<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1995
-----------
REGISTRATION NO. 33-
----------
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------
IMP, INC.
(Exact name of Registrant as specified in its charter)
-------------------
Delaware 94-2722142
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2830 North First Street
San Jose, California 95134
(Address of principal executive offices) (zip code)
-------------------
IMP, INC.
IMP, INC. STOCK OPTION PLAN
(Full Title of the Plan)
-------------------
Barry M. Carrington
President and Chief Executive Officer
IMP, INC.
2830 North First Street, San Jose,
California 95134 (408)
432-9100
(Telephone number, including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
==================================================================================================================================
<CAPTION>
Proposed Proposed
maximum offering maximum
Title of securities Amount to be price per aggregate Amount of
to be registered registered(1) share(2) offering price(2) registration fee
------------------------------------ ------------- ------------------ ----------------- ----------------
<S> <C> <C> <C> <C>
Options to Purchase Common Stock 500,000 N/A N/A N/A
Common Stock, $.001 par value 500,000 $7.1875 $3,593,750.00 $1239.22
==================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the IMP, Inc. Stock Option Plan by reason
of any stock dividend, stock split, recapitalization or any other similar
transaction without receipt of consideration which results in an increase in
the number of outstanding shares of Common Stock of IMP, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low prices for the Common Stock of IMP, Inc. on September 13, 1995 as
reported by the Nasdaq National Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
IMP, Inc. ("Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "SEC"):
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended March 26, 1995;
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 25, 1995, as amended by Form 10-Q/A filed on August 9,
1995;
(c) Registrant's Registration Statement No. 33-15858 on Form 8-A
filed with the SEC on May 13, 1987, as amended by Amendment No.
1 filed on June 30, 1987 pursuant to Section 12 of the
Securities and Exchange Act of 1934 (the "1934 Act") in which
there is described the terms, rights and provisions applicable
to Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law ("Delaware
Law"), the Registrant has broad powers to indemnify its directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "1933 Act"). The Registrant's
Bylaws provide that the Registrant will indemnify its directors and officers to
the fullest extent permitted by law and require the Registrant to advance
litigation expenses upon receipt by the Registrant of an undertaking by the
director or officer to repay such advances if it is ultimately determined that
the director or officer is not entitled to indemnification. The Bylaws further
provide that rights conferred under such Bylaws shall not be deemed to be
exclusive of any other right such persons may have or acquire under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant's Certificate of Incorporation provides that, pursuant
to Delaware Law, its directors shall not be liable for monetary damages for
breach of the director's fiduciary duty of care to the Registrant and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware Law. In addition, each director will continue to be subject to
liability for
II-1.
<PAGE> 3
breach of the director's duty of loyalty to the Registrant or its stockholders,
for acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware Law. The provision also does not
effect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
In addition, the Registrant has entered into agreements to indemnify
its directors and certain of its officers in addition to the indemnification
provided for in the Certificate of Incorporation and Bylaws. These agreements
will, among other things, indemnify the Registrant's directors and certain of
its officers for certain expenses (including attorneys' fees), judgments, fines
and settlement amounts incurred by such person in any action or proceeding,
including any action by or in the right of the Registrant, on account of
services as a director or officer of the Registrant or as a director or officer
of any other company or enterprise that the person provides services to at the
request of the Registrant.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
5 Opinion and consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Auditors - Price Waterhouse LLP.
23.2 Consent of Brobeck, Phleger & Harrison is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II.4 of this
Registration Statement.
99.1 IMP, Inc. Stock Option Plan.
99.2 Form of Notice of Grant with Option Agreement to be
generally used in connection with the automatic grant
program of the Stock Option Plan.
99.3 Form of Stock Purchase Agreement to be generally used in
connection with the automatic grant program of the Stock
Option Plan.
99.4 Form of Notice of Grant with Option Agreement to be
generally used in connection with the Stock Option Plan
(incorporated by reference to Exhibit No. 28.2 of
Registration Statement No. 33-65578).
99.5 Form of Notice of Grant with Option Agreement - Officer to
be generally used in connection with the Stock Option Plan
(incorporated by reference to Exhibit No. 28.3 of
Registration Statement No. 33-65578).
</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 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement, and (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 clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed by Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that
are incorporated by reference into
II-2.
<PAGE> 4
the Registration Statement; (2) that for the purpose of determining any
liability under the 1933 Act 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; and (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 IMP, Inc. Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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 1933 Act may be permitted to directors, officers or controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the 1933 Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by Registrant of expenses incurred or paid by a director, officer or
controlling person of 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, 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 1933 Act, and
will be governed by the final adjudication of such issue.
II-3.
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 San Jose, State of California, on , 1995.
IMP, INC.
By: /s/ Barry M. Carrington
----------------------------------------
Barry M. Carrington, President, Chief
Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of IMP, Inc., a
Delaware corporation, do hereby constitute and appoint Barry M. Carrington and
Charles Isherwood, and each of them, the lawful attorneys-in-fact and agents,
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the 1933 Act, and any rules or regulations or requirements of the
SEC in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post- effective, and supplements to this
Registration Statement and to any and all instruments or documents filed as part
of or in conjunction with this Registration Statement or to amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed
this Power of Attorney as of the date indicated.
Pursuant to the requirements of the 1933 Act, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Barry M. Carrington President, Chief Executive Officer , 1995
------------------------ (Principal Executive Officer) and Director ----------
Barry M. Carrington
/s/ Charles S. Isherwood Vice President, Chief Financial Officer , 1995
------------------------ (Principal Financial Officer), Secretary ----------
Charles S. Isherwood and Sr. Vice President, Corporate Services
</TABLE>
II-4.
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/George Rassam Controller (Principal Accounting Officer) , 1995
--------------------------- ----------
George Rassam
/s/Zvi Grinfas Director , 1995
--------------------------- ----------
Zvi Grinfas
/s/Peter D. Olson Director , 1995
--------------------------- ----------
Peter D. Olson
/s/Bernard V. Vonderschmitt Director , 1995
--------------------------- ----------
Bernard V. Vonderschmitt
</TABLE>
II-5.
<PAGE> 7
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
IMP, INC.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<S> <C>
5 Opinion and consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Auditors - Price Waterhouse LLP.
23.2 Consent of Brobeck, Phleger & Harrison is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 IMP, Inc. Stock Option Plan.
99.2 Form of Notice of Grant with Option Agreement to be
generally used in connection with the automatic grant
program of the Stock Option Plan.
99.3 Form of Stock Purchase Agreement to be generally used in
connection with the automatic grant program of the Stock
Option Plan.
99.4 Form of Notice of Grant with Option Agreement to be
generally used in connection with the Stock Option Plan
(incorporated by reference to Exhibit No. 28.2 of
Registration Statement No. 33-65578).
99.5 Form of Notice of Grant with Option Agreement - Officer to
be generally used in connection with the Stock Option Plan
(incorporated by reference to Exhibit No. 28.3 of
Registration Statement No. 33-65578).
</TABLE>
<PAGE> 1
Exhibit 5
Opinion and consent of Brobeck, Phleger & Harrison
<PAGE> 2
September 11, 1995
IMP, Inc.
2830 North First Street
San Jose, California 95134
Re: IMP, Inc. Registration Statement for Offering
of 500,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of 500,000 shares of
Common Stock under the IMP, Inc. Stock Option Plan. We advise you that, in our
opinion, when such shares have been issued and sold pursuant to the applicable
provisions of the IMP, Inc. Stock Option Plan and in accordance with the
Registration Statement, such shares will be validly issued, fully paid and
nonassessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BROBECK, PHLEGER & HARRISON
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors - Price Waterhouse LLP
<PAGE> 2
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 10, 1995 which appears on page 20
of the 1995 Annual Report to Stockholders of IMP, Inc., which is incorporated
by reference in IMP, Inc.'s Annual Report on Form 10-K for the year ended
March 26, 1995. We also consent to the incorporation by reference of our report
on the Financial Statement Schedules, which appears on page II-I of such Annual
Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
San Jose, California
September 11, 1995
<PAGE> 1
Exhibit 23.2
Consent of Brobeck, Phleger & Harrison is contained in Exhibit 5
<PAGE> 1
Exhibit 24
Power of Attorney. Reference is made to page II.4 of this Registration Statement
<PAGE> 1
Exhibit 99.1
IMP, Inc. Stock Option Plan
<PAGE> 2
IMP, INC.
STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE AUGUST 18, 1994)
ARTICLE ONE
GENERAL
I. PURPOSES OF THE RESTATED PLAN
This IMP, Inc. Stock Option Plan, as restated August 18, 1994 (the
"Plan"), is intended to promote the interests of IMP, Inc., a Delaware
corporation (the "Company"), by providing a method whereby key employees and key
consultants of the Company or its parent or subsidiary corporations who perform
valuable services for the Company and its parent and subsidiary corporations may
be offered incentives or rewards which will encourage them to acquire a
proprietary interest, or otherwise increase their proprietary interest, in the
Company and continue to render services to the Company or its parent and
subsidiary corporations.
For purposes of the Plan, each corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company shall be considered
to be a SUBSIDIARY of the Company, provided each such corporation (other than
the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain. Each corporation (other than the Company) in an unbroken chain of
corporations ending with the Company shall be considered to be a PARENT of the
Company, provided each such corporation (other than the Company) in the unbroken
chain owns, at the time of determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
II. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by a committee (the "Committee") of
two (2) or more members of the Company's Board of Directors (the "Board"). No
Board member shall be eligible to serve on the Committee if such individual has,
within the twelve (12)-month period immediately preceding the date he or she is
to be appointed to the Committee, received an option grant or stock award under
the Plan or any other stock plan of the Company (or any parent or subsidiary
corporation), other than pursuant to the automatic grant provisions of Article
Three of the Plan. Members of the Committee shall serve for such period of time
as the Board may determine and shall be subject to removal by the Board at any
time.
B. The Committee as Plan Administrator shall have full power and
authority (subject to the provisions of the Plan) to establish such rules and
regulations as
<PAGE> 3
it may deem appropriate for the proper administration of the Plan and to make
such determinations under, and issue such interpretations of, the Plan and any
outstanding option as it may deem necessary or advisable. Decisions of the Plan
Administrator shall be final and binding on all parties who have an interest in
the Plan or any outstanding option.
C. Service on the Committee shall constitute service as a Board member,
and Committee members shall accordingly be entitled to full indemnification and
reimbursement as Board members for their service on the Committee and shall not
be liable for any act or omission made in good faith under the Plan.
III. ELIGIBILITY FOR OPTION GRANTS
A. The persons eligible to receive options pursuant to the Plan shall
be limited to the following individuals: (i) key employees (including officers
and directors) and key consultants (other than non-employee members of the
Board) of the Company or its parent or subsidiary corporations as the Plan
Administrator shall select from time to time and (ii) the non-employee Board
members who become entitled to option grants pursuant to the automatic grant
provisions of Article Three. The non-employee Board members shall not be
eligible to receive discretionary option grants under the Plan.
B. The Plan Administrator shall have full authority to determine the
number of shares to be covered by each grant made under the discretionary option
grant provisions of the Plan, whether the granted option is to be an incentive
stock option ("Incentive Option") which satisfies the requirements of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
non-statutory option not intended to meet such requirements, the time or times
at which each such option is to become exercisable, and the maximum term for
which the option is to be outstanding.
IV. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of the Company's
authorized but unissued or reacquired Common Stock, $.001 par value per share
("Common Stock"). The maximum number of shares which may be issued over the term
of the Plan shall not exceed 4,677,000(1) shares. The total number of
shares issuable under the Plan shall be subject to adjustment from time to time
in accordance with Section IV.D below.
--------------------------
(1) The share reserve includes the 500,000 share increase which was
approved by the Board on August 18, 1994 and by the stockholders at the 1995
Annual Meeting. From and after March 29, 1992, the maximum number of shares
which may be issued under the Plan shall not exceed 3,498,000 shares, subject to
adjustment under Section IV.D.
2.
<PAGE> 4
B. In no event may which any one individual participating in the Plan
be granted stock options or separately exercisable stock appreciation rights for
more than 1,000,000 shares of Common Stock in the aggregate over the remaining
term of the Plan, subject to periodic adjustment in accordance with the
provisions of Section IV.D of this Article One. For purposes of such limitation,
any stock options or stock appreciation rights granted prior to July 31, 1994
shall not be taken into account.
C. Should an option expire or terminate for any reason prior to
exercise or surrender in full (including options cancelled in accordance with
the cancellation-regrant provisions of Section IV of Article Two of the Plan),
the shares subject to the portion of the option not so exercised or surrendered
shall be available for subsequent option grants under the Plan. Shares subject
to any option or portion thereof surrendered or cancelled in accordance with
Section V of Article Two of the Plan or Section III of Article Three of the Plan
and all share issuances under the Plan, whether or not subsequently repurchased
by the Company pursuant to its repurchase rights under the Plan, shall reduce on
a share-for-share basis the number of shares of Common Stock available for
subsequent option grants under this Plan. In addition, should the exercise price
of an outstanding option under the Plan be paid with shares of Common Stock,
then the number of shares available for issuance under the Plan shall be reduced
by the gross number of shares for which the option is exercised, and not by the
net number of shares of Common Stock issued to the option holder.
D. In the event any change is made to the Common Stock issuable under
the Plan by reason of any stock split, stock dividend, combination of shares,
recapitalization or other change affecting the outstanding Common Stock as a
class without receipt of consideration, then, appropriate adjustments shall be
made to (i) the maximum number and/or class of securities issuable under the
Plan, (ii) the maximum number and/or class of securities for which any one
individual may be granted stock options and separately exercisable stock
appreciation rights over the remaining term of the Plan, (iii) the number and/or
class of securities for which options are to be granted to newly-elected or
continuing non-employee Board members pursuant to the automatic grant provisions
of Article Three and (iv) the number and/or class of securities and the option
price per share in effect under each outstanding option (including automatic
grants made under Article Three) in order to prevent the dilution or enlargement
of benefits thereunder.
3.
<PAGE> 5
ARTICLE TWO
DISCRETIONARY OPTION GRANTS
I. TERMS AND CONDITIONS OF OPTIONS
Discretionary option grants under the Plan shall be authorized by
action of the Plan Administrator and may, at the Plan Administrator's
discretion, be either Incentive Options or non-statutory options. Individuals
who are not employees of the Company or its parent or subsidiary corporations
may only receive non-statutory options under the Plan. Each such discretionary
grant shall be evidenced by an instrument in the form approved by the Plan
Administrator; provided, however, that each such instrument shall comply with
and incorporate the terms and conditions specified below. Each instrument
evidencing an Incentive Option shall, in addition, comply with the applicable
provisions of Section II.
A. Option Price.
1. The option price per share shall be fixed by the Plan
Administrator but, subject to the provisions of Section II.B below, the option
price per share shall in no event be less than eighty-five percent (85%) of the
fair market value per share of Common Stock on the date of grant (the "Grant
Date"). For such purpose, the Grant Date shall be the date on which the Plan
Administrator approves the option or, if later, the date the optionee commences
Service (as defined below in Section I.C.6 of this Article Two).
2. If any individual to whom an Incentive Option or a
non-statutory option is to be granted pursuant to the provisions of the Plan is
on the Grant Date the owner of stock (as determined under Section 424(d) of the
Internal Revenue Code) possessing 10% or more of the total combined voting power
of all classes of stock of the Company or any one of its parent or subsidiary
corporations (such person to be herein referred to as a 10% Stockholder), then
the option price per share shall not be less than one hundred ten percent (110%)
of the fair market value per share of Common Stock on the Grant Date.
3. The option price shall become immediately due upon exercise of
the option and shall, subject to the provisions of Section VI of this Article
Two, be payable in one of the alternative forms specified below:
(i) payment in cash or check payable to the Company's order; or
4.
<PAGE> 6
(ii) payment in shares of Common Stock held for the requisite
period necessary to avoid a charge to the Company's reported earnings and
valued at fair market value on the Exercise Date (as such term is defined
below).
(iii) payment through a broker-dealer sale and remittance
procedure pursuant to which the optionee shall provide irrevocable written
instructions (I) to a Company-designated broker-dealer to effect the
immediate sale of the purchased shares and remit to the Company, out of the
sale proceeds available on the settlement date, an amount equal to the
aggregate option price payable for the purchased shares plus all applicable
Federal and State income and employment taxes required to be withheld by
the Company by reason of such purchase and (II) to the Company to deliver
the certificates for the purchased shares directly to such broker-dealer.
For purposes of this subparagraph 3, the Exercise Date shall be the
date on which written notice of the option exercise is delivered to the Company.
Except to the extent the sale and remittance procedure specified above is
utilized for the exercise of the option, payment of the option price for the
purchased shares must accompany such notice.
4. The fair market value per share of Common Stock on any
relevant date under subparagraph 1, 2 or 3 above (and for all other valuation
purposes under the Plan) shall be determined in accordance with the following
provisions:
(i) If the Common Stock is not at the time listed or admitted to
trading on any stock exchange but is traded on the Nasdaq National Market,
the fair market value shall be the closing selling price per share of
Common Stock on the date in question, as such price is reported by the
National Association of Securities Dealers on the Nasdaq National Market or
any successor system. If there is no closing selling price for the Common
Stock on the date in question, then the closing selling price on the last
preceding date for which such quotation exists shall be determinative of
fair market value.
(ii) If the Common Stock is at the time listed or admitted to
trading on any stock exchange, then the fair market value shall be the
closing selling price per share of Common Stock on the date in question on
the stock exchange determined by the Plan Administrator to be the primary
market for the Common Stock, as such prices are officially quoted in the
composite tape of transactions on such exchange. If there is no reported
sale of Common Stock on such exchange on the date in question, then the
fair market value shall be the closing selling price on the exchange on the
last preceding date for which such quotation exists.
5.
<PAGE> 7
B. Term and Exercise of Options. Each option granted under the Plan
shall be exercisable at such time or times, during such period, and for such
number of shares as shall be determined by the Plan Administrator and set forth
in the instrument evidencing such option; provided, however, that no such option
shall have a term in excess of ten (10) years from the Grant Date. During the
lifetime of the optionee, the option, together with any stock appreciation
rights pertaining to such option, shall be exercisable only by the optionee and
shall not be assignable or transferable by the optionee except for any transfer
of the option effected by will or by the laws of descent and distribution
following the optionee's death.
C. Effect of Termination of Service.
1. Should an optionee cease to remain in Service for any reason
(including death or permanent disability as defined in Section 22(e)(3) of the
Internal Revenue Code) while the holder of one or more outstanding options under
the Plan, then each such option shall in no event remain exercisable for more
than a twelve (12) month period (or such shorter period determined by the Plan
Administrator and specified in the instrument evidencing the option) following
the date of such cessation of Service. Under no circumstances shall any such
option be exercisable after the specified expiration date of the option term.
Each such option shall, during the applicable twelve (12) month or shorter
period, be exercisable only to the extent of the number of shares (if any) for
which the option is exercisable on the date of the optionee's cessation of
Service. Upon the expiration of such twelve (12) month or shorter period or (if
earlier) upon the expiration of the option term, the option shall terminate and
cease to be exercisable. However, the option shall immediately, upon the
optionee's cessation of Service, terminate and cease to be outstanding with
respect to any shares for which the option is not otherwise at that time
exercisable.
2. Should the optionee cease Service and thereafter die while any
option or options held by such optionee under the Plan remain outstanding, then
each such option may be exercised, but only to the extent of the number of
shares (if any) for which the option is exercisable on the date of the
optionee's cessation of Service, by the personal representative of the
optionee's estate or by the person or persons to whom the option is transferred
pursuant to the optionee's will or in accordance with the laws of descent and
distribution, provided and only if such exercise occurs prior to the earlier of
(i) the first anniversary of the date of the optionee's death or (ii) the
specified expiration date of the option term. Upon the occurrence of the earlier
event, the option shall terminate and cease to be exercisable.
3. Should the optionee die prior to cessation of Service, then
each option under the Plan held by such optionee at time of death may be
subsequently exercised, for all or any part of the shares of Common Stock at the
time subject to such option, by the personal representative of the optionee's
estate or by the person or persons
6.
<PAGE> 8
to whom the option is transferred pursuant to the optionee's will or in
accordance with the laws of descent and distribution, provided and only if such
exercise occurs prior to the earlier of (i) the first anniversary of the date of
the optionee's death or (ii) the specified expiration date of the option term.
Upon the occurrence of the earlier event, the option shall terminate and cease
to be exercisable.
4. If (i) the optionee's Service is terminated for misconduct
(including, but not limited to, any act of dishonesty, willful misconduct, fraud
or embezzlement or any unauthorized disclosure or use of confidential
information or trade secrets) or (ii) the optionee makes or attempts to make any
unauthorized use or disclosure of confidential information or trade secrets of
the Company or its parent or subsidiary corporations, then in any such event
each outstanding option held by the optionee under the Plan shall immediately
terminate and cease to be exercisable.
5. Notwithstanding subparagraphs 1 and 2 above, the Plan
Administrator shall have complete discretion, exercisable either at the time the
option is granted or at any while the option remains outstanding, to establish
as a provision applicable to the exercise of one or more options granted under
the Plan that during the limited period of exercisability following cessation of
Service as provided in Section I.C.1 above or following the Employee's death as
provided in Section I.C.2 above, the option may be exercised not only with
respect to the number of shares for which it is exercisable at the time of the
optionee's cessation of Service or death but also with respect to one or more
subsequent installments of purchasable shares for which the option would
otherwise have become exercisable had such cessation of Service not occurred.
6. For purposes of the foregoing provisions of this Section I of
Article Two (and all other provisions of the Plan), unless it is specifically
provided otherwise in the option agreement evidencing the option grant and/or
the purchase agreement evidencing the shares purchased under such option, the
optionee shall be deemed to remain in Service for so long as such individual
renders services on a periodic basis to the Company or any parent or subsidiary
corporation in the capacity of an Employee, a non-employee member of the board
of directors or an independent consultant or advisor. The optionee shall be
considered to be an Employee for so long as such individual remains in the
employ of the Company or one or more of its parent or subsidiary corporations
subject to the control and direction of the employer entity not only as to the
work to be performed but also as to the manner and method of performance.
D. Stockholder Rights. An option holder shall have none of the rights
of a stockholder with respect to any shares covered by the option until such
individual shall have exercised the option, paid the option price for the
purchased shares and been issued a stock certificate for those shares. No
adjustment shall be made for dividends or distributions (whether paid in cash,
securities or other property) for which the record date is prior to the date
such stock certificate is issued.
7.
<PAGE> 9
E. Repurchase Rights. The shares of Common Stock acquired upon the
exercise of options granted under the Plan may be subject to one or more
repurchase rights of the Company in accordance with the following provisions:
1. The Plan Administrator may in its discretion determine that it
shall be a term and condition of one or more options granted under the Plan that
the Company (or its assignees) shall have the right, exercisable upon the
optionee's cessation of Service, to repurchase at the option price any or all of
the unvested shares of Common Stock previously acquired by the optionee upon the
exercise of such option. Any such repurchase right shall be exercisable by the
Company (or its assignees) upon such terms and conditions (including the
establishment of the appropriate vesting schedule and other provisions for the
expiration of such right in one or more installments over the optionee's period
of Service) as the Plan Administrator may specify in the instrument evidencing
such right.
2. The Plan Administrator may assign the Company's repurchase
rights under subparagraph 1 above to any person or entity selected by the Plan
Administrator, including one or more stockholders of the Company.
3. All of the Company's outstanding repurchase rights shall
automatically terminate, and all shares subject to such terminated rights shall
immediately vest in full, upon the occurrence of any Corporate Transaction under
Section III of Article Two, except to the extent that: (i) any such repurchase
right is, in connection with the Corporate Transaction, to be assigned to the
successor corporation (or parent thereof) or (ii) such termination is precluded
by other limitations imposed by the Plan Administrator at the time the
repurchase right is granted.
II. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable to all
Incentive Options granted under the Plan. Only Employees may be granted
Incentive Options. Options which are specifically designated as "non-statutory"
options when issued under the Plan shall not be subject to such terms and
conditions.
A. Option Price. The option price per share of the Common Stock subject
to an Incentive Option shall in no event be less than one hundred percent (100%)
of the fair market value per share of Common Stock on the Grant Date.
B. Sequential Exercise Rule. Except to the extent now or hereafter
permitted by Section 422 of the Code, no Incentive Option granted prior to
January 1, 1987 may be exercised while there remains outstanding (within the
meaning of subsection (c)(7) of the predecessor to Section 422) any other
pre-1987 Incentive Option which was granted
8.
<PAGE> 10
at an earlier date to the optionee to purchase stock in the Company or in any
other corporation which is on the Grant Date of the later option either a parent
or subsidiary corporation of the Company or a predecessor corporation of any of
such corporations.
C. Dollar Limitation. The following dollar limitations shall be in
effect for Incentive Options granted under the Plan:
(i) Pre-1987 Grants. The aggregate fair market value (determined
as of the respective Grant Date or Dates) of the Common Stock which may be
made the subject of Incentive Options granted under the Plan (or any other
option plan of the Company or its parent or subsidiary corporations) to any
Employee in any one calendar year prior to the 1987 calendar year shall not
exceed the sum of One Hundred Thousand Dollars ($100,000), plus any unused
Carryover to such pre-1987 calendar year. For purposes of the preceding
limitation, the term "Carryover" means one-half (1/2) of the amount by
which the sum of One Hundred Thousand Dollars ($100,000) exceeds the
aggregate fair market value (determined as of the respective Grant Date or
Dates) of the Common Stock for which the Employee was previously granted
Incentive Options under the Plan (or any other option plan of the Company
or its parent or subsidiary corporations) in each calendar year after 1980
and prior to 1987. The unused Carryover shall be available for each of the
three (3) pre-1987 calendar years immediately following the calendar year
in which the Carryover arises and shall increase the basic $100,000
limitation otherwise applicable to the Employee for each such pre-1987
calendar year by an amount equal to the Carryover, less the portion thereof
used in prior calendar years. Incentive Options granted the Employee during
any pre-1987 calendar year shall first be applied against the basic
$100,000 limitation in effect for such calendar year and then applied
against any of the Employee's unused Carryovers to such calendar year, in
the order in which such Carryovers arose in prior calendar years.
(ii) Post-1986 Grants. The aggregate fair market value
(determined as of the respective Grant Date or Dates) of the Common Stock
for which one or more options granted after December 31, 1986 to any
Employee under the Plan (or any other option plan of the Company or its
parent or subsidiary corporations) may for the first time become
exercisable as Incentive Options during any one post-1986 calendar year
shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the
extent the Employee holds two or more such post-1986 options which become
exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability thereof as Incentive Options shall be
applied on the basis of the order in which such options are granted.
9.
<PAGE> 11
D. 10% Stockholder. If any Employee to whom an Incentive Option is to
be granted pursuant to the provisions of the Plan is on the Grant Date a 10%
Stockholder, then the option shall not have a term in excess of five (5) years
from the Grant Date.
Except as modified by the preceding provisions of this Section II, all
the provisions of the Plan shall be applicable to the Incentive Options granted
hereunder.
III. CORPORATE TRANSACTION
A. In the event of one or more of the following stockholder-approved
transactions (a "Corporate Transaction"):
(i) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which
is to change the State of the Company's incorporation;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company; or
(iii) any reverse merger in which the Company is the surviving
entity, but in which fifty percent (50%) or more of the Company's
outstanding voting stock is transferred to holders different from those who
held the stock immediately prior to such merger,
each option outstanding under the Plan shall automatically
accelerate so that each such option shall, immediately prior to the specified
effective date for the Corporate Transaction, become fully exercisable with
respect to the total number of shares of Common Stock at the time subject to
that option and may be exercised for all or any portion of such shares. However,
no such acceleration of the outstanding options under the Plan shall occur if
and to the extent (i) the outstanding options are, in connection with the
Corporate Transaction, either to be assumed by the successor corporation or
parent thereof or be replaced with a comparable option to purchase shares of the
capital stock of the successor corporation or parent thereof or (ii) the
acceleration of the options is subject to other applicable limitations imposed
by the Plan Administrator at the time of grant. Immediately following the
consummation of the Corporate Transaction, all outstanding options under the
Plan shall, except to the extent assumed by the successor corporation or its
parent company, terminate and cease to be outstanding.
B. If the Company is the surviving entity in any merger or other
business combination, then each option which remains outstanding under the Plan
immediately after such merger or other business combination shall be
appropriately adjusted to apply and pertain to the number and class of
securities which would be issuable, in consummation of such merger or business
combination, to an actual holder of the same number of shares of
10.
<PAGE> 12
Common Stock as are subject to such option immediately prior to such merger or
business combination, and appropriate adjustments shall also be made to the
option price payable per share, provided the aggregate option price payable for
such option shall remain the same. Appropriate adjustments shall also be made to
the class and number of securities available for issuance under the Plan on both
an aggregate and per participant basis following the consummation of such merger
or business combination.
C. In connection with any such Corporate Transaction, the exercise of
any accelerated pre-1987 Incentive Options shall remain subject to the
applicable sequential exercise limitation of Section II.B and (ii) the
exercisability as an incentive stock option under the Federal tax laws of any
accelerated post-1986 options shall be subject to the applicable dollar
limitation of Section II.C.
D. The grant of options under this Plan shall in no way affect the
right of the Company to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
IV. CANCELLATION AND NEW GRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Plan (other than the
automatic grants made pursuant to Article Three) and to grant in substitution
therefor new options under the Plan covering the same or different numbers of
shares of Common Stock but having an option price per share not less than
eighty-five percent (85%) of the fair market value per share of Common Stock on
the new Grant Date (or one hundred percent (100%) of such fair market value in
the case of an Incentive Option or, in the case of a 10% Stockholder, one
hundred ten percent (110%) of such fair market value). If one or more of the
cancelled options are pre-1987 Incentive Options, then such options shall
(solely for purposes of applying the "sequential exercise" rule of Section II.B
with respect to other outstanding pre-1987 Incentive Options) be considered to
be outstanding options until the expiration date initially specified for the
option term.
V. SURRENDER OF OPTIONS FOR CASH OR STOCK
A. One or more option holders may be granted, upon such terms and
conditions as the Plan Administrator may establish at the time of the option
grant or at any time thereafter, the right to surrender all or part of an
unexercised option in exchange for a distribution equal in amount to the excess
of (i) the fair market value (on the surrender date) of the number of shares in
which the optionee is at the time vested under the surrendered option or portion
thereof over (ii) the aggregate option price payable for those vested shares.
11.
<PAGE> 13
B. No surrender of an option shall be effective hereunder unless it is
approved by the Plan Administrator. If the surrender is so approved, then the
distribution to which the option holder shall accordingly become entitled under
this Section V may be made in shares of Common Stock valued at fair market value
at date of surrender, in cash, or partly in shares and partly in cash, as the
Plan Administrator shall in its sole discretion deem appropriate.
C. If the surrender of an option is rejected by the Plan Administrator,
then the option holder shall retain whatever rights the option holder had under
the surrendered option (or surrendered portion thereof) on the date of surrender
and may exercise such rights at any time prior to the later of (i) the
expiration of the five (5)-business day period following receipt of the
rejection notice or (ii) the last day on which the option is otherwise
exercisable in accordance with the terms of the instrument evidencing such
option, but in no event may such rights be exercised at any time after ten (10)
years (or five (5) years in the case of a 10% Stockholder) after the date of the
option grant.
D. Notwithstanding the foregoing provisions of this Section V, one or
more officers of the Company subject to the short-swing profit restrictions of
the Federal securities laws may, in the Plan Administrator's sole discretion, be
granted limited stock appreciation rights in tandem with their outstanding
options under this Article Two. Each outstanding option with such a limited
stock appreciation right in effect for at least six (6) months shall
automatically be cancelled, to the extent exercisable for vested shares of
Common Stock, upon the occurrence of a Hostile Take-Over (as defined below), and
the optionee shall in return be entitled to a cash distribution from the Company
in an amount equal to the excess of (i) the fair market value (on the
cancellation date) of the number of shares in which the optionee is at the time
vested under the cancelled option or cancelled portion over (ii) the Take-Over
Price (as defined below) payable for such vested shares. Such cash distribution
shall be made within five (5) days following the consummation of the Hostile
Take-Over. Neither the approval of the Plan Administrator nor the consent of the
Board shall be required in connection with such option cancellation and cash
distribution. The balance (if any) of each such option shall continue in full
force and effect in accordance with the terms and conditions of the instrument
evidencing such grant.
E. For purposes of Section V.D, the following definitions shall be in
effect:
A Hostile Take-Over shall be deemed to occur in the event (i) any
person or related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 of the Securities Act of 1934
Act ("1934 Act")) of securities possessing more than fifty percent (50%) of
the total combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the Company's
stockholders which
12.
<PAGE> 14
the Board does not recommend such stockholders to accept and (ii) more than
fifty percent (50%) of the securities so acquired in such tender or
exchange offer are accepted from holders other than officers and directors
of the Company subject to the short-swing profit restrictions of Section 16
of the 1934 Act.
The Take-Over Price per share shall be deemed to be equal to the
greater of (a) the fair market value per share on the date of option
cancellation, as determined pursuant to the valuation provisions of Section
I.A.4 of this Article Two, or (b) the highest reported price per share of
Common Stock paid in effecting such Hostile Take-Over. However, if the
cancelled option is an Incentive Option, the Take-Over Price shall not
exceed the clause (a) price per share.
F. The shares of Common Stock subject to any option surrendered or
cancelled for an appreciation distribution pursuant to this Section V shall NOT
be available for subsequent option grants under the Plan.
VI. FINANCING
The Plan Administrator may assist any optionee (including any officer
or director) in the exercise of one or more options under this Article Two of
the Plan by (a) authorizing the extension of a loan to such optionee from the
Company or (b) permitting the optionee to pay the option price for the purchased
Common Stock in installments over a period of years. The terms of any loan or
installment method of payment (including the interest rate and terms of
repayment) will be established by the Plan Administrator in its sole discretion;
provided, however, that loans and installment payments may be granted without
security or collateral, but the maximum credit available to the optionee shall
not exceed the sum of the aggregate option price of the purchased shares (less
their par value), plus any Federal and State income and employment tax liability
incurred by the optionee in connection with such exercise. The Plan
Administrator may, in its absolute discretion, determine that one or more loans
extended under this Section VI shall be subject to forgiveness by the Company in
whole or in part upon such terms and conditions as the Plan Administrator in its
discretion deems appropriate.
VII. EXTENSION OF EXERCISE PERIODS
The Plan Administrator shall have full power and authority exercisable
in its sole discretion to extend, at the time the option is granted or at any
time the option remains outstanding, the period of time for which the option is
to remain exercisable following the optionee's cessation of Service from the
twelve (12) month or shorter period set forth in the option agreement to such
greater period of time as the Plan Administrator shall deem appropriate, but in
no event beyond the specified expiration date of the option term.
13.
<PAGE> 15
ARTICLE THREE
AUTOMATIC OPTION GRANT PROGRAM
I. AUTOMATIC GRANTS
A. Grant Dates. Option grants shall be made pursuant to the provisions
of this Article Three as follows:
(i) Each individual who is serving as a Board member on the date
of the 1989 Annual Stockholders Meeting and is neither an employee of the
Company nor any of its parent or subsidiary corporations shall automatically be
granted on such date a non-statutory option under the Plan to purchase 20,000
shares of Common Stock.
(ii) Each individual who first becomes a non-employee Board
member after the date of the 1989 Annual Meeting, whether through appointment by
the Board or election by the Company's stockholders, shall, on the date of such
election or appointment, receive an automatic option grant to purchase 20,000
shares of Common Stock.
(iii) Each individual who continues to serve as a non-employee
Board member shall receive additional automatic option grants, each for 20,000
shares of Common Stock, at successive four (4)-year intervals over his or her
period of continued Board service. The first such additional grant shall be made
on the later of (A) the date of the 1994 Annual Stockholders Meeting or (B) the
date of the Annual Stockholders Meeting held in the calendar year in which
occurs the fourth anniversary of the grant date of the initial automatic option
grant made to such individual under this Article Three, provided he or she is
re-elected to the Board at that Annual Meeting. Additional automatic grants for
20,000 shares each shall be made to such individual at every fourth Annual
Stockholders Meeting thereafter over such individual's period of continued
service as a non-employee Board member. Any such option grants made at the 1994
Annual Meeting shall not become exercisable in whole or in part unless and until
this 1994 restatement of the Plan shall have been approved by the stockholders
at the 1995 Annual Meeting.
B. Limitation. Except for the automatic grants to be made pursuant to
the provisions of this Article Three, non-employee Board members shall not be
eligible to receive any additional option grants under this Plan or any other
stock plan of the Company (or its parent or subsidiary corporations).
C. Adjustment. The number and/or class of securities subject to each
automatic option grant to be made to the non-employee Board members under this
Article Three shall be subject to periodic adjustment pursuant to the applicable
provisions of Section IV.D of Article One.
14.
<PAGE> 16
II. TERMS AND CONDITIONS OF AUTOMATIC OPTION GRANTS
A. Option Price. The option price per share shall be equal to one
hundred percent (100%) of the fair market value per share of Common Stock on the
automatic grant date.
B. Payment. The option price shall be payable in one of the alternative
forms specified below:
(i) payment in cash or check payable to the Company's order; or
(ii) payment in shares of Common Stock held for the requisite
period necessary to avoid a charge to the Company's reported earnings and
valued at fair market value on the Exercise Date (as such term is defined
below); or
(iii) to the extent the option is exercised for vested shares,
payment through a broker-dealer sale and remittance procedure pursuant to
which the optionee shall provide irrevocable written instructions (I) to a
Company-designated broker-dealer to effect the immediate sale of the
purchased shares and remit to the Company, out of the sale proceeds
available on the settlement date, an amount equal to the aggregate option
price payable for the purchased shares plus all applicable Federal and
State income and employment taxes required to be withheld by the Company by
reason of such purchase and (II) to the Company to deliver the certificates
for the purchased shares directly to such broker-dealer.
For purposes of this Section II.B, the Exercise Date shall be the date
on which written notice of the option exercise is delivered to the Company, and
the fair market value per share of Common Stock on any relevant date shall be
determined in accordance with the provisions of Section I.A.4 of Article Two.
Except to the extent the sale and remittance procedure specified above is
utilized for the exercise of the option, payment of the option price for the
purchased shares must accompany such notice.
C. Option Term. Each automatic grant under this Article Three shall
have a maximum term of ten (10) years measured from the automatic grant date.
D. Exercisability. Each automatic grant shall become exercisable for
all the option shares upon the optionee's completion of six (6) months of Board
service measured from the automatic grant date, but any shares purchased under
the option shall be subject to the repurchase rights of the Company under
Section II.E of this Article Three.
15.
<PAGE> 17
E. Repurchase Right. The shares purchased under each automatic option
grant shall be subject to repurchase by the Company, at the option price paid
per share, in the event the optionee ceases to serve as a Board member. However,
the Company's repurchase right shall lapse in accordance with the following
schedule:
(i) The repurchase right will lapse with respect to 25% of the
option shares upon the optionee's completion of one year of Board service
measured from the automatic grant date.
(ii) The repurchase right will lapse with respect to the
remaining option shares in a series of thirty-six (36) successive equal
monthly installments over the optionee's period of continued Board service,
with the first such installment to lapse on the 13th calendar month after
the automatic grant date.
(iii) The repurchase right shall also terminate in its entirety
should any of the following events occur prior to the optionee's cessation
of Board service: (A) the death or permanent disability of the optionee,
(B) a Change in Control under Section III of this Article Three or (C) a
Corporate Transaction under Section III of this Article Three.
F. Non-Transferability. During the lifetime of the optionee, the
option, together with the special stock appreciation right pertaining to such
option under Section III.C of this Article Three, shall be exercisable only by
the optionee and shall not be assignable or transferable by the optionee except
for any transfer of the option effected by will or by the laws of descent and
distribution following the optionee's death.
G. Effect of Termination of Board Membership.
1. Should the optionee cease to serve as a Board member for any
reason (other than death) while holding an automatic option grant under this
Article Three, then the optionee shall have a six (6)-month period following the
date of such cessation of Board service in which to exercise that option for any
or all of the shares of Common Stock in which the optionee is vested at the time
of such cessation of Board service. The option shall immediately, upon the
optionee's cessation of Board service for any reason, terminate and cease to be
outstanding with respect to any option shares in which the optionee is not
otherwise at that time vested.
2. Should the optionee die while a Board member or during the six
(6)-month period following his or her cessation of Board service, then the
option may subsequently be exercised, for any or all of the shares of Common
Stock in which the optionee is vested at the time of his or her cessation of
Board service (less any option shares subsequently purchased by the optionee
prior to death), by the personal representative of
16.
<PAGE> 18
the optionee's estate or by the person or persons to whom the option is
transferred pursuant to the optionee's will or in accordance with the laws of
descent and distribution. The right to exercise such option shall terminate upon
the earlier of (i) the first anniversary of the optionee's death or (ii) the
expiration date of the option term.
3. For purposes of this Article Three, an optionee will be deemed
to remain in Board service for so long as such optionee remains a member of the
Board or of the board of directors of any parent or subsidiary corporation of
the Company.
4. In no event shall any automatic grant under this Article Three
remain exercisable after the specified expiration date of the ten (10)-year
option term. Upon the expiration of the applicable exercise period in accordance
with subparagraphs 1 and 2 above or (if earlier) upon the expiration of the ten
(10)-year option term, the automatic grant shall terminate and cease to be
exercisable with respect to any vested option shares for which the option has
not otherwise been exercised.
H. Stockholder Rights. The holder of an automatic option grant under
this Article Three shall have no stockholder rights with respect to any shares
covered by that option until such individual shall have exercised the option,
paid the exercise price for the purchased shares and been issued a stock
certificate for such shares. No adjustment shall be made for dividends or
distributions (whether paid in cash, securities or other property) for which the
record date is prior to the date such stock certificate is issued.
I. Remaining Terms. The remaining terms and conditions of each
automatic option grant shall be as set forth in the prototype Non-Employee
Director Automatic Grant Agreement attached as Exhibit A to the Plan.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of any Corporate Transaction (as such term is defined
in Section III of Article Two above), the option shares at the time subject to
each automatic option grant outstanding under this Article Three shall
immediately vest in full so that each such option shall, immediately prior to
the specified effective date for the Corporate Transaction, become fully
exercisable for all of those shares as fully-vested shares of Common Stock and
may be exercised for all or any portion of those vested shares. Immediately
following the consummation of the Corporate Transaction, all automatic option
grants under this Article Three shall terminate and cease to be outstanding,
unless assumed by the successor corporation or parent thereof.
B. In the event of any Change in Control of the Company, the option
shares at the time subject to each automatic option grant outstanding under this
Article Three shall immediately vest in full so that each such option shall,
immediately prior to the
17.
<PAGE> 19
effective date of such Change in Control, become fully exercisable for all of
those shares as fully-vested shares of Common Stock and may be exercised for all
or any portion of those vested shares. For purposes of this Article Three, a
Change in Control shall be deemed to occur in the event:
(i) any person or related group of persons (other than the
Company or a person that directly or indirectly controls, is controlled by,
or is under common control with, the Company) directly or indirectly
acquires beneficial ownership (within the meaning of Rule 13d-3 of the 1934
Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities pursuant to a
tender or exchange offer which the Board does not recommend the Company's
stockholders to accept; or
(ii) there is a change in the composition of the Board over a
period of twenty-four (24) consecutive months or less such that a majority
of the Board members (rounded up to the next whole number) cease, by reason
of one or more proxy contests for the election of Board members, to be
comprised of individuals who either (A) have been Board members
continuously since the beginning of such period or (B) have been elected or
nominated for election as Board members during such period by at least
two-thirds of the Board members described in clause (A) who were still in
office at the time such election or nomination was approved by the Board.
C. Upon the occurrence of a Hostile Take-Over, each automatic option
grant at the time outstanding under this Article Three shall automatically be
cancelled, provided that option has been so outstanding for a period of at least
six (6) months. The optionee shall in return receive a cash distribution from
the Company in an amount equal to the excess of (i) the Take-Over Price of the
shares of Common Stock at the time subject to the cancelled option (whether or
not those shares are vested) over (ii) the aggregate option price payable for
such shares. The cash distribution payable upon such cancellation shall be made
within five (5) days following the consummation of the Hostile Take-Over.
Neither the approval of the Plan Administrator nor the consent of the Board
shall be required in connection with such option cancellation and cash
distribution.
D. Hostile Take-Over shall have the meaning assigned to such term in
Section V.E of Article Two, and the Take-Over Price per share shall be deemed to
be equal to the greater of (a) the fair market value per share on the option
cancellation date, as determined pursuant to the valuation provisions of Section
I.A.4 of Article Two, or (b) the highest reported price per share of Common
Stock paid in effecting such Hostile Take-Over.
E. The shares of Common Stock subject to each option cancelled in
18.
<PAGE> 20
connection with the Hostile Take-Over shall NOT be available for subsequent
issuance under this Plan.
F. The automatic option grants outstanding under this Article Three
shall in no way affect the right of the Company to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. AMENDMENT OF THE AUTOMATIC GRANT PROVISIONS
The provisions of this Automatic Option Grant Program, and any
automatic option grants outstanding under this Article Three, may not be amended
at intervals more frequently than once every six (6) months, other than to the
extent necessary to comply with applicable Federal income tax laws and
regulations.
19.
<PAGE> 21
ARTICLE FOUR
MISCELLANEOUS
I. AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects whatsoever. However, (i) no such
amendment or modification shall, without the consent of the holders, adversely
affect rights and obligations with respect to options at the time outstanding
under the Plan and (ii) any amendment made to the Automatic Option Grant Program
(or any options outstanding thereunder) shall be in compliance with Section IV
of Article Three. In addition, the Board shall not, without the approval of the
stockholders of the Company, (i) increase the maximum number of shares issuable
under the Plan or the number of shares for which any one individual
participating in the Plan may be granted stock options and separately
exercisable stock appreciation rights over the remaining term of the Plan,
except for permissible adjustments under Section IV.D of Article One or Section
III.B of Article Two, (ii) materially modify the eligibility requirements for
the grant of options under the Plan or (iii) otherwise materially increase the
benefits accruing to participants under the Plan.
II. EFFECTIVE DATE AND TERM OF PLAN
A. The Company's 1981 Stock Option Plan was initially adopted by the
Board in October 1981. The 1981 Stock Option Plan was restated in its entirety
by the Board on December 16, 1986, and such restatement was approved by the
stockholders on February 26, 1987. The Plan as so restated was subsequently
amended on several occasions, and those amendments were approved by the
Company's stockholders on August 3, 1988 and August 2, 1989. On May 13, 1992,
the Plan was further restated by the Board, and the 1992 restatement was
subsequently approved by the Company's stockholders. On August 18, 1994, the
Plan was again restated, subject to stockholder approval at the 1995 Annual
Meeting. None of the automatic option grants made pursuant to Section I.A.(iii)
of Article Three of the 1994 restatement shall become exercisable in whole or in
part unless and until the 1994 restatement is approved by the Company's
stockholders. If such stockholder approval is not obtained at the 1995 Annual
Meeting, then those automatic option grants shall terminate and no further
options shall be granted pursuant to Section I.A.(iii) of Article Three of the
1994 restatement.
B. The provisions of the 1994 restatement shall apply only to options
granted under the Plan on or after August 18, 1994. All options issued and
outstanding under the Plan prior to such date shall continue to be governed by
the terms and conditions of the Plan (and the instrument evidencing each such
option) as in effect on the date each such option was previously granted, and
nothing in the 1994 restatement shall be deemed to affect or otherwise modify
the rights or obligations of the holders of those options.
20.
<PAGE> 22
C. The special sale and remittance procedure for the exercise of
outstanding options under the Plan shall be in effect for all
currently-outstanding options which already include such procedure as a method
of exercise and for all options granted after May 13, 1992. In addition, such
procedure shall be available for all non-statutory options currently held by
officers and directors which do not otherwise include such procedure and for any
disqualifying dispositions of Incentive Option shares effected after May 13,
1992.
D. Unless sooner terminated in accordance with Section III of Articles
Two and Three, the Plan shall terminate upon the earlier of (i) August 16, 2005
or (ii) the date on which all shares available for issuance under the Plan shall
have been issued or cancelled pursuant to the exercise of options or stock
appreciation rights granted hereunder. If the date of termination is determined
under clause (i) above, then any options outstanding on such date shall
thereafter continue to have force and effect in accordance with the provisions
of the instruments evidencing such options.
E. Options may be granted under this Plan to purchase shares of Common
Stock in excess of the number of shares then available for issuance under the
Plan, provided (i) an amendment to increase the maximum number of shares
issuable under the Plan is adopted by the Board prior to the initial grant of
any such option and within one year thereafter such amendment is approved by the
stockholders of the Company and (ii) each option so granted is not to become
exercisable, in whole or in part, at any time prior to the obtaining of such
stockholder approval.
III. USE OF PROCEEDS
Any cash proceeds received by the Company from the sale of shares
pursuant to options granted under the Plan shall be used for general corporate
purposes.
IV. MISCELLANEOUS PROVISIONS
A. The implementation of the Plan, the granting of any option
hereunder, and the issuance of stock upon the exercise or surrender of any such
option shall be subject to the procurement by the Company of all approvals and
permits required by regulatory authorities having jurisdiction over the Plan,
the options granted under it and the stock issued pursuant to it.
B. Neither the action of the Company in establishing or restating the
Plan, nor any action taken by the Plan Administrator hereunder, nor any
provision of the Plan shall be construed so as to grant any individual the right
to remain in the employ or service of the Company (or any parent or subsidiary)
for any period of specific duration, and the Company (or such parent or
subsidiary corporation) may terminate such individual's employment or service at
any time and for any reason, with or without cause.
21.
<PAGE> 1
Exhibit 99.2
Form of Notice of Grant with Option Agreement to be generally used in
connection with the automatic grant program of the Stock Option Plan.
II-3.
<PAGE> 2
AUTOMATIC GRANT
IMP, INC.
NOTICE OF GRANT OF STOCK OPTION
You have been granted an option (the "Option") to acquire IMP, Inc.
common stock as follows:
Grant Date:
Option price: $_______ per share
Number of Optioned Shares: 20,000 shares
Expiration Date:
Type: Non-Statutory Stock Option
Optionee hereby agrees that the Option is granted pursuant to and in
accordance with the express terms and conditions of the IMP, Inc. Stock Option
Plan. The terms and conditions of the grant are as set forth in the Stock Option
Agreement attached hereto as Exhibit A, and the terms and conditions applicable
to any Optioned Shares purchased thereunder are as set forth in the Stock
Purchase Agreement attached hereto as Exhibit B.
------------------------ --------------------------
Date Optionee
Address:
--------------------------
IMP, INC.
By
--------------------------
Address:
--------------------------
--------------------------
<PAGE> 3
AUTOMATIC/NON-EMPLOYEE
DIRECTOR GRANT
EXHIBIT A
IMP, INC.
STOCK OPTION AGREEMENT
RECITALS
A. The Board of Directors of the Company (the "Board") has adopted the
Company's Stock Option Plan (the "Plan") for the purpose of attracting and
retaining the services of (i) selected key employees (including officers and
directors), (ii) key consultants and (iii) non-employee members of the Board of
the Company or its parent or subsidiary corporations.
B. Optionee is a non-employee member of the Board who is entitled to
receive an option to acquire shares of the Company's common stock pursuant to
the automatic option grant program (the "Automatic Grant Program") implemented
for non-employee Board members under the provisions of the Plan. This Agreement
is executed pursuant to, and is intended to carry out the purposes of, the Plan
in connection with the automatic option grant made to such Optionee thereunder.
C. The granted option is intended to be a non- statutory stock option
which does not satisfy the requirements of Section 422 of the Internal Revenue
Code.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
forth in this Agreement, there is hereby granted to Optionee, as of the grant
date (the "Grant Date") specified in the accompanying Notice of Grant of Stock
Option (the "Grant Notice"), a non-statutory stock option to purchase up to
20,000 shares of the Company's Common Stock (the "Optioned Shares") from time to
time during the option term at the option price (the "Option Price") specified
in the Grant Notice.
2. Option Term. This option shall have a maximum term of ten (10) years
measured from the Grant Date and shall accordingly expire at the close of
business on the expiration date (the "Expiration Date") specified in the Grant
Notice, unless sooner terminated in accordance with Paragraph 5 or 7(a).
1.
<PAGE> 4
3. Non-Transferability; Exception. This option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution and may be exercised, during Optionee's lifetime, only
by Optionee.
4. Date of Exercise. Optionee shall have no right to purchase any
Optioned Shares hereunder until the expiration of the six (6)-month period
measured from the Grant Date ("Six-Month Waiting Period"). Thereafter this
option may be exercised for all or any portion of the Optioned Shares at any
time prior to the Expiration Date or sooner termination of the option term under
Paragraph 5 or 7(a) of this Agreement.
The Six-Month Waiting Period requirement shall not be applicable to the
exercise or the surrender of the Optioned Shares in the event of (A) a Change in
Control within the meaning of subparagraph 11.C, (B) a Corporate Transaction
under subparagraph 7(a) for which the approval of the Company's stockholders is
obtained or (C) the death or permanent disability (as determined under
subparagraph 5(iii)) of the Optionee.
5. Accelerated Termination of Option Term. The option term specified in
Paragraph 2 shall terminate (and this option shall cease to be exercisable)
prior to the Expiration Date should one of the following provisions become
applicable:
(i) Except as otherwise provided in subparagraphs (ii), (iii) or
(iv) below, should Optionee cease to be a Board member at any time during
the option term, then the period for exercising this option shall be
reduced to a three (3)-month period commencing with the date of such
cessation of Board membership, but in no event shall this option be
exercisable at any time after the Expiration Date. During such limited
period of exercisability, this option may be exercised for any or all of
the Optioned Shares for which this option is in accordance with Paragraph 4
exercisable at the time of the Optionee's cessation of Board membership.
Upon the expiration of such three (3) month period or (if earlier) upon the
Expiration Date, this option shall terminate and cease to be outstanding.
(ii) Should Optionee die prior to cessation of Board membership,
then the executors or administrators of Optionee's estate or Optionee's
heirs or legatees (as the case may be) shall have the right to exercise
this option. Such right shall lapse and this option shall cease to be
exercisable upon the earlier of (i) the first anniversary of the date of
the Optionee's death or (ii) the Expiration Date. Upon the occurrence of
such earlier event, this option shall terminate and cease to be
exercisable.
(iii) Should Optionee become permanently disabled and cease by
reason thereof to be a Board member at any time during the option term,
then the Optionee shall have a period of twelve (12) months (commencing
with the date of such cessation of Board membership) in which to exercise
this option; provided, however, that in no event may this option be
exercised at any time after the
2.
<PAGE> 5
Expiration Date. Optionee shall be deemed to be permanently disabled if
Optionee is, by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of
not less than twelve (12) months, unable to perform his/her usual duties
for the Company or the parent or subsidiary corporation retaining his/her
services. Upon the expiration of the limited period of exercisability or
(if earlier) upon the Expiration Date, this option shall terminate and
cease to be outstanding.
(iv) Should the Optionee's Board membership be terminated for
cause (including, but not limited to, any act of dishonesty, willful
misconduct, fraud or embezzlement or any unauthorized disclosure or use of
confidential information or trade secrets) or should the Optionee make or
attempt to make any unauthorized use or disclosure of confidential
information or trade secrets of the Company or any parent or subsidiary
corporation, then in any such event this option shall terminate and cease
to be exercisable immediately upon such termination of Board membership or
such unauthorized disclosure or use of confidential or secret information
or attempt thereat.
(v) For purposes of this Paragraph 5 and for all other purposes
under this Agreement, the Optionee shall be deemed to be a Board member for
so long as the Optionee remains a member of the Board or of the board of
directors of any parent or subsidiary corporation of the Company.
(vi) In applying the provisions of this Agreement, a corporation
shall be considered to be a subsidiary corporation of the Company if it is
a member of an unbroken chain of corporations beginning with the Company,
provided each such corporation in the chain (other than the last
corporation) owns, at the time of determination, stock possessing 50% or
more of the total combined voting power of all classes of stock in one of
the other corporations in such chain. A corporation shall be considered to
be a parent corporation of the Company if it is a member of an unbroken
chain ending with the Company, provided each such corporation in the chain
(other than the Company) owns, at the time of determination, stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
6. Adjustment in Optioned Shares.
(a) In the event any change is made to the Common Stock issuable under
the Plan by reason of stock split, stock dividend, combination of shares,
recapitalization or other change affecting the outstanding Common Stock as a
class without receipt of consideration, then appropriate adjustments will be
made to (i) the total number of Optioned Shares subject to this option and (ii)
the Option Price payable per share in order to reflect such change and thereby
preclude a dilution or enlargement of benefits hereunder.
3.
<PAGE> 6
(b) If the Company is the surviving entity in any merger or other
business combination, then this option, if outstanding under the Plan
immediately after such merger or other business combination, shall be
appropriately adjusted to apply and pertain to the number and class of
securities which would be issuable to the Optionee in the consummation of such
merger or business combination if the option were exercised immediately prior to
such merger or business combination, and appropriate adjustments shall also be
made to the Option Price payable per share, provided the aggregate Option Price
payable hereunder shall remain the same.
7. Special Termination of Option.
(a) In the event one or more of the following transactions (a
"Corporate Transaction") should be effected with the affirmative vote of the
Company's stockholders:
(i) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which
is to change the State of the Company's incorporation,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company or
(iii) any reverse merger in which the Company is the surviving
entity,
then the exercisability of this option shall, notwithstanding the provisions of
Paragraph 4, be automatically accelerated so that such option shall, during the
five (5) business day period immediately prior to the specified effective date
for the Corporate Transaction, become fully exercisable with respect to all the
Optioned Shares and may be exercised for all or any portion of such shares. This
option, to the extent not previously exercised, shall terminate upon the
consummation of the Corporate Transaction and cease to be outstanding, unless it
is expressly assumed by the successor corporation or parent thereof.
(b) This Agreement shall not in any way affect the right of the Company
to adjust, reclassify, reorganize or otherwise make changes in its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
8. Privilege of Stock Ownership. The holder of this option shall not
have any of the rights of a stockholder with respect to the Optioned Shares
until such individual shall have exercised the option, paid the Option Price and
been issued a stock certificate for the purchased shares.
4.
<PAGE> 7
9. Manner of Exercising Option.
(a) In order to exercise this option with respect to all or any part of
the Optioned Shares, Optionee (or in the case of exercise after Optionee's
death, the Optionee's executor, administrator, heir or legatee, as the case may
be) must take the following actions:
(i) Execute and deliver to the Secretary of the Company a stock
purchase agreement (the "Purchase Agreement") in substantially the form of
Exhibit B to the Grant Notice.
(ii) Pay the aggregate Option Price for the purchased shares in
one or more of the following alternative forms:
(A) full payment, in cash or cash equivalents; or
(B) full payment in shares of Common Stock of the Company
held for the requisite period necessary to avoid a charge to the Company's
reported earnings and valued at Fair Market Value on the Exercise Date (as
such terms are defined below); or
(C) full payment in a combination of shares of Common Stock
of the Company held for the requisite period necessary to avoid a charge to
the Company's reported earnings and valued at Fair Market Value on the
Exercise Date and cash or cash equivalents.
(iii) Furnish to the Company appropriate documentation that the
person or persons exercising the option, if other than Optionee, have the
right to exercise this option.
(b) For purposes of Paragraph 9(a) above and for all other valuation
purposes under this Agreement, unless expressly provided otherwise, the Fair
Market Value per share of Common Stock shall be determined in accordance with
subparagraphs (i) through (iii) below, and the Exercise Date shall be the first
date on which there is delivered to the Company both (I) the executed Purchase
Agreement and (II) payment of the Option Price for the purchased shares.
(i) If the Common Stock is not on the Exercise Date listed or
admitted to trading on any stock exchange, but is traded in the
over-the-counter market, the Fair Market Value shall be the mean between
the highest bid and lowest asked prices (or if such information is
available, the closing selling price) of one share of Common Stock on the
Exercise Date in the over-the-counter market, as such prices are reported
by the National Association of Securities Dealers through its Nasdaq system
or any successor system. If there are no reported bid and asked prices (or
closing selling price) for the Common Stock on the Exercise Date, then the
5.
<PAGE> 8
mean between the highest bid and lowest asked price (or closing selling
price) on the last preceding date for which such quotations exist shall be
determinative of Fair Market Value.
(ii) If the Common Stock is on the Exercise Date listed or
admitted to trading on any stock exchange, then the Fair Market Value shall
be the closing selling price of one share of Common Stock on the Exercise
Date on the stock exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such prices are officially quoted
in the composite tape of transactions on such exchange. If there is no
reported sale of Common Stock on such exchange on the Exercise Date, then
the Fair Market Value shall be the closing selling price on the exchange on
the last preceding date for which such quotation exists.
(iii) If the Common Stock is on the Exercise Date neither listed
nor admitted to trading on any stock exchange nor traded in the
over-the-counter market, then the Fair Market Value shall be determined by
the Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate, including one or more independent
professional appraisals.
(c) As soon after the Exercise Date as practical, the Company shall
mail or deliver to Optionee or to the other person or persons exercising this
option a certificate or certificates representing the shares so purchased and
paid for, with the appropriate legends affixed thereto.
(d) In no event may this option be exercised for any fractional shares.
10. REPURCHASE RIGHTS. THE OPTIONEE HEREBY AGREES THAT ALL OPTIONED
SHARES ACQUIRED UPON THE EXERCISE OF THIS OPTION SHALL BE SUBJECT TO CERTAIN
RIGHTS OF THE COMPANY AND ITS ASSIGNS TO REPURCHASE SUCH SHARES IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SPECIFIED IN THE PURCHASE AGREEMENT.
11. Surrender of Option. Optionee is hereby granted a limited stock
appreciation right, exercisable upon the terms and conditions set forth below:
A. The stock appreciation right shall under no circumstances become
exercisable until it has been outstanding for a period of at least six (6)
months measured from the Grant Date.
B. Provided such six (6) month requirement is satisfied, in the event
of a Change in Control at a time when one or more classes of the Company's
equity securities are registered under Section 12(g) of the Securities Exchange
Act of 1934 (as amended), then Optionee shall automatically have the right to
surrender any or all of the Optioned
6.
<PAGE> 9
Shares, and receive in exchange therefor an appreciation distribution equal in
amount to the excess of (a) the Fair Market Value (at date of surrender) of the
Optioned Shares at the time subject to this option over (b) the aggregate Option
Price payable for such shares.
C. For purposes of this Agreement, a Change in Control shall be deemed
to occur should twenty-five percent (25%) or more of the Company's outstanding
voting stock be acquired, pursuant to a tender or exchange offer (i) which is
made by a person or group of related persons other than the Company or a person
that directly or indirectly controls, is controlled by or is under common
control with the Company and (ii) which the Board does not recommend the
Company's stockholders to accept.
D. For purposes of measuring the dollar amount of the appreciation
distribution payable with respect to the surrendered option, the Fair Market
Value of the Optioned Shares subject to the surrendered option shall be deemed
to be equal to the greater of (i) the Fair Market Value per share of the
Company's Common Stock on the surrender date, as determined pursuant to the
normal valuation provisions of subparagraph 9(b), or (ii) the highest reported
price per share of the Company's Common Stock paid by the acquiring entity in
effecting the Change in Control.
E. This limited stock appreciation right may be exercised only by
surrendering this option during the period commencing with the date on which the
Change in Control is first effected and terminating thirty (30) days thereafter.
The exercise period shall be shortened to the extent that the six (6) month
requirement of subparagraph A. above has not at the time been satisfied. To
exercise this limited stock appreciation right, the Optionee shall provide
written notice of exercise to the Company, in which there is specified the
number of Optioned Shares as to which the option is being surrendered. Such
notice must be accompanied by the return of this Agreement and all other
instruments evidencing the surrendered option, within the applicable thirty
(30)-day (or shorter) period. In the event this option is surrendered for only
part of the Optioned Shares at the time subject thereto, the Company shall issue
a new stock option agreement (substantially in the form of this Agreement) for
the balance of the Optioned Shares for which this option is not exercised or
surrendered.
F. Optionee shall have no further rights to acquire any Optioned Shares
under the surrendered option (or surrendered portion thereof), and the
appreciation distribution to which Optionee shall accordingly become entitled
shall be made entirely in cash. Neither the approval of the Board nor the Plan
Administrator shall be required in connection with such option surrender and
cash distribution.
G. In no event may this limited stock appreciation right be exercised
when there is not a positive spread between the Fair Market Value of the
Optioned Shares and the aggregate Option Price payable for such shares. This
limited stock appreciation right shall in all events terminate upon the
expiration or sooner termination of the option term and may not be assigned or
transferred by the Optionee.
7.
<PAGE> 10
12. Compliance with Laws and Regulations.
(a) The exercise of this option and the issuance of Optioned Shares
upon such exercise shall be subject to compliance by the Company and the
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange on which shares of the Company's
Common Stock may be listed at the time of such exercise and issuance.
(b) In connection with the exercise of this option, Optionee shall
execute and deliver to the Company such representations in writing as may be
requested by the Company in order for it to comply with the applicable
requirements of Federal and State securities laws.
13. Successors and Assigns. Except to the extent otherwise provided in
Paragraph 3 or 7(a), the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the successors, administrators, heirs, legal
representatives and assigns of Optionee and the successors and assigns of the
Company.
14. Liability of Company.
(a) If the Optioned Shares covered by this Agreement exceed, as of the
Grant Date, the number of shares of Common Stock which may without stockholder
approval be issued under the Plan, then this option shall be void with respect
to such excess shares unless stockholder approval of an amendment sufficiently
increasing the number of shares of Common Stock issuable under the Plan is
obtained in accordance with the provisions of Section XII of the Plan.
(b) The inability of the Company to obtain approval from any regulatory
body having authority deemed by the Company to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option shall relieve the
Company of any liability with respect to the non-issuance or sale of the Common
Stock as to which such approval shall not have been obtained. The Company,
however, shall use its best efforts to obtain all such approvals.
15. No Impairment of Rights. No provision of this Agreement or the
Automatic Grant Program shall be deemed to impair or otherwise restrict the
rights of the Company or the stockholders to remove the Optionee from the Board
at any time for any reason whatsoever, with or without cause. No provision of
this Agreement or the Automatic Grant Program shall confer upon the Optionee any
right to continue as a Board member for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Optionee to
terminate his/her Board membership at any time for any reason whatsoever, with
or without cause.
8.
<PAGE> 11
16. Notices. Any notice required to be given or delivered to the
Company under the terms of this Agreement shall be in writing and addressed to
the Company in care of its Secretary at its corporate offices. Any notice
required to be given or delivered to Optionee shall be in writing and addressed
to Optionee at the address indicated below Optionee's signature line on the
Grant Notice. All notices shall be deemed to have been given or delivered upon
personal delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
17. Interpretation of Agreement. This Agreement and the option
evidenced hereby are made and granted pursuant to the Automatic Grant Program
for non-employee Board members and are in all respects limited by and subject to
the express terms and provisions of the Plan applicable to such automatic
grants.
18. Withholding. Optionee hereby agrees to make appropriate
arrangements with the Company or parent or subsidiary corporation employing
Optionee (if any) for the satisfaction of any federal, state or local income tax
withholding requirements and federal social security employee tax requirements
applicable to the exercise of this option.
19. Governing Law. The interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of California without
resort to that State's conflict-of-laws rules.
9.
<PAGE> 1
Exhibit 99.3
Form of Stock Purchase Agreement to be generally used in connection with the
automatic grant program of the Stock Option Plan.
II-4.
<PAGE> 2
NON-EMPLOYEE DIRECTOR
EXHIBIT B
IMP, INC.
STOCK PURCHASE AGREEMENT
This Agreement is made as of this _____ day of __________, 19___ , by
and between IMP, Inc., a Delaware corporation ("Company"), , the holder of a
stock option under the Company's Stock Option Plan ("Optionee") and
______________, the Optionee's spouse.
I. EXERCISE OF OPTION
1.1 Exercise. Optionee hereby purchases _______ shares of the Company's
common stock ("Purchased Shares") pursuant to that certain option ("Option")
granted Optionee on __________, 19___ ("Grant Date") under the Company's Stock
Option Plan ("Plan") to purchase up to 20,000 shares of the Company's common
stock ("Total Purchasable Shares") at an option price of $_____ per share
("Option Price").
1.2 Payment. Concurrently with the delivery of this Agreement to the
Secretary of the Company, Optionee shall pay the Option Price for the Purchased
Shares in accordance with the provisions of the agreement between the Company
and Optionee evidencing the Option ("Option Agreement") and shall deliver
whatever additional documents may be required by the Option Agreement as a
condition for exercise.
1.3 Stockholder Rights. Until such time as the Company actually
exercises its repurchase rights under this Agreement, Optionee (or any successor
in interest) shall have all the rights of a stockholder (including voting and
dividend rights) with respect to the Purchased Shares, subject, however, to the
transfer restrictions of Article II.
II. TRANSFER RESTRICTIONS
2.1 Restriction on Transfer. Optionee shall not transfer, assign,
encumber or otherwise dispose of any of the Purchased Shares which are subject
to the Company's Repurchase Right under Article III. Such restrictions on
transfer, however, shall not be applicable to (i) a gratuitous transfer of the
Purchased Shares made to the Optionee's spouse or issue, including adopted
children, or to a trust for the exclusive benefit of the Optionee or the
Optionee's spouse or issue or (ii) a transfer of title to the Purchased Shares
effected pursuant to the Optionee's will or the laws of intestate succession.
<PAGE> 3
2.2 Transferee Obligations. Each person (other than the Company) to
whom the Purchased Shares are transferred by means of one of the permitted
transfers specified in Section 2.1 must, as a condition precedent to the
validity of such transfer, acknowledge in writing to the Company that such
person is bound by the provisions of this Agreement and that the transferred
shares are subject to the Company's Repurchase Right granted hereunder, to the
same extent such shares would be so subject if retained by the Optionee.
2.3 Definition of Owner. For purposes of Article III of this Agreement,
the term "Owner" shall include the Optionee and all subsequent holders of the
Purchased Shares who derive their chain of ownership through a permitted
transfer from the Optionee in accordance with Section 2.1.
III. REPURCHASE RIGHT
3.1 Grant. The Company is hereby granted the right (the "Repurchase
Right"), exercisable at any time during the sixty (60)-day period following the
date the Optionee ceases for any reason to be a Board member or (if later)
during the sixty (60)-day period following the execution date of this Agreement,
to repurchase at the Option Price all or (at the discretion of the Company and
with the consent of the Optionee) any portion of the Purchased Shares in which
the Optionee has not acquired a vested interest in accordance with the vesting
provisions of Section 3.3 (such shares to be hereinafter called the "Unvested
Shares"). For purposes of this Agreement, the Optionee shall be considered to be
a Board member for so long as the Optionee remains a member of the Company's
Board of Directors or of the board of directors of any parent or subsidiary
corporation of the Company.
3.2 Exercise of the Repurchase Right. The Repurchase Right shall be
exercisable by written notice delivered to the Owner of the Unvested Shares
prior to the expiration of the applicable sixty (60)-day period specified in
Section 3.1. The notice shall indicate the number of Unvested Shares to be
repurchased and the date on which the repurchase is to be effected, such date to
be not more than thirty (30) days after the date of notice. Owner shall, prior
to the close of business on the date specified for the repurchase, deliver to
the Secretary of the Company the certificates representing the Unvested Shares
to be repurchased, each certificate to be properly endorsed for transfer. The
Company shall, concurrently with the receipt of such stock certificates, pay to
Owner in cash or cash equivalents (including cancellation of any purchase-money
indebtedness), an amount equal to the Option Price previously paid for the
Unvested Shares which are to be repurchased.
3.3 Termination of the Repurchase Right.
(a) The Repurchase Right shall terminate with respect to any Unvested
Shares for which it is not timely exercised under Section 3.2. In addition, the
Repurchase
2.
<PAGE> 4
Right shall terminate, and cease to be exercisable, with respect to any and all
Purchased Shares in which the Optionee vests in accordance with the schedule
below. Accordingly, provided the Optionee continues to be a Board member, the
Optionee shall acquire a vested interest in, and the Repurchase Right shall
lapse with respect to, the Purchased Shares in accordance with the following
provisions:
(i) The Optionee shall not acquire any vested interest in, nor
shall the Repurchase Right lapse with respect to, any Purchased Shares
during the initial twelve (12)-month period measured from the Grant Date.
(ii) Upon the expiration of the initial twelve (12)-month period,
the Optionee shall acquire a vested interest in, and the Repurchase Right
shall lapse with respect to, that number of Purchased Shares equal to
twenty-five percent (25%) of the Total Purchasable Shares (without
adjustment for shares already purchased pursuant to the Option).
(iii) Following the expiration of such initial twelve (12) month
period measured from the Grant Date, the Optionee shall acquire a vested
interest in, and the Repurchase Right shall lapse with respect to, the
remaining Purchased Shares in a series of thirty-six (36) consecutive
monthly installments, each equal to one forty-eighth (1/48) of the Total
Purchasable Shares (without adjustment for shares already purchased
pursuant to the Option), with the first such installment to vest at the end
of one (1) calendar month after the expiration of such initial twelve
(12)-month period.
Accordingly, the Repurchase Right shall lapse in its entirety, and
cease to be exercisable to any extent whatsoever, upon the expiration of the
four (4) year period measured from the Grant Date, provided Optionee continues
to be a Board member throughout such period.
(b) Notwithstanding the provisions of subparagraph (a) above, should
one or more of the following events occur prior to Optionee's cessation of Board
membership and while the Repurchase Right is outstanding, then the Repurchase
Right shall terminate immediately and the Owner shall thereupon become fully
vested in all of the Purchased Shares:
(i) The death of the Optionee.
(ii) The permanent disability of the Optionee. For this purpose,
the Optionee shall be deemed to be permanently disabled if the Optionee is,
by reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of not less
than twelve (12) months, unable to perform his/her usual duties for the
Company or the parent or subsidiary corporation retaining his/her services.
3.
<PAGE> 5
3.4 Aggregate Vesting Limitation. If the Option is exercised in more
than one increment so that the Optionee is a party to one or more other Stock
Purchase Agreements ("Prior Purchase Agreements") which are executed prior to
the date of this Purchase Agreement, then the total number of Purchased Shares
as to which the Optionee shall as of any determination date be deemed to have a
fully vested interest under this Agreement and all Prior Purchase Agreements
shall not exceed in the aggregate the number of Purchased Shares in which the
Optionee would otherwise at the time be vested, in accordance with the
installment provisions of Section 3.3, had all the Purchased Shares been
acquired exclusively under this Agreement.
3.5 Fractional Shares. No fractional shares shall be repurchased by the
Company. Accordingly, should the Repurchase Right extend to a fractional share
(in accordance with the vesting computation provisions of Section 3.3) at the
time the Optionee ceases to be an Employee, then such fractional share shall be
added to any fractional share in which the Optionee is at such time vested in
order to make one whole vested share no longer subject to the Repurchase Right.
3.6 Additional Shares or Substituted Securities. In the event of any
stock dividend, stock split, combination of shares, recapitalization or other
transaction affecting the Company's outstanding common stock as a class without
receipt of consideration, then any new, substituted or additional securities or
other property (including money paid other than as a regular cash dividend)
which is by reason of any such transaction distributed with respect to the
Purchased Shares shall be immediately subject to the Repurchase Right, but only
to the extent the Purchased Shares are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number of Purchased Shares and Total Purchasable
Shares for all purposes relating to the Repurchase Right. The Company (or its
successor) may require the establishment of an escrow account for any property
or money (other than regular cash dividends) distributed with respect to the
Purchased Shares covered by the Repurchase Right in order to facilitate the
exercise of such right. Appropriate adjustments shall also be made to the price
per share to be paid upon the exercise of the Repurchase Right in order to
reflect the effect of any such transaction upon the Company's capital structure;
provided, however, that the aggregate purchase price shall remain the same.
3.7 Corporate Transaction/Change in Control.
(a) In the event any of the following transactions (a "Corporate
Transaction") should be effected with the affirmative vote of the Company's
stockholders:
(i) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which
is to change the State in which the Company is incorporated,
4.
<PAGE> 6
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company, or
(iii) any reverse merger in which the Company is the surviving
entity,
then the Repurchase Right shall automatically terminate in its entirety, and the
Optionee shall accordingly acquire a vested interest in the Purchased Shares,
upon the consummation of such Corporate Transaction.
(b) In the event that the following transaction (a "Change in Control")
should occur while the Repurchase Right is outstanding:
twenty-five percent (25%) or more of the Company's outstanding
voting stock is acquired pursuant to a tender or exchange offer (I) which is
made by a person or group of related persons other than the Company or a person
that directly or indirectly controls, is controlled by or is under common
control with the Company and (II) which the Board does not recommend the
stockholders to accept,
then the Repurchase Right shall automatically terminate in its entirety as of
the effective date of the Change in Control, and the Optionee shall accordingly
acquire a vested interest in the Purchased Shares.
IV. SPECIAL TAX ELECTION
4.1 Section 83(b) Election. The Optionee understands that under Section
83 of the Internal Revenue Code of 1986, as amended (the "Code"), the excess of
the fair market value of the Purchased Shares on the date any forfeiture
restrictions applicable to such shares lapse over the Option Price paid for such
shares will be reportable as ordinary income at that time. For this purpose, the
term "forfeiture restrictions" includes one or more of the following: (i) the
right of the Company to repurchase the Purchased Shares pursuant to the
Repurchase Right provided under Article III of this Agreement or (ii) the risk
of forfeiture under the short-swing profit restrictions of Section 16(b) of the
Securities Exchange Act of 1934. Optionee understands that he/she may elect to
be taxed at the time the Purchased Shares are acquired hereunder, rather than
when and as such Purchased Shares cease to be subject to such forfeiture
restrictions, by filing an election under Section 83(b) of the Code with the
Internal Revenue Service within thirty (30) days after the date of this
Agreement. Even if the fair market value of the Purchased Shares at the date of
this Agreement equals the Option Price paid (and thus no tax is payable), the
election must be made to avoid adverse tax consequences in the future. The forms
for making this election are, depending on the type of the forfeiture
restriction, attached as Exhibits A(1) and A(2) hereto. Optionee understands
that failure to make this filing within the thirty (30) day period will result
in the recognition of ordinary income by the Optionee as the forfeiture
restrictions lapse. OPTIONEE ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE
RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION
5.
<PAGE> 7
UNDER SECTION 83(b), EVEN IF OPTIONEE REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON HIS/HER BEHALF.
V. GENERAL PROVISIONS
5.1 Assignment. The Company may assign its Repurchase Right under
Article III to any person or entity selected by the Company's Board of
Directors, including (without limitation) one or more stockholders of the
Company other than a 10% Stockholder (as defined in Section V.1.B. of the Plan);
provided, however, that such limitation shall not apply if such 10% Stockholder
is the parent corporation of the Company.
If the assignee of the Repurchase Right is other than a parent or
subsidiary corporation of the Company, then such assignee must make a cash
payment to the Company, upon the assignment of the Repurchase Right, in an
amount equal to the excess (if any) of the fair market value of the Unvested
Shares at the time subject to the Repurchase Right and the aggregate repurchase
price payable for such Unvested Shares.
5.2 Definitions. For purposes of this Agreement, the following
provisions shall be applicable in determining the parent and subsidiary
corporations of the Company:
(i) Any corporation (other than the Company) in an unbroken chain
of corporations ending with the Company shall be considered to be a parent
corporation of the Company, provided each such corporation in the unbroken
chain (other than the Company) owns, at the time of the determination,
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
(ii) Each corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company shall be considered to be
a subsidiary of the Company, provided each such corporation (other than the
last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
5.3 No Impairment of Rights. Nothing in this Agreement shall be
construed to impair the Company's right to remove the Optionee from the board of
directors of the Company or any parent or subsidiary corporation at any time for
any reason whatsoever, with or without cause. Nothing in this Agreement or in
the Plan shall confer upon the Optionee any right to remain as a Board member
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Optionee to terminate his/her Board membership at any
time for any reason whatsoever, with or without cause.
6.
<PAGE> 8
5.4 Notices. Any notice required in connection with (i) the Repurchase
Right or (ii) the disposition of any Purchased Shares covered thereby shall be
given in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States mail, registered or certified, postage prepaid and
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this Section
5.4 to all other parties to this Agreement.
5.5 No Waiver. The failure of the Company (or its assigns) in any
instance to exercise the Repurchase Right granted under Article III shall not
constitute a waiver of any other repurchase rights that may subsequently arise
under the provisions of this Agreement or any other agreement between the
Company and the Optionee. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
5.6 Cancellation of Shares. If the Company (or its assigns) shall make
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such time,
the person from whom such shares are to be repurchased shall no longer have any
rights as a holder of such shares (other than the right to receive payment of
such consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (or its assigns) shall be deemed the owner and holder of such shares,
whether or not the certificates therefor have been delivered as required by this
Agreement.
5.7 Legend. All certificates representing the Purchased Shares shall be
endorsed with the following legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN ANY MANNER DISPOSED OF EXCEPT
IN CONFORMITY WITH THE TERMS OF A WRITTEN AGREEMENT, DATED
________________, 198 , BETWEEN THE COMPANY AND THE REGISTERED HOLDER
OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE SHARES). SUCH
AGREEMENT GRANTS CERTAIN REPURCHASE RIGHTS TO THE COMPANY (OR ITS
ASSIGNS) UPON THE TERMINATION OF SERVICE WITH THE COMPANY. THE COMPANY
WILL UPON WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE
HOLDER HEREOF WITHOUT CHARGE.
7.
<PAGE> 9
VI. MISCELLANEOUS PROVISIONS
6.1 Optionee Undertaking. Optionee hereby agrees to take whatever
additional action and execute whatever additional documents the Company may in
its judgment deem necessary or advisable in order to carry out or effect one or
more of the obligations or restrictions imposed on either the Optionee or the
Purchased Shares pursuant to the express provisions of this Agreement.
6.2 Agreement is Entire Contract. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
This Agreement is made pursuant to the provisions of the Plan and shall in all
respects be construed in conformity with the express terms and provisions of the
Plan.
6.3 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California, as such laws are
applied to contracts entered into and performed in such State, without resort to
that State's conflict-of-laws rules.
6.4 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
6.5 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Company and its successors and
assigns and the Optionee and the Optionee's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms and conditions hereof.
6.6 Power of Attorney. Optionee's spouse hereby appoints Optionee his
or her true and lawful attorney in fact, for him or her and in his or her name,
place and stead, and for his or her use and benefit, to agree to any amendment
or modification of this Agreement and to execute such further instruments and
take such further actions as may reasonably be necessary to carry out the intent
of this Agreement. Optionee's spouse further gives and grants unto Optionee as
his or her attorney in fact full power and authority to do and perform every act
necessary and proper to be done in the exercise of any of the foregoing powers
as fully as he or she might or could do if personally present, with full power
of substitution and revocation, hereby ratifying and confirming all the Optionee
shall lawfully do and cause to be done by virtue of this power of attorney.
8.
<PAGE> 10
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
IMP, INC.
By
---------------------------
Title:
-----------------------
Address:
-----------------------------
-----------------------------
-----------------------------
Optionee(*/)
Address:-----------------------------
----------------------------
-----------------------------
Optionee's Spouse
Address:
-----------------------------
-----------------------------
---------------------
(*/) I have received, completed, executed and retained the I.R.C. Section 83(b)
election that was attached hereto as Exhibit A. As set forth in Article IV, I
understand that I, and not the Company, will be responsible for completing the
form and filing the election with the appropriate office of the federal and
state tax authorities and that if such filing is not completed within thirty
(30) days after the date of this Agreement, I will not be entitled to the tax
benefits provided by Section 83(b). I understand further that such filing should
be made by registered or certified mail, return receipt requested, and that I
must retain two (2) copies of the completed form for filing with my state and
federal tax returns for the current tax year and an additional copy for my
records.
9.
<PAGE> 11
REPURCHASE RIGHTS
EXHIBIT A(1)
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident No.:
Taxable Year: Calendar Year 19 .
(2) The property with respect to which the election is being made is
_______ shares of the common stock of IMP, Inc.
(3) The property was issued on ________________, 19___.
(4) The property is subject to a repurchase right pursuant to which the
issuer has the right to acquire the property at the original purchase
price if for any reason taxpayer's service with the issuer is
terminated. The issuer's repurchase right lapses in a series of annual
and monthly installments over a four-year period ending on
______________, 19___.
(5) The fair market value at the time of transfer (determined without
regard to any restriction other than a restriction which by its terms
will never lapse) is $__________ per share.
(6) The amount paid for such property is $___________ per share.
(7) A copy of this statement was furnished to IMP, Inc. for whom taxpayer
rendered the services underlying the transfer of property.
(8) This statement is executed as of: _______________________.
____________________________ ______________________________
Spouse (if any) Taxpayer
This form must be filed with the Internal Revenue Service Center with which
taxpayer files his/her Federal income tax returns. The filing must be made
within 30 days after the execution date of the Stock Purchase Agreement.
<PAGE> 12
16(b) RESTRICTIONS
EXHIBIT A(2)
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident No.:
Taxable Year: Calendar Year 19___.
(2) The property with respect to which the election is being made is
_________ shares of the common stock of IMP, Inc.
(3) The property was issued on ________________, 19___.
(4) The rights of the taxpayer in the property are subject to a substantial
risk of forfeiture under Section 16(b) of the Securities Exchange Act
of 1934. Such restriction lapses on ______________, 19__.
(5) The fair market value at the time of transfer (determined without
regard to any restriction other than a restriction which by its terms
will never lapse) is $_________ per share.
(6) The amount paid for such property is $ per share.
(7) A copy of this statement was furnished to IMP, Inc. for whom taxpayer
rendered the services underlying the transfer of property.
(8) This statement is executed as of: _______________________.
____________________________ ______________________________
Spouse (if any) Taxpayer
This form must be filed with the Internal Revenue Service Center with which
taxpayer files his/her Federal income tax returns. The filing must be made
within 30 days after the execution date of the Stock Purchase Agreement.
