SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XOX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 93-0898539
(State of incorporation) (I.R.S. Employer Identification No.)
7640 WEST 78TH STREET
BLOOMINGTON, MINNESOTA 55439
(Address of Principal Executive Offices and Zip Code)
XOX CORPORATION
1996 STOCK OPTION PLAN
(Full title of the plan)
Dr. Pradeep Sinha
Chief Executive Officer
7640 West 78th Street
Bloomington, Minnesota 55439
Telephone (612) 946-1191
(Name, address, and telephone number,
including area code, of agent for service)
<TABLE>
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CALCULATION OF REGISTRATION FEE
======================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK 1,000,000 shares $2.125 $2,125,000 $626.88
($.025 PAR VALUE)
- ---------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) The registration statement relates to 1,000,000 shares of Common Stock
that have been or may be granted pursuant to the Registrant's 1996
Amended Omnibus Stock Plan. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this registration statement also covers an
indeterminate number of shares to be offered or sold pursuant to the
Plan as a result of the operation of the provisions of the Plan
intended to prevent dilution in the event of stock splits,
consolidations or similar changes in capital stock.
(2) Estimated solely for purposes of computing the registration fee
pursuant to Rule 457(h)(1), based on the average of the bid and asked
price of the Common Stock on Aaugust 7, 1998, as reported on the
Over-the-counter Bulletin Board.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended, the document containing the information specified in Part I of Form S-8
will be distributed to persons who receive grants under the 1996 Amended Stock
Option Plan (the "Plan"). That disclosure document constitutes a Section 10(a)
prospectus and is incorporated by reference in this Registration Statement, but
is not being filed with the Commission either as part of this Registration
Statement or as a prospectus or prospectus supplement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), by XOX Corporation (the "Company")
are, as of their respective dates, incorporated in this Registration Statement
by reference and made a part hereof:
(1) The Company's latest Annual Report on Form 10-KSB (File No. 000-28610)
for the year ended December 31, 1997;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since the
end of the fiscal year covered by the Annual Report referred to in (1)
above.
(3) The description of the Company's Common Stock, par value $.025 per
share, which is contained in the Company's Registration Statement on
Form SB-2 (File No. 000-28610).
All reports and other documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated by reference or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
This section is not applicable as the Company's Common Stock is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, a corporation may indemnify any person who was or
is a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of such person's
services as a director or officer of the corporation, or such person's service,
at the corporation's request, as a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including attorneys'
fees) that are actually and reasonably incurred by such person ("Expenses"), and
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred by such person, in connection with the defense or settlement of such
action, provided that such person acted in good faith and in a manner such
person reasonably believed to be lawful. Although Delaware law permits a
corporation to indemnify any person referred to above against Expenses in
connection with the defense or settlement of an action by or in the right of the
corporation, provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests, if such
person has been judged liable to the corporation, indemnification is only
permitted to the extent that the Court of Chancery (or the court in which the
action was brought) determines that, despite the adjudication of liability, such
person is entitled to indemnity for such Expenses as the court deems proper. The
General Corporation Law of the State of Delaware also provides for mandatory
indemnification of any director, officer, employee or agent against Expenses to
the extent such person has been successful in any proceeding covered by the
statute. In addition, the General Corporation Law of the State of Delaware
provides the general authorization of advancement of a director's or officer's
litigation Expenses in lieu of requiring the authorization of such advancement
by the board of directors in specific cases and that indemnification and
advancement of Expenses provided by the statute shall not be deemed exclusive of
any other rights to which those seek indemnification of Expenses may be entitled
under any bylaw, agreement or otherwise.
Article X of the Company's By-Laws along with separate indemnity
agreements between the directors and the Company provide for the broad
indemnification of the directors and officers of the Company and for the
advancement of litigation Expenses to the fullest extent required or permitted
by current Delaware law.
The Company also maintains a policy of directors and officers liability
insurance that reimburses the Company for Expenses that it may incur in
conjunction with the foregoing indemnity provisions and that may provide
director indemnification to officers and directors where the Company is unable
to do so.
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<PAGE>
The Certificate of Incorporation of the Company eliminates the personal
liability of a director to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except under certain circumstances
involving certain wrongful acts such as breach of a director's duty of loyalty,
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for any unlawful acts under Section 174 of the General
Corporation Law of the State of Delaware, or for any transaction from which a
director derives an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
This section is not applicable as there are no restricted securities to
be offered or resold pursuant to this registration statement.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit No. Description Method of Filing
- ---------- ----------- ----------------
<S> <C> <C>
3.1 XOX Amended and Restated Certificate of Incorporated by
Incorporation ........................................... reference
3.2 XOX Amended and Restated Bylaws ......................... Incorporated by
reference
4.16 XOX Corporation 1996 Amended Omnibus Stock
Plan .................................................... Filed Electronically
5.1 Opinion and Consent of Doherty, Rumble & Butler
P.A. as to the legality of the shares being registered .. Filed Electronically
23.1 Consent of Ernst & Young, LLP ........................... Filed Electronically
23.2 Consent of Counsel (Contained in its opinion filed as
Exhibit 5.1) ............................................ Filed Electronically
24.1 Power of Attorney (included in the signature page to
this Registration Statement) ............................ Filed Electronically
</TABLE>
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
3
<PAGE>
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
Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other then 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 of 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>
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 Bloomington, State of Minnesota, on July 28, 1998.
XOX CORPORATION
REGISTRANT
By /s/ Dr. Pradeep Sinha /s/
----------------------------------
Name: Dr. Pradeep Sinha
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Dr. Pradeep Sinha, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 1998:
/s/ Dr. Pradeep Sinha /s/ Chief Executive Officer and Director
- -------------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Dr. Pradeep Sinha
/s/ Steven Mercil /s/ Interim Chief Financial Officer and Director
- -------------------------------- (PRINCIPAL FINANCIAL OFFICER)
Steven Mercil
/s/ Thomas J. Lucas /s/ Director
- --------------------------------
Thomas J. Lucas
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<PAGE>
/s/ Steven B. Liefschultz /s/ Director
- --------------------------------
Steven B. Liefschultz
/s/ John Sherbin VI /s/ Director
- --------------------------------
John Sherbin VI
/s/ Bernard J. Reeck /s/ Director
- --------------------------------
Bernard J. Reeck
/s/ Richard L. Fast /s/ Director
- --------------------------------
Richard L. Fast
6
EXHIBIT 4.16
XOX CORPORATION
1996 AMENDED OMNIBUS STOCK PLAN
1. PURPOSE.
The purpose of the 1996 Omnibus Stock Plan (the "Plan") is to advance
the interests of XOX Corporation (the "Company") and its stockholders by
providing an incentive to certain employees of the Company and its subsidiaries
and to certain other key individuals who perform services for the Company and
its subsidiaries, to contribute significantly to the strategic and long-term
performance objectives and growth of the Company and its subsidiaries. This
purpose is expected to be achieved by affording employees and other key
individuals who perform services for the Company an opportunity to acquire a
proprietary interest in the Company through the grant of Incentive Stock
Options, Nonqualified Stock Options, Restricted Stock, Stock Appreciation Rights
and Reload Options (individually an "Award" and collectively "Awards") as
provided herein. Subject to such limits as may be imposed by the Plan, a single
Award or any combination of Awards may be granted to an eligible individual.
2. EFFECTIVE DATE.
The effective date of the Plan shall be June 14, 1996, subject to
approval of the Plan by the stockholders of the Company within twelve months
thereof.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a Committee (the "Committee") of the
Board of Directors of the Company (the "Board"), provided that members of the
Committee shall qualify to administer the Plan as contemplated by Rule 16b-3
promulgated under Section 16 of the Securities Exchange Act of 1934 (the
"Exchange Act") or any successor rule and by Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code") and regulations and
interpretations thereunder ("Section 162(m)"). A majority of the members of the
Committee shall constitute a quorum for any meeting of the Committee and the
acts of a majority of the members present at any meeting at which a quorum is
present or the acts unanimously approved in writing by all members of the
Committee shall be the acts of the Committee. The decision of the Committee on
any matter relating to the Plan shall be deemed final and binding upon all
persons. No member of the Board or of the Committee shall be liable for any
action or determination taken or made in good faith with respect to the Plan or
any option granted hereunder. Committee members may be reimbursed for
out-of-pocket expenses reasonably incurred in the administration of the Plan.
Subject to the express provisions of the Plan, the Committee shall have
plenary authority, in its discretion, (i) to designate the individuals eligible
to participate in the Plan; (ii) to grant Awards provided in the Plan in such
form and amount as the Committee shall determine, (iii) to impose such
limitations, restrictions and conditions upon any such award as the Committee
shall deem appropriate, and (iv) to interpret the Plan, adopt, amend and rescind
rules and regulations
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relating to the Plan, and make all other determinations and take all other
action necessary or advisable for the implementation and administration of the
Plan.
4. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in this Plan, the total number of
shares of common stock of the Company ("Common Stock") to be issued shall not
exceed 1,000,000 shares. If any Award granted hereunder terminates, expires
unexercised, does not vest, is exchanged for options without the issuance of
shares of Common Stock, or is canceled, the shares of Common Stock reserved for
issuance shall again be available for issuance under the Plan, to the extent of
any such termination or nonuse. Any shares issued by the Company in connection
with the assumption or substitution of outstanding grants from any acquired
corporation shall not reduce the shares available for issuance under the Plan.
Shares of Common Stock that may be issued hereunder may be authorized and
unissued stock, or may be treasury stock purchased for or held by the Company as
such, or a combination thereof. Appropriate adjustments in the number of shares
of Common Stock that may be available for issuance under the Plan and
adjustments in the number of shares of Common Stock subject to outstanding
Awards, or an adjustment in the exercise price of any Award may be made by the
Committee in its discretion to give effect to adjustments made in the number of
shares of Common Stock of the Company through any merger, consolidation,
recapitalization, reclassification, combination, stock dividend, stock split or
other similar change in the corporate structure of the Company affecting its
capitalization, or a sale by the Company of all or part of its assets or any
distribution to stockholders other than a normal cash dividend.
5. ELIGIBILITY.
The granting of Awards to employees and other key individuals,
including outside directors, who perform services for the Company, or any
subsidiary, is solely at the discretion of the Committee. In making this
selection, the Committee shall consider any factors deemed relevant.
6. DURATION OF THE PLAN.
The Plan shall remain in effect until all shares reserved for issuance
pursuant to the Plan shall have been purchased pursuant to options granted under
the Plan, provided that Awards under the Plan must be granted not later than ten
years after the effective date of the Plan.
7. GENERAL TERMS OF AWARDS.
A. DATE OF GRANT AND TERM. An Award agreement shall specify the date of
grant, which shall be the date on which the Committee grants an Award
or any later date which the Committee specifically designates and the
term of each Award as determined by the Committee.
B. NUMBER OF SHARES OF COMMON STOCK. An Award agreement shall specify
the number of shares of Common Stock to which it pertains.
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C. TRANSFERABILITY AND EXERCISABILITY.
(i) The Committee shall have the authority to determine
whether an Award shall specify periods after the date of grant
during which the Award or any portion thereof may not yet be
exercisable, including provisions applicable to persons
subject to Section 16 of the Exchange Act.
(ii) Except as otherwise specifically provided in this Plan or
an Award agreement, Awards granted to an individual ("Holder")
may be exercised only by the Holder and only while an employee
of the Company or a subsidiary of the Company or otherwise
performing services for the Company or a subsidiary and only
if the Holder has been continuously so employed or engaged
since the date such Awards were granted; provided, however,
that in the event of disability of a Holder, Awards may be
exercised by the Holder not later than the earlier of the date
the Award expires or one year after the date such employment
or performance of services ceases by reason of disability, but
only with respect to an Award exercisable at the time such
employment or performance of services ceases.
(iii) Absence from the Company due to leave or any other
interruption in the performance of services by a Holder shall,
if approved by the Committee, not be deemed a cessation or
interruption of employment or services for the purposes of the
Plan.
(iv) Except as otherwise specifically provided in an Award
agreement, no Award shall be assignable or transferable by a
Holder to whom it is granted except that it may be
transferable by will or the laws of descent and distribution.
An option so transferred may be exercised after the death of
the Holder to whom it is granted only by such Holder's legal
representatives, heirs or legatees, not later than the earlier
of the date the option expires or one year after the date of
death of such Holder and only with respect to an Award
exercisable at the time of death.
(v) In no event shall any Award be exercisable at any time
after its expiration date unless extended by the Committee.
When an Award is no longer exercisable, it shall be deemed to
have lapsed or terminated.
(vi) Except as otherwise specifically provided in an Award
agreement, notwithstanding any provision of Section 7.C, if
within one year after the termination of employment with or
performance of services for the Company, a Holder is employed
or retained by a firm that competes with the business of the
Company or such Holder violates any confidentiality agreement
with the Company, the Company may cancel and rescind all
Awards held by such Holder and demand return of the economic
value of any Award which was realized or obtained (measured at
the date of exercise) by such Holder at any time during the
period beginning on the date which is twelve months prior to
the date of termination.
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D. METHODS OF EXERCISE. Subject to the terms and conditions of the Plan
and the terms and conditions of an Award agreement, an Award may be
exercised in whole or in part from time to time, by delivery to the
Company at its principal office a written notice of exercise specifying
the number of shares with respect to which the Award is being
exercised, accompanied by payment in full of the exercise price for
shares to be purchased at that time. Payment may be made (i) in cash,
(ii) in shares of Common Stock valued at the Fair Market Value of the
Common Stock on the date of exercise or (iii) in a combination of cash
and Common Stock. The Committee may also, in its sole discretion,
permit Holders to deliver a notice of exercise of options and
simultaneously to sell the shares of Common Stock thereby acquired
pursuant to a brokerage or similar arrangement approved in advance by
proper officers of the Company, which approval will not be unreasonably
withheld, using the proceeds from such sale as payment of the exercise
price. No shares of Common Stock shall be issued until full payment
therefor has been made.
E. RIGHTS AS A STOCKHOLDER. A Holder shall have no rights as a
stockholder with respect to any Common Stock covered by an Award until
exercise of such Award and issuance of shares of Common Stock. Except
as otherwise expressly provided in the Plan, no adjustments shall be
made for dividends or other rights for which the record date is prior
to issuance of the Common Stock.
F. GENERAL RESTRICTION. Each Award shall be subject to the requirement
that, if at any time the Board shall determine in its discretion that
the listing, registration or qualification of the Common Stock subject
to such Award on any securities exchange or under any state or federal
law, or the consent or approval of any government regulatory body, is
necessary or desirable as a condition of, or in connection with, the
granting of such Award or the issue or purchase of Common Stock
thereunder, such Award may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions unacceptable to
the Board.
8. STOCK OPTIONS.
A. GENERAL. It is intended that certain options granted under the Plan
shall be incentive stock options ("Incentive Stock Options") and shall
meet the applicable requirements of and contain or be deemed to contain
all provisions required under Section 422 of the Code or corresponding
provisions of subsequent revenue laws and regulations in effect at the
time such options are granted; that other options shall not meet such
requirements and shall be nonqualified stock options ("Nonqualified
Options"); and that any ambiguities in construction shall be
interpreted in order to effectuate such intent. Such options shall be
subject to the terms and conditions set forth elsewhere in the Plan.
The exercise price of each option shall be determined by the Committee
at the time the option is granted, provided that in no event can the
exercise price be less than 85% of the Fair Market Value of such shares
of Common Stock on the date of grant of such option; and provided,
further, the determination shall take into account any requirements
under the Code and, with respect to individuals to whom Section 162(m)
is applicable, the amount
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of the exercise price shall be not less than 100% of the Fair Market
Value of such shares of the Common Stock on the date of grant of such
option.
B. INCENTIVE STOCK OPTIONS.
(i) The term of any Incentive Stock Option shall meet the
requirements of Section 422 of the Code. Any Incentive Stock
Option shall be treated as "outstanding" until it is exercised
in full or expires by reason of lapse of time. In no event
shall the exercise price of an Incentive Stock Option be less
than 100% of the Fair Market Value of such shares of the
Common Stock on the date of grant of such option or such other
amount required by the Code.
(ii) If an option is granted to an individual who owns,
directly or indirectly, Common Stock or other capital stock of
the Company possessing more than 10% of the total combined
voting power of all classes of stock of the Company or a
subsidiary immediately after such option is granted, the
amount of the exercise price shall be equal to 110% of the
Fair Market Value of such shares of Common Stock on the date
of grant and such option shall expire five years from the date
of grant.
(iii) To the extent that the aggregate Fair Market Value of
Common Stock (determined at the time of grant of the Incentive
Stock Option) with respect to which Incentive Stock Options
are exercisable for the first time by a Holder during any
calendar year (under all such plans of the Company and its
parent and subsidiary corporations) exceeds $100,000 or such
other limit as may be imposed by the Code, such options shall
be treated as options which are not Incentive Stock Options.
In applying the foregoing limitation, options shall be taken
into account in the order in which they were granted.
(iv) In the event of termination of the employment of a Holder
of an Incentive Stock Option, such Holder shall have up to
three (3) months after the date of termination or such lesser
time as provided in an Award agreement (but in no event later
than the expiration date of the term of an Incentive Stock
Option) to exercise any Incentive Stock Options to the extent
that the Holder was entitled to exercise the Incentive Stock
Option at the date of termination of employment. To the extent
that the Holder was not entitled to exercise the Incentive
Stock Option at the date of termination of employment, or if
the Holder fails to exercise an Incentive Stock Option within
the time specified herein, the Incentive Stock Option shall
terminate. Except in certain circumstances, if a bona fide
leave of absence extends beyond 90 days, an employment
relationship is deemed to terminate as of the 91st day of the
leave.
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9. RELOAD OPTIONS.
A. AUTHORIZATION OF RELOAD OPTIONS. Concurrently with the award of
Nonqualified Options or the award of Incentive Stock Options to any
participant in the Plan, the Committee may authorize reload options
("Reload Options") to purchase for cash or shares a number of shares of
Common Stock. The number of Reload Options shall equal:
(i) the number of shares of Common Stock used to exercise the
underlying Nonqualified Options or Incentive Stock Options and
(ii) to the extent authorized by the Committee, the number of
shares of Common Stock used to satisfy any tax withholding
requirement incident to the exercise of the underlying
Nonqualified Options or Incentive Stock Options. The grant of
a Reload Option will become effective upon the exercise of
underlying Nonqualified Options, Incentive Stock Options or
Reload Options through the use of shares of Common Stock held
by the optionee for at least 12 months. Notwithstanding the
fact that the underlying option may be an Incentive Stock
Option, a Reload Option is not intended to qualify as an
"incentive stock option" under Section 422 of the Internal
Revenue Code of 1986.
B. RELOAD OPTION AMENDMENT. Each Nonqualified Option Agreement and
Incentive Stock Option Agreement shall state whether the Committee has
authorized Reload Options with respect to the underlying Nonqualified
Options or Incentive Stock Options. Upon the exercise of an underlying
Nonqualified Option, Incentive Stock Option or other Reload Option, the
Reload Option will be evidenced by an amendment to the underlying Stock
Option Agreement or Incentive Stock Option Agreement.
C. RELOAD OPTION PRICE. The option price per share of Common Stock
deliverable upon the exercise of a Reload Option shall be the Fair
Market Value of a share of Common Stock on the date the grant of the
Reload Option becomes effective.
D. TERM. The term of each Reload Option shall be equal to the remaining
option term of the underlying Nonqualified Option or Incentive Stock
Option.
E. TERMINATION OF EMPLOYMENT. No additional Reload Options shall be
granted to optionees when Nonqualified Options, Incentive Stock Options
or Reload Options are exercised pursuant to the terms of this Plan
following termination of the optionee's employment.
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10. STOCK APPRECIATION RIGHTS.
A. AWARD OF STOCK APPRECIATION RIGHTS. The Committee may, subject to
the provisions of the Plan and such other terms and conditions as the
Committee may prescribe, award to the optionee with respect to each
share of Common Stock, a related stock appreciation right ("SAR"),
permitting the optionee to be paid the appreciation on the option in
lieu of exercising the option. SARs shall be evidenced by written
agreements in such form as the Committee may from time to time
determine.
B. EXERCISE. An optionee who has been granted SARs may, from time to
time, in lieu of the exercise of an equal number of options, elect to
exercise one or more SARs and thereby become entitled to receive from
the Company payment in Common Stock the number of shares determined
pursuant to Sections 10(D) and 10(E). SARs shall be exercisable only to
the same extent and subject to the same conditions as the options
related thereto are exercisable, as provided in this Plan. The
Committee may, in its discretion, prescribe additional conditions to
the exercise of any SARs.
C. AMOUNT OF PAYMENT. The amount of payment to which an optionee shall
be entitled upon the exercise of each SAR shall be equal to 100% of the
amount, if any, by which the Fair Market Value of a share of Common
Stock on the exercise date exceeds the fair market value of a share of
Common Stock on the date the option related to said SAR was granted or
became effective, as the case may be.
D. FORM OF PAYMENT. The number of shares to be paid shall be determined
by dividing the amount of payment determined pursuant to Section 10(C)
by the Fair Market Value of a share of Common Stock on the exercise
date of such SARs. As soon as practicable after exercise, the Company
shall deliver to the optionee a certificate or certificates for such
shares of Common Stock.
E. EFFECT OF EXERCISE. The exercise of any SARs shall cancel an equal
number of Nonqualified Options, Incentive Stock Options, and Reload
Options, related to said SARs.
11. RESTRICTED STOCK AWARDS. Awards of Common Stock subject to forfeiture
and transfer restrictions ("Restricted Stock") shall be evidenced by agreements
in such form as the Committee shall from time to time approve, which agreements
shall be subject to the terms and conditions contained in the Plan and any
additional terms and conditions established by the Committee that are consistent
with the Plan.
A. GRANT OF RESTRICTED STOCK. Each grant of Restricted Stock made under
the Plan shall be for such number of shares of Common Stock as shall be
determined by the Committee and set forth in the agreement containing
the terms of such grant of Restricted Stock. Such agreement shall set
forth a period of time during which the grantee must remain in the
continuous employment of the Company in order for the forfeiture and
transfer restrictions to lapse. If the Committee so determines, the
restrictions may lapse during such restricted period in installments
with respect to specified portions of the shares
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<PAGE>
covered by the Restricted Stock grant. The agreement may also, in the
discretion of the Committee, set forth performance or other conditions
that will subject the shares to forfeiture and transfer restrictions.
The Committee may, at its discretion, waive all or any part of the
restrictions applicable to any or all outstanding restricted stock
grants.
B. DELIVERY OF COMMON STOCK AND RESTRICTIONS. At the time of a
Restricted Stock grant, a certificate representing the number of shares
of Common Stock awarded thereunder shall be registered in the name of
the grantee. Such certificate shall be held by the Company or any
custodian appointed by the Company for the account of the grantee
subject to the terms and conditions of the Plan, and shall bear such a
legend setting forth the restrictions imposed thereon as the Committee,
in its discretion, may determine. The grantee shall have all rights of
a shareholder with respect to the shares, including the right to
receive dividends and the right to vote such shares, subject to the
following restrictions: (i) the grantee shall not be entitled to
delivery of the stock certificate until the expiration of the
restricted period and the fulfillment of any other restrictive
conditions set forth in the restricted stock agreement with respect to
such shares; (ii) none of the shares may be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed
of during such restricted period or until after the fulfillment of any
such other restrictive conditions; and (iii) except as otherwise
determined by the Committee, all of the shares shall be forfeited and
all rights of the grantee to such shares shall terminate, without
further obligation on the part of the Company, unless the grantee
remains in the continuous employment of the Company for the entire
restricted period in relation to which such Common Stock was granted
and unless any other restrictive conditions relating to the restricted
stock award are met. Any Common Stock, any other securities of the
Company and any other property (except for cash dividends) distributed
with respect to the shares of Common Stock subject to restricted stock
awards shall be subject to the same restrictions, terms and conditions
as such restricted shares of Common Stock.
C. TERMINATION OF RESTRICTIONS. At the end of the restricted period and
provided that any other restrictive conditions of the grant of
Restricted Stock are met, or at such earlier time as otherwise
determined by the Committee, all restrictions set forth in the
agreement relating to the grant of Restricted Stock or in the Plan
shall lapse as to the Restricted Stock subject thereto, and a stock
certificate for the appropriate number of shares of Common Stock, free
of the restrictions and the restricted stock legend, shall be delivered
to the grantee or his or her beneficiary or estate, as the case may be.
12. CHANGE OF CONTROL. In the event of a threatened or actual Change of
Control of the Company as hereinafter defined, whether or not approved by the
Board of Directors, all Awards shall fully vest, unless otherwise limited by the
Committee in the Award agreement, and be exercisable in their entirety
immediately, and notwithstanding any other provisions of the Plans, shall
continue to be exercisable for three years following the later of the threatened
or actual Change of Control, but not later than ten years after the date of
grant. A Change of Control means the earliest to occur of (i) a public
announcement that a party shall have acquired or obtained the right to acquire
beneficial ownership of 20% or more of the outstanding shares of Common Stock of
the Company, (ii) the commencement or announcement of an intention to make
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<PAGE>
a tender offer or exchange offer, the consummation of which would result in the
beneficial ownership by a party of 30% or more of the outstanding shares of
Common Stock of the Company or (iii) the occurrence of a tender offer, exchange
offer, merger, consolidation, sale of assets or contested election or any
combination thereof, that causes (or would cause) the persons who were directors
of the Company immediately before such Change of Control to cease to constitute
a majority of the Board of Directors of the Company or any parent of or
successor to the Company; provided, however, a Change of Control shall not
include any private or public offering of securities by the Company, the primary
purpose of which is to raise capital for use by the Company in its operations.
13. WITHHOLDING TAXES. The Company shall have the right to deduct from any
settlement made under the Plan, including the exercise of an option or the sale
of shares of Common Stock, any federal, state or local taxes of any kind,
including FICA taxes, required by law to be withheld with respect to such
payments or to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes. If stock is
withheld or surrendered to satisfy tax withholding, such stock shall be valued
at its Fair Market Value on the date the amount of the tax withholding is
determined.
14. AMENDMENT OF THE PLAN. The Plan may be amended, suspended or
discontinued in whole or in part at any time and from time to time by the Board,
including an amendment to increase the number of shares of Common Stock with
respect to which options may be granted, provided however that no amendment
shall be effective unless and until the same is approved by stockholders of the
Company where the failure to obtain such approval would adversely affect the
compliance of the Plan with Rule 16b-3 under the Exchange Act or successor rule
and with other applicable law, including the Code. No amendment or
discontinuance of this Plan shall, without the written consent of the Holder
with respect to such Award, adversely affect any Award theretofore granted to
the Holder. Subject to the foregoing and the requirements of Section 162(m), the
Board may, in accordance with the recommendation of the Committee and without
further action on the part of the stockholders of the Company or the consent of
participants, amend the Plan, to preserve the employer deduction under Section
162(m).
15. MISCELLANEOUS.
A. USE OF PROCEEDS. The proceeds derived from the sale of shares of
Common Stock pursuant to the exercise of options granted under the Plan
shall constitute general funds of the Company.
B. SUBSIDIARY. As used herein with respect to Incentive Stock Options,
the term "subsidiary" shall mean "subsidiary corporation," as defined
in Section 424 of the Code.
C. COMPLIANCE WITH RULE 16b-3 AND SECTION 162(m). With respect to
employees subject to Section 16 of the Exchange Act or Section 162(m),
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 and avoid loss of the deduction referred to in
paragraph (1) of Section 162(m). Anything in the Plan or elsewhere to
the contrary notwithstanding, to the extent any provision of the Plan
or action
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<PAGE>
by the Committee fails to so comply or avoid the loss of such
deduction, it shall be deemed null and void, to the extent permitted by
law and deemed advisable by the Committee.
D. FAIR MARKET VALUE. If the Company's Common Stock is traded in the
over-the-counter market or on the NASDAQ Stock Market or similar
market, "Fair Market Value" shall mean the mean average of the bid and
asked prices of the Common Stock as reported in The Wall Street Journal
or as quoted by a market maker; if the Common Stock is listed on an
exchange, Fair Market Value shall mean the mean average of the high and
low prices of the Common Stock as reported in The Wall Street Journal;
and if the Common Stock is not so traded or listed or the Common Stock
does not trade on the relevant date, Fair Market Value shall mean the
value determined in good faith by the Board of Directors.
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(612) 343-5627
EXHIBIT 5.1
August 13, 1998
XOX Corporation
7640 West 78th Street
Bloomington, MN 55439
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel on behalf of XOX Corporation (the "Company") in
connection with the proposed Registration Statement under the Securities Act of
1933, as amended, of shares of the Company's Common Stock offered and to be
offered pursuant to the Company's 1996 Amended Omnibus Stock Plan on Form S-8
(the "Registration Statement") filed by the Company with the Securities and
Exchange Commission relating to the registration of shares of the Company's
$.O25 par value Common Stock (the "Common Stock") with respect to Selling
Shareholders in the aggregate amount of 1,000,000 shares of Common Stock. Upon
examination of such corporate documents and records as we have deemed necessary
or advisable for the purposes hereof and including and in reliance upon certain
certificates by the Company, we are of the opinion that:
1. The Company is duly and validly organized and existing and in good
standing under the laws of the State of Delaware.
2. The 1,000,000 shares of Common Stock registered in the Registration
Statement, when sold as contemplated in the Registration Statement,
will be validly issued and outstanding, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DOHERTY, RUMBLE & BUTLER
PROFESSIONAL ASSOCIATION
By /s/ Daniel R. Tenenbaum /s/
------------------------------
Daniel R. Tenenbaum
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the XOX Corporation 1996 Omnibus
Stock Plan of our report dated February 27, 1998 with respect to the
financial statements of XOX Corporation included in its Annual Report
(Form 10-KSB) for the year ended December 31, 1997 filed with the
Securities and Exchange Commission.
/s/ Ernst & Young, LLP /s/
Minneapolis, Minnesota
August 4, 1998
