibit 99
GO-VIDEO, INC.
1993 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
-------
The purpose of the Go-Video, Inc. 1993 Employee Stock Option Plan (the
"Plan") is to provide a means through which Go-Video, Inc., a Delaware
corporation (the "Company"), may attract able persons as employees and to
provide a means whereby those key employees upon whom the responsibilities for
the successful administration and management of the Company rest, and whose
present and potential contributions to the success of the Company are of
importance, can acquire and maintain stock ownership, thereby strengthening
their commitment to the success of the Company and their desire to remain in its
employ.
2. DEFINITIONS
-----------
For purposes of the Plan, the following terms shall have the meanings
set forth herein:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(c) "Committee" means the Committee of the Board, referred to in
Section 4 appointed to administer the Plan.
(d) "Company" means Go-Video, Inc. and any successor thereto.
(e) "Date of Grant" means the date on which the granting of an
Option is authorized by the Committee or such later date as may
be specified by the Committee in such authorization.
(f) "Employee" means any person regularly employed by the Company or
a Subsidiary who satisfies all of the requirements of Section 5.
(g) "Fair Market Value" means the closing bid price for the Stock on
the American Stock Exchange ("ASE"), as reported in the Wall
Street Journal for the date that Fair Market Value is to be
determined, or if no such bids were made on such date, the
closing bid price for the Stock on the ASE as reported in the
Wall Street Journal for the immediately succeeding date on which
such bids were made.
(h) "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code.
(i) "Nonqualified Stock Option" means an Option that does not
satisfy the requirements of Section 422 of the Code.
(j) "Normal Termination" means termination of employment:
-10-
<PAGE>
(i) On account of permanent and total disability; or
(ii) With written approval of the Company, given in the context of
its recognition that any Option granted under a
shareholder-approved stock option plan which has not been
exercised by the terminating employee but is then exercisable by
him, will not be caused to lapse by such termination.
(k) "Option" means the right granted under Section 6 of the Plan to
purchase Stock.
(l) "Participant" means an employee who has been granted an Option
pursuant to Section 6.
(m) "Plan" means the Go-Video, Inc. 1993 Employee Stock Option Plan,
as the same may be amended from time to time.
(n) "Stock" means the Common Stock of the Company as defined in the
Company's Articles of Incorporation or such other stock that is
substituted therefor as provided in Section 8 of the Plan.
3. SHARES OF STOCK SUBJECT TO THE PLAN
-----------------------------------
(a) Subject to the provisions of Section 3(c) and Section 6 of the
Plan, the aggregate number of shares of Stock that may be
issued, transferred or exercised pursuant to Options granted
under the Plan shall not exceed Five Hundred Thousand (500,000)
shares.
(b) The shares to be delivered under the Plan may be made available
from (i) authorized but unissued shares of Stock, (ii) Stock
held in the treasury of the Company or (iii) previously issued
and outstanding shares of Stock reacquired by the Company,
including shares purchased on the open market.
(c) To the extent that an Option lapses or the rights of a
Participant thereto terminate, any shares of Stock subject to
such Option shall again be available for the grant of an Option.
4. ADMINISTRATION
--------------
(a) The Plan shall be administered by a Committee that is appointed
by, and shall serve at the discretion of, the Board. The
Committee shall consist of at least two (2) individuals who are
members of the Board who are "disinterested persons", as such
term is defined in Rule 16b-3 promulgated under Section 16 of
the Securities Exchange Act of 1934 (the "1934 Act") or any
successor provision, except as may be otherwise permitted under
Section 16 of the 1934 Act and the regulations and rules
promulgated thereunder.
(b) A majority of the Committee shall constitute a quorum. The acts
of a majority of the members present at any meeting at which a
quorum is present or acts approved in writing by a majority of
the Committee shall be deemed the acts of the Committee. Each
member of the Committee is entitled to, in good faith, rely or
act upon any report or other information furnished to that
member by any officer or other employee of the Company or any
Subsidiary, the Company's independent certified public
accountants, or any executive compensation consultant or other
professional retained by the company to assist in the
administration of the Plan.
-11-
<PAGE>
(c) Subject to the provisions of the Plan, the Committee shall have
exclusive power and discretion to: (i) select the individuals or
entities to participate in the Plan; (ii) determine the Options
to be granted; (iii) determine the time or times when Options
will be granted; (iv) determine the conditions to which the
grant of Options may be subject; (v) prescribe the form or forms
evidencing Options; and (vi) except in the case of Incentive
Stock Options, extend the post- employment period in which an
Option can be exercised up to the balance of the normal term of
the Option.
(d) The Committee shall have the authority, subject to the
provisions of the Plan, to establish, adopt, or revise such
rules and regulations and to make all such determinations
relating to the Plan as it may deem necessary or advisable for
the administration of the Plan. The Committee's interpretation
of the Plan or any Options granted pursuant thereto and all
decisions and determinations by the Committee with respect to
the Plan shall be final, binding, and conclusive on all parties
unless otherwise determined by the Board.
5. ELIGIBILITY
-----------
Officers and key employees of the Company (including officers or
employees who also serve as directors of the Company) who, in the opinion of the
Committee, have contributed or will contribute to the continued growth and
development and financial success of the Company shall be eligible to be granted
Options.
6. STOCK OPTIONS
-------------
One or more Options may be granted to an Employee. Each Option so
granted shall be subject to the following conditions:
(a) The per share exercise price of any Option shall be set by the
grant, but in no instance shall it be less than Fair Market
Value on the Date of Grant; provided that if a Participant owns
stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company,
its parent corporation or any subsidiary corporation at the time
an Incentive Stock Option is granted, the per share exercise
price of that Incentive Stock Option must be at least one
hundred ten percent (110%) of the Fair Market Value of the Stock
subject to that Option.
(b) Each Option under the Plan may be exercised, in whole or in
part, at any time during the period specified in the written
instrument reflecting the grant of the Option which shall not be
earlier than the period beginning six (6) months after the later
of (i) its Date of Grant or (ii) the effective date of the Plan
(see Section 11), and ending on the date which is ten (10) years
after its Date of Grant (five (5) years after its Date of Grant
in the case of an Incentive Stock Option granted to a
Participant who owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock
of the Company, its parent corporation or any subsidiary
corporations at the time the Incentive Stock Option is granted).
At least six (6) months must elapse between a Participant's
receipt of an Option and the disposition of the Stock obtained
upon the exercise of such Option. Notwithstanding the foregoing,
if the Participant terminates employment any outstanding Options
shall lapse upon such termination provided that if the
Participant's termination is determined to be (i) a Normal
Termination, the Options shall lapse three (3) months after the
Participant's termination or (ii) on account of "normal
retirement" or "early retirement" as determined by the
Committee, the Options shall lapse one (1) year after the
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<PAGE>
Participant's retirement (three (3) months after the
Participant's retirement in the case of an Incentive Stock
Option), unless they expire earlier by their terms.
Notwithstanding the foregoing, except in the case of an
Incentive Stock Option, the Committee may, in its sole
discretion, extend the period in which a Participant who
terminates employment may exercise any outstanding Options to
the extent that the Participant was entitled to exercise the
Options at the date of such termination.
(c) Options shall be evidenced by a written instrument that shall
not include any terms and conditions which are inconsistent with
the provisions of the Plan.
(d) Options may be exercised by written notice to the Company,
accompanied by payment in full in cash or by check, in shares of
Stock having a Fair Market Value equal to the exercise price
provided that such shares shall have been held for at least six
(6) months as of the date of exercise, by delivery to the
Company of a promissory note with such collateral as the
Committee, in its discretion, determines to be sufficient, or in
a combination of the foregoing. As an alternative, the Committee
may, in its discretion, assist Participants in paying the
exercise price of Options by (i) causing the Company to extend a
loan to a Participant or to guarantee a loan obtained by the
Participant from a third party; or (ii) authorizing payment of
the Option exercise price in installments over such period and
subject to such terms and conditions as the Committee shall
determine.
(e) Notwithstanding the foregoing, if the Participant dies during
the Option period, as determined pursuant to Section 6(b), the
Option shall lapse unless it is exercised within the later to
occur of (i) the Option period or (ii) twelve (12) months after
the Participant's death by the Participant's legal
representative or representatives, by the person or persons
entitled to do so under the Participant's last will and
testament, or, if the Participant shall fail to make
testamentary disposition of such Option or shall die intestate,
by the person or persons entitled to receive said Option under
the applicable laws of descent and distribution.
(f) No fractional shares of stock shall be issued and the Committee
shall determine whether cash shall be given in lieu of
fractional shares or whether such fractional shares shall be
eliminated by rounding up or rounding down.
(g) Notwithstanding any provision of this Plan, in the event of a
public tender for all or any portion of the Stock of the Company
or in the event that a proposal to merge, consolidate, or
otherwise combine with another company is submitted for
shareholder approval, the Committee may in its sole discretion
declare previously granted Options to be immediately
exercisable.
(h) In the case of an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the time such Option is granted)
of all shares of Stock with respect to which Incentive Stock
Options are first exercisable by any Participant in any calendar
year may not exceed $100,000 (or such other individual grant
limit as may be in effect under the Code on the Date of Grant).
7. GENERAL PROVISIONS
------------------
(a) Nothing in the Plan or in any instrument executed pursuant to
the Plan shall confer upon any Participant any right to
employment with the Company. Nothing in the Plan or any
instrument executed pursuant to the Plan is intended to limit in
any way, the compensation to be paid or the benefits to be
provided by the Company to any Participant.
-13-
<PAGE>
(b) Neither a Participant nor any other person claiming under or
through such Participant shall have any right, title or interest
in any shares of Stock allocated or reserved under the Plan or
subject to any Option except as to such shares of Stock, if any,
that have been issued or transferred to such Participant or
other person claiming under or through the Participant.
(c) No Option may be exercised by any person other than the
Participant or his or her guardian or legal representative
during the Participant's lifetime. No Option or any other right
under the Plan, contingent or otherwise, shall be transferable,
assignable or subject to any encumbrance, pledge or charge of
any nature, other than by will or the laws of descent and
distribution.
(d) The grant of Options and the obligation of the Company to issue
or transfer Stock as a result of the exercise of an Option under
the Plan shall be subject to the requirements of all applicable
laws, rules and regulations and to such approval by government
agencies and/or the securities exchanges on which the Stock is
listed as may be required or deemed advisable by the Company. As
a condition precedent to the grant of any Option or the issuance
or transfer of shares pursuant to the exercise of any Option,
the Company may require the Participant to take any reasonable
action to meet such requirements or to obtain such approvals.
The Company shall be under no obligation to register under the
Securities Act of 1933, as amended (the "Securities Act"), any
of the shares of Stock issued or transferred as a result of the
Plan. The Company shall have the right to restrict the
transferability of shares of Stock issued or transferred under
the Plan in such manner as it deems necessary or appropriate to
insure the availability of any exemption from registration under
the Securities Act that may be available.
(e) The Committee and each member thereof shall be indemnified and
held harmless by the Company against any and all loss, cost,
liability or expense that may be imposed upon or reasonably
incurred by it or any member thereof in connection with or
resulting from any claim, action, suit or proceeding as a result
of any action or failure to act under the Plan.
8. CHANGES IN CAPITAL STRUCTURE
----------------------------
In the event a stock dividend is declared upon the Stock, the shares of
Stock then subject to each Option (and the number of shares reserved for
issuance pursuant thereto) shall be increased proportionately without any change
in the aggregate purchase price therefor. In the event the Stock shall be
changed into or exchanged for a different number or class of shares of Stock of
the Company or of another corporation, whether through reorganization,
recapitalization, stock split, combination of shares, merger or consolidation,
there shall be substituted for each such share of Stock then subject to each
Option (and for each share of Stock then reserved for issuance pursuant thereto)
the number and class of shares of Stock into which each outstanding share of
Stock shall be so exchanged, all without any change in the aggregate purchase
price for the shares then subject to each Option.
Subject to any required action by the stockholders, if the Company shall
be the surviving or resulting corporation in any merger or consolidation, any
Option granted hereunder shall pertain to and apply to the securities or rights
to which a holder of the number of shares of Stock subject to the Option would
have been entitled; but a dissolution or liquidation of the Company or a merger
or consolidation in which the Company is not the surviving or resulting
corporation, shall, in the sole discretion of the Committee:
(a) Cause every Option outstanding hereunder to terminate, except
that the surviving or resulting corporation, may, in its
discretion, tender an option or options to purchase its shares
or exercise such rights on terms and conditions (both as to the
number of shares and rights) and otherwise
-14-
<PAGE>
which shall substantially preserve the rights and benefits of
any Option then outstanding hereunder; or
(b) Give each Participant the right to exercise Options prior to the
occurrence of the event otherwise terminating the Options over
such period as the Committee, in its sole and absolute
discretion, shall determine.
9. AMENDMENT
---------
Subject to the approval of the Board, the Committee may, at any time, or
from time to time, amend, modify, terminate or suspend and, if suspended,
reinstate, the Plan in whole or in part, provided that the Committee may not
cancel, reduce or otherwise alter a Participant's Options without the
Participant's written consent, and provided further that, without additional
shareholder approval, the Committee shall not:
(a) Increase the maximum number of shares which may be issued on
exercise of Options;
(b) Change the minimum Option price;
(c) Extend the maximum Option term;
(d) Extend the termination date of the Plan; or
(e) Change the class of employees eligible to participate in the
Plan.
10. TERMINATION OF THE PLAN
-----------------------
The Plan will terminate upon the earlier of the following dates or
events to occur:
(a) upon the adoption of a resolution of the Board terminating the
Plan, or
(b) the date ten (10) years after the effective date of the Plan.
The termination of the Plan will not affect the validity of any Option
outstanding on the date of termination.
II. EFFECTIVE DATE OF THE PLAN
--------------------------
The Plan will take effect on the date of adoption by the Board, subject
to and conditioned upon subsequent approval of the Plan by the shareholders of
the Company. The Plan and the grant of Options thereunder will be void and of no
force and effect if foregoing condition is not satisfied.
-15-
<PAGE>
<TABLE>
<CAPTION>
American
Stock Exchange, Inc.
Additional Listings and Corporate Rulings
86 Trinity Place
New York, New York 10006-1881 Additional Listing Application
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GO-VIDEO, INC.
7835 East McClain Drive
Scottsdale, AZ 85260
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Listed Security: Common stock, par value Cusip No.: 380198-10-1 Par Value: $.001
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Application Date: Approval Date: Application No.:
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Go-Video, Inc. hereby makes application to the American Stock Exchange
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(Company Name)
for the supplemental listing, upon official notice of issuance, of the following:
Date of Board Date of Shareholder
Shares Purpose Authorization Authorization (if applicable)
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1,000,000 For issuance under the Go-Video, Inc. February 26, 1993 December 8, 1993
1993 Employee Stock Option Plan
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1,000,000 Total shares
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Current shares outstanding: 12,494,439 as of January 21, 1998, including no shares held in treasury
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Transfer Agent Information (name and address): American Securities Transfer Incorporated, 938 Quail Street, Suite 101,
Lakewood, Colorado 80215
Registrar Information (name and address): American Securities Transfer Incorporated, 938 Quail Street, Suite 101,
Lakewood, Colorado 80215
|_| yes |X| no Does any Director, Officer, or principle shareholder of the Company have a direct or indirect interest in
the transaction(s)?
|_| yes |X| no Does the transaction require the Company to issue any shares in the future above the amount currently
applied for:
(For example, an earn-out, price protection, or reset provision)
If yes, provide complete details of such insider interest and/or future issuance in the appropriate information section.
ATTACHMENTS
The following Company documents are incorporated by reference into this Additional Listing Application (please identify
below):
A. Go-Video, Inc. 1993 Employee Stock Option Plan
B. Legal opinion of Snell & Wilmer L.L.P.
C. Certified Board Resolutions authorizing the issuance of the
shares and shareholder approval of shares for which listing is
applied, certified by the Secretary of Go-Video, Inc.
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The Company hereby applies for the listing of the above mentioned additional
shares and the undersigned hereby certifies that the statements made herein, and
the papers and exhibits submitted in support thereof are, to the best of such
persons knowledge and belief, true and correct.
By:
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Roger B. Hackett
Print Name:
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Title: Chairman of the Board of
Directors, Chief Executive
Officer, President and Chief
Operating Officer
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ATTACHMENT A
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GO-VIDEO, INC.
1993 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
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The purpose of the Go-Video, Inc. 1993 Employee Stock Option
Plan (the "Plan") is to provide a means through which Go-Video, Inc., a Delaware
corporation (the "Company"), may attract able persons as employees and to
provide a means whereby those key employees upon whom the responsibilities for
the successful administration and management of the Company rest, and whose
present and potential contributions to the success of the Company are of
importance, can acquire and maintain stock ownership, thereby strengthening
their commitment to the success of the Company and their desire to remain in its
employ.
2. DEFINITIONS
-----------
For purposes of the Plan, the following terms shall have the
meanings set forth herein:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(c) "Committee" means the Committee of the Board,
referred to in Section 4 appointed to administer the
Plan.
(d) "Company" means Go-Video, Inc. and any successor
thereto.
(e) "Date of Grant" means the date on which the granting
of an Option is authorized by the Committee or such
later date as may be specified by the Committee in
such authorization.
(f) "Employee" means any person regularly employed by the
Company or a Subsidiary who satisfies all of the
requirements of Section 5.
(g) "Fair Market Value" means the closing bid price for
the Stock on the American Stock Exchange ("ASE"), as
reported in the Wall Street Journal for the date that
Fair Market Value is to be determined, or if no such
bids were made on such date, the closing bid price
for the Stock on the ASE as reported in the Wall
Street Journal for the immediately succeeding date on
which such bids were made.
(h) "Incentive Stock Option" means an Option satisfying
the requirements of Section 422 of the Code.
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(i) "Nonqualified Stock Option" means an Option that does
not satisfy the requirements of Section 422 of the
Code.
(j) "Normal Termination" means termination of employment:
(i) On account of permanent and total
disability; or
(ii) With written approval of the Company, given
in the context of its recognition that any
Option granted under a shareholder-approved
stock option plan which has not been
exercised by the terminating employee but is
then exercisable by him, will not be caused
to lapse by such termination.
(k) "Option" means the right granted under Section 6 of
the Plan to purchase Stock.
(l) "Participant" means an employee who has been granted
an Option pursuant to Section 6.
(m) "Plan" means the Go-Video, Inc. 1993 Employee Stock
Option Plan, as the same may be amended from time to
time.
(n) "Stock" means the Common Stock of the Company as
defined in the Company's Articles of Incorporation or
such other stock that is substituted therefor as
provided in Section 8 of the Plan.
3. SHARES OF STOCK SUBJECT TO THE PLAN
-----------------------------------
(a) Subject to the provisions of Section 3(c) and Section
6 of the Plan, the aggregate number of shares of
Stock that may be issued, transferred or exercised
pursuant to Options granted under the Plan shall not
exceed Five Hundred Thousand (500,000) shares.
(b) The shares to be delivered under the Plan may be made
available from (I) authorized but unissued shares of
Stock, (ii) Stock held in the treasury of the Company
or (iii) previously issued and outstanding shares of
Stock reacquired by the Company, including shares
purchased on the open market.
(c) To the extent that an Option lapses or the rights of
a Participant thereto terminate, any shares of Stock
subject to such Option shall again be available for
the grant of an Option.
4. ADMINISTRATION
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(a) The Plan shall be administered by a Committee that is
appointed by, and shall serve at the discretion of,
the Board. The Committee shall consist of at least
two (2) individuals who are members of the Board who
are "disinterested persons", as such term is defined
in Rule 16b-3 promulgated under Section 16 of the
Securities Exchange Act of 1934 (the "1934 Act") or
any successor provision, except as may be otherwise
permitted under Section 16 of the 1934 Act and the
regulations and rules promulgated thereunder.
(b) A majority of the Committee shall constitute a
quorum. The acts of a majority of the members present
at any meeting at which a quorum is present or acts
approved in writing by a majority of the Committee
shall be deemed the acts of the Committee. Each
member of the Committee is entitled to, in good
faith, rely or act upon any report or other
information furnished to that member by any officer
or other employee of the Company or any Subsidiary,
the Company's independent certified public
accountants, or any executive compensation consultant
or other professional retained by the company to
assist in the administration of the Plan.
(c) Subject to the provisions of the Plan, the Committee
shall have exclusive power and discretion to: (i)
select the individuals or entities to participate in
the Plan; (ii) determine the Options to be granted;
(iii) determine the time or times when Options will
be granted; (iv) determine the conditions to which
the grant of Options may be subject; (v) prescribe
the form or forms evidencing Options; and (vi) except
in the case of Incentive Stock Options, extend the
post-employment period in which an Option can be
exercised up to the balance of the normal term of the
Option.
(d) The Committee shall have the authority, subject to
the provisions of the Plan, to establish, adopt, or
revise such rules and regulations and to make all
such determinations relating to the Plan as it may
deem necessary or advisable for the administration of
the Plan. The Committee's interpretation of the Plan
or any Options granted pursuant thereto and all
decisions and determinations by the Committee with
respect to the Plan shall be final, binding, and
conclusive on all parties unless otherwise determined
by the Board.
5. ELIGIBILITY
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Officers and key employees of the Company (including officers
or employees who also serve as directors of the Company) who, in the opinion of
the Committee, have contributed or will contribute to the continued growth and
development and financial success of the Company shall be eligible to be granted
Options.
6. STOCK OPTIONS
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One or more Options may be granted to an Employee. Each Option
so granted shall be subject to the following conditions:
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(a) The per share exercise price of any Option shall be
set by the grant, but in no instance shall it be less
than Fair Market Value on the Date of Grant; provided
that if a Participant owns stock possessing more than
ten percent (10%) of the total combined voting power
of all classes of stock of the Company, its parent
corporation or any subsidiary corporation at the time
an Incentive Stock Option is granted, the per share
exercise price of that Incentive Stock Option must be
at least one hundred ten percent (110%) of the Fair
Market Value of the Stock subject to that Option.
(b) Each Option under the Plan may be exercised, in whole
or in part, at any time during the period specified
in the written instrument reflecting the grant of the
Option which shall not be earlier than the period
beginning six (6) months after the later of (i) its
Date of Grant or (ii) the effective date of the Plan
(see Section 11), and ending on the date which is ten
(10) years after its Date of Grant (five (5) years
after its Date of Grant in the case of an Incentive
Stock Option granted to a Participant who owns stock
possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the
Company, its parent corporation or any subsidiary
corporations at the time the Incentive Stock Option
is granted). At least six (6) months must elapse
between a Participant's receipt of an Option and the
disposition of the Stock obtained upon the exercise
of such Option. Notwithstanding the foregoing, if the
Participant terminates employment any outstanding
Options shall lapse upon such termination provided
that if the Participant's termination is determined
to be (i) a Normal Termination, the Options shall
lapse three (3) months after the Participant's
termination or (ii) on account of "normal retirement"
or "early retirement" as determined by the Committee,
the Options shall lapse one (1) year after the
Participant's retirement (three (3) months after the
Participant's retirement in the case of an Incentive
Stock Option), unless they expire earlier by their
terms. Notwithstanding the foregoing, except in the
case of an Incentive Stock Option, the Committee may,
in its sole discretion, extend the period in which a
Participant who terminates employment may exercise
any outstanding Options to the extent that the
Participant was entitled to exercise the Options at
the date of such termination.
(c) Options shall be evidenced by a written instrument
that shall not include any terms and conditions which
are inconsistent with the provisions of the Plan.
(d) Options may be exercised by written notice to the
Company, accompanied by payment in full in cash or by
check, in shares of Stock having a Fair Market Value
equal to the exercise price provided that such shares
shall have been held for at least six (6) months as
of the date of exercise, by delivery to the Company
of a promissory note with such collateral as the
Committee, in its discretion, determines to be
sufficient, or in a combination of the foregoing. As
an alternative, the Committee may, in its discretion,
assist Participants in paying the exercise price of
Options by (i) causing the Company to extend a loan
to a Participant or to guarantee a loan obtained by
the Participant from a
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third party; or (ii) authorizing payment of the
Option exercise price in installments over such
period and subject to such terms and conditions as
the Committee shall determine.
(e) Notwithstanding the foregoing, if the Participant
dies during the Option period, as determined pursuant
to Section 6(b), the Option shall lapse unless it is
exercised within the later to occur of (i) the Option
period or (ii) twelve (12) months after the
Participant's death by the Participant's legal
representative or representatives, by the person or
persons entitled to do so under the Participant's
last will and testament, or, if the Participant shall
fail to make testamentary disposition of such Option
or shall die intestate, by the person or persons
entitled to receive said Option under the applicable
laws of descent and distribution.
(f) No fractional shares of stock shall be issued and the
Committee shall determine whether cash shall be given
in lieu of fractional shares or whether such
fractional shares shall be eliminated by rounding up
or rounding down.
(g) Notwithstanding any provision of this Plan, in the
event of a public tender for all or any portion of
the Stock of the Company or in the event that a
proposal to merge, consolidate, or otherwise combine
with another company is submitted for shareholder
approval, the Committee may in its sole discretion
declare previously granted Options to be immediately
exercisable.
(h) In the case of an Incentive Stock Option, the
aggregate Fair Market Value (determined as of the
time such Option is granted) of all shares of Stock
with respect to which Incentive Stock Options are
first exercisable by any Participant in any calendar
year may not exceed $100,000 (or such other
individual grant limit as may be in effect under the
Code on the Date of Grant).
7. GENERAL PROVISIONS
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(a) Nothing in the Plan or in any instrument executed
pursuant to the Plan shall confer upon any
Participant any right to employment with the Company.
Nothing in the Plan or any instrument executed
pursuant to the Plan is intended to limit in any way,
the compensation to be paid or the benefits to be
provided by the Company to any Participant.
(b) Neither a Participant nor any other person claiming
under or through such Participant shall have any
right, title or interest in any shares of Stock
allocated or reserved under the Plan or subject to
any Option except as to such shares of Stock, if any,
that have been issued or transferred to such
Participant or other person claiming under or through
the Participant.
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(c) No Option may be exercised by any person other than
the Participant or his or her guardian or legal
representative during the Participant's lifetime. No
Option or any other right under the Plan, contingent
or otherwise, shall be transferable, assignable or
subject to any encumbrance, pledge or charge of any
nature, other than by will or the laws of descent and
distribution.
(d) The grant of Options and the obligation of the
Company to issue or transfer Stock as a result of the
exercise of an Option under the Plan shall be subject
to the requirements of all applicable laws, rules and
regulations and to such approval by government
agencies and/or the securities exchanges on which the
Stock is listed as may be required or deemed
advisable by the Company. As a condition precedent to
the grant of any Option or the issuance or transfer
of shares pursuant to the exercise of any Option, the
Company may require the Participant to take any
reasonable action to meet such requirements or to
obtain such approvals. The Company shall be under no
obligation to register under the Securities Act of
1933, as amended (the "Securities Act"), any of the
shares of Stock issued or transferred as a result of
the Plan. The Company shall have the right to
restrict the transferability of shares of Stock
issued or transferred under the Plan in such manner
as it deems necessary or appropriate to insure the
availability of any exemption from registration under
the Securities Act that may be available.
(e) The Committee and each member thereof shall be
indemnified and held harmless by the Company against
any and all loss, cost, liability or expense that may
be imposed upon or reasonably incurred by it or any
member thereof in connection with or resulting from
any claim, action, suit or proceeding as a result of
any action or failure to act under the Plan.
8. CHANGES IN CAPITAL STRUCTURE
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In the event a stock dividend is declared upon the Stock, the
shares of Stock then subject to each Option (and the number of shares reserved
for issuance pursuant thereto) shall be increased proportionately without any
change in the aggregate purchase price therefor. In the event the Stock shall be
changed into or exchanged for a different number or class of shares of Stock of
the Company or of another corporation, whether through reorganization,
recapitalization, stock split, combination of shares, merger or consolidation,
there shall be substituted for each such share of Stock then subject to each
Option (and for each share of Stock then reserved for issuance pursuant thereto)
the number and class of shares of Stock into which each outstanding share of
Stock shall be so exchanged, all without any change in the aggregate purchase
price for the shares then subject to each Option.
Subject to any required action by the stockholders, if the
Company shall be the surviving or resulting corporation in any merger or
consolidation, any Option granted hereunder shall pertain to and apply to the
securities or rights to which a holder of the number of shares of Stock subject
to the Option would have
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been entitled; but a dissolution or liquidation of the Company or a merger or
consolidation in which the Company is not the surviving or resulting
corporation, shall, in the sole discretion of the Committee:
(a) Cause every Option outstanding hereunder to
terminate, except that the surviving or resulting
corporation, may, in its discretion, tender an option
or options to purchase its shares or exercise such
rights on terms and conditions (both as to the number
of shares and rights) and otherwise which shall
substantially preserve the rights and benefits of any
Option then outstanding hereunder; or
(b) Give each Participant the right to exercise Options
prior to the occurrence of the event otherwise
terminating the Options over such period as the
Committee, in its sole and absolute discretion, shall
determine.
9. AMENDMENT
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Subject to the approval of the Board, the Committee may, at
any time, or from time to time, amend, modify, terminate or suspend and, if
suspended, reinstate, the Plan in whole or in part, provided that the Committee
may not cancel, reduce or otherwise alter a Participant's Options without the
Participant's written consent, and provided further that, without additional
shareholder approval, the Committee shall not:
(a) Increase the maximum number of shares which may be
issued on exercise of Options;
(b) Change the minimum Option price;
(c) Extend the maximum Option term;
(d) Extend the termination date of the Plan; or
(e) Change the class of employees eligible to participate
in the Plan.
10. TERMINATION OF THE PLAN
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The Plan will terminate upon the earlier of the following
dates or events to occur:
(a) upon the adoption of a resolution of the Board
terminating the Plan, or
(b) the date ten (10) years after the effective date of
the Plan.
The termination of the Plan will not affect the validity of
any Option outstanding on the date of termination.
II. EFFECTIVE DATE OF THE PLAN
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The Plan will take effect on the date of adoption by the
Board, subject to and conditioned upon subsequent approval of the Plan by the
shareholders of the Company. The Plan and the grant of Options thereunder will
be void and of no force and effect if foregoing condition is not satisfied.
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ATTACHMENT B
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Snell & Wilmer PHOENIX, ARIZONA
------ L.L.P. ------
LAW OFFICES TUCSON, ARIZONA
One Arizona Center IRVINE, CALIFORNIA
Phoenix, Arizona 85004-0001
(602) 382-6000 SALT LAKE CITY, UTAH
Fax: (602) 382-6070
April __, 1998
American Stock Exchange, Inc.
86 Trinity Place
New York, NY 10006
Ladies and Gentlemen::
We have acted as counsel to Go-Video, Inc., a Delaware corporation (the
"Company"), in connection with the Additional Listing Application of the Company
to the American Stock Exchange, Inc. (the "Exchange") for listing on the
Exchange of 1,000,000 shares of its Common Stock, $.001 par value per share (the
"Common Stock"), pursuant to the Go-Video, Inc. 1993 Employee Stock Option Plan
(the "Plan").
As such counsel, we have examined and are familiar with the Restated
Certificate of Incorporation and Amended and Restated By-Laws of the Company
(each as amended to date), the minutes of the meetings of the stockholders and
directors of the Company approving the issuance of the shares of Common Stock
pursuant to the Plan, and the corporate stock records of the Company. In
addition, we have made such investigations of law and have examined such
certificates of officers of the Company and such other documents and records as
we have considered necessary for purposes of this opinion.
We have assumed the genuineness of the signatures on and the
authenticity of all documents submitted to us as originals and the conformity to
original documents submitted to us as certified or photostatic copies. We also
have relied upon the accuracy of the aforementioned certificates of officers of
the Company and and have assumed the accuracy and completeness of the Company's
records.
We express no opinion as to the laws of any jurisdiction other than
those of the United States of America, and the General Corporation law of the
State of Delaware.
Based on the foregoing, it is our opinion that:
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American Stock Exchange, Inc.
April __, 1998
Page 2
1. The shares of Common Stock to be issued, have been duly authorized
and when issued pursuant to the Plan, will be, validly issued, fully paid and,
non-assessable, and no personal liability attaches or will attach to the holders
of such shares by reason of the ownership thereof.
2. A registration statement on Form S-8 has been filed by the Company
under the Securities Act of 1933, as amended covering the shares of Common Stock
to be issued pursuant to the Plan.
This opinion is rendered only to you and is solely for your benefit in
connection with the listing of the Common Stock on the Exchange.
Very truly yours,
SNELL & WILMER L.L.P.
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ATTACHMENT C
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SECRETARY'S CERTIFICATE
OF
GO-VIDEO, INC.
The undersigned, Douglas P. Klein, being the duly elected, qualified
and acting Secretary of Go-Video, Inc., a Delaware corporation (the "Company"),
hereby certifies for and on behalf of the Company as follows:
1. I am the duly elected, qualified, and acting Secretary of the
Company and, as such, I am familiar with the matters set forth below and with
the books, records, and proceedings of the Company.
2. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions adopted by the Board of Directors at a meeting held on February 26,
1993 (the "1993 Resolutions"), authorizing the shares for issuance under the
Go-Video, Inc. 1993 Employee Stock Option Plan ("Plan"). The 1993 Resolutions
are in full force and effect as of the date hereof and have not been amended,
modified, or rescinded.
3. The shareholders of the Company approved the Plan at the Annual
Meeting of Stockholders held on December 8, 1993.
4. Attached hereto as Exhibit 2 is a true and correct copy of a
proposal included in the Company's 1997 Proxy Statement to increase the number
of shares issuable under the Plan to 1,000,000 (the "Proposal"). Attached as
Exhibit 3 is a true and correct copy of the Certificate and Report of Inspector
of Election from the Annual Meeting of Shareholders of Go-Video, Inc. held
August 21, 1997, which indicates that the Proposal was approved by the
shareholders of the Company. The Proposal is in full force and effect as of the
date hereof and has not been amended, modified, or rescinded.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this ___ day of __________, 1998.
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Douglas P. Klein
Secretary
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EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
