As filed with the Securities and Exchange Commission on
August 18, 1995
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Xscribe Corporation
---------------------------------------
(Exact name of registrant as specified in its charter)
California 95-3267788
------------ ------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6285 Nancy Ridge Drive
San Diego, California 92121
(619) 457-5091
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
1994 STOCK OPTION PLAN
(Full title of plan)
Suren G. Dutia
Xscribe Corporation
6285 Nancy Ridge Drive
San Diego, California 92121
(619) 457-5091
(Name, address, including zip code, and telephone number of
agent for service of process)
Copy to:
Barbara L. Borden, Esquire
Sheppard, Mullin, Richter & Hampton
501 West Broadway, 19th Floor
San Diego, California 92101
(619) 338-6500
EXHIBIT INDEX ON PAGE 10
Page 1 of 31 <PAGE>
_______________________________________________________________
_______________________________________________________________
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered Share<F**> Price<F**> Fee
<F*>
_______________________________________________________________
_______________________________________________________________
Common 333,333 $1.0625 $354,167 $122
Stock
_______________________________________________________________
_______________________________________________________________
[FN]
<F*> Consists of shares of common stock which are issuable
under Xscribe Corporation 1994 Stock Option Plan plus
such additional number of shares as may be required
pursuant to the Plan in the event of a future stock
dividend, stock split, reverse stock split,
recapitalization or other similar change in the common
stock of Xscribe Corporation.
<F**> Estimated only for the purpose of calculating the
registration fee, and based on the closing bid of shares
of Xscribe common stock on August 14, 1995, as reported
by the National Association of Securities Dealer
Automated Quotation System Small Cap tier.
Page 2 of 31 <PAGE>
PART II
Item 3 INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents filed with the Securities and
Exchange Commission ("Commission") are incorporated herein by
reference:
(a) Xscribe Corporation's (the "Company") Annual
Report on Form 10-K for the fiscal year ended March 31, 1995;
(b) The Company Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1995;
(c) All other reports filed by the Company pursuant
to Section 13(d) or 15(d) of the Securities Exchange Act of
1934, as amended ("Exchange Act"), since the end of the
Company's fiscal year ended March 31, 1995; and
(d) The description of the Company's shares of
Common Stock contained in the Company's Form 8-A Registration
Statement (No. 33-14172) filed with the Commission on July 22,
1987.
All documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which de-registers 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 INTEREST OF NAMED EXPERTS AND COUNSEL
-------------------------------------
Not Applicable
Item 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Articles of Incorporation of the Company
eliminate the personal liability of directors of the Company
for monetary damages in derivative actions for breach of a
director's duty to the Company to the fullest extent allowed
under California law. The Articles of Incorporation and Bylaws
Page 3 of 31 <PAGE>
of the Company also provide for indemnification of directors,
officers and other agents of the Company to the fullest extent
allowed by law. The Company also has entered into
indemnification agreements with directors, officers and certain
key employees that provide for indemnification to the maximum
extent permitted by law and provide for advances of defense
costs and expenses, subject to an undertaking to repay the
advanced amounts if the person ultimately is not entitled to
indemnification.
Directors, officers and other agents may be
indemnified for judgments, fines, settlements or other amounts
paid in the resolution of claims brought by a third party if
the indemnified person acted in good faith and in a manner that
the indemnified person reasonably believed to be in the best
interest of a corporation and its shareholders, and in the case
of a criminal proceeding, the indemnified person had no
reasonable cause to believe the conduct was unlawful. In
derivative actions and actions brought by the Company,
directors, officers and other agents may be entitled to
indemnification against expenses incurred for the defense or
settlement of such action if the indemnified person acted in
good faith in a manner that person believed to be in the best
interest of the corporation and its shareholders and with such
care, including reasonable inquiry, as an ordinarily prudent
person in like position would have used under similar
circumstances.
The Company currently maintains insurance policies in
the total amount of $5,000,000.00 that cover directors' and
officers' liability. The Company has a separate executive risk
policy that insures against fiduciary liability, commercial
crime, kidnap/ransom and extortion.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors and
officers pursuant to the indemnification provisions described
above, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7 EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not Applicable
Page 4 of 31 <PAGE>
Item 8 EXHIBITS
--------
4.1 Restated Articles of Incorporation of the
Company<F*>
4.1(a) Certificate of Amendment of Amended and
Restated Articles of Incorporation
4.2 Bylaws of the Company<F*>
4.3 Copy of the Xscribe Corporation 1994 Stock
Option Plan
4.4 Sample Incentive Stock Option Agreement and
Sample Nonqualified Stock Option Agreement
5.1 Opinion of Sheppard, Mullin, Richter &
Hampton
24.1 Consent of Sheppard, Mullin, Richter &
Hampton (included in Exhibit 5.1)
24.2 Independent Auditors' Consent
28.1 List of Subsidiaries
[FN]
<F*> Incorporated by reference to Registration Statement on
Form S-8 (Registration No. 33-72122) filed with the
Securities and Exchange Commission on November 24, 1993.
Item 9 UNDERTAKINGS
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
Page 5 of 31 <PAGE>
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer of
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of a appropriate jurisdiction the question
whether such indemnification by it is against public policy as
Page 6 of 31 <PAGE>
expressed in the Act and will be governed by the final
adjudication of such issue.
Page 7 of 31 <PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
San Diego, State of California, on August 17, 1995.
XSCRIBE CORPORATION
/s/ Suren G. Dutia
By ---------------------------------
Suren G. Dutia, President and
Chief Executive Officer
/s/ Bruce C. Myers
By ---------------------------------
Bruce C. Myers, Chief Operating
Officer; Chief Financial Officer;
and Secretary
Pursuant to the requirements of the Securities Act of
1933, the Registration Statement shall be signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
Chairman of the
Board; President;
/s/ Suren G. Dutia Chief Executive 8/17/95
----------------------- Officer
Suren G. Dutia
/s/ Bruce C. Myers Chief Financial 8/17/95
----------------------- Officer
Bruce C. Myers
/s/ Peter B. Harker Controller; Principal
----------------------- Accounting Officer 8/17/95
Peter B. Harker
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 8 of 31 <PAGE>
/s/ Donald R. Miller, Jr.
----------------------- Director 8/17/95
Donald R. Miller, Jr.
/s/ Patrick W. Moore
----------------------- Director 8/17/95
Patrick W. Moore
/s/ Jukka V. Norokorpi
----------------------- Director 8/17/95
Jukka V. Norokorpi
/s/ Ira S. Sharp
----------------------- Director 8/17/95
Ira S. Sharp
/s/ John F. Staley
----------------------- Director 8/17/95
John F. Staley
/s/ Evan A. Wyly
----------------------- Director 8/17/95
Evan A. Wyly
Page 9 of 31 <PAGE>
EXHIBIT INDEX
-------------
No. Description Page
--------------------------------------------------------------
4.1 Restated Articles of Incorporation of the
Company<F*>
4.1(a) Certificate of Amendment of Amended and
Restated Articles of Incorporation 11
4.2 Bylaws of the Company<F*>
4.3 Copy of the Xscribe Corporation 1994 Stock
Option Plan 13
4.4 Sample Incentive Stock Option Agreement and
Sample Nonqualified Stock Option Agreement 23
5.1 Opinion of Sheppard, Mullin, Richter &
Hampton 29
24.1 Consent of Sheppard, Mullin, Richter &
Hampton (included in Exhibit 5.1) 29
24.2 Independent Auditors' Consent 30
28.1 List of Subsidiaries 31
[FN]
<F*> Incorporated by reference to Registration Statement on
Form S-8 (Registration No. 33-72122) filed with the
Securities and Exchange Commission on November 24, 1993.
Page 10 of 31 <PAGE>
EXHIBIT 4.1(a)
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
XSCRIBE CORPORATION
Suren G. Dutia and Bruce C. Myers certify that:
1. We are, respectively, the President and
Secretary of Xscribe Corporation, a California corporation (the
"Corporation").
2. Article III of the Articles of Incorporation of
the Corporation is amended to read as follows:
ARTICLE III
-----------
The Corporation is authorized to issue two
classes of shares of capital stock to be
designated respectively Common Stock and
Preferred Stock. The number of shares of
Common Stock authorized is 30,000,000. The
number of shares of Preferred Stock
authorized is 3,173,275. The Preferred
Stock may be issued in one or more series.
The Board of Directors is authorized to fix
the number of any such series of Preferred
Stock and to determine the designation of
any such series. The Board of Directors is
further authorized to determine or alter
the rights, preferences, privileges, and
restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock,
and within the limits and restrictions
stated in any resolution or resolutions of
the Board of Directors originally fixing
the number of shares constituting any
series, to increase or decrease (but not
below the number of shares of such series
then outstanding) the number of shares of
any such series subsequent to the issue of
shares of that series. Upon amendment of
Article III of these Articles of
Incorporation to read as herein set forth,
every three outstanding shares of Common
Stock shall be combined and converted into
one share of Common Stock;
and
-1-
Page 11 of 31 <PAGE>
3. The foregoing amendment of Article III of the
Articles of Incorporation has been duly approved by the Board
of Directors of the Corporation.
4. The foregoing amendment to Article III was
approved by the required vote of the shareholders of the
Corporation in accordance with Section 903 of the California
Corporation Code; the total number of outstanding shares of
each class entitled to vote with respect to the foregoing
amendment was 17,048,338 shares of Xscribe common stock; and
the number of shares of common stock voting in favor of the
foregoing amendment equaled or exceeded to vote required, such
required vote being a majority of the outstanding shares of
common stock.
WE FURTHER DECLARE under penalty of perjury and the
laws of this State of California that the matter set forth
above are true and correct of our own knowledge.
Dated: August 15, 1994 Dated: August 12, 1994
/s/ Suren G. Dutia /s/ Bruce C. Myers
By --------------------- By --------------------
Suren G. Dutia, Bruce C. Myers
President Secretary
-2-
Page 12 of 31 <PAGE>
EXHIBIT 4.3
XSCRIBE CORPORATION
1994 STOCK OPTION PLAN
----------------------
1. Purpose and Scope.
-----------------
The purposes of this 1994 Stock Option ("Plan") of
Xscribe Corporation, a California corporation ("Company"), are
to encourage stock ownership by employees of the Company and
its subsidiaries, to provide an incentive for such employees to
improve the profits of the Company and its subsidiaries, and to
assist the Company and its subsidiaries in attracting,
retaining and motivating employees by providing them with an
opportunity to participate in the Company's growth through
stock ownership.
Options granted under this Plan may be either
nonqualified options or incentive stock options intended to
qualify under Section 422 of the Internal Revenue Code of 1986,
as amended.
2. Definitions.
-----------
Unless otherwise required by the context:
2.1 "Board" shall mean the Board of Directors of the
Company.
2.2 "Committee" means the Compensation Committee of
the Board of Directors consisting of two or more members of the
Board who are not employees of the Company.
2.3 "Company" shall mean Xscribe Corporation, a
California corporation.
2.4 "Code" shall mean the Internal Revenue Code of
1986, as amended.
2.5 "Exercise Price" shall mean the price for which
one share of Stock may be purchased upon exercise of an Option,
as determined in Section 6 below and as specified in the
applicable Stock Option Agreement.
2.6 "Fair Market Value" shall mean the mean between
the closing bid and asked price of the Stock in the over-the-
counter market as quoted on NASDAQ on the date in issue unless
the Committee in good faith determines that another amount is
-1-
Page 13 of 31 <PAGE>
the fair market value. Such determination shall be conclusive
and binding on all persons.
2.7 "ISO" shall mean an employee incentive stock
option described in Section 422(b) of the Code.
2.8 "Nonqualified Option" shall mean any Option not
described in Sections 422(b) or 423(b) of the Code.
2.9 "Option" shall mean a right to purchase Stock,
granted pursuant to the Plan.
2.10 "Participant" shall mean an officer or employee
of the Company, or of any subsidiary of the Company, to whom an
Option is granted under the Plan.
2.11 "Permanent Disability" shall mean that
Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death, or
that has lasted, or can be expected to last, for a continuous
period of not less than one year.
2.12 "Plan" shall mean this Xscribe Corporation 1994
Stock Option Plan.
2.13 "Stock" shall mean the common stock of the
Company, without par value.
2.14 "Stock Option Agreement" shall mean the
agreement between the Company and the Participant that contains
the terms, conditions and restrictions pertaining to
Participant's Option.
3. Administration.
--------------
The Plan shall be administered by the Committee. Two
members of the Committee shall constitute a quorum for the
transaction of business. The acts of a majority of the
Committee members present at meeting as which a quorum is
present, or acts approved in writing by all Committee members,
shall be valid acts of the Committee. The Committee shall be
responsible for the operation of the Plan and for determining
to whom Options are granted under the Plan and the timing,
pricing, vesting schedule and amount of Options granted under
the Plan. The interpretation and construction of any provision
of the Plan by the Committee shall be final. In the absence of
a Committee, the Plan shall be administered by the Board of
Directors in the same manner and with the same authority as the
Committee. No member of the Board or the Committee shall be
liable for any action or determination made by such member in
good faith.
-2-
Page 14 of 31 <PAGE>
4. Eligibility.
-----------
The Committee may grant Options to any employee or
officer the Company or its subsidiaries. However, no person
who beneficially owns more than 10% of the combined voting
power of the Company's securities is eligible to participate in
the Plan and no nonemployee director is eligible to participate
in the Plan. Options may be awarded by the Committee at any
time and from time-to-time to new Participants, or to then
Participants, or to a greater or lesser number of Participants,
and may include or exclude previous Participants, as the
Committee shall determine. Options granted at different times
need not contain similar provisions.
5. Stock to be Optioned.
--------------------
5.1 NUMBER OF SHARES. Subject to the provisions
below, the maximum number of shares of Stock that may be
optioned or sold under the Plan is 333,333 shares. Such shares
may be authorized but unissued shares or outstanding shares
acquired in the market or from private sources. In the event
any shares of Stock are subject to an Option which, for any
reason, expires or is terminated unexercised as to such shares,
such shares again shall become available for issuance under the
Plan. Notwithstanding the foregoing, to the extent required by
260.140.45 of the Rules of the California Corporations
Commissioner or a replacement or successor rule, the total
number of Shares that may be optioned or sold under the Plan
together with all other shares of the Company's common stock
subject to outstanding options (excluding options excludible
under such rule), bonus plans and similar plans shall not
exceed 30% of the outstanding shares of common stock of the
Company (treating as outstanding convertible preferred or
senior common stock).
5.2 INCENTIVE STOCK OPTIONS. Only common-law
employees of the Company or a subsidiary of the Company shall
be eligible for grants of ISOs.
5.3 NONQUALIFIED OPTIONS. All eligible participants
in the Plan may be granted Nonqualified Options.
5.4 CORPORATE EVENTS.
----------------
(a) In the event of any stock dividend, stock
split, exchange of shares, recapitalization, subdivision or
consolidation of shares, or other similar transaction, the
number of shares subject to each outstanding Option, and the
Exercise Price per share, shall be proportionately adjusted,
and any other appropriate changes in the Options outstanding
-3-
Page 15 of 31 <PAGE>
shall be made by the Committee, whose determination as to any
of such matters shall be conclusive.
(b) In the event the Company shall be a party
to a transaction involving a sale of substantially all of its
assets or a merger or a consolidation in which the Company will
not be the surviving corporation, then all unexercised Options
may be cancelled by the Company as of the effective date of any
such transaction by giving written notice to the holders
thereof of its intention to do so and by permitting the
exercise, during the 30-day period preceding the effective date
of such transaction, of all partly or wholly unexercised
Options in full (whether or not such Options were by their
terms then exercisable). If the unexercised Options are
assumed by the surviving corporation, then any Options so
assumed shall be immediately exercisable and fully vested
(whether or not such Options were by their terms then
exercisable).
(c) In the case of dissolution of the Company
(other than a dissolution following a sale of substantially all
of the Company's assets), every Option outstanding shall
terminate; provided, however, that the Participant shall have
30 days prior written notice of such event, during which time
the Participant shall have the right to exercise any partly or
wholly unexercised Option in full (whether or not such Options
were by their terms then exercisable).
6. Exercise Price.
--------------
Each Stock Option Agreement shall specify the
Exercise Price. The Exercise Price of an ISO shall not be less
than 100% of the Fair Market Value of a Share on the date of
grant. The Exercise Price of a Nonqualified Option shall not be
less than 85% of the Fair Market Value of a Share on the date
of grant. Subject to the preceding two sentences, the Exercise
Price under any Option shall be determined by the Committee at
its sole discretion. The Exercise Price shall be payable in a
form described in Section 8 below.
7. Terms and Conditions of Options.
-------------------------------
Options granted pursuant to the Plan shall be
authorized by the Committee and shall be evidenced by Stock
Option Agreements in such form as the Committee shall from
time-to-time approve. Such agreements shall comply with and be
subject to the following terms and conditions:
7.1 NUMBER OF SHARES. Each Stock Option Agreement
shall specify the number of Shares that are subject to the
Option and shall provide for the adjustment of such number in
accordance with Section 5.4(a). The Stock Option Agreement
-4-
Page 16 of 31 <PAGE>
shall also specify whether the Option is an ISO or a
Nonqualified Option.
7.2 WITHHOLDING TAXES. As a condition to the
exercise of an Option, the Participant shall make such
arrangements as the Committee may require for the satisfaction
of any federal, state, local or foreign withholding tax
obligations that may arise in connection with such exercise.
The Participant shall also make such arrangements as the
Committee may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may
arise in connection with the disposition of Shares acquired by
exercising an Option.
7.3 EXERCISABILITY. Each Stock Option Agreement
shall specify the date when all or any installment of the
Option is to become exercisable. An Option shall become
exercisable at least as rapidly as set forth in the following
schedule:
Anniversary of Percentage of Shares
Date of Grant Exercisable
-------------- --------------------
First 20%
Second 40%
Third 60%
Fourth 80%
Fifth 100%
Subject to the preceding sentence, the vesting
of any Option shall be determined by the Committee at its sole
discretion. The only condition to the vesting of any Option in
accordance with the schedule determined by the Committee is
continuous employment through to the scheduled vesting date. A
Stock Option Agreement (or amendment thereof) may provide for
accelerated exercisability in the event of the Participant's
death or Permanent Disability and shall provide for accelerated
exercisability in accordance with Section 5.4 above.
7.4 TERM. The Stock Option Agreement shall specify
the term of the Option. The term shall not exceed 10 years
from the date of grant. Subject to the preceding sentence, the
Committee at its sole discretion shall determine when an Option
is to expire.
7.5 NONTRANSFERABILITY. No Option shall be
transferable by the Participant other than by will or by the
-5-
Page 17 of 31 <PAGE>
laws of descent and distribution. An Option may be exercised
during the lifetime of the Participant only by him or by his
guardian or legal representative. No Option or interest
therein may be transferred, assigned, pledged or hypothecated
by the Participant during his lifetime, whether by operation of
law or otherwise, or be made subject to execution, attachment
or similar process.
7.6 NO RIGHTS AS A STOCKHOLDER. A Participant, or a
transferee of an Participant, shall have no rights as a
stockholder with respect to any Shares covered by his Option
until the date of the issuance of a stock certificate for such
Shares. No adjustments shall be made, except as provided in
Section 5.4(a) above.
7.7 NO FRACTIONAL SHARES/100 SHARE MINIMUM. No
Option or installment thereof shall be exercisable except in
respect of whole shares, and fractional share interests shall
be disregarded except that they may be accumulated in
accordance with the preceding sentence. No fewer than one
hundred (100) shares may be purchased at one time unless the
number purchased is the total number at the time available for
purchase under the Option.
7.8 EXERCISE PROCEDURES. Options may be exercised
by giving written notice to the Secretary of the Company
stating the number of shares of Stock with respect to which the
Option is being exercised and tendering payment therefor.
Payment for shares of Stock shall be made in full at the time
that an Option, or any part thereof, is exercised.
7.9 MODIFICATION, EXTENSION AND ASSUMPTION OF
OPTIONS. Within the limitations of the Plan, the Committee may
modify, extend or assume outstanding Options or may accept the
cancelation of outstanding Options (whether granted by the
Company or another issuer) in return for the grant of new
Options for the same or a different number of Shares and at the
same or a different Exercise Price. The foregoing
notwithstanding, no modification of an Option shall, without
the consent of the Optionee, impair his rights or increase his
obligations under such Option.
8. Payment.
-------
8.1 GENERAL RULE. The full Exercise Price of Shares
issued under the Plan shall be payable in cash or certified or
cashier's check at the time when such Shares are purchased,
except as provided in Sections 8.2 and 8.3 below. Promptly
after the exercise of an Option and the payment of the full
Exercise Price, the Participant shall be entitled to the
issuance of a stock certificate evidencing ownership of such
Stock.
-6-
Page 18 of 31 <PAGE>
8.2 SURRENDER OF STOCK. To the extent that a Stock
Option Agreement so provides, payment may be made all or in
part with Shares which have already been owned by the
Participant or his representative for more than six months and
which are surrendered to the Company in good form for transfer.
Such Shares shall be valued at their Fair Market Value on the
date when the new Shares are purchased under the Plan.
8.3 EXERCISE/SALE. To the extent that a Stock
Option Agreement so provides or in the sole discretion of the
Committee, payment may be made all or in part by the delivery
(on a form prescribed by the Company) of an irrevocable
direction to a securities broker approved by the Company to
sell Shares and to deliver all or part of the sales proceeds to
the Company in payment of all or part of the Exercise Price and
any withholding taxes.
9. Termination of Employment.
-------------------------
9.1 TERMINATION OF SERVICE (EXCEPT BY DEATH). If an
Participant's service as an employee or officer of the Company
or of a subsidiary terminates for any reason other than his
death, then his Option(s) shall expire on the earlier of the
following occasions:
(1) The expiration date set forth in the
Participant's Stock Option Agreement; or
(2) The date 90 days after the termination of
service for any reason other than Permanent Disability; or
(3) The date 12 months after the termination of
service by reason of Permanent Disability.
The Participant may exercise all or part of his Option(s) at
any time before the expiration of such Option(s) under the
preceding sentence, but only to the extent that such Option(s)
had become exercisable before his service terminated. The
balance of such Option(s) shall lapse when the Participant's
service terminates.
9.2 LEAVES OF ABSENCE. For purposes of Section 9.1
above, service shall be deemed to continue while the
Participant is on military leave, sick leave or other bona fide
leave of absence (as determined by the Committee). The
foregoing notwithstanding, in the case of an ISO granted under
the Plan, service shall not be deemed to continue beyond the
first 90 days of such leave, unless the Participant's
reemployment rights are guaranteed by statute or by contract.
-7-
Page 19 of 31 <PAGE>
9.3 DEATH. If a Participant dies while employed by
the Company or any of its subsidiaries or while serving as an
officer of the Company or any of its subsidiaries or within one
year after cessation of employment or service as an officer due
to Permanent Disability or within three months after cessation
of employment for any reason other than Permanent Disability,
and without having fully exercised such Participant's Options,
the executors or administrators, or legatees or heirs, of the
Participant's estate shall have the right to exercise such
Options at any time within one year after the death of the
Participant to the extent that such deceased Participant was
entitled to exercise the Options on the date of death, unless
such Options would expire pursuant to the their terms at an
earlier date, in which case such Options shall remain
exercisable only until the earlier expiration date.
10. No Obligations to Exercise Option.
---------------------------------
The granting of an Option shall impose no obligation
upon the Participant to exercise such Option.
11. Agreement and Representation of Employees.
-----------------------------------------
As a condition to the exercise of any portion of an
Option, the Company may require the person exercising such
Option to represent and warrant at the time of such exercise
that any shares of stock acquired at exercise are being
acquired only for investment and without any present intention
to sell or distribute such shares, if, in the opinion of
counsel for the Company, such a representation is required
under the Securities Act of 1933 or any other applicable law,
regulation, or rule of any governmental agency.
12. Legend.
------
The certificates evidencing the Stock acquired upon
exercise of an Option may bear a legend referring to the terms
and conditions contained in the Participant's Stock Option
Agreements and the Company may place a stop transfer order with
its transfer agent against the transfer of such shares of
Stock.
13. Legal Requirements.
------------------
The obligation of the Company to issue or transfer
Stock under the Options shall be subject to all applicable
laws, regulations, rules and approvals, including, the
effectiveness of a registration statement under the Securities
Act of 1933 if deemed necessary or appropriate by the Company,
the qualification of the Options and the Stock reserved for
issuance upon exercise of Options under the California
-8-
Page 20 of 31 <PAGE>
Corporate Securities Law and satisfaction of any withholding
obligation in accordance with Section 7.2 above.
14. No Employment Obligation.
------------------------
The granting of an Option shall not impose any
obligation on the Company to continue to employ the Participant
or to retain the Participant's services for any period of time.
15. Reservation of Shares of Stock.
------------------------------
The Company, during the term of this Plan, will at
all times reserve and keep available, and will seek or obtain
from any regulatory body having jurisdiction any requisite
authority necessary to issue and to sell, the number of shares
of Stock that shall be sufficient to satisfy the requirements
of this Plan. The inability of the Company to obtain from any
regulatory body having jurisdiction the authority deemed
necessary by counsel for the Company for the lawful issuance
and sale of its Stock hereunder shall relieve the Company of
any liability in respect of the failure to issue or sell Stock
as to which the requisite authority has not been obtained.
16. Duration and Amendments.
-----------------------
16.1 TERM OF THE PLAN. The Plan, as set forth
herein, shall become effective on the date of its adoption by
the Board of Directors, subject to the approval of the
Company's stockholders. In the event that the stockholders
fail to approve the Plan on or before the date 12 months after
its adoption by the Board of Directors, (i) the Plan shall
terminate, (ii) any Options already granted shall be canceled
and (iii) any Shares already issued under the Plan shall be
repurchased by the Company at the original Exercise Price. The
Plan shall terminate automatically 10 years after its adoption
by the Board of Directors and may be terminated on any earlier
date pursuant to Section 16.2 below.
16.2 RIGHT TO AMEND OR TERMINATE THE PLAN. The
Board of Directors may amend, suspend or terminate the Plan at
any time and for any reason; provided, however, that any
amendment of the Plan that materially increases the number of
Shares available for issuance under the Plan (except as
provided in Section 5.4(a)), or that materially changes the
class of persons who are eligible for participation in the
Plan, shall be subject to the approval of the Company's
stockholders. Stockholder approval shall not be required for
any other amendment of the Plan.
16.3 EFFECT OF AMENDMENT OR TERMINATION. No Shares
shall be issued or sold under the Plan after the termination
thereof, except upon exercise of an Option granted prior to
-9-
Page 21 of 31 <PAGE>
such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued
or any Option previously granted under the Plan (except as
provided in Section 16.1 above).
17. Execution.
---------
To record the adoption of the Plan by the Board of
Directors effective April 18, 1994, the Company has caused its
authorized officers to execute the same.
"Company:"
XSCRIBE CORPORATION,
a California corporation
/s/ Suren G. Dutia
By -------------------------------
Suren G. Dutia,
President and Chief Executive
Officer
/s/ Bruce C. Myers
By -------------------------------
Bruce C. Myers
Chief Operating Officer and
Chief Financial Officer
-10-
Page 22 of 31 <PAGE>
EXHIBIT 4.4
INCENTIVE STOCK OPTION AGREEMENT
FOR
XSCRIBE CORPORATION
1994 STOCK OPTION PLAN
--------------------------------
A. A STOCK OPTION for a total of ______ shares of Common
Stock without par value of Xscribe Corporation, a California
corporation (herein the "Company") is hereby granted to
_______________________________________________________________
_______________________________________________________________
herein the "Participant"), subject in all respects to the terms
and provisions of the Xscribe Corporation 1994 Stock Option
Plan (herein the "Plan"), dated April 18, 1994, which has been
adopted by the Company and by the shareholders of the Company
and which is incorporated herein by reference and made a part
of this Agreement.
B. The Exercise Price is $_____________ per share.
C. This Option is exercisable as follows:
Percentage
From To Exercisable
---- -- -----------
D. This Option is intended to qualify as an incentive
stock option described in Section 422(b) of the Internal
Revenue Code of 1986, as amended. However, Participant
acknowledges that this Option may not qualify as an incentive
stock option or may become a nonqualified option in certain
circumstances and Xscribe Corporation makes not representation
or warranty that the Option is qualified as an incentive stock
option.
E. This Option may not be exercised if the issuance of
shares of Common Stock of the Company upon such exercise would
constitute a violation of any applicable Federal and State
securities or other law or valid regulation. The Participant,
as a condition to the exercise of this Option, shall represent
to the Company that the shares of Common Stock of the Company
that the Participant acquires under this Option are being
acquired by the Participant for investment and not with a
present view to distribution or resale, unless counsel for the
Company is then of the opinion that such a representation is
not required under the Securities Act of 1933 or any other
applicable law, regulation, or rule of any governmental agent.
-1-
Page 23 of 31 <PAGE>
F. This Option may not be transferred in any manner
otherwise than by will or the laws of descent and distribution,
and may be exercised during the lifetime of the Participant
only by the Participant. The terms of this Option shall be
binding upon the executors, administrators, heirs, successors,
and assigns of the Participant.
G. This Option may not be exercised more than ______
years from the date of its grant, and may be exercised during
such term only in accordance with the terms of the Plan.
[THE FOLLOWING ARE OPTIONAL PROVISIONS]
H. Payment of the Exercise Price may be made all or in
part with Shares which have already been owned by the
Participant or his representative for more than six months and
which are surrendered to the Company in good form for transfer.
Such Shares shall be valued at their Fair Market Value (as
defined in the Plan) on the date when the new Shares are
purchased under the Plan.
I. Payment of the Exercise Price may be made all or in
part by the delivery (on a form prescribed by the Company) of
an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales
proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
Dated: __________________, 19__.
"Company:"
XSCRIBE CORPORATION,
a California corporation
By __________________________________
Suren G. Dutia,
President and Chief Executive
Officer
By __________________________________
Bruce C. Myers
Chief Operating Officer and
Chief Financial Officer
The Participant acknowledges receipt of a copy of the
Plan, a copy of which is annexed hereto, and represents that
-2-
Page 24 of 31 <PAGE>
the Participant is familiar with the terms and provisions
thereof. The Participant hereby accepts this Option subject to
all the terms and provisions of the Plan. The Participant
hereby agrees to accept as binding, conclusive, and final all
decisions and interpretations of the Compensation Committee,
upon any questions arising under the Plan. As a condition to
the issuance of shares of Common Stock of the Company under
this Option, the Participant authorizes the Company to withhold
in accordance with applicable law from any regular cash
compensation payable to the Participant any taxes required to
be withheld by the Company under federal, state, or local law
as a result of the Participant's exercise of this Option or as
a result of Participant's sale of shares of common stock
acquired upon the exercise of the Option and agrees to pay in
cash to the Company the amount of withholding that exceeds
regular cash compensation against which such taxes can be
withheld during the applicable withholding period.
Dated: __________________, 19__.
________________________________
Participant
-3-
Page 25 of 31 <PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
FOR
XSCRIBE CORPORATION
1994 STOCK OPTION PLAN
-----------------------------------
A. A STOCK OPTION for a total of ______ shares of Common
Stock without par value of Xscribe Corporation, a California
corporation (herein the "Company") is hereby granted to
_______________________________________________________________
_______________________________________________________________
herein the "Participant"), subject in all respects to the terms
and provisions of the Xscribe Corporation 1994 Stock Option
Plan (herein the "Plan"), dated April 18, 1994, which has been
adopted by the Company and by the shareholders of the Company
and which is incorporated herein by reference and made a part
of this Agreement.
B. The Exercise Price is $___________ per share.
C. This Option is exercisable as follows:
Percentage
From To Exercisable
---- -- -----------
D. This Option is not intended to qualify as an
incentive stock option described in Section 422(b) of the
Internal Revenue Code of 1986, as amended.
E. This Option may not be exercised if the issuance of
shares of Common Stock of the Company upon such exercise would
constitute a violation of any applicable Federal and State
securities or other law or valid regulation. The Participant,
as a condition to the exercise of this Option, shall represent
to the Company that the shares of Common Stock of the Company
that the Participant acquires under this Option are being
acquired by the Participant for investment and not with a
present view to distribution or resale, unless counsel for the
Company is then of the opinion that such a representation is
not required under the Securities Act of 1933 or any other
applicable law, regulation, or rule of any governmental agent.
F. This Option may not be transferred in any manner
otherwise than by will or the laws of descent and distribution,
and may be exercised during the lifetime of the Participant
only by the Participant. The terms of this Option shall be
binding upon the executors, administrators, heirs, successors,
and assigns of the Participant.
-4-
Page 26 of 31 <PAGE>
G. This Option may not be exercised more than ______
years from the date of its grant, and may be exercised during
such term only in accordance with the terms of the Plan.
[THE FOLLOWING ARE OPTIONAL PROVISIONS]
H. Payment of the Exercise Price may be made all or in
part with Shares which have already been owned by the
Participant or his representative for more than six months and
which are surrendered to the Company in good form for transfer.
Such Shares shall be valued at their Fair Market Value (as
defined in the Plan) on the date when the new Shares are
purchased under the Plan.
I. Payment of the Exercise Price may be made all or in
part by the delivery (on a form prescribed by the Company) of
an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales
proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
Dated: __________________, 19__.
"Company:"
XSCRIBE CORPORATION,
a California corporation
By __________________________________
Suren G. Dutia,
President and Chief Executive
Officer
By __________________________________
Bruce C. Myers
Chief Operating Officer and
Chief Financial Officer
The Participant acknowledges receipt of a copy of the
Plan, a copy of which is annexed hereto, and represents that
the Participant is familiar with the terms and provisions
thereof. The Participant hereby accepts this Option subject to
all the terms and provisions of the Plan. The Participant
hereby agrees to accept as binding, conclusive, and final all
decisions and interpretations of the Compensation Committee,
upon any questions arising under the Plan. As a condition to
the issuance of shares of Common Stock of the Company under
-5-
Page 27 of 31 <PAGE>
this Option, the Participant authorizes the Company to withhold
in accordance with applicable law from any regular cash
compensation payable to the Participant any taxes required to
be withheld by the Company under federal, state, or local law
as a result of the Participant's exercise of this Option or as
a result of Participant's sale of shares of common stock
acquired upon the exercise of the Option and agrees to pay in
cash to the Company the amount of withholding that exceeds
regular cash compensation against which such taxes can be
withheld during the applicable withholding period.
Dated: __________________, 19__.
________________________________
Participant
-6-
Page 28 of 31 <PAGE>
EXHIBIT 5.1
August 16, 1995
YW7-53541
Xscribe Corporation
6285 Nancy Ridge Drive
San Diego, CA 92121
Re: Registration Statement on Form S-8
----------------------------------
Dear Sirs:
Xscribe Corporation (the "Company") has filed with
the Securities and Exchange Commission a registration statement
on Form S-8 (the "Registration Statement") in connection with
the registration under the Securities Act of 1933, as amended,
of 333,333 shares of Common Stock (the "New Stock") to be
offered and sold from time to time by the Company to
participants in the Xscribe Corporation 1994 Stock Option Plan
(the "Plan") upon the exercise of options granted under the
Plan. You have requested our opinion as to the legality of the
New Stock.
In connection with the furnishing of our opinion to
you concerning this matter, we have examined originals,
certified copies or photostatic copies of your Amended and
Restated Articles of Incorporation and Bylaws (as amended), the
minutes and written consents of your Board of Directors and
shareholders, documents on file with and certificates of the
California Secretary of State, the Registration Statement and
such other corporate records and other documents as we have
deemed relevant and necessary as the basis for the opinions set
forth herein. In such examinations, we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as certified or photostatic copies.
On the basis of the foregoing and in reliance thereon
and after consideration of such matters and laws as we deem
applicable and relevant, we are of the opinion that the New
Stock, when issued and sold in the manner set forth in the
Registration Statement, will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/Sheppard, Mullin, Richter & Hampton
SHEPPARD, MULLIN, RICHTER & HAMPTON
Page 29 of 31 <PAGE>
EXHIBIT 24.2
INDEPENDENT AUDITORS' CONSENT
-----------------------------
KPMG Peat Marwick LLP
The Board of Directors
Xscribe Corporation:
We consent to the use of our reports incorporated
herein by reference.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
By ---------------------------------
San Diego, California
August 17, 1995
Page 30 of 31 <PAGE>
EXHIBIT 28.1
LIST OF SUBSIDIARIES
_____________________
PHOTOMATRIX CORPORATION, a Nevada corporation
LEXIA SYSTEMS, INC., a California corporation
XSCRIBE LEGAL SYSTEMS, INC., a California corporation
XSCRIBE IMAGING, INC., a California corporation
U.S. TRANSCAN TECHNOLOGIES, INC., a California corporation
U.S. CAPTIONING, INC., a California corporation
Page 31 of 31 <PAGE>
