THIS DOCUMENT IS A COPY OF THE REGISTRATION STATEMENT ON FORM S-8
FILED MANUALLY ON APRIL 14, 1995.
As filed with the Securities and Exchange Commission on April 14, 1995
Registration No. 33-
________________________________________________________________________
S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XYLOGICS, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-2669596
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
53 Third Avenue, Burlington, Massachusetts 01803
(Address of principal executive offices) (Zip code)
1992 STOCK OPTION PLAN_
(Full title of the plan)
Alexander Bernhard, Esq., Hale and Dorr
60 State Street, Boston, Massachusetts 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
Common Stock, 240,000 $17.50 (1) $4,200,000 (1) $1449.00
$.10 par value shares
(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) and (h) of the Securities Act, and based on
the average of the high and low prices of the Common Stock as reported by
NASDAQ on April 7, 1995.
Page 1 of __ pages
Exhibit Index begins on page __
Statement of Incorporation by Reference
This Registration Statement on Form S-8 incorporates by
reference the contents of Registration Statement on Form S-8, File
No. 33-51880 filed by the Registrant on September 11, 1992 and
Registration Statement on Form S-8, File No. 33-68056 filed by the
Registrant on August 30, 1993, relating to the Registrant's 1992
Stock Option Plan.
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 Burlington, Commonwealth of Massachusetts, on this 7th day of
April, 1995.
XYLOGICS, INC.
By:/s/ Bruce I. Sachs
Bruce I. Sachs
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Xylogics, Inc.
hereby severally constitute and appoint Bruce I. Sachs,
Maurice L. Castonguay, Alexander Bernhard and Jay E. Bothwick and
any of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names,
in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith and any and all amendments to said
Registration Statement and generally to do all such things in our
name and behalf in our capacities as officers and directors to
enable Xylogics, Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
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.
Signature Title Date
/s/ Bruce I. Sachs President, Chief )
Bruce I. Sachs Executive Officer )
and Director (Principal )
Executive Officer) )
)
)
/s/ Maurice L. Castonguay Vice President, Finance; )
Maurice L. Castonguay Chief Financial Officer; )
Treasurer; Assistant )
Secretary (Principal )
Financial and Accounting )
Officer) )
)
/s/ Bruce J. Bergman Director )
Bruce J. Bergman )
)
)
/s/ Bruce E. Elmblad Director ) April 7, 1995
Bruce E. Elmblad )
)
)
/s/ Gerald A. Lodge Director )
Gerald A. Lodge )
)
)
/s/ Frank J. Pipp Director )
Frank J. Pipp )
EXHIBIT INDEX
Exhibit Sequential
Number Page Number
4.1 (1) Certificate of Incorporation of the --
Registrant, as amended.
4.2 Certificate of Correction of Certificate of
Amendment of Certificate of Incorporation
of the Registrant.
4.3 (2) Amended and Restated By-Laws of the --
Registrant.
5.1 Opinion of Hale and Dorr.
23.1 Consent of Hale and Dorr (included in --
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included in the --
signature pages of this Registration
Statement).
28.1 1992 Stock Option Plan, as amended.
___________
(1) Incorporated herein by reference to the exhibits to the
Company's Quarterly Report on Form 10-Q for the Quarter
ended April 30, 1994.
(2) Incorporated herein by reference to the exhibits to the
Company's Annual Report on Form 10-K for the year ended
October 31, 1993.
Exhibit 4.2
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF AMENDMENT
OF
XYLOGICS, INC.
Xylogics, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of
Delaware
DOES HEREBY CERTIFY THAT:
1. The name of the Corporation is Xylogics, Inc. (the
"Corporation").
2. A Certificate of Amendment of the Corporation (the
"Certificate") was filed by the Secretary of State of Delaware on
March 29, 1994 and that said Certificate requires correction as
permitted by Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracy in said Certificate is as follows:
That as a result of a typographical error, the par value of
the shares of the Corporation described in paragraph three of the
Certificate setting forth the amending resolution was incorrectly
listed as $.01 per share; the par value should have been listed as
$.10 per share.
4. The corrected version of the resolution setting forth
the amendment to be effected by the original Certificate of
Amendment is as follows:
RESOLVED: That ARTICLE FOURTH of the Certificate of Incorporation
of the Corporation, as amended, be and hereby is
deleted and the following inserted in lieu thereof:
"The total number of shares of all classes of stock
which the corporation shall have authority to issue is
twenty-five million (25,000,000) shares of Common
Stock, par value $.10 per share."
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Correction to be signed by Maurice L. Castonguay,
its Vice President, Finance, and attested to by Alexander
Bernhard, its Secretary, this day of May, 1994.
XYLOGICS, INC.
By:
Maurice L. Castonguay
Vice President, Finance
ATTEST:
Alexander Bernhard,
Secretary
Exhibit 5.1
April 11, 1995
Xylogics, Inc.
53 Third Avenue
Burlington, Massachusetts 01803
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to 240,000
shares of Common Stock, $.10 par value per share (the "Shares"),
of Xylogics, Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1992 Stock Option Plan (the "Plan").
We have examined the Certificate of Incorporation and By-Laws
of the Company, and all amendments thereto, the Registration
Statement, all pertinent records of the meetings of the directors
and stockholders of the Company and such other documents relating
to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such
latter documents.
Based on the foregoing, it is our opinion that the Shares of
Common Stock covered by the Registration Statement to be issued
under the Plan have been duly authorized for issuance, and when
issued and paid for in accordance with the terms of the Plan, will
be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the
Registration Statement.
Alexander Bernhard, Secretary of the Company, is a partner of
this firm.
Very truly yours,
HALE AND DORR
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement of Xylogics, Inc. on Form S-8 of our report
dated December 2, 1994 on our examinations of the consolidated
balance sheets of Xylogics, Inc. and subsidiaries as of
October 31, 1994 and 1993 and the related consolidated statements
of operations, stockholders' equity and cash flows for each of the
three years in the period ended October 31, 1994, which report is
included in the Xylogics, Inc. Annual Report on Form 10-K for the
fiscal year ended October 31, 1994.
Arthur Andersen LLP
Boston, Massachusetts
April 7, 1995
Exhibit 28.1
XYLOGICS, INC.
1992 STOCK OPTION PLAN
(As amended through April 7, 1995)
1. Purpose.
The purpose of this plan (the "Plan") is to secure for
Xylogics, Inc. (the "Company") and its shareholders the benefits
arising from capital stock ownership by employees, officers and
directors of, and consultants or advisors to, the Company and its
parent and subsidiary corporations who are expected to contribute
to the Company's future growth and success. Except where the
context otherwise requires, the term "Company" shall include the
parent and all present and future subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Internal Revenue Code
of 1986, as amended or replaced from time to time (the "Code").
Those provisions of the Plan which make express reference to
Section 422 shall apply only to Incentive Stock Options (as that
term is defined in the Plan).
2. Types of Options and Administration.
(a) Types of Options. Options granted pursuant to the Plan
shall be authorized by action of the Board of Directors of the
Company (or a Committee designated by the Board of Directors) and
may be either incentive stock options ("Incentive Stock Options")
meeting the requirements of Section 422 of the Code or
non-statutory options which are not intended to meet the
requirements of Section 422 of the Code.
(b) Administration. The Plan will be administered by the
Board of Directors of the Company, whose construction and
interpretation of the terms and provisions of the Plan shall be
final and conclusive. The Board of Directors may in its sole
discretion grant options to purchase shares of the Company's
Common Stock ("Common Stock") and issue shares upon exercise of
such options as provided in the Plan. The Board shall have
authority, subject to the express provisions of the Plan, to
construe the respective option agreements and the Plan, to
prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of the respective
option agreements, which need not be identical, and to make all
other determinations in the judgment of the Board of Directors
necessary or desirable for the administration of the Plan. The
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Board of Directors may correct any defect or supply any omission
or reconcile any inconsistency in the Plan or in any option
agreement in the manner and to the extent it shall deem expedient
to carry the Plan into effect and it shall be the sole and final
judge of such expediency. No director or person acting pursuant
to authority delegated by the Board of Directors shall be liable
for any action or determination under the Plan made in good faith.
The Board of Directors may, to the full extent permitted by or
consistent with applicable laws or regulations (including, without
limitation, applicable state law and Rule 16b-3 promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), or any
successor rule ("Rule 16b-3")), delegate any or all of its powers
under the Plan to a committee (the "Committee") appointed by the
Board of Directors, and if the Committee is so appointed all
references to the Board of Directors in the Plan shall mean and
relate to such Committee.
(c) Applicability of Rule 16b-3. Those provisions of the
Plan which make express reference to Rule 16b-3 shall apply only
to such persons as are required to file reports under
Section 16(a) of the Exchange Act (a "Reporting Person").
3. Eligibility.
(a) General. Options may be granted to persons who are, at
the time of grant, employees, officers or directors of, or
consultants or advisors to, the Company; provided, that the class
of employees to whom Incentive Stock Options may be granted shall
be limited to all employees of the Company. A person who has been
granted an option may, if he or she is otherwise eligible, be
granted additional options if the Board of Directors shall so
determine. Subject to adjustment as provided in Sections 14 and
15 below, the maximum number of shares with respect to which
options may be granted to any one employee under the Plan during
any fiscal year shall not exceed 100,000 shares of Common Stock.
For purposes of calculating such maximum number of shares, (i) an
option shall continue to be treated as outstanding notwithstanding
its repricing, cancellation or expiration and (ii) the repricing
of an outstanding option or the issuance of a new option in
substitution for a cancelled option shall be deemed to constitute
the grant of a new additional option separate from the original
grant of the option that is repriced or cancelled.
(b) Grant of Options to Officers. From and after the
registration of the Common Stock of the Company under the Exchange
Act, the selection of an officer (as the term "officer" is defined
for purposes of Rule 16b-3) as a recipient of an option, the
timing of the option grant, the exercise price of the option and
the number of shares subject to the option shall be determined
either (i) by the Board of Directors, of which all members shall
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be "disinterested persons" (as hereinafter defined), or (ii) by
two or more directors having full authority to act in the matter,
each of whom shall be a "disinterested person." For the purposes
of the Plan, a director shall be deemed to be a "disinterested
person" only if such person qualifies as a "disinterested person"
within the meaning of Rule 16b-3, as such term is interpreted from
time to time.
(c) Grant of Options to Non-Employee Directors.
(i) Initial Option Grants.
Subject to adjustment as provided in Sections 14 and 15
below, each director of the Company who is not a regular
employee of the Company as of the date of his or her initial
election to the Board of Directors (hereinafter referred to
in this subsection (c) as an "Outside Director") shall be
granted, as of the date of his or her initial election to the
Board of Directors, a non-statutory stock option for the
purchase of 20,000 shares of the Company's Common Stock at an
exercise price equal to the last reported sale price per
share of the Company's Common Stock on the NASDAQ National
Market on the date of grant (or, if no such price is reported
on such date, such price as is reported on the nearest
preceding date). Such options shall become exercisable on a
cumulative basis over a four-year period from date of grant
with one-fourth of the option becoming exercisable at the end
of each year. For purposes of receiving an option grant
pursuant to this subsection 3(c)(i), in the case of an
Outside Director of the Company who was a regular employee of
the Company upon his or her initial election to the Board of
Directors and who while still a director, ceases to be an
employee of the Company, the "date of his or her initial
election to the Board of Directors" shall be deemed to be the
date that he or she ceases to be a regular employee of the
Company and first becomes an Outside Director.
(ii) Additional Option Grants.
Subject to adjustment as provided in Sections 14 and 15
below, each Outside Director shall be granted from time to
time a non-statutory stock option so that at any given time
each Outside Director will have outstanding unvested options
to purchase 10,000 shares of the Company's Common Stock, at a
price equal to the last reported sale price per share of the
Company's Common Stock on the NASDAQ National Market on the
date of grant or, if no such price is reported on such date,
such price as reported on the nearest preceding date. Such
- 3 -
option shall become exercisable on a cumulative basis over a
four-year period from the date of grant with one-fourth of
the option becoming exercisable at the end of each year.
4. Stock Subject to Plan.
Subject to adjustment as provided in Sections 14 and 15
below, the maximum number of shares of Common Stock of the Company
which may be issued and sold under the Plan is 1,133,064 shares.
If an option granted under the Plan shall expire or terminate for
any reason without having been exercised in full, the unpurchased
shares subject to such option shall again be available for sub-
sequent option grants under the Plan. If shares issued upon
exercise of an option under the Plan are tendered to the Company
in payment of the exercise price of an option granted under the
Plan, such tendered shares shall again be available for subsequent
option grants under the Plan; provided, that in no event shall
(i) the total number of shares issued pursuant to the exercise of
Incentive Stock Options under the Plan, on a cumulative basis,
exceed the maximum number of shares authorized for issuance under
the Plan exclusive of shares made available for issuance pursuant
to this sentence or (ii) the total number of shares issued
pursuant to the exercise of options by Reporting Persons, on a
cumulative basis, exceed the maximum number of shares authorized
for issuance under the Plan exclusive of shares made available for
issuance pursuant to this sentence.
5. Forms of Option Agreements.
As a condition to the grant of an option under the Plan, each
recipient of an option shall execute an option agreement in such
form not inconsistent with the Plan as may be approved by the
Board of Directors. Such option agreements may differ among
recipients.
6. Purchase Price.
(a) General. The purchase price per share of stock
deliverable upon the exercise of an option shall be determined by
the Board of Directors, provided, however, that (i) in the case of
an Incentive Stock Option, the exercise price shall not be less
than 100% of the fair market value of such stock, as determined by
the Board of Directors, at the time of grant of such option, or
less than 110% of such fair market value in the case of options
described in Section 11(b), and (ii) in the case of a
non-statutory option, the exercise price shall not be less than
100% of the fair market value of such stock, as determined by the
Board of Directors, at the time of grant of such option.
- 4 -
(b) Payment of Purchase Price. Options granted under the
Plan may provide for the payment of the exercise price by delivery
of cash or a check to the order of the Company in an amount equal
to the exercise price of such options, or, to the extent provided
in the applicable option agreement, (i) by delivery to the Company
of shares of Common Stock of the Company already owned by the
optionee for a period of six months having a fair market value
equal in amount to the exercise price of the options being
exercised, (ii) by any other means (including, without limitation,
by delivery of a promissory note of the optionee payable on such
terms as are specified by the Board of Directors) which the Board
of Directors determines are consistent with the purpose of the
Plan and with applicable laws and regulations (including, without
limitation, the provisions of Rule 16b-3 and Regulation T
promulgated by the Federal Reserve Board) or (iii) by any
combination of such methods of payment. The fair market value of
any shares of the Company's Common Stock or other non-cash
consideration which may be delivered upon exercise of an option
shall be determined by the Board of Directors.
7. Option Period.
Each option and all rights thereunder shall expire on such
date as shall be set forth in the applicable option agreement,
except that, in the case of an Incentive Stock Option, such date
shall not be later than 10 years after the date on which the
option is granted (or five years in the case of options described
in Section 11(b)), and, in the case of non-statutory options, in
no event after the expiration of 10 years plus 30 days from the
day on which the option is granted, and, in either case, shall be
subject to earlier termination as provided in the Plan.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable
either in full or in installments at such time or times and during
such period as shall be set forth in the agreement evidencing such
option, subject to the provisions of the Plan.
9. Nontransferability of Options.
No option granted under the Plan shall be assignable or
transferable by the person to whom it is granted, either
voluntarily or by operation of law, except by will or the laws of
descent and distribution. During the life of the optionee, the
option shall be exercisable only by the optionee. Notwithstanding
the foregoing, non-statutory options may be transferred pursuant
to a qualified domestic relations order (as defined in
Rule 16b-3).
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10. Effect of Termination of Employment or Other Relationship.
No option may be exercised unless, at the time of such
exercise, the optionee is, and has continuously since the date of
grant of his or her option, been employed by the Company or
maintained his or her other relationship with the Company, except
that if and to the extent the option agreement or instrument so
provides:
(a) the option may be exercised within the period of
three months after the date the optionee ceases to be an
employee of the Company (or within such lesser period as may
be specified in the applicable option agreement);
(b) if the optionee dies while in the employ of the
Company, the option may be exercised in full by the person to
whom it is transferred by will or the laws of descent and
distribution within the period of one year after the date of
death (or within such lesser period as may be specified in
the applicable option agreement); and
(c) if the optionee becomes disabled (within the
meaning of Section 22(e)(3) of the Code or any successor
provision thereto) while in the employ of the Company, the
option may be exercised in full within the period of one year
after the date the optionee ceases to be such an employee
because of such disability (or within such lesser period as
may be specified in the applicable option agreement);
provided, however, that in no event may any option be exercised
after the expiration date of the option. For all purposes of the
Plan and any option granted hereunder, "employment" shall be
defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations).
11. Incentive Stock Options.
Options granted under the Plan which are intended to be
Incentive Stock Options shall be subject to the following
additional terms and conditions:
(a) Express Designation. All Incentive Stock Options
granted under the Plan shall, at the time of grant, be
specifically designated as such in the option agreement covering
such Incentive Stock Options.
(b) 10% Shareholder. If any employee to whom an Incentive
Stock Option is to be granted under the Plan is, at the time of
the grant of such option, the owner of stock possessing more than
10% of the total combined voting power of all classes of stock of
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the Company (after taking into account the attribution of stock
ownership rules of Section 424(d) of the Code), then the following
special provisions shall be applicable to the Incentive Stock
Option granted to such individual:
(i) The purchase price per share of the Common Stock
subject to such Incentive Stock Option shall not be less than
110% of the fair market value of one share of Common Stock at
the time of grant; and
(ii) the option exercise period shall not exceed five
years from the date of grant.
(c) Dollar Limitation. For so long as the Code shall so
provide, options granted to any employee under the Plan (and any
other incentive stock option plans of the Company) which are
intended to constitute Incentive Stock Options shall not
constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first time
in any one calendar year for shares of Common Stock with an
aggregate fair market value (determined as of the respective date
or dates of grant) of more than $100,000.
12. Additional Provisions.
(a) Additional Option Provisions. The Board of Directors
may, in its sole discretion, include additional provisions in
option agreements covering options granted under the Plan,
including without limitation restrictions on transfer, repurchase
rights, commitments to pay cash bonuses, to make, arrange for or
guaranty loans or to transfer other property to optionees upon
exercise of options, or such other provisions as shall be
determined by the Board of Directors; provided that such
additional provisions shall not be inconsistent with any other
term or condition of the Plan and such additional provisions shall
not cause any Incentive Stock Option granted under the Plan to
fail to qualify as an Incentive Stock Option within the meaning of
Section 422 of the Code.
(b) Acceleration, Extension, Etc. The Board of Directors
may, in its sole discretion, (i) accelerate the date or dates on
which all or any particular option or options granted under the
Plan may be exercised or (ii) extend the dates during which all,
or any particular, option or options granted under the Plan may be
exercised; provided, however, that no such extension shall be
permitted if it would cause the Plan to fail to comply with
Section 422 of the Code or with Rule 16b-3.
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13. Rights as a Shareholder.
The holder of an option shall have no rights as a shareholder
with respect to any shares covered by the option (including,
without limitation, any rights to receive dividends or non-cash
distributions with respect to such shares) until the date of issue
of a stock certificate to him or her for such shares. No adjust-
ment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
14. Adjustment Provisions for Recapitalizations and Related
Transactions.
(a) General. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of
the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split or other similar
transaction, (i) the outstanding shares of Common Stock are
increased, decreased or exchanged for a different number or kind
of shares or other securities of the Company, or (ii) additional
shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to
such shares of Common Stock or other securities, an appropriate
and proportionate adjustment may be made in (x) the maximum number
and kind of shares reserved for issuance under the Plan, (y) the
number and kind of shares or other securities subject to any then
outstanding options under the Plan, and (z) the price for each
share subject to any then outstanding options under the Plan,
without changing the aggregate purchase price as to which such
options remain exercisable. Notwithstanding the foregoing, no
adjustment shall be made pursuant to this Section 14 if such
adjustment would cause the Plan to fail to comply with Section 422
of the Code or with Rule 16b-3.
(b) Board Authority to Make Adjustments. Any adjustments
under this Section 14 will be made by the Board of Directors,
whose determination as to what adjustments, if any, will be made
and the extent thereof will be final, binding and conclusive. No
fractional shares will be issued under the Plan on account of any
such adjustments.
15. Merger, Consolidation, Asset Sale, Liquidation, etc.
(a) General. In the event of a consolidation or merger or
sale of all or substantially all of the assets of the Company in
which outstanding shares of Common Stock are exchanged for
securities, cash or other property of any other corporation or
business entity or in the event of a liquidation of the Company,
the Board of Directors of the Company, or the board of directors
- 8 -
of any corporation assuming the obligations of the Company, may,
in its discretion, take any one or more of the following actions,
as to outstanding options: (i) provide that such options shall be
assumed, or equivalent options shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof),
provided that any such options substituted for Incentive Stock
Options shall meet the requirements of Section 424(a) of the Code,
(ii) upon written notice to the optionees, provide that all
unexercised options will terminate immediately prior to the
consummation of such transaction unless exercised by the optionee
within a specified period following the date of such notice,
(iii) in the event of a merger under the terms of which holders of
the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the merger
(the "Merger Price"), make or provide for a cash payment to the
optionees equal to the difference between (A) the Merger Price
times the number of shares of Common Stock subject to such
outstanding options (to the extent then exercisable at prices not
in excess of the Merger Price) and (B) the aggregate exercise
price of all such outstanding options in exchange for the
termination of such options, and (iv) provide that all or any
outstanding options shall become exercisable in full immediately
prior to such event.
(b) Substitute Options. The Company may grant options under
the Plan in substitution for options held by employees of another
corporation who become employees of the Company, or a subsidiary
of the Company, as the result of a merger or consolidation of the
employing corporation with the Company or a subsidiary of the
Company, or as a result of the acquisition by the Company, or one
of its subsidiaries, of property or stock of the employing
corporation. The Company may direct that substitute options be
granted on such terms and conditions as the Board of Directors
considers appropriate in the circumstances.
16. No Special Employment Rights.
Nothing contained in the Plan or in any option shall confer
upon any optionee any right with respect to the continuation of
his or her employment by the Company or interfere in any way with
the right of the Company at any time to terminate such employment
or to increase or decrease the compensation of the optionee.
17. Other Employee Benefits.
Except as to plans which by their terms include such amounts
as compensation, the amount of any compensation deemed to be
received by an employee as a result of the exercise of an option
or the sale of shares received upon such exercise will not
constitute compensation with respect to which any other employee
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benefits of such employee are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing,
life insurance or salary continuation plan, except as otherwise
specifically determined by the Board of Directors.
18. Amendment of the Plan.
(a) The Board of Directors may at any time, and from time to
time, modify or amend the Plan in any respect, except that if at
any time the approval of the shareholders of the Company is
required under Section 422 of the Code or any successor provision
with respect to Incentive Stock Options, or under Rule 16b-3, the
Board of Directors may not effect such modification or amendment
without such approval.
(b) The termination or any modification or amendment of the
Plan shall not, without the consent of an optionee, affect his or
her rights under an option previously granted to him or her. With
the consent of the optionee affected, the Board of Directors may
amend outstanding option agreements in a manner not inconsistent
with the Plan. The Board of Directors shall have the right to
amend or modify (i) the terms and provisions of the Plan and of
any outstanding Incentive Stock Options granted under the Plan to
the extent necessary to qualify any or all such options for such
favorable federal income tax treatment (including deferral of
taxation upon exercise) as may be afforded incentive stock options
under Section 422 of the Code and (ii) the terms and provisions of
the Plan and of any outstanding option to the extent necessary to
ensure the qualification of the Plan under Rule 16b-3.
19. Withholding.
(a) The Company shall have the right to deduct from payments
of any kind otherwise due to the optionee any federal, state or
local taxes of any kind required by law to be withheld with
respect to any shares issued upon exercise of options under the
Plan. Subject to the prior approval of the Company, which may be
withheld by the Company in its sole discretion, the optionee may
elect to satisfy such obligations, in whole or in part, (i) by
causing the Company to withhold shares of Common Stock otherwise
issuable pursuant to the exercise of an option or (ii) by
delivering to the Company shares of Common Stock already owned by
the optionee. The shares so delivered or withheld shall have a
fair market value equal to such withholding obligation. The fair
market value of the shares used to satisfy such withholding
obligation shall be determined by the Company as of the date that
the amount of tax to be withheld is to be determined. An optionee
who has made an election pursuant to this Section 19(a) may only
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satisfy his or her withholding obligation with shares of Common
Stock which are not subject to any repurchase, forfeiture,
unfulfilled vesting or other similar requirements.
(b) Notwithstanding the foregoing, in the case of a
Reporting Person, no election to use shares for the payment of
withholding taxes shall be effective unless made in compliance
with any applicable requirements of Rule 16b-3.
20. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when
adopted by the Board of Directors, but no Incentive Stock Option
granted under the Plan shall become exercisable unless and until
the Plan shall have been approved by the Company's shareholders.
If such shareholder approval is not obtained within twelve months
after the date of the Board's adoption of the Plan, no options
previously granted under the Plan shall be deemed to be Incentive
Stock Options and no Incentive Stock Options shall be granted
thereafter. Amendments to the Plan not requiring shareholder
approval shall become effective when adopted by the Board of
Directors; amendments requiring shareholder approval (as provided
in Section 18) shall become effective when adopted by the Board of
Directors, but no Incentive Stock Option granted after the date of
such amendment shall become exercisable (to the extent that such
amendment to the Plan was required to enable the Company to grant
such Incentive Stock Option to a particular optionee) unless and
until such amendment shall have been approved by the Company's
shareholders. If such shareholder approval is not obtained within
twelve months of the Board's adoption of such amendment, any
Incentive Stock Options granted on or after the date of such
amendment shall terminate to the extent that such amendment to the
Plan was required to enable the Company to grant such option to a
particular optionee. Subject to this limitation, options may be
granted under the Plan at any time after the effective date and
before the date fixed for termination of the Plan.
(b) Termination. Unless sooner terminated in accordance
with Section 15, the Plan shall terminate, with respect to
Incentive Stock Options, upon the earlier of (i) the close of
business on the day next preceding the tenth anniversary of the
date of its adoption by the Board of Directors, or (ii) the date
on which all shares available for issuance under the Plan shall
have been issued pursuant to the exercise or cancellation of
options granted under the Plan. Unless sooner terminated in
accordance with Section 15, the Plan shall terminate with respect
to options which are not Incentive Stock Options on the date
specified in (ii) above. If the date of termination is determined
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under (i) above, then options outstanding on such date shall
continue to have force and effect in accordance with the
provisions of the instruments evidencing such options.
21. Provision for Foreign Participants.
The Board of Directors may, without amending the Plan, modify
awards or options granted to participants who are foreign
nationals or employed outside the United States to recognize
differences in laws, rules, regulations or customs of such foreign
jurisdictions with respect to tax, securities, currency, employee
benefit or other matters.
22. Rule 16b-3.
Notwithstanding anything in the Plan to the contrary, no
action may be taken with respect to the Plan which would cause the
Plan to cease to be qualified under Rule 16b-3 or any successor
rule, without the express acknowledgment of the Board of Directors
that such disqualification may occur.
Adopted by the Board of Directors on
February 11, 1992 and approved by
the stockholders at the 1992 Annual
Meeting of Stockholders; as amended
by the Board of Directors on
November 19, 1992 and approved by
the stockholders at the 1993 Annual
Meeting of Stockholders; reflecting
the Stock Split approved by the
Board of Directors on November 4,
1994; and as amended by the Board of
Directors on September 11 and 12,
1994 and approved by the
stockholders at the 1995 Annual
Meeting of Stockholders. All share
numbers contained herein have been
adjusted to give effect to the two-
for-one split of the Common Stock
effected on December 2, 1994 to
holders of record on November 18,
1994.
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