Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GOLDEN BEVERAGE COMPANY
(Exact name of registrant as specified in its charter)
Nevada 33-0123045
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
GOLDEN BEVERAGE COMPANY 1997 STOCK OPTION PLAN
(Full Title of Plan)
Dino Kellar, 2186 South Holly Street, Suite 201, Denver, Colorado 80222.
(Name and Address of Agent for Service)
(313) 781-0374
(Telephone number including area code, of agent for service)
Copy to: Andrew I. Telsey, P.C., 2851 South Parker Road, Aurora, CO 80014
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
_______________________ ____________ _________ __________ ____________
<S> <C> <C> <C> <C>
Common Stock, $.001 p.v. 1,517,640 $ 1.75 $2,655,870 $805
__________ ____
Total $2,655,870 $805
________________________
<F1>
(1) Estimated for calculation of registration fee only, pursuant to Rule
457(c) and (h), calculated on the most recent sale for the Company's
common stock as of April 7, 1997.
</TABLE>
In addition, pursuant to Rule 416(c) promulgated under the Securities
Act of 1933, this Registration Statement covers an indeterminate amount of
interests to be offered or sold pursuant to the Golden Beverage Company 1997
Stock Option Plan described herein.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the information requirements of the
Securities Exchange Act of 1934 and, in accordance therewith, files reports
with the Securities and Exchange Commission (the "Commission"). The
documents listed below are hereby incorporated by reference in this
Registration Statement on Form S-8; and 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 which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein
by reference in this Registration Statement on Form S-8, and shall be a part
hereof from the date of the filing of such documents.
(a) The Registrant's Form 10-K/A, filed on March 27, 1997; and
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since March 27, 1997; and
(c) The description of the Common Stock which is contained in the
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 after
the date of this Registration Statement and prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into 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 herein be reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated herein by reference modified or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
The common stock of the Company is registered under Section 12 of the
Securities and Exchange Act of 1934, as amended.
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Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Certain provisions of the Nevada Limited Liabilities Companies Act
regarding the indemnification of Officers, Employees and Agents are as
follows:
86.411 INDEMNIFICATION OF MANAGER, MEMBER, EMPLOYEE OR AGENT: PROCEEDING
OTHER THAN BY COMPANY.- A limited-liability company may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of the
company, by reason of the fact that he is or was a manager, member, employee
or agent of the company, or is or was serving at the request of the company
as a manager, member, employee or agent of another limited-liability company,
partnership, joint venture, trust or other enterprise, against expenses,
including attorney's fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit
or proceeding if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, does not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the limited-
liability company, and that, with respect to any criminal action or
proceeding, he has reasonable cause to believe that his conduct was unlawful.
86.421 INDEMNIFICATION OF MANAGER, MEMBER, EMPLOYEE OR AGENT: PROCEEDING
BY COMPANY.-A limited-liability company may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the company to procure a
judgment in its favor by reason of the fact that he is or was a manager,
member, employee or agent of the company, or is or was serving at the request
of the company as a manager, member, employee or agent of another limited-
liability company, corporation, partnership, joint venture, trust or other
enterprise against expenses, including amount paid in settlement and
attorneys' fees actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he acted in good faith and
in a manner in which he reasonably believed to be in or not opposed to the
best interests of the company. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the company or for amounts paid in settlement to the company,
unless and only to the extent that the court in which the action or suit was
brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, he is fairly and
reasonably entitled to indemnity for such expenses as the court deems proper.
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86.431 INDEMNIFICATION OF MANAGER, MEMBER, EMPLOYEE OR AGENT: SCOPE;
AUTHORIZATION.-1. To the extent that a manager, member, employee or agent of
a limited-liability company has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in NRS 86.411 and 86.421,
unless ordered by a court or advanced pursuant to NRS 86.441 and 86.421, or
in defense of any claim, issue or matter therein, the company shall indemnify
him against expenses, including attorney's fees, actually and reasonably
incurred by him in connection with the defense.
2. Any indemnification under NRS 86.411 and 86.421, unless ordered by
a court or advanced pursuant to NRS 86.441, may be made by the limited-
liability company only as authorized in the specific case upon a
determination that indemnification of the manager, member, employe or agent
is proper in the circumstances. The determination must be made:
(a) By the members 1/ or managers as provided in the articles of
organization or the operating agreement;
(b) If there is no provision in the articles or organization or the
operating agreement, by the owners of more than 50 percent of the interests
owned by members who are not parties to the act, suit or proceeding;
(c) If 2/ members who own more than 50 percent of the interests owned
by members who are not parties to the act, suit or proceeding so 3/ order, by
independent legal counsel in a written opinion; or
(d) If 4/ members who are not parties to the act, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion. (Last
amended by Ch. 337, L. '93, eff. 10-1-93.)
86.441 INDEMNIFICATION OF MEMBER OR MANAGER: ADVANCEMENT OF EXPENSES.-
The articles of organization and the operating agreement made by a limited-
liability company may provide that the expenses of members and managers
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the company as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking
by or on behalf of the manager or member to repay the amount if it is
ultimately determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the company. The provisions of this section do
not affect any rights to advancement of expenses to which personnel of the
company other than managers or members may be entitled under any contract or
otherwise by law.
86.451 INDEMNIFICATION OF MANAGER, MEMBER, EMPLOYEE OR AGENT: EFFECT OF
PROVISIONS ON OTHER RIGHTS; CONTINUATION AFTER CESSATION OF STATUS.- The
indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this section:
1. Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles
or organization or any operating agreement, vote of members or disinterested
managers, if any, or otherwise, for an action on his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to NRS 86.421 or for the
advancement of expenses made pursuant to NRS 86.441, may not be
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made to or on behalf of any member or manager if a final adjudication
establishes that his acts or omissions involved intentional misconduct, fraud
or a knowing violation of the law and was material to the cause of action.
2. Continues for a person who has ceased to be a member, manager,
employee or agent and inures to the benefit of his heirs, executors and
administrators.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Articles of Incorporation of the Company(1)
4.2 Amendment to Articles of Incorporation of the Company(2)
4.3 By-Laws of the Company(1)
4.4 The Company's 1997 Stock Option Plan
4.6 Opinion of Andrew I. Telsey, P.C. with consent.
4.7 Consent of Larry O'Donnell CPA, P.C. independent accountants.
________________________
<F1>
(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-18, filed with the Commission on March
12, 1987.
<F2>
(2) Previously filed with the Commission as an Exhibit to the Registrant's
Form 8-K, filed with the Commission on November 30, 1990.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes to file during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement 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.
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<PAGE>
2. The undersigned Registrant hereby undertakes 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. The undersigned Registrant hereby undertakes 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.
4. 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 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 related to the
securities offered therein, and the offering of such securities at such time
shall be deemed to be the initial bona fide offering thereof.
5. 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 in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, 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 on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in Denver, Colorado, on
the date set forth below.
GOLDEN BEVERAGE COMPANY
Dated: April 4, 1997 By: s/Shiou Yung Wang
Shiou Yung Wang, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on
behalf of the Company and in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
________________________ ______________________________ _______________
s/Shiou Yung Wang President, Director, Treasurer April 4, 1997
Shiou Yung Wang
s/Dino Kellar Director April 4, 1997
Dino Kellar
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrator has duly caused the registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Denver, State of Colorado on April 4, 1997.
GOLDEN BEVERAGE COMPANY 1997
STOCK OPTION PLAN
By: s/Dino Kellar
Dino Kellar, Plan Administrator
[GBCG0003.047]
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EXHIBIT INDEX
4.4 The Company's 1997 Stock Option Plan
4.6 Opinion of Andrew I. Telsey, P.C. with consent.
4.7 Consent of Larry O'Donnell CPA, P.C. independent accountants.
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Exhibit 4.4
GOLDEN BEVERAGE COMPANY
1997 STOCK OPTION PLAN
Adopted by the Board of Directors: April 1, 1997
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Golden Beverage
Company (the "Company") and its shareholders the benefits arising from
capital stock ownership by employees or officers of, and consultants or
advisors to, the Company corporation who have contributed to the Company in
the past and 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").
2. Type of Stock or Options and Administration.
(a) Types of Stock or Options. The shares of Common Stock issued
for services rendered or the stock options granted pursuant to the Plan shall
be authorized by action of the Board of Directors of the Company (the
"Board"), or a Committee (the "Committee") designated by the Board of
Directors. The stock options are non-statutory options and are not intended
to meet the requirements of Section 422 of the Code.
(b) Administration. The Plan will be administered by the Board,
whose construction and interpretation of the terms and provisions of the Plan
shall be final and conclusive. The Board may, to the full extent permitted
by or consistent with applicable laws or regulations (including, without
limitation, applicable state laws 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 appointed by the Board, and if the Committee is so appointed all
references to the "Board" in this Plan shall mean and relate to such
Committee. The Board may in its sole discretion authorize the issuance of
Common Stock for services rendered, or may 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; or the Board may delegate the power
to issue shares or grant options to the Committee. The Board shall have
authority, subject to the express provisions of the Plan, to construe the
respective stock issuance agreements, the 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 stock issuance
agreements or option agreements, which need not be identical, and to make all
other determinations in the judgment of the Board necessary or
<PAGE>
desirable for the administration of the Plan. The Board may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or
in any stock issuance agreement or 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 or the Committee shall be liable
for any action or determination under the Plan made in good faith.
(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 issuance or grant, employees or officers of, or consultants or
advisors to, the Company; and Common Stock or Options may be issued to
consultants or advisors who have rendered (in the case of stock issuances) or
are rendering and are expected to continue to render (in the case of Options)
consulting or advisory services, including Professional advisory services, to
the Company, not involving a capital raising transaction.
(b) Grant of Options to Officers. The selection of an officer (as
the term "officer" is defined for purposes of Rule 16b-3) as a recipient of
either stock or an option, the timing of the stock issuance or the option
grant, the exercise price of the option and the number of shares subject to
the issuance or the option shall be determined either (i) by the Board, 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) Issuance of Stock. Stock may be issued only to eligible
persons for (i) services (as defined in Section 3(a) above) which have been
rendered (including incidental expenses incurred in connection with the
rendering of services) to the Company, or (ii) upon the exercise of
previously granted stock options.
4. Stock Subject to Plan.
Subject to adjustment as provided in Section 14 below, the maximum
number of shares of Common Stock of the Company which may be issued and sold
under the Plan, including shares issuable pursuant to the exercise of stock
options, is 1,517,640 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
subsequent option grants or stock issuances under the Plan.
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5. Forms of Stock Issuance Agreements and Option Agreements.
As a condition to the issuance of Stock or the grant of an option under
the Plan, each recipient of either stock or an option shall execute either an
employee or advisor compensation agreement or an option agreement in such
form not inconsistent with the Plan as may be approved by the Board. Such
agreements may differ among recipients.
6. Purchase Price.
(a) General. The stock issuance price and the purchase price per
share of stock deliverable upon the exercise of an option shall be determined
by the Board.
(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 and held by the optionee for at least twelve months and having a fair
market value equal in amount to the exercise price of the options being
exercised, (ii) by any other means which the Board 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 payments. 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 any option shall be determined by the Board.
7. Option Period.
Each option and all rights thereunder shall expire on such date as shall
be set forth in the applicable option agreement, and options 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.
All options granted to Reporting Persons shall not be assignable or
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transferable by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution,
and, during the life of the optionee, shall be exercisable only by the
optionee; provided, however, that options may be transferred pursuant to a
qualified domestic relations order (as defined in Rule 16b-3).
10. Effect of Termination of Employment or Other Relationship.
(a) Options. Subject to the provisions of the Plan, the Board
shall determine the period of time during which an optionee may exercise an
option following (i) the termination of the optionee's employment or other
relationship with the Company or (ii) the death or disability of the
optionee, but such period shall in no event be less than three months. Such
periods shall be set forth in the agreement evidencing such option.
(b) Stock. Shares of stock that are issued for services rendered
pursuant to this Plan may not be canceled by the Company; provided that when
the shares are issued, the recipient of the shares shall acknowledge having
received full payment for the services previously rendered and shall waive
any right to additional or different payment by the Company for such
services.
11. Additional Provisions.
(a) Additional Option Provisions. The Board may, in its sole
discretion, include additional provisions in option agreements covering
options granted under the Plan, including without limitations 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 provisions as shall be determined by the Board;
provided that such additional provisions shall not be inconsistent with any
other term or condition of the Plan.
(b) Acceleration, Extension, Etc. The Board 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 Rule 16b-3.
12. General Restrictions.
The shares issued pursuant to this Plan and each option shall be subject
to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares,
including the shares subject to such option, upon any
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securities exchange or under any state or federal law, or that the consent or
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is
necessary as a condition of, or in connection with, the issuance or purchase
of shares thereunder, such shares may not be issued or such option may not be
exercised, in whole or in part, unless such listing, registration,
qualification, consent or approval, or satisfaction of such condition shall
have been effected or obtained on conditions acceptable to the Board.
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 adjustment 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 Rule 16b-3.
(b) Board Authority to Make Adjustments.
Any adjustments under this Section 14 will be made by the Board, 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.
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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, or the board of directors 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 affiliate thereof), (ii) upon
written notice to the optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such transactions 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 ( "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 Stock or Options. The Company may issue stock or
grant options under the Plan in substitution for stock or options held by
employees of, or consultants or advisors to, another corporation who become
employees of or consultants or advisors to 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
stock be issued or options be granted on such terms and conditions as the
Board considers appropriate in the circumstances.
16. No Special Employment Rights.
Nothing contained in the Plan or in any stock issuance or option shall
confer upon any recipient or 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 recipient or optionee.
17. Amendment of the Plan.
(a) The Board 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
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shareholders of the Company is required under any law or rule, the Board 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 a recipient of stock or an optionee, affect
his or her rights under stock or an option previously issued or granted to
him or her. With the consent of the recipient or optionee affected, the
Board may amend outstanding stock agreements or option agreements in a manner
not inconsistent with the Plan. The Board shall have the right to amend or
modify the terms and provisions of the Plan and of any outstanding stock or
option to the extent necessary to ensure the qualifications of the Plan under
Rule 16b-3.
18. Withholding.
(a) The Company shall have the right to deduct from payments of
any kind otherwise due to the recipient or optionee any federal, state or
local taxes of any kind required by law to be withheld with respect to any
shares issued or issuable 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 recipient or optionee may elect to satisfy such
obligations, in whole or in part, (i) by causing the Company to withhold
shares of Common Stock otherwise issued or issuable pursuant to the exercise
of an option or (ii) by delivering to the Company shares of Common Stock
already owned by the recipient or the optionee. The shares so delivered or
withheld shall have a fair market value equal to such withholding
obligations. 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. A recipient or
optionee who has made an election pursuant to this Section 18(a) may only
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.
19. Cancellation and New Grant of Options, Etc.
The Board shall have the authority to effect, at any time and from time
to time, with the consent of the affected optionees, (i) the cancellation of
any or all outstanding options under the Plan and the grant in substitution
thereof of new options under the Plan covering the same or different numbers
of shares of Common Stock and having an option exercise price per share which
may be lower or higher than the exercise price per share of the canceled
options or (ii) the amendment of the terms of any and all outstanding options
under the Plan to provide an option exercise price per share which is higher
or lower than the then-current exercise price per share of such outstanding
options.
- 7 -
<PAGE>
20. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted
by the Board. Amendments to the Plan shall become effective when adopted by
the Board. Shares may be issued and options may be granted under the Plan at
any time after the effective date and before the date fixed as the
termination date of the Plan.
(b) Termination. Unless sooner expressly terminated in accordance
with the provisions of the Plan, the Plan shall terminate 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, or (ii) the date on which all shares
available for issuance under the Plan shall have been issued pursuant to the
issuance of shares or the exercise or cancellation of options granted under
the Plan. Unless sooner expressly terminated in accordance with the
provisions of the Plan, the Plan shall terminate with respect to options on
the date specified in (ii) 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 stock
issuances 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 jurisdiction with respect to tax,
securities, currency, employee benefit or other matters.
22. Registration of Shares and Options.
In the Board's discretion, the Board may agree with respect to certain
shares and options issued under the Plan, to prepare and file Registration
Statements on Form S-8, which Registration Statements may include reoffer
prospectuses as that term is defined in Form S-8, to register and continue to
keep effectively registered for resale the shares issued as compensation
under the Plan and the shares of Common Stock issued upon the exercise of
options granted under the Plan.
Adopted by the Board of Directors
on April 1, 1997
[GBCI0016.047]
- 8 -
<PAGE>
Exhibit 4.6
Andrew I. Telsey, P.C.
- Attorney at Law -
2851 South Parker Road, Suite 720
Aurora, Colorado 80014
Telephone: (303) 671-8920
Facsimile: (303) 750-5544
April 4, 1997
Ms. Shiou Yung Wang, President
Golden Beverage Company
2186 S. Holly St.
Suite 201
Denver, CO 80222
Re: Golden Beverage Company
Dear Ms. Wang:
In connection with the 1,517,640 shares of Common Stock, par value
$0.001 per share (the "Shares"), of Golden Beverage Company
(hereinafter called the "Company"), included in the Company's Stock
Plan (the "Plan"), adopted by the shareholders of the Company,
which Shares are proposed to be registered on Form S-8 under the
Securities Act of 1933, as amended, we have examined the following
instruments and documents:
1. Articles of Incorporation of the Company, as amended;
2. Bylaws of the Company, as amended to date;
3. Copies of certain resolutions adopted by the Board of
Directors and shareholders of the Company adopting the Plan and
authorizing the reservation for issuance of up to 1,517,640 shares
of the Company's Common Stock (the "Shares"), underlying the stock
options to be issued pursuant to the Plan;
We have examined such other instruments, documents and records and
made such further investigations as we have deemed necessary for
the purposes of rendering the following opinion.
Based on the foregoing, it is our opinion that:
(i) The Company is a corporation which has validly filed its
Articles of Incorporation under the laws of the State of Nevada;
(ii) The Plan and the Shares included in the Plan have been
duly and validly authorized by all necessary action on the part of
the Company; the Shares issuable pursuant to the Plan and upon
exercise of the stock options authorized pursuant to the Plan have
been duly and validly authorized and, upon payment therefor in
accordance with the terms of such issuance and stock option(s),
will be validly issued, fully paid and nonassessable by the
Company;
(iii) The rights attendant to the Plan and the Shares
<PAGE>
Ms. Shiou Yung Wang, President
Golden Beverage Company
April 4, 1997
Page 2
reserved for issuance thereunder conform to the description thereof
contained in the Prospectus;
(iv) No authorization, approval, consent or license of any
regulatory body or authority (other than under the Act and the
securities or Blue Sky laws of the various states), is required for
the valid authorization, issuance, sale and delivery of the stock
options and Shares reserved for issuance thereunder, or if so
required, all such authorizations, approvals, consents and licenses
have been obtained and are in full force and effect;
(v) The Registration Statement and the Prospectus (except for
the financial statements and other financial data included therein,
as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations thereunder;
(vi) Such counsel have participated in the preparation of the
Registration Statement and Prospectus and no facts have come to the
attention of such counsel to lead them to believe that either the
Registration Statement or the Prospectus (except for the financial
statements and other financial data included therein, as to which
such counsel need express no opinion), contained any untrue
statement of a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) Such counsel does not know of any material statutes or
regulations or legal or governmental proceedings required to be
described in the Prospectus which are not correctly described in
all material respects as required, nor of any material contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement which are not described and filed as
required.
We hereby consent to the use of this opinion in the said
Registration Statement being filed with the Securities and
<PAGE>
Ms. Shiou Yung Wang, President
Golden Beverage Company
April 4, 1997
Page 3
Exchange Commission and further consent to the reference to this
firm in the Prospectus.
Very truly yours,
s/Andrew I. Telsey
ANDREW I. TELSEY, P.C.
<PAGE>
Exhibit 4.7
Larry O'Donnell, CPA, P.C.
Telephone 745-4545 2851 South Parker Road, Suite 1040
Aurora, Colorado 80014
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
I hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 of my report dated March 26,
1997, relating to the financial statements of Golden Beverage
Company as of December 31, 1996.
s/Larry O'Donnell, CPA, P.C.
By: Larry O'Donnell, CPA, P.C.
April 2, 1997
Aurora, Colorado
