<PAGE> 1
As filed with the Securities and Exchange Commission on April 30, 1997
Registration Statement No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 2054
-------------------------
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)
Amended and Restated 1994 Stock Incentive Plan
(Full title of the plan)
Dennis C. Carroll, Chief Financial Officer
The Good Guys, Inc.
7000 Marina Boulevard
Brisbane, California 94005-1840
(Name and address of agent for service)
(650) 615-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Title of
Securities
to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price per Share Aggregate Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.001
per share:
Amended and 800,000 $13.44* $10,752,000* $3,171.84
and Restated 1994
Stock Incentive Plan
</TABLE>
*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 April 24,
1998.
<PAGE> 2
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, 1997, 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, 1997;
(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 Exchange Act, 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 Exchange Act 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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<PAGE> 3
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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<PAGE> 4
Item 8. EXHIBITS.
Exhibit
Number Description of Document
- ------ -----------------------
4.1 Amended and Restated 1994 Stock Incentive Plan.
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A
Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
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. 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% change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
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<PAGE> 5
(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 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 Registrant 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
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<PAGE> 6
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.
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<PAGE> 7
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 ___ day of
April, 1998.
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 April 27, 1998
- ------------------------- Chief Executive Officer
(Robert A. Gunst) (Principal Executive Officer)
/s/ Dennis C. Carroll Vice President, Chief April 27, 1998
- ------------------------- Financial Officer
(Dennis C. Carroll) and Secretary (Principal
Financial Officer and
Principal Accounting
Officer)
STANLEY R. BAKER* Director April 27, 1998
- -------------------------
(Stanley R. Baker)
RUSSELL M. SOLOMON* Director April 27, 1998
- -------------------------
(Russell M. Solomon)
JOHN E. MARTIN* Director April 27, 1998
- -------------------------
(John E. Martin)
W. HOWARD LESTER* Director April 27, 1998
- -------------------------
(W. Howard Lester)
*By /s/ Robert A. Gunst
- -------------------------
Robert A. Gunst,
Attorney-in-Fact
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<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------ -----------------------
<S> <C>
4.1 Amended and Restated 1994 Stock Incentive Plan
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation (included in
Exhibit 5.1).
24.1 Powers of Attorney.
</TABLE>
-7-
<PAGE> 1
Exhibit 4.1
THE GOOD GUYS, INC.
AMENDED AND RESTATED
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 non-employee directors (as 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.
Officers, other key employees and non-employee directors 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, with the exception that non-employee directors
shall not be eligible to receive incentive stock options.
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,
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<PAGE> 2
restricted shares, restricted share units, performance units or bonus shares may
be made under the Plan is 1,800,000 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) The Committee shall have authority, in its discretion, to
grant incentive stock options pursuant to Section 422 of the Code to officers
and other key employees and to grant non-qualified stock options and award
restricted shares, restricted share units, performance units and bonus shares to
officers, other key employees and non-employee directors.
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).
(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
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<PAGE> 3
first time, such director shall be awarded a non-qualified option under this
Plan to purchase 5,000 shares of Common Stock. 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).
(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:
(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
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<PAGE> 4
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. Notwithstanding 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 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
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<PAGE> 5
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 transferrable 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, provided that a non-qualified stock option may be
transferred by a grantee to a trust or other entity established by the
grantee for estate planning purposes. Except for exercises of
non-qualified stock options by trusts or entities established by the
grantee for estate tax purposes, 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 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
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<PAGE> 6
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 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
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<PAGE> 7
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 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
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<PAGE> 8
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.
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
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<PAGE> 9
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.
If prior to full vesting of the restricted shares or
restricted share units the employment or directorship 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 while being an employee or director, the Committee may in its absolute
discretion determine to vest all or any part of the restricted shares or
restricted share units except as otherwise provided in Section 9(d). If the
employment or directorship 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 is voluntary
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
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<PAGE> 10
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 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.
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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.
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 while being an employee or
director, 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, 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 or directorship 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
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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 is voluntary
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.
(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
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<PAGE> 13
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.
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
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<PAGE> 14
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.
(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
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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 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.
(a) Acceleration of the Exercise Date of Stock Options. Unless
the agreement referred to in Section 6(g), or an amendment thereto, shall
otherwise provide,
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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.
(b) 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.
(c) 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.
(d) 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.
1. 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
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<PAGE> 17
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.
2. 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 shareholder approval shall be
required (a) to increase the total number of shares which may be issued under
the Plan, or (b) if such approval is required to maintain the favorable tax
treatment of incentive stock options granted under the Plan. 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.
3. 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.
4. 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
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<PAGE> 18
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.
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<PAGE> 1
Exhibit 5.1
April 15, 1998
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 800,000 shares of Common Stock issuable under the Company's Amended and
Restated 1994 Stock Incentive Plan.
We have examined the Company's Registration Statement on Form S-8
in the form to be filed with the Securities and Exchange Commission on or about
April 30, 1998 (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.
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<PAGE> 2
The Good Guys, Inc.
April 15, 1998
Page 2
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
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<PAGE> 1
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 report dated November 7, 1997
incorporated by reference in the Annual Report on Form 10-K of The Good Guys,
Inc. for the year ended September 30, 1997.
Deloitte & Touche LLP
San Francisco, California
April 29, 1998
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each 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
Dennis C. Carroll, and each of them, as his true and lawful attorney-in-fact and
agent, each 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 an increase by
800,000 in the number of shares of its common stock issuable under the Company's
1994 Stock Incentive Plan, and any and all amendments (including post-effective
amendments) thereto and any Registration Statement relating to the same offering
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and all other documents in connection
therewith and with such Registration Statements, 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.
This power of attorney may be executed in any number of
counterparts.
DATED: November 18, 1997
/s/ ROBERT A. GUNST /s/ STANLEY R. BAKER
- -------------------------- -----------------------------
ROBERT A. GUNST STANLEY R. BAKER
/s/ RUSSELL M. SOLOMON /s/ W. HOWARD LESTER
- -------------------------- -----------------------------
RUSSELL M. SOLOMON W. HOWARD LESTER
/s/ JOHN E. MARTIN /s/ HORST H. SCHULZE
- -------------------------- -----------------------------
JOHN E. MARTIN HORST H. SCHULZE
