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REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
IMPCO TECHNOLOGIES, INC.
------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 91-1039211
---------------- -------------------
(State or Other Jurisdiction (IRS Employer Identification No.)
Incorporation or Organization)
16804 GRIDLEY PLACE
CERRITOS, CALIFORNIA 90703
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(Address of Principal Executive Offices) (Zip Code)
1997 INCENTIVE STOCK OPTION PLAN
--------------------------------
(Full title of the Plan)
THOMAS M. COSTALES
16804 GRIDLEY PLACE
CERRITOS, CALIFORNIA 90703
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(Name and Address of Agent For Service)
(562) 860-6666
--------------
(Telephone Number, Including Area Code, of Agent For Service)
Copies of all Communications to:
WILLIAM G. PUSCH
DAVIS WRIGHT TREMAINE LLP
2600 CENTURY SQUARE
1501 FOURTH AVENUE
SEATTLE, WASHINGTON 98101-1688
(206) 628-7744
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be To be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
- -------------------------------------------------------------------------------
Common Stock 750,000 $11.56 $8,670,000 $2,557.65
- -------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction without
receipt of consideration which results in the increase in the number of
outstanding shares of IMPCO Technologies, Inc.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of the closing price quoted on the Nasdaq National Market on
January 8, 1998.
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PART II
INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
registration statement:
(a) The registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
("Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
the documents referred to in (a) above;
(c) The description of the registrant's common stock contained
in its registration statement on Form 8-A filed under the
Exchange Act, including any amendment or report filed for the
purpose of updating such description; and
(d) All documents subsequently filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment hereto which
indicates that all securities offered have been sold or
deregisters all securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees
an individuals against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceedings, had no reasonable cause to believe their
conduct was unlawful. A similar standard is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) actually and reasonably incurred in connection
with the defense or settlement of such action, and the statute requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The statute
provides
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that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Article IX of the Registrant's By-laws requires indemnification to the
full extent permitted under Delaware law as from time to time in effect.
Subject to any restrictions imposed by Delaware law, the Registrant's By-laws
provide a right to indemnification for all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) actually and reasonably incurred by any
person in connection with any actual or threatened proceeding (including, to
the extent permitted by law, any derivative action) by reason of the fact
that such person is or was serving as a director or officer of the Registrant
or that, being or having been such a director or officer or an employee of
the Registrant, such person is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including an employee
benefit plan. The Registrant's By-laws also provide that the Registrant may,
by action of its Board of Directors, provide indemnification to its employees
or agents with the same scope and effect as the foregoing indemnification of
directors and officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
payments of unlawful dividends or unlawful repurchases or redemptions, or
(iv) any transaction from which the director derived an improper personal
benefit.
Article 11 of the Registrant's Certificate of Incorporation provides
that to the full extent that the Delaware General Corporation Law, as it now
exists or may hereafter be amended, permits the litigation or elimination of
the liability of directors, a director of the Registrant shall not be liable
to the Registrant or its stockholders for monetary damages for breach of duty
as a director. Any amendment or repeal of such Article 11 will not adversely
affect any right or protection of a director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal. The affirmative vote of 80% of the voting stock of the
Registrant is required to amend or repeal, or to adopt any provision
inconsistent with, such Article 11.
The Delaware General Corporation Law and the Registrant's Certificate
of Incorporation may have no effect on claims arising under the federal
securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Davis Wright Tremaine LLP
10.1 1997 Incentive Stock Option Plan
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23.1 Consent of Ernst & Young LLP
23.2 Consent of Davis Wright Tremaine LLP (included in Exhibit 5.1)
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) to
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 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 the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(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 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) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 or Regulation S-X is not set forth in the prospectus,
to deliver, or cause to be delivered to each
<PAGE>
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(d) 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 any provision or
arrangement existing whereby the registrant may indemnify a director, officer
or controlling person of the registrant against liabilities under the
Securities Act of 1933, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 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 an officer, director 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 of whether such indemnification by it
is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cerritos, State of California, on
December 23, 1997.
IMPCO Technologies, Inc.
By/s/Robert M. Stemmler
------------------------------------
Its President
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POWER OF ATTORNEY
By signing below, the following persons also constitute and appoint
Robert M. Stemmler and Thomas M. Costales, and each of them acting alone, as
their true and lawful attorneys-in-fact with full power and authority to sign
pre-effective and post-effective amendments to this registration statement
and all other documents relating to this registration statement in their
stead as the following persons could do in their capacities listed below if
personally present; the following persons hereby ratify and confirm all that
each of Robert M. Stemmler or Thomas M. Costales shall lawfully do by virtue
of this appointment.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/Robert M. Stemmler President, Chief Executive December 23, 1997
- ----------------------- Officer and Director
Robert M. Stemmler (Principal Executive Officer)
Rawley F. Taplett Chairman of the Board of Directors December 23, 1997
- ----------------------- and Director
Rawley F. Taplett
Peter B. Bensinger Director December 23, 1997
- -----------------------
Peter B. Bensinger
Director December ___, 1997
- -----------------------
Norman L. Bryan
Director December ___, 1997
- -----------------------
V. Robert Colton
/s/Paul Mlotok Director December 23, 1997
- -----------------------
Paul Mlotok
Director December ___, 1997
- ------------------------
Don J. Simplot
/s/Douglas W. Toms Director December 23, 1997
- ------------------------
Douglas W. Toms
/s/Thomas M. Costales Treasurer and Chief Financial December 23, 1997
- ------------------------ Officer (Principal Financial Officer)
Thomas M. Costales
/s/Brian Olson Controller December 23, 1997
- ------------------------
Brian Olson
</TABLE>
<PAGE>
EXHIBIT 5.1
January 9, 1998
IMPCO Technologies, Inc.
16804 Gridley Place
Cerritos, California 90703
Re: 1997 Incentive Stock Option Plan
Registration on Form S-8
Ladies/Gentlemen:
In connection with the Registration Statement on Form S-8 to be filed on
or about January 12, 1998 by IMPCO Technologies, Inc. (the "Company") with
the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, you have requested us to provide our opinion as to the
legality of 750,000 shares of common stock, par value $.001 per share, of the
Company (the "Shares") being registered thereunder. We have reviewed the
Company's Certificate of Incorporation, as amended, Bylaws, as amended, and
such records of the Company's corporate proceedings as reflected in the
minute books, and other matters as we have deemed appropriate for this
opinion. In our examination, we have assumed the genuineness of signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to the originals of all documents submitted to us as copies
thereof.
Based upon the foregoing, we are of the opinion that:
1. The Shares when issued pursuant to the provisions of the Company's
1997 Incentive Stock Option Plan (the "Plan") will be validly issued, fully
paid and nonassessable.
2. The Plan is not subject to the requirements of the Employee
Retirement Income Security Act ("ERISA").
<PAGE>
We hereby consent to the use of this opinion letter as an exhibit to the
above mentioned Registration Statement.
Very truly yours,
/s/Davis Wright Tremaine LLP
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DAVIS WRIGHT TREMAINE LLP
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EXHIBIT 10.1
AIRSENSORS, INC.
1997 INCENTIVE STOCK OPTION PLAN
PURPOSE OF THE PLAN. The purpose of this Incentive Stock Option Plan is
to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees
of the Company and to promote the success of the Company's business. It is
intended that options issued pursuant to this Incentive Stock Option Plan
constitute "incentive stock options" within the meaning of Section 422 of the
Code.
1. DEFINITIONS. As used herein, the following definitions shall apply:
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the Company's common stock, par value $.001
per share.
"COMPANY" means AirSensors, Inc., a Delaware corporation.
"COMMITTEE" means the Committee appointed by the Board in
accordance with SECTION 3(a) of the Plan.
"EMPLOYEE" means any person employed by the Company or any
Subsidiary of the Company which now exists or is hereafter organized or is
acquired by the Company.
"IMPCO" means IMPCO Technologies, Inc., a Delaware corporation.
"OPTION" means a stock option granted pursuant to the Plan.
"OPTIONEE" means a person who holds an Option.
"PLAN" means this 1997 Incentive Stock Option Plan.
"SUBSIDIARY" means a corporation of which more than 50% of the
voting shares are held directly by the Company or directly and indirectly by
the Company and one or more Subsidiaries, whether or not such corporation now
exists or is hereafter organized or acquired by the Company or a Subsidiary.
2. STOCK SUBJECT TO THE PLAN. Subject to SECTION 10, the maximum
number of shares which may be optioned and sold under the Plan is 750,000
shares of Common Stock.
If an Option should expire or become unexercisable in whole or in part
for any reason, the remaining shares of Common Stock which were subject to
the Option shall, unless the Plan
<PAGE>
shall have been terminated, become available for other Options under the Plan.
3. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by the Board or, as
determined by the Board, a Committee appointed by the Board. The Committee
shall consist of not less than three members of the Board and shall
administer the Plan subject to such terms and conditions as the Board may
prescribe. From time to time the Board may increase the size of the
Committee and appoint additional members, remove members (with or without
cause) and appoint new members in substitution therefor, fill vacancies
however caused, or remove all members of the Committee and thereafter
directly administer the Plan. The Committee shall select one of its members
as chairman and shall hold meetings at such times and places as it may
determine.
Members of the Board who are either eligible for Options or have been
granted Options may vote on any matters affecting the administration of the
Plan or the grant of any Options pursuant to the Plan, except that no such
member shall act upon the granting of an Option to himself, but any such
member may be counted in determining the existence of a quorum at any meeting
of the Board or the Committee during which action is taken with respect to
the granting of Options to him.
As used in the Plan and in any Option, the term "Board" shall refer to
the Board, or the Committee if a Committee has been appointed.
(b) POWERS OF THE BOARD/COMMITTEE. Subject to the provisions of
the Plan, the Board shall have the authority, in its discretion: (i) to
determine, upon review of relevant information, the fair market value of the
Common Stock; (ii) to determine the exercise price per share of Options to be
granted, which price shall in no event be less than the fair market value per
share of Common Stock on the date of grant of the Option, or 110% of such
fair market value in the case of any Option granted to an Employee who,
immediately before the grant of such Option, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or of its parent or Subsidiaries; (iii) to determine the Employees to
whom, and the time or times at which, Options shall be granted and the number
of shares to be represented by each Option; (iv) to interpret the Plan; (v)
to prescribe, amend and rescind rules and regulations relating to the Plan;
(vi) except as otherwise provided in this Plan, to determine the terms and
provisions of each Option granted under the Plan (which need not be
identical) and, with the consent of the holder thereof, modify or amend each
Option; (vii) to accelerate the vesting or exercise date of any Option;
(viii) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option granted by the
Board; and (ix) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
All decisions, determinations and interpretations of the Board shall be
final and binding on all Optionees and any other holders of any Options
granted under the Plan. No member of the Board or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option. If the Board has appointed a Committee, the actions of
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the Committee shall be reported to the Board.
4. ELIGIBILITY. Options may be granted only to Employees. An
Employee who has been granted an Option may, if he or she is otherwise
eligible, be granted an additional Option or Options.
No Option may be granted to an Optionee under the Plan if, as the result
of such grant, the aggregate fair market value (determined as of the time
each Option is granted) of the shares of Common Stock for which such Optionee
has been granted options which are exercisable for the first time by such
Optionee during any calendar year (under all incentive stock option plans of
the Company) would exceed $100,000.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his or her
employment at any time.
5. TERM OF PLAN. Subject to SECTION 16, the Plan shall become
effective upon its adoption by the Board. It shall continue in effect for a
term of ten (10) years from the effective date unless sooner terminated under
SECTION 12.
6. TERM OF OPTION. Except as otherwise provided in SECTIONS 8 AND 10,
the term of each Option shall be for ten (10) years from the date of grant
thereof unless otherwise determined by the Board when granting an Option and
set forth in an Optionee's option agreement, except that the term of each
Option granted to an employee who, immediately before such Option is granted,
owns stock representing more than ten percent (10%) of the voting power of
all classes of stock of the Company or of its parent or Subsidiaries shall be
for not more than five (5) years from the date of grant thereof. Subject to
the foregoing, the term of each Option shall be determined by the Board.
7. OPTION PRICE AND CONSIDERATION.
(a) The price for the shares of Common Stock to be issued pursuant
to an Option shall be such price as is determined by the Board, but shall in
no event be less than the fair market value per share of the Common Stock on
the date of grant of the Option. In the case of an Option granted to an
Employee who, immediately before the grant of such Option, owns stock
representing more than ten percent (10%) of the voting power of all classes
of stock of the Company or of its parent or Subsidiaries, the price shall be
not less than 110% of the fair market value per share of such Common Stock.
The fair market value shall be determined by the Board in its discretion;
PROVIDED, that if there is a public market for the Common Stock, the fair
market value shall be (i) the closing sale price as of the date of grant on
the Nasdaq National Market or, if the Common Stock is traded on a stock
exchange, the closing sale price as of the date of grant on the principal
stock exchange on which such stock is traded, and (ii) the mean of the
reported closing bid and ask prices for the Common Stock as of the date of
grant if the Common Stock is not traded as provided in clause (i).
(b) The consideration to be paid for the Common Stock to be issued
upon
<PAGE>
exercise of an Option, and the method of payment, shall be determined by the
Board and may consist of cash or any other consideration and method of
payment for the issuance of common stock which is permitted under the
Delaware Corporation Law and complies with other applicable laws and
regulations (including but not limited to, applicable federal tax and federal
and state securities laws and regulations).
8. VESTING AND EXERCISE OF OPTIONS.
(a) VESTING AND EXERCISE OF OPTIONS WHILE AN EMPLOYEE. Unless
otherwise determined by the Board when granting an Option and set forth in an
Optionee's option agreement, each Option held by an Optionee shall vest and
shall be exercisable at any time so long as such Optionee continues to be an
Employee, cumulatively, (i) as to forty percent (40%) of the total number of
shares subject to such Option, twenty-four (24) months following the date of
grant of such Option, and (ii) as to twenty percent (20%) of the total number
of shares subject to such Option, once during each twelve (12) month period
commencing on the third and each subsequent anniversary date of the grant of
such Option, so that sixty (60) months following the date of the grant of
each Option one hundred percent (100%) of the shares subject to such Option
may be purchased by exercise of the Option.
(b) VESTING OF OPTIONS UPON RETIREMENT. Unless otherwise
determined by the Board when granting an Option and set forth in an
Optionee's option agreement, all Options held by an Optionee who retires at
age 62 or older and was continuously an Employee for five (5) years
immediately preceding retirement which are not vested as provided in SECTION
8(a) shall immediately vest upon such Optionee's retirement and be
exercisable as provided in SECTION 8(c).
(c) EXERCISE OF OPTIONS FOLLOWING TERMINATION OF STATUS AS AN
EMPLOYEE. Following termination of employment as an Employee, an Optionee
may exercise an Option to the extent that he or she was entitled to exercise
the Option at the date of such termination as provided in SECTION 8(a) and
(b) as follows:
(i) Except in the case of death or disability (within the
meaning of Section 22(e)(3) of the Code), within thirty (30) days following
the date of termination of employment, except that the Board may extend the
period for such exercise up to a period not exceeding three (3) months
following the date of termination;
(ii) If an Optionee dies while an Employee, the period of time
within which the Board may permit exercise of Options after the date of death
may be up to one (1) year, and such Options may be exercised by the
Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance or by reason of the death of an Optionee; and
(iii) If an Optionee becomes disabled while an Employee, the
period of time within which the Board may permit exercise of Options after
the date of termination as an Employee of the Company may be up to one (1)
year.
<PAGE>
Options which are not vested as provided in SECTION 8(a) and (b) or
which are vested but not exercised as required by SECTION 8(c) shall
terminate.
(d) SPECIAL LIMITATION ON EXERCISE. Notwithstanding SECTIONS 8(a)
and (b), in no event shall an Option be exercisable if such Option, together
with all other incentive stock options under this or any other incentive
stock option plan which are exercisable for the first time during any
calendar year, are for the purchase of Common Stock with an aggregate fair
market value (determined as of the date of grant of each such option) in
excess of $100,000.
(e) PROCEDURE FOR EXERCISE; RIGHTS AS STOCKHOLDER. An Option
shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Option by the person
entitled to exercise the Option and full payment for the shares of Common
Stock with respect to which the Option is exercised has been received by the
Company. An Option may not be exercised for a fraction of a share of Common
Stock.
Until the issuance (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such shares of Common Stock, no right to vote or
receive dividends or any other rights as a stockholder shall exist with
respect to such Common Stock, notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except as provided
in SECTION 10.
Exercise of an Option shall result in a decrease in the number of shares
of Common Stock which thereafter may be available, both for purposes of the
Plan and for purchase under the Option, by the number of shares of Common
Stock as to which the Option is exercised.
9. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to
any required action by the stockholders of the Company, the number of shares
of Common Stock covered by each outstanding Option, and the number of shares
of Common Stock which have been authorized for issuance under the Plan but as
to which no Options have yet been granted or which have been returned to the
Plan upon cancellation of an Option, as well as the price per share of Common
Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of
Common Stock resulting from a stock split or the payment of a stock dividend
(but only on the Common Stock) or any other increase or decrease in the
number of such shares of Common Stock affected without receipt of
consideration by the Company; PROVIDED, that conversion of any convertible
securities of the Company shall not be deemed to have been "affected without
receipt of consideration." Such adjustment shall be made by the Board, whose
determination shall be final, binding and conclusive. Except as expressly
provided herein, no issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall
<PAGE>
affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
In the event of (i) the dissolution or liquidation of the Company, (ii)
the sale of substantially all of the assets of the Company or of IMPCO, or
(iii) the merger, consolidation or other reorganization of the Company with
or into another corporation, the Options will terminate unless otherwise
provided by the Board. The Board may, in the exercise of its sole discretion
in such instances, declare that any Option shall terminate as of a date fixed
by the Board or may give all or certain Optionees the right to exercise their
Options as to all or any part of the shares of Common Stock which are subject
to such Options, including shares of Common Stock as to which Options would
not otherwise be exercisable.
In the event of a "change of control" of the Company, the Board may, in
the exercise of its sole discretion, give all or certain Optionees the right
to exercise their Options as to all or any part of the shares of Common Stock
which are subject to such Options, including shares of Common Stock as to
which Options would not otherwise be exercisable. For purposes of this
paragraph, "change of control" shall mean (i) within the meaning of Section
13(d) of the Securities Exchange Act of 1934, any person or group becomes a
beneficial owner, directly or indirectly, of the Company's securities
representing 50% or more of the total voting power of the Company's then
outstanding securities, (ii) the stockholders of the Company approve the
dissolution or liquidation of the Company, (iii) the stockholders of the
Company approve an agreement to merge or consolidate, or otherwise
reorganize, whether into one or more entities, as a result of which less than
50% of the total voting power of securities of the surviving or resulting
entity are, or are to be, owned by former stockholders of the Company, or
(iv) the stockholders or directors of the Company or IMPCO approve,
respectively, the sale of seventy-five percent (75%) or more of the Company's
or IMPCO's business and/or assets.
No Option granted pursuant to this Plan shall be adjusted by the Board
pursuant to this SECTION 10 in a manner that causes the Option to fail to
continue to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
The grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge
or to consolidate or to dissolve, liquidate or sell, or transfer all or any
part of its business or assets.
11. TIME OF GRANTING OPTIONS. The date of grant of an Option shall,
for all purposes, be the date on which the Board makes the determination
granting such Option. Notice of the determination shall be given to each
Employee to whom an Option is so granted within a reasonable time after the
date of such grant.
<PAGE>
12. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate
the Plan from time to time in such respects as the Board may deem advisable,
except that, without approval of the holders of a majority of the outstanding
shares of the Common Stock, no such revision or amendment shall:
(i) Increase the number of shares of Common Stock subject to
the Plan other than in connection with an adjustment under SECTION 10 of the
Plan;
(ii) materially change the designation of the class of
employees eligible to be granted Options;
(iii) remove the administration of the Plan from the Board; or
(iv) materially increase the benefits accruing to participants
under the Plan.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options granted prior to such
amendment or termination and such Options shall remain in full force and
effect as if this Plan had not been amended or terminated.
13. CONDITIONS UPON ISSUANCE OF SHARES. Shares of Common Stock shall not
be issued with respect to an Option granted under the Plan unless the
exercise of such Option and the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange or market upon which the Common
Stock may then be listed or quoted, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any
such exercise that the shares of Common Stock are being purchased only for
investment and without any present intention to sell or distribute such
Common Stock if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned relevant provisions
of law.
14. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of shares of Common
Stock as shall be sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain from any regulatory body having
jurisdiction authority deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any shares of Common Stock hereunder shall
relieve the Company of any liability in respect of the non-issuance or sale
of such
<PAGE>
shares as to which such requisite authority shall not have been obtained.
15. OPTION AGREEMENTS. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
16. STOCKHOLDER APPROVAL. Effectiveness of the Plan shall be subject
to approval within twelve (12) months following the Board of Directors'
adoption of this Plan by the holders of the Company's outstanding Common
Stock.
Adopted by the Executive Committee on May 22, 1997.
Approved by the stockholders on November 13, 1997.
<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-_____) pertaining to the 1997 Incentive Stock Option Plan
our report dated June 27, 1997 except for Note 14 as to which the date is
August 11, 1997 with respect to the consolidated financial statements and
schedule of IMPCO Technologies, Inc. included in its Annual Report (Form
10-K) for the year ended April 30, 1997 filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
January 9, 1998
