As filed with the Securities and Exchange Commission on May 4, 1995
Registration Statement No. 33-_______
=====================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
THE GOOD GUYS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2366177
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7000 Marina Boulevard, Brisbane, California 94005-1840
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Incentive Plan
Employee Stock Purchase Plan
(Full title of the plan)
John P. Goldsberry, III, Chief Financial Officer
The Good Guys, Inc.
7000 Marina Boulevard
Brisbane, California 94005-1840
(Name and address, including zip code, of agent for service)
(415) 615-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered per Share Offering Price Fee
Common Stock,
par value $.001
per share:
1994 Stock
Incentive
Plan 1,000,000 $9.5625* $9,562,500* $3,297.41
Employee
Stock
Purchase Plan 500,000 $9.5625* $4,781,250* $1,648.70
*Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457, on the basis of the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on
May 2, 1995<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by
reference in this registration statement:
(a) Registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 1994,
filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All other reports, if any, filed by Registrant
pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year
ended September 30, 1994;
(c) The description of Registrant's Common Stock
contained in the Registration Statement on
Form 8-A filed with the Commission on
February 6, 1986 under Section 12 of the
Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 after the date of this registration
statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that
all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold under this
registration statement, 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.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be
offered is registered under Section 12 of the Exchange Act.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by sections 102 and 145 of the
Delaware General Corporation Law, the Registrant's
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certificate of incorporation eliminates a director's personal
liability for monetary damages to the Registrant and its
stockholders arising from a breach or alleged breach of a
director's fiduciary duty, except for liability under
section 174 of the Delaware General Corporation Law or
liability for any breach of the director's duty of loyalty to
the Registrant or its stockholders, for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, or for any transaction from which
the director derived an improper personal benefit. The
effect of this provision in the certificate of incorporation
is to eliminate the rights of the Registrant and its
stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against
a director for breach of fiduciary duty as a director
(including breaches resulting from negligent or grossly
negligent behavior) except in the situations described above.
The Registrant's bylaws provide for indemnification
of officers, directors and employees, and the Company has
entered into an indemnification agreement with each officer
and director of the Registrant (an "Indemnitee"). Under the
bylaws and such indemnification agreements, the Registrant
must indemnify an Indemnitee to the fullest extent permitted
by Delaware law for losses and expenses incurred in
connection with actions in which the Indemnitee is involved
by reason of having been a director or employee of the
Registrant. The Registrant is also obligated to advance
expenses an Indemnitee may incur in connection with such
actions before any resolution of the action, and the
Indemnitee may sue to enforce his or her right to
indemnification or advancement of expenses.
The Registrant also maintains an insurance policy
insuring its directors and officers against liability for
certain acts and omissions while acting in their official
capacities.
There is no litigation pending, and neither the
Registrant nor any of its directors know of any threatened
litigation, which might result in a claim for indemnification
by any director or officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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Item 8. EXHIBITS.
Exhibit
Number Description of Document
4.1 1994 Stock Incentive Plan.
4.2 Employee Stock Purchase Plan, as amended.
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation (included in
Exhibit 5.1).
24.1 Powers of Attorney.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required
by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any
facts or events arising after the effective
date of the registration statement (or the
most recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
registration statement or any material change
to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
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periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in this 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.
(b) The undersigned Registration hereby undertakes
that, for purposes of determining any liability under
the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934
(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.
(c) 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
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public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements of 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 Brisbane, State of California on the
4th day of May, 1995.
THE GOOD GUYS, INC.
By /s/ ROBERT A. GUNST
Robert A. Gunst
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
/s/ ROBERT A. GUNST Director, President and May 4, 1995
(Robert A. Gunst) Chief Executive Officer
(Principal Executive
Officer)
/s/ JOHN P. GOLDSBERRY, III Vice President, Chief May 4, 1995
(John P. Goldsberry, III) Financial Officer and
Secretary (Principal
Financial Officer and
Principal Accounting
Officer)
RONALD A. UNKEFER* Chairman of the Board May 4, 1995
(Ronald A. Unkefer)
STANLEY R. BAKER* Director May 4, 1995
(Stanley R. Baker)
RUSSELL M. SOLOMON* Director May 4, 1995
(Russell M. Solomon)
JOHN E. MARTIN* Director May 4, 1995
(John E. Martin)
W. HOWARD LESTER* Director May 4, 1995
(W. Howard Lester)
*By /s/ ROBERT A. GUNST
Robert A. Gunst,
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Description of Document
_______ _______________________
4.1 1994 Stock Incentive Plan.
4.2 Employee Stock Purchase Plan, as amended.
5.1 Opinion of Howard, Rice,
Nemerovski, Canady, Falk & Rabkin,
A Professional Corporation.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Howard, Rice,
Nemerovski, Canady, Falk & Rabkin,
A Professional Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney.
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Exhibit 4.1
THE GOOD GUYS, INC.
1994 STOCK INCENTIVE PLAN
1. PURPOSE.
The purposes of the 1994 Stock Incentive Plan (the
"Plan") are to enable The Good Guys, Inc. (the "Corporation")
and its Subsidiaries, if any, to attract and retain directors
and key employees and to provide them with additional
incentive to advance the interests of the Corporation. For
the purposes of the Plan, the term "Subsidiary" means any
corporation or other entity in which the Corporation has,
directly or indirectly, an equity interest representing 50%
or more of the capital stock thereof or equity interests
therein.
2. ADMINISTRATION.
(a) The Plan shall be administered by a committee
(the "Committee") appointed by the Board of Directors of the
Corporation (the "Board") and consisting of not less than two
members of the Board, each of whom at the time of appointment
to the Committee and at all times during service as a member
of the Committee shall be a "disinterested person" as then
defined under Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "1934 Act"), or any successor rule.
(b) The Committee shall interpret the Plan and
prescribe such rules, regulations and procedures in
connection with the Plan as it shall deem to be necessary and
advisable for the administration of the Plan.
3. ELIGIBILITY.
(a) Officers and other key employees of the
Corporation or any Subsidiary shall be eligible to be granted
stock options and to receive restricted share, restricted
share unit, performance unit or bonus share awards as
described herein.
(b) Non-employee directors shall be eligible to
receive under the Plan only non-qualified options (i.e.,
options that do not qualify under Section 422 or 423 of the
Internal Revenue Code of 1986 (the "Code")) in accordance
with the provisions of Section 5(b) hereof.
-1-<PAGE>
4. SHARES AVAILABLE.
The aggregate number of shares of the Corporation's
Common Stock, $.001 par value ("Common Stock"), which may be
issued and as to which grants or awards of stock options,
restricted shares, restricted share units, performance units
or bonus shares may be made under the Plan is 1,000,000
shares (of which no more than 350,000 shares shall be
available for the grant of restricted shares or restricted
share units), subject to adjustment and substitution as set
forth in Section 8. If any stock option granted under the
Plan is cancelled by mutual consent or terminates or expires
for any reason without having been exercised in full, the
number of shares subject thereto shall again be available for
purposes of the Plan. If shares of Common Stock or the right
to receive shares of Common Stock are forfeited to the
Corporation pursuant to the restrictions applicable to
restricted shares or restricted share units awarded under the
Plan, the shares so forfeited or covered by such right shall
not again be available for the purposes of the Plan. To the
extent any award of performance units is not earned or is
paid in cash rather than shares, the number of shares covered
thereby shall again be available for purposes of the Plan.
The shares which may be issued under the Plan may be either
authorized but unissued shares or treasury shares or partly
each, as shall be determined from time to time by the Board.
5. GRANTS AND AWARDS.
(a) With respect to officers and other key
employees, the Committee shall have authority, in its
discretion, to grant incentive stock options pursuant to
Section 422 of the Code and non-qualified stock options, and
to award restricted shares, restricted share units,
performance units and bonus shares.
Notwithstanding any other provision contained in
the Plan or in any stock option agreement, the aggregate fair
market value, determined on the date of grant, of the shares
with respect to which incentive stock options are exercisable
for the first time by an employee during any calendar year
under all plans of the corporation employing such employee,
any parent or subsidiary corporation of such corporation and
any predecessor corporation of any such corporation shall not
exceed $100,000; provided, however, that all or any portion
of a stock option which cannot be exercised because of such
limitation shall be treated as a non-qualified option.
The maximum number of shares covered by all grants
or awards in any fiscal year of the Corporation to any
participant shall not exceed 100,000 (subject to adjustment
and substitution as set forth in Section 8).
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(b) On the date on which the Board appoints, or
the shareholders of the Corporation elect, a person who is
not an employee of the Corporation as a member of the Board
for the first time, such director shall be awarded a non-
qualified option under this Plan to purchase 5,000 shares of
Common Stock. Immediately after the completion of each
annual meeting of the shareholders of the Corporation, each
such director shall be awarded a non-qualified option to
purchase 1,000 shares of Common Stock (unless such director
receives a like grant under the Corporation's 1985 Stock
Option Plan). Such options shall have an exercise price per
share equal to the fair market value of the shares of the
Corporation on the date of such award. Except as otherwise
specifically provided in this Section 5(b), the terms of this
Plan, including the vesting provisions of Section 6(d), shall
apply to all options granted pursuant to this Section 5(b).
This Section 5(b) shall not be amended more than once every
six months, other than to comport with changes in the Code,
the Employee Retirement Income Security Act, or the rules
thereunder.
(c) If a grantee of a stock option, restricted
share or performance unit engages in the operation or
management of a business (whether as owner, partner, officer,
director, employee or otherwise and whether during or after
termination of employment) which is in competition with the
Corporation or any of its Subsidiaries, the Committee may
immediately terminate all outstanding stock options held by
the grantee, declare forfeited all restricted shares or
restricted share units held by the grantee as to which the
restrictions have not yet lapsed and terminate all
outstanding performance unit awards held by the grantee for
which the applicable Performance Period has not been
completed; provided, however, that this sentence shall not
apply if the exercise period of a stock option following
termination of employment has been extended as provided in
Section 9(c), if the lapse of the restrictions applicable to
restricted shares or restricted share units has been
accelerated as provided in Section 9(d), or if a performance
unit has been deemed to have been earned as provided in
Section 9(e). Whether a grantee has engaged in the operation
or management of a business which is in competition with the
Corporation or any of its Subsidiaries shall be determined by
the Committee in its discretion, and any such determination
shall be final and binding.
6. TERMS AND CONDITIONS OF STOCK OPTIONS.
Stock options granted under the Plan shall be
subject to the following terms and conditions:
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(a) The purchase price at which each stock
option may be exercised (the "option price") shall
not be less than one hundred percent (100%) of the
fair market value per share of the Common Stock
covered by the stock option on the date of grant;
provided, however, that in the case of an incentive
stock option granted to an employee, who,
immediately prior to such grant, owns stock
possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of
the Corporation or a Subsidiary (a "Ten Percent
Employee"), the option price shall not be less than
one hundred ten percent (110%) of such fair market
value on the date of grant. For purposes of this
Section 6(a), an individual (i) shall be considered
as owning not only shares of stock owned
individually but also all shares of stock that are
at the time owned, directly or indirectly, by or
for the spouse, ancestors, lineal descendants and
brothers and sisters (whether by the whole or half
blood) of such individual and (ii) shall be
considered as owning proportionately any shares
owned, directly or indirectly, by or for any
corporation, partnership, estate or trust in which
such individual is a shareholder, partner or
beneficiary.
(b) The option price for each stock option
shall be paid in full upon exercise and shall be
payable in cash in United States dollars (including
check, bank draft or money order), which may
include cash forwarded through a broker or other
agent-sponsored exercise or financing program;
provided, however, that in lieu of such cash the
person exercising the stock option may pay the
option price in whole or in part by delivering to
the Corporation shares of Common Stock having a
fair market value on the date of exercise of the
stock option equal to the option price for the
shares being purchased; except that (i) any portion
of the option price representing a fraction of a
share shall in any event be paid in cash and (ii)
no shares of Common Stock which have been held for
less than six months may be delivered in payment of
the option price of a stock option. Notwith-
standing any procedure of a broker or other agent-
sponsored exercise or financing program, if the
option price is paid in cash, the exercise of the
stock option shall not be deemed to occur and no
shares of the Common Stock will be issued until the
Corporation has received full payment in cash
(including check, bank draft or money order) for
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the option price from the broker or other agent.
The date of exercise of a stock option shall be
determined under procedures established by the
Committee, and as of the date of exercise the
person exercising the stock option shall be
considered for all purposes to be the owner of the
shares with respect to which the stock option has
been exercised. Payment of the option price with
shares shall not increase the number of shares of
Common Stock available for issuance under the Plan.
(c) No stock option shall be exercisable
during the first six months of its term, except
that this limitation on exercise shall not apply if
Section 9(b) becomes applicable. No stock option
shall be exercisable after the expiration of ten
years (five years in the case of an incentive stock
option granted to a Ten Percent Employee) from the
date of grant. To the extent it is exercisable, a
stock option may be exercised at any time in whole
or in part.
(d) The Committee shall have the power to set
the time or times within which each option shall be
exercisable, and to accelerate the time or times of
exercise. Unless the stock option agreement
otherwise provides, the option shall become
exercisable on a cumulative basis as to one-quarter
of the total number of shares covered thereby on
each of the first, second, third and fourth
anniversary dates of the date of grant of the
option.
(e) No stock option shall be transferable by
the grantee otherwise than by will, or if the
grantee dies intestate, by the laws of descent and
distribution of the state of domicile of the
grantee at the time of death. All stock options
shall be exercisable during the lifetime of the
grantee only by the grantee.
(f) Unless the Committee, in its discretion,
shall otherwise determine:
(i) If the employment or
directorship of a grantee who is not
disabled within the meaning of Section
422(c)(6) of the Code (a "Disabled
Grantee") is voluntarily terminated with
the consent of the Corporation or a
Subsidiary or a grantee retires under any
retirement plan of the Corporation or a
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Subsidiary, any then outstanding
incentive stock option held by such
grantee shall be exercisable by the
grantee (but only to the extent
exercisable by the grantee immediately
prior to such termination) at any time
prior to the expiration date of such
incentive stock option or within three
months after the date of such
termination, whichever is the shorter
period;
(ii) If the employment or
directorship of a grantee who is not a
Disabled Grantee is voluntarily
terminated with the consent of the
Corporation or a Subsidiary or a grantee
retires under any retirement plan of the
Corporation or a Subsidiary, any then
outstanding non-qualified stock option
held by such grantee shall be exercisable
by the grantee (but only to the extent
exercisable by the grantee immediately
prior to such termination) at any time
prior to the expiration date of such
nonstatutory stock option or within one
year after the date of termination of
employment, whichever is the shorter
period;
(iii) If the employment or
directorship of a grantee who is a
Disabled Grantee is voluntarily
terminated with the consent of the
Corporation or a Subsidiary, any then
outstanding stock option held by such
grantee shall be exercisable by the
grantee in full (whether or not so
exercisable by the grantee immediately
prior to such termination) by the grantee
at any time prior to the expiration date
of such stock option or within one year
after the date of such termination,
whichever is the shorter period;
(iv) Following the death of a
grantee during employment or while
serving as a director, any outstanding
stock option held by the grantee at the
time of death shall be exercisable in
full (whether or not so exercisable by
the grantee immediately prior to the
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death of the grantee) by the person
entitled to do so under the will of the
grantee, or, if the grantee shall fail to
make testamentary disposition of the
stock option or shall die intestate, by
the legal representative of the grantee
at any time prior to the expiration date
of such stock option or within one year
after the date of death, whichever is the
shorter period;
(v) Following the death of a
grantee after termination of employment
or his or her directorship during a
period within which a stock option is
exercisable, any outstanding stock option
held by the grantee at the time of death
shall be exercisable by such person
entitled to do so under the will of the
grantee or by such legal representative
(but only to the extent the stock option
was exercisable by the grantee
immediately prior to the death of the
grantee) at any time prior to the
expiration date of such stock option or
within one year after the date of death,
whichever is the shorter period; and
(vi) Unless the exercise period of a
stock option following termination of
employment or directorship has been
extended as provided in Section 9(c), if
the employment or directorship of a
grantee terminates for any reason other
than voluntary termination with the
consent of the Corporation or a
Subsidiary, retirement under any
retirement plan of the Corporation or a
Subsidiary or death, all outstanding
stock options held by the grantee at the
time of such termination shall
automatically terminate.
Whether termination of employment or directorship
is a voluntary termination with the consent of the
Corporation or a Subsidiary and whether a grantee is a
Disabled Grantee shall be determined in each case by the
Committee in its discretion and any such determination by the
Committee shall be final and binding.
(g) All stock options shall be confirmed by
an agreement, which shall be executed on behalf of
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the Corporation by the Chief Executive Officer (if
other than the President), the President or any
Vice President of the Corporation and by the
grantee.
(h) The term "fair market value" for all
purposes of the Plan shall mean the market price of
the Common Stock, determined by the Committee as
follows:
(i) If the Common Stock is traded
on a stock exchange, then the Fair Market
Value shall be equal to the closing price
reported by the applicable composite-
transactions report for such date;
(ii) If the Common Stock is traded
in the Nasdaq Stock Market and is
classified as a national market issue,
then the Fair Market Value shall be equal
to the last-transaction price quoted by
the Nasdaq National Market system for
such date;
(iii) If the Common Stock is traded
in the Nasdaq Stock Market, but is not
classified as a national market issue,
then the Fair Market Value shall be equal
to the mean between the last reported
representative bid and asked prices
quoted by the Nasdaq system for such
date; and
(iv) If none of the foregoing
provisions is applicable, then the Fair
Market Value shall be determined by the
Committee in good faith on such basis as
it deems appropriate.
(i) The obligation of the Corporation to
issue shares of Common Stock under the Plan shall
be subject to (i) the effectiveness of a
registration statement under the Securities Act of
1933, as amended, with respect to such shares, if
deemed necessary or appropriate by counsel for the
Corporation, (ii) the condition that the shares
shall have been listed (or authorized for listing
upon official notice of issuance) upon each stock
exchange, if any, on which the Common Stock may
then be listed and (iii) all other applicable laws,
regulations, rules and orders which may then be in
effect.
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Subject to the foregoing provisions of this Section
and the other provisions of the Plan, any stock option
granted under the Plan may be exercised at such times and in
such amounts and be subject to such restrictions and other
terms and conditions, if any, as shall be determined, in its
discretion, by the Committee and set forth in the agreement
referred to in Section 6(i), or an amendment thereto.
7. TERMS AND CONDITIONS OF RESTRICTED SHARE,
RESTRICTED SHARE UNIT, PERFORMANCE UNIT AND BONUS
SHARE AWARDS.
(a) Restricted Shares and Units. Restricted share
or restricted share unit awards shall be evidenced by a
written agreement in the form prescribed by the Committee in
its discretion, which shall set forth the number of
restricted shares of Common Stock or restricted share units
entitling the holder to receive shares of Common Stock
awarded, the restrictions imposed thereon (including, without
limitation, restrictions on the right of the grantee to sell,
assign, transfer or encumber such shares or units while such
shares or units are subject to other restrictions imposed
under this Section 7), the duration of such restrictions,
events (which may, in the discretion of the Committee,
include performance-based events) the occurrence of which
would cause a forfeiture of restricted shares or restricted
share units and such other terms and conditions as the
Committee in its discretion deems appropriate. Restricted
share or restricted share unit awards shall be effective only
upon execution of the applicable restricted share or
restricted share unit agreement on behalf of the Corporation
by the Chief Executive Officer (if other than the President),
the President or any Vice President, and by the grantee.
Restricted shares or restricted share units may be
issued for no consideration other than for services to be
rendered or for such consideration as shall be determined at
the time of award by the Committee.
Except as otherwise specified by the Committee at
the time of award of restricted shares or restricted share
units, restricted shares or restricted share units issued
shall vest (i.e., become non-forfeitable,) as follows: 25%
on the date of the first anniversary of the date of issuance
of the restricted shares or restricted share units and an
additional 25% on each anniversary date thereafter. If prior
to full vesting of the restricted shares or restricted share
units the employment of the holder thereof is voluntarily
terminated with the consent of the Corporation or Subsidiary
or the holder retires under any retirement plan of the
Corporation or a Subsidiary or dies during employment, the
Committee may in its absolute discretion determine to vest
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all or any part of the restricted shares or restricted share
units except as otherwise provided in Section 9(e). If the
employment of the holder of restricted shares or restricted
share units terminates for any reason other than voluntary
termination with the consent of the Corporation or a
Subsidiary, retirement under any retirement plan of the
corporation or a Subsidiary or death, all unvested restricted
shares or restricted share units shall be forfeited. Whether
the termination of employment is a voluntary termination with
the consent of the Corporation or a Subsidiary shall be
determined by the Committee in its discretion, and a
determination by the Committee on any matter with respect to
restricted shares or restricted share units shall be final
and binding on both the Corporation and the holder of
restricted shares or restricted share units.
Following a restricted share award and prior to the
lapse or termination of the applicable restrictions, the
Committee shall deposit share certificates for such
restricted shares in escrow (which may be an escrow in the
custody of an officer of the Corporation). Upon the lapse or
termination of the applicable restrictions (and not before
such time), the grantee shall be issued or transferred share
certificates for such restricted shares. From the date a
restricted share award is effective, the grantee shall be a
shareholder with respect to all the shares represented by
such certificates and shall have all the rights of a
shareholder with respect to all such shares, including the
right to vote such shares and to receive all dividends and
other distributions paid with respect to such shares, subject
only to the restrictions imposed by the Committee. The
grantee of restricted share units shall not have any rights
as a shareholder until the delivery to the grantee of shares
on lapse of the restrictions imposed.
(b) Performance Units. The Committee may award
performance units which shall be earned by an awardee based
on the level of performance over a specified period of time
by the Corporation, a Subsidiary or Subsidiaries, any branch,
department or other portion thereof or the awardee
individually, as determined by the Committee. For the
purposes of the grant of performance units, the following
definitions shall apply:
(i) "Performance unit" shall mean an award,
expressed in dollars or shares of Common Stock, granted
to an awardee with respect to a Performance Period.
Awards expressed in dollars may be established as fixed
dollar amounts, as a percentage of salary, as a
percentage of a pool based on earnings of the
Corporation, a Subsidiary or Subsidiaries or any branch,
department or other portion thereof or in any other
-10-<PAGE>
manner determined by the Committee in its discretion,
provided that the amount thereof shall be capable of
being determined as a fixed dollar amount as of the
close of the Performance Period.
(ii) "Performance Period" shall mean an
accounting period of the Corporation or a Subsidiary of
not less than one year, as determined by the Committee
in its discretion.
(iii) "Performance Target" shall mean that
level of performance established by the Committee which
must be met in order for the performance unit to be
fully earned. The Performance Target may be expressed
in terms of earnings per share, return on assets, asset
growth, ratio of capital to assets or such other level
or levels of accomplishment by the Corporation, a
Subsidiary or Subsidiaries, any branch, department or
other portion thereof or the awardee individually as may
be established or revised from time to time by the
Committee.
(iv) "Minimum Target" shall mean a minimal
level of performance established by the Committee which
must be met before any part of the performance unit is
earned. The Minimum Target may be the same as or less
than the Performance Target in the discretion of the
Committee.
An awardee shall earn the performance unit in full
by meeting the Performance Target for the Performance Period.
If the Minimum Target has not been attained at the end of the
Performance Period, no part of the performance unit shall
have been earned by the awardee. If the Minimum Target is
attained but the Performance Target is not attained, the
portion of the performance unit earned by the awardee shall
be determined on the basis of a formula established by the
Committee.
Payment of earned performance units shall be made
to awardees following the close of the Performance Period as
soon as practicable after the time the amount payable is
determined by the Committee. Payment in respect of earned
performance units, whether expressed in dollars or shares,
may be made in cash, in shares of Common Stock, or partly in
cash and partly in shares of Common Stock, as determined by
the Committee at the time of payment. For this purpose,
performance units expressed in dollars shall be converted to
shares, and performance units expressed in shares shall be
converted to dollars, based on the fair market value of the
Common Stock, as of the date the amount payable is determined
by the Committee.
-11-<PAGE>
If prior to the close of the Performance Period the
awardee of performance units is voluntarily terminated with
the consent of the Corporation or a Subsidiary or the awardee
retires under any retirement plan of the Corporation or a
Subsidiary or the awardee dies during employment, the
Committee may in its absolute discretion determine to pay all
or any part of the performance unit based upon the extent to
which the Committee determines the Performance Target or
Minimum Target has been achieved as of the date of
termination of employment, retirement or death, the period of
time remaining until the close of the Performance Period
and/or such other factors as the Committee may deem relevant.
If the Committee in its discretion determines that all or any
part of the performance unit shall be paid, payment shall be
made to the awardee or his or her estate as promptly as
practicable following such determination and may be made in
cash, in shares or Common Stock, or partly in cash and partly
in shares of Common Stock, as determined by the Committee at
the time of payment. For this purpose, performance units
expressed in dollars shall be converted to shares, and
performance units expressed in shares shall be converted to
Dollars, based on the fair market value of the Common Stock
as of the date the amount payable is determined by the
Committee.
Except as otherwise provided in Section 9(e), if
the employment of an awardee of performance units terminates
prior to the close of a Performance Period for any reason
other than voluntary termination with the consent of the
Corporation or a Subsidiary or retirement under any
retirement plan of the Corporation or a Subsidiary or death,
the performance units of the awardee shall be deemed not to
have been earned, and no portion of such performance units
may be paid. Whether termination of employment is a
voluntary termination with the consent of the Corporation or
a Subsidiary shall be determined, in its discretion, by the
Committee. Any determination by the Committee on any matter
with respect to performance units shall be final and binding
on both the Corporation and the awardee.
Performance unit awards shall be evidenced by a
written agreement in the form prescribed by the Committee
which shall set forth the amount or manner of determining the
amount of the performance unit, the Performance Period, the
Performance Target and any Minimum Target and such other
terms and conditions as the Committee in its discretion deems
appropriate. Performance unit awards shall be effective only
upon execution of the applicable performance unit agreement
on behalf of the Corporation by the Chief Executive Officer
(if other than the President), the President or any Vice
President, and by the awardee.
-12-<PAGE>
(c) Bonus Shares. The Committee shall have the
authority in its discretion to award bonus shares of Common
Stock to eligible employees from time to time in recognition
of the contribution of the awardee to the performance of the
Corporation, a Subsidiary or Subsidiaries, or any branch,
department or other portion thereof, in recognition of the
awardee's individual performance or on the basis of such
other factors as the Committee may deem relevant.
8. ADJUSTMENT AND SUBSTITUTION OF SHARES.
If a dividend or other distribution shall be
declared upon the Common Stock payable in shares of the
Common Stock, the number of shares of the Common Stock then
subject to any outstanding stock options, restricted share
units or performance unit awards and the number of shares of
the Common Stock which may be issued under the Plan but are
not then subject to outstanding stock options or awards shall
be adjusted by adding thereto the number of shares of the
Common Stock which would have been distributable thereon if
such shares had been outstanding on the date fixed for
determining the shareholders entitled to receive such stock
dividend or distribution. Shares of Common Stock so
distributed with respect to any restricted shares held in
escrow shall be held by the Corporation in escrow and shall
be subject to the same restrictions as are applicable to the
restricted shares on which they were distributed.
If the outstanding shares of the Common Stock shall
be changed into or exchangeable for a different number or
kind of shares of stock or other securities of the
Corporation or another corporation, whether through
reorganization, reclassification, recapitalization, stock
split-up, combination of shares, merger or consolidation,
then there shall be substituted for each share of the Common
Stock subject to any then outstanding stock option,
restricted share unit or performance unit award, and for each
share of the Common Stock which may be issued under the Plan
but which is not then subject to any outstanding stock option
or award, the number and kind of shares of stock or other
securities into which each outstanding share of the Common
Stock shall be so changed or for which each such share shall
be exchangeable. Unless otherwise determined by the
Committee in its discretion, any such stock or securities, as
well as any cash or other property, into or for which any
restricted shares held in escrow shall be changed or
exchangeable in any such transaction shall also be held by
the Corporation in escrow and shall be subject to the same
restrictions as are applicable to the restricted shares in
respect of which such stock, securities, cash or other
property was issued or distributed.
-13-<PAGE>
In case of any adjustment or substitution as
provided for in this Section 8, the aggregate option price
for all shares subject to each then outstanding stock option
prior to such adjustment or substitution shall be the
aggregate option price for all shares of stock or other
securities (including any fraction) to which such shares
shall have been adjusted or which shall have been substituted
for such shares. Any new option price per share shall be
carried to at least three decimal places with the last
decimal place rounded upwards to the nearest whole number.
No adjustment or substitution provided for in this
Section 8 shall require the Corporation to issue or sell a
fraction of a share or other security. Accordingly, all
fractional shares or other securities which result from any
such adjustment or substitution shall be eliminated and not
carried forward to any subsequent adjustment or substitution.
Owners of restricted shares held in escrow shall be treated
in the same manner as owners of Common Stock not held in
escrow with respect to fractional shares created by an
adjustment or substitution of shares, except that, unless
otherwise determined by the Committee in its discretion, any
cash or other property paid in lieu of a fractional share
shall be subject to restrictions similar to those applicable
to the restricted shares exchanged therefor.
If any such adjustment or substitution provided for
in this Section 8 requires the approval of shareholders in
order to enable the Corporation to grant incentive stock
options, then no such adjustment or substitution shall be
made without the required shareholder approval.
Notwithstanding the foregoing, in the case of incentive stock
options, if the effect of any such adjustment or substitution
would be to cause the stock option to fail to continue to
qualify as an incentive stock option or to cause a
modification, extension or renewal of such stock option
within the meaning of Section 424 of the Code, the Committee
may elect that such adjustment or substitution not be made
but rather shall use reasonable efforts to effect such other
adjustment of each then outstanding stock option as the
Committee, in its discretion, shall deem equitable and which
will not result in any disqualification, modification,
extension or renewal (within the meaning of Section 424 of
the Code) of such incentive stock option.
9. ADDITIONAL RIGHTS IN CERTAIN EVENTS.
(a) Definitions. For purposes of this Section 9,
the following terms shall have the following meanings:
(i) The term "Person" shall be used as that
term is used in Sections 13(d) and 14(d) of the 1934 Act.
-14-<PAGE>
(ii) Beneficial ownership shall be determined
as provided in Rule 13d-3 under the 1934 Act as in effect on
the effective date of the Plan.
(iii) "Voting Shares" shall mean all securities
of a company entitling the holders thereof to vote in an
annual election of Directors (without consideration of the
rights of any class of stock other than the Common Stock to
elect Directors by a separate class vote); and a specified
percentage of "Voting Power" of a company shall mean such
number of the Voting Shares as shall enable the holders
thereof to cast such percentage of all the votes which could
be cast in an annual election of directors (without
consideration of the rights of any class of stock other than
the Common Stock to elect Directors by a separate class
vote).
(iv) "Tender Offer" shall mean a tender offer
or exchange offer to acquire securities of the Corporation
(other than such an offer made by the Corporation or any
Subsidiary), whether or not such offer is approved or opposed
by the Board.
(v) "Section 9 Event" shall mean the date
upon which any of the following events occurs:
(A) The Corporation acquires actual knowledge
that any Person has acquired the Beneficial Ownership,
directly or indirectly, of securities of the Corporation
entitling such Person to 20% or more of the Voting Power
of the Corporation, other than the Corporation, a
Subsidiary or any employee benefit plan(s) sponsored by
the Corporation, or a Person approved by the Board that
has acquired 20% or more but less than 50% of the Voting
Power of the Corporation;
(B) A Tender Offer is made to acquire
securities of the Corporation entitling the holders
thereof to 20% or more of the Voting Power of the
Corporation; or
(C) A solicitation subject to Rule 14a-11
under the 1934 Act (or any successor Rule) relating to
the election or removal of 50% or more of the members of
any class of the Board shall be made by any person other
than the Corporation; or
(D) The shareholders of the Corporation shall
approve a merger, consolidation, share exchange,
division or sale or other disposition of assets of the
Corporation as a result of which the shareholders of the
Corporation immediately prior to such transaction shall
-15-<PAGE>
not hold, directly or indirectly, immediately following
such transaction a majority of the Voting Power of
(i) in the case of a merger or consolidation, the
surviving or resulting corporation, (ii) in the case of
a share exchange, the acquiring corporation or (iii) in
the case of a division or a sale or other disposition of
assets, each surviving, resulting or acquiring
corporation which, immediately following the
transaction, holds more than 20% of the consolidated
assets of the Corporation immediately prior to the
transaction;
provided, however, that (i) if securities beneficially owned
by a grantee are included in determining the Beneficial
Ownership of a Person referred to in Section 9(a)(v)(A),
(ii) a grantee is required to be named pursuant to Item 2 of
the Schedule 14D-1 (or any similar successor filing
requirement) required to be filed by the bidder making a
Tender Offer referred to in Section 9(a)(v)(B), or (iii) if a
grantee is a "participant" as defined in 14a-11 under the
1934 Act (or any successor Rule) in a solicitation (other
than a solicitation by the Corporation) referred to in
Section 9(a)(v)(C), then no Section 9 Event with respect to
such grantee shall be deemed to have occurred by reason of
such event.
(b) Acceleration of the Exercise Date of Stock
Options. Unless the agreement referred to in Section 6(g),
or an amendment thereto, shall otherwise provide,
notwithstanding any other provision contained in the Plan, in
case any "Section 9 Event" occurs all outstanding stock
options (other than those held by a person referred to in the
proviso to Section 9(a)(v)) shall become immediately and
fully exercisable whether or not otherwise exercisable by
their terms.
(c) Extension of the Expiration Date of Stock
Options. Unless the agreement referred to in Section 6(g),
or an amendment thereto, shall otherwise provide,
notwithstanding any other provision contained in the Plan,
all stock options held by a grantee (other than a grantee
referred to in the proviso to Section 9(a)(v)) whose
employment with the Corporation or a Subsidiary terminates
within one year of any Section 9 Event for any reason other
than voluntary termination with the consent of the
Corporation or a Subsidiary, retirement under any retirement
plan of the Corporation or a Subsidiary or death shall be
exercisable for a period of three months from the date of
such termination of employment, but in no event after the
expiration date of the stock option.
-16-<PAGE>
(d) Lapse of Restrictions on Restricted Share or
Restricted Share Unit Awards. If any "Section 9 Event"
occurs prior to the scheduled lapse of all restrictions
applicable to restricted share or restricted share unit
awards under the Plan (other than those held by a person
referred to in the proviso to Section 9(a)(v)), all such
restrictions shall lapse upon the occurrence of any such
"Section 9 Event" regardless of the scheduled lapse of such
restrictions.
(e) Payment of Performance Units. If any
"Section 9 Event" occurs prior to the end of any Performance
Period, all performance units awarded with respect to such
Performance Period (other than those held by a person
referred to in the proviso to Section 9(a)(v)) shall be
deemed to have been fully earned as of the date of such
Section 9 Event, regardless of the attainment or
nonattainment of the Performance Target or any Minimum
Target, and shall be paid to the awardees thereof as promptly
as practicable thereafter. If the performance unit is not
expressed as a fixed amount in dollars or shares, the
Committee may provide in the performance unit agreement for
the amount to be paid in the case of a Section 9 Event.
10. EFFECT OF THE PLAN ON THE RIGHTS OF EMPLOYEES AND
EMPLOYER.
Neither the adoption of the Plan nor any action of
the Board or the Committee pursuant to the Plan shall be
deemed to give any employee any right to be granted a stock
option or to be awarded restricted shares, restricted share
units, performance units or bonus shares under the Plan.
Nothing in the Plan, in any stock option, in any restricted
share, restricted share unit, performance unit or bonus share
award under the Plan or in any agreement providing for any of
the foregoing shall confer any right to any employee to
continue in the employ of the Corporation or any Subsidiary
or interfere in any way with the rights of the Corporation or
any Subsidiary to terminate the employment of any employee at
any time.
11. AMENDMENT.
The right to alter and amend the Plan at any time
and from time to time and the right to revoke or terminate
the Plan are hereby specifically reserved to the Board;
provided that no such alteration or amendment of the Plan
shall, without shareholder approval (a) increase by more than
10% the total number of shares which may be issued under the
Plan to persons subject to Section 16 under the 1934 Act
("Section 16 Persons"), (b) materially increase the benefits
accruing under the Plan to Section 16 Persons, (c) materially
-17-<PAGE>
modify the requirements as to eligibility for participation
in the Plan by Section 16 Persons, (d) make any changes in
the class of employees eligible to receive incentive stock
options under the Plan, or (e) increase the number of shares
with respect to which incentive stock options may be granted
under the Plan; approval of the Plan by the shareholders of
the Corporation pursuant to Section 12 shall also be deemed
to constitute approval of any amendments to Section 6(e) that
are designed to take advantage of changes in income tax or
securities laws or regulations adopted for the purpose of
reducing or eliminating restrictions on transferability of
options. No alteration, amendment, revocation or termination
of the Plan shall, without the written consent of the holder
of a stock option, restricted shares, restricted share units,
performance units or bonus shares theretofore awarded under
the Plan, adversely affect the rights of such holder with
respect thereto.
12. EFFECTIVE DATE AND DURATION OF PLAN.
The effective date and date of adoption of the Plan
shall be November 14, 1994, the date of adoption of the Plan
by the Board. No stock option may be granted, and no
restricted shares, restricted share units, bonus shares or
performance units payable in performance shares may be
awarded under the Plan subsequent to November 13, 2004.
13. INDEMNIFICATION.
In addition to such other rights of indemnification
as they may have as directors, the members of the Committee
administering the Plan shall be indemnified by the
Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in
connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with
the Plan or any rights granted thereunder, and against all
amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected
by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding that such
member is liable for negligence or misconduct in the
performance of such member's duties; provided that within 60
days after institution of any such action, suit or
proceeding, the member shall in writing offer the Corporation
the opportunity, at its own expense, to handle and defend the
same.
-18-<PAGE>
Exhibit 4.2
THE GOOD GUYS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(as amended through January, 1995)
1. PURPOSE:
The Good Guys, Inc. EMPLOYEE STOCK PURCHASE PLAN
(the "Plan") is designed to foster continued cordial employee
relations, to encourage and assist its employees and the
employees of any present or future subsidiaries in acquiring
a stock ownership interest in The Good Guys, Inc. (the
"Corporation") and to help them provide for their future
security. The Plan is intended to be an Employee Stock
Purchase Plan under Internal Revenue Code Section 423.
2. STOCK SUBJECT TO THE PLAN:
Subject to adjustment pursuant to Section 12 of the
Plan, the aggregate number of shares of Common Stock (the
"shares") which may be sold under the Plan is 1,900,000. The
shares may be authorized, but unissued, or reacquired shares
of Common Stock of the Corporation. The Corporation, during
the term of the Plan, shall at all times reserve and keep
available, such number of shares as shall be sufficient to
satisfy the requirements of the Plan.
3. BI-ANNUAL PERIODS:
Bi-annual period shall mean the six-month periods
ending on the last day of June and December of each year,
provided that the first period under this Plan shall commence
on the day on which the Corporation's Form S-1 Registration
Statement covering the initial public offering of its Common
Stock becomes effective (the "effective date") and shall end
on the later of June 30, 1986 or the day which is 120 days
after the effective date. The second period under this Plan
shall commence on the day after the end of the final period
and shall end on December 31, 1986.
4. ELIGIBILITY:
Anyone who becomes an employee of the Corporation
or any of its subsidiaries (except those employees who own or
hold options to purchase five percent (5%) or more of the
capital stock of the Corporation or any subsidiary of the
Corporation at the start of any bi-annual period), those
employees whose customary employment is less than 20 hours
per week, and those employees whose customary employment is
-1-<PAGE>
for not more than 5 months in any calendar year) is eligible
to become a member of the Plan on the first day of the
bi-annual period following the commencement of service.
Notwithstanding the foregoing, no employee shall be entitled
to purchase (i) shares of stock under the Plan and all other
purchase plans of the Corporation and any parent or
subsidiary of the Corporation with an aggregate fair market
value (determined at date of grant) exceeding $25,000 per
year for each calendar year in which such option is
outstanding at any time, or (ii) more than 2,000 shares of
stock under the Plan in any bi-annual period.
For purposes of this Plan, "subsidiary" shall mean
a corporation of which not less than fifty percent (50%) of
the voting shares are held by the Corporation or a subsidiary
of the Corporation.
5. JOINING THE PLAN:
Any eligible employee's participation in the Plan
shall be effective as of the first day of the bi-annual
period following the day on which the employee completes,
signs, and returns to the Corporation, or one of its present
or future subsidiaries, a Stock Purchase Plan Application and
Payroll Deduction Authority form indicating his or her
acceptance and agreement to the Plan. Membership of any
employee in the Plan is entirely voluntary.
Any employee receiving shares shall have no rights
with respect to continuation of employment, nor with respect
to continuation of any particular Corporation business,
policy or product.
6. MEMBER'S CONTRIBUTIONS:
Each member shall elect to make contributions by
payroll deduction of two percent (2%), five percent (5%) or
ten percent (10%) of his or her gross compensation.
Subject to the maximum described above, a member
may elect in writing to increase or decrease his or her rate
of contribution; such change will become effective the first
day of the bi-annual period following receipt by the
Corporation of such written election.
The amount of each member's contribution shall be
held by the Corporation in a special account and such
contributions, free of any obligation of the Corporation to
pay interest thereon, shall be credited to such member's
individual account as of the last day of the month during
which the compensation from which the contributions were
deducted was earned.
-2-<PAGE>
No member will be permitted to make contributions
for any period during which he or she is not receiving pay
from the Corporation or one of its present or future
subsidiaries.
7. ISSUANCE OF SHARES:
On the last trading day of each bi-annual period so
long as the Plan shall remain in effect, and provided the
member has not before that date advised the Corporation that
he or she does not wish share purchased for his or her
account on that date, the Corporation shall apply the funds
credited to the member's account as of that date to the
purchase of authorized but unissued shares of its Common
Stock in units of one share or multiples thereof.
The cost to each member for the shares so purchased
shall be eighty-five percent (85%) of the lower of:
1. With respect to the first bi-annual period,
the price at which the Common Stock of the Corporation is
first offered to the public; thereafter, the mean between the
average bid and ask prices of the stock in the
over-the-counter market as quoted on the National Association
of Security Dealers Automatic Quotation System (NASDAQ), or
if its stock is a National Market Issue the last sales price
of the stock, or if the stock is traded on one or more
securities exchanges the average of the closing prices on all
such exchanges, on the first trading day of the bi-annual
period; or
2. The mean between the average bid and ask
prices of the stock in the over-the-counter market as quoted
on the National Association of Securities Dealers Automatic
Quotation System (NASDAQ) or if the stock is a National
Market issue the last sales price of the stock, or if the
stock is traded on one or more securities exchanges the
average of the closing prices on all such exchanges on the
last trading day of the bi-annual period.
Any moneys remaining in such member's account
equaling less than the sum required to purchase one share
shall, unless otherwise requested by the member, be held in
the member's account for use during the next bi-annual
period. Any moneys remaining in such member's account by
reason of his or her prior election not to purchase shares in
a given bi-annual period, as aforesaid, or moneys remaining
in such member's account by reason of application of the
provisions of the next paragraph hereof, shall be promptly
returned to the member. The Corporation shall as
expeditiously as possible after the last day of each
bi-annual period issue to the member entitled thereto the
-3-<PAGE>
certificate evidencing the shares issuable to him or her as
provided herein.
Notwithstanding anything above to the contrary,
(a) if the number of shares members desire to purchase at the
end of any bi-annual period exceeds the number of shares then
available under the Plan, the shares available shall be
allocated among such members in proportion to their
contributions during the bi-annual period; and (b) no funds
in an employee's account shall be applied to the purchase of
shares and no shares hereunder shall be issued unless such
shares are covered by an effective registration statement
under the Securities Act of 1933, as amended, or by an
exemption therefrom.
8. TERMINATION OF MEMBERSHIP:
A member's membership in the Plan will be
terminated when the member (a) voluntarily elects to withdraw
his or her entire account, (b) resigns or is discharged from
the Corporation or one of its present or future subsidiaries,
(c) dies, or (d) does not receive pay from the Corporation or
one of its present or future subsidiaries for twelve (12)
consecutive months, unless this period is due to illness,
injury or for other reasons approved by the persons or person
appointed by the Corporation to administer the Plan as
provided in Paragraph 10 below. Upon termination of
membership, the terminated member shall not be entitled to
rejoin the Plan until the first day of the bi-annual period
immediately following the bi-annual period in which the
termination occurs. Upon termination of membership, the
member shall be entitled to the amount of his or her
individual account within fifteen (15) days after
termination.
9. BENEFICIARY:
Each member shall designate a beneficiary or
beneficiaries and may, without their consent, change his or
her designation. Any designation shall be effective only
after it is received by the Corporation and shall become
effective as of the date it is signed and shall be
controlling over any disposition by will or otherwise.
Upon the death of a member his or her account shall
be paid or distributed to the beneficiary or beneficiaries
designated by such member, or in the absence of such
designation, to the executor or administrator of his or her
estate, and in either event the Corporation shall not be
under any further liability to anyone. If more than one
beneficiary is designated, then each beneficiary shall
receive an equal portion of the account unless the member
-4-<PAGE>
indicates to the contrary in his or her designation, provided
that the Corporation may in its sole discretion make
distributions in such form as will avoid the creation of
fractional shares.
10. ADMINISTRATION OF THE PLAN:
The Plan shall be administered by such officers or
other employees of the Corporation as the Corporation may
from time to time select, and the persons so selected shall
be responsible for the administration of the Plan. All costs
and expenses incurred in administering the Plan shall be paid
by the Corporation. Any taxes applicable to the member's
account shall be charged or credited to the member's account
by the Corporation.
11. MODIFICATION AND TERMINATION:
The Corporation expects to continue the Plan until
such time as the shares reserved for issuance under the Plan
have been sold. The Corporation reserves, however, the right
to amend, alter, or terminate the Plan in its discretion.
Upon termination, each member shall be entitled to the amount
of his or her individual account within thirty (30) days
after termination.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION:
Appropriate and proportionate adjustments shall be
made in the number and class of shares of stock subject to
this plan, and to the rights granted hereunder and the prices
applicable to such rights, in the event of a stock dividend,
stock split, reverse stock split, recapitalization,
reorganization, merger, consolidation, acquisition,
separation, or like change in the capital structure of the
Corporation.
13. ASSIGNABILITY OF RIGHTS:
No rights of any employee under this Plan shall be
assignable by him or her, by operation of law, or otherwise,
except to the extent that a member is permitted to designate
a beneficiary or beneficiaries as hereinabove provided, and
except to the extent permitted by the law of descent and
distribution if no such beneficiary be designated. Prior to
the issuance of any shares under this Plan, each employee
member shall be required to sign a statement as set forth in
Exhibit "A" attached hereto and incorporated herein.
14. PARTICIPATION IN OTHER PLANS:
-5-<PAGE>
Nothing herein contained shall affect an employee's
right to participate in and receive benefits under and in
accordance with the then current provisions of any pension,
insurance, or other employee welfare plan or program of the
Corporation.
15. APPLICABLE LAW:
The interpretation, performance, and enforcement of
this Plan shall be governed by the laws of the State of
California.
16. EFFECTIVE DATE OF PLAN; SHAREHOLDER APPROVAL:
The Plan shall become effective upon adoption by
the Board and approval by the shareholders of the
Corporation.
17. LEGEND CONDITIONS:
The share of Common Stock to be issued pursuant to
the provisions of this Plan shall have endorsed upon their
face the following:
1. Any legend condition imposed as a
condition of qualification by the California
Commissioner of Corporations;
2. Unless the shares to be issued under this
Plan have been registered under the Securities Act of
1933, the following additional legend shall be placed on
the certificates:
"The shares represented by this certificate have
not been registered under the Securities Act of 1933.
The shares have been acquired for investment and may not
be pledged or hypothecated, and may not be sold or
transferred in the absence of an effective Registration
Statement for the shares under the Securities Act of
1933 or an opinion of counsel to the Company that
registration is not required under said Act."
-6-<PAGE>
Exhibit 5.1
May 4, 1995
The Good Guys, Inc.
7000 Marina Boulevard
Brisbane, California 94005-1840
Ladies and Gentlemen:
You have requested our opinion as counsel for The
Good Guys, Inc., a Delaware corporation (the "Company"), in
connection with the registration under the Securities Act of
1933, as amended, and the Rules and Regulations promulgated
thereunder, and the public offering by the Company of up to
1,000,000 shares of Common Stock issuable under the Company's
1994 Stock Incentive Plan and up to 500,000 shares of Common
Stock issuable under the Company's Employee Stock Purchase
Plan.
We have examined the Company's Registration Statement
of Form S-8 in the form to be filed with the Securities and
Exchange Commission on or about May 4, 1995 (the
"Registration Statement"). We further have examined the
Restated Certificate of Incorporation of the Company as
certified by the Secretary of State of the State of Delaware,
the Bylaws and the minute books of the Company as a basis for
the opinion hereafter expressed.
Based on the foregoing examination, we are of the
opinion that, upon issuance and sale in the manner described
in the Registration Statement, the shares of Common Stock
covered by the Registration Statement will be legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, FALK & RABKIN
A Professional Corporation
By /s/ Richard W. Canady
RICHARD W. CANADY<PAGE>
Exhibit 23.1
[Letterhead of Deloitte & Touche LLP]
INDEPENDENT AUDITORS' CONSENT
_____________________________
We consent to the incorporation by reference in this
Registration Statement of The Good Guys, Inc. on Form S-8 of
our reports dated October 28, 1994, appearing in and
incorporated by reference in the Annual Report on Form 10-K
of The Good Guys, Inc. for the year ended September 30, 1994.
Deloitte & Touche LLP
May 4, 1995<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below, being a member of the Board of
Directors of The Good Guys, Inc. (the "Company"), hereby
constitutes and appoints Robert A. Gunst and John P.
Goldsberry III, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution
and resubstitution, for and in his name, place and stead, in
any and all capacities, to sign on his behalf the Company's
Registration Statement on Form S-8 with respect to 1,000,000
shares of the Company's Common Stock issuable under the
Company's 1994 Stock Incentive Plan and/or an additional
500,000 shares of the Company's common stock issuable under
the Company's Employee Stock Purchase Plan, and to execute
any amendments thereto, and to file the same, with all
exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, with
the full power and authority to do and perform each and every
act and thing necessary or advisable to be done in connection
therewith, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
DATED: December 9, 1994
/s/ RONALD A. UNKEFER
Ronald A. Unkefer
/s/ Stanley R. Baker
Stanley R. Baker
/s/ ROBERT A. GUNST
Robert A. Gunst
/s/ RUSSELL M. SOLOMON
Russell M. Solomon
/s/ W. HOWARD LESTER
W. Howard Lester
/s/ JOHN E. MARTIN
John E. Martin<PAGE>
