As filed with the Securities and Exchange Commission on June 14, 2000
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NATIONAL MANUFACTURING TECHNOLOGIES, INC.
(FORMERLY PHOTOMATRIX, INC.)
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-3267788
---------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1958 KELLOGG AVENUE
CARLSBAD, CALIFORNIA 92008
(760) 431-4999
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1998 STOCK OPTION PLAN
(Full Title of Plan)
PATRICK W. MOORE, CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
NATIONAL MANUFACTURING TECHNOLOGIES, INC.
1958 KELLOGG AVENUE
CARLSBAD, CALIFORNIA 92008
(760) 431-4999
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
OTTO E. SORENSEN, ESQ.
LUCE, FORWARD, HAMILTON & SCRIPPS, LLP
600 WEST BROADWAY, SUITE 2600
SAN DIEGO, CA 92101
(619) 699-2534
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered* Per Share Price Fee
- -----------------------------------------------------------------------------
Common Stock, 1,500,000 shares $0.69 (2) $1,035,000 (2) $273.24
no par value (1)
===============================================================================
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the 1998 Stock Option
Plan (the "1998 Plan") pursuant to Rules 416 and 457 under the Securities Act of
1933. In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) In accordance with Rule 457(h), the aggregate offering price of
1,500,000 shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the 1998 Plan is estimated solely for purposes
of calculating the registration fee, determined in accordance with Rule 457(c),
using the average of the high and low price as reported on the Over-the-Counter
Bulletin Board on June 8, 2000, which was $0.69 per share.
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by National Manufacturing
Technologies, Inc. (the "Company") relating to 1,500,000 shares of the Company's
common stock, no par value (the "Common Stock"), issuable to employees of the
Company under the 1998 Stock Option Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999.
2. All other reports filed by the Registrant pursuant to Section 13(a) or
15(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year referred to in "1" above.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of the Registration
Statement and prior to the filing of a post-effective amendment, which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the respective dates of the
filing of such documents, except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions for the purposes of this Registration Statement, any statement in a
document incorporated by reference shall be deemed to be modified or superseded
to the extent that a statement contained in the Registration Statement modifies
or supersedes a statement in such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement
The Registrant will provide without charge to any Plan participant, at the
request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Requests should be directed to Jennifer D. Brown, Secretary, National
Manufacturing Technologies, Inc., 1958 Kellogg Avenue, Carlsbad, California
92008.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Registrant eliminate the personal
liability of directors of the Registrant for monetary damages in derivative
actions for breach of a director's duty to the Registrant to the fullest extent
allowed under California law. The Articles of Incorporation and Bylaws of the
Registrant also provide for indemnification of directors, officers and other
agents of the Registrant to the fullest extent allowed by law. The Registrant
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 has no reasonable cause to believe the conduct was unlawful.
In derivative actions and actions brought by the Registrant, 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 Registrant currently maintains policies of directors' and officers'
liability insurance. The Registrant has a separate executive risk policy that
insures against fiduciary liability and commercial crime.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration Statement:
Exhibit Nos. Description of Exhibits
------------- -------------------------
4.1 Amended and Restated Articles of Incorporation of the Company dated
September 23, 1999 (filed with the Securities and Exchange Commission on
November 15, 1999 as Exhibit 3.2 of the Company's Form 10-Q for the quarter
ended June 30, 1999, and incorporated herein by reference) .
4.2 Bylaws of the Company dated May 5, 1998 (filed with the Securities
and Exchange Commission on June 26, 1996 as Exhibit 3.3 of the Company's Form
10-K for the year ended March 31, 1996, and incorporated herein by reference).
4.3 Amendment to Bylaws dated June 5, 1998 (filed with the Securities
and Exchange Commission on June 29, 1998 as Exhibit 3.3.1 of the Company's Form
10-KSB for the year ended March 31, 1998, and incorporated herein by reference).
4.4 1998 Stock Option Plan.
4.5 Company Name Change from Photomatrix, Inc to National Manufacturing
Technologies, Inc
5 Opinion of Luce, Forward, Hamilton & Scripps, LLP, counsel to the
Registrant.
23.1 Consent of BDO Seidman, LLP, independent auditors.
23.2 Consent of Luce, Forward, Hamilton & Scripps, LLP (included in
Exhibit 5).
<PAGE>
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being made,
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities 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.
(iii) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or 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
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for the 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 the 12 day of
June 2000.
NATIONAL MANUFACTURING TECHNOLOGIES, INC.
By: /s/ Patrick W. Moore
-------------------------
Patrick W. Moore
Chairman, Chief Executive Officer
and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE NAME AND TITLE DATE
Patrick W. Moore, President,
Chief Executive Officer, and
/s/ Patrick W. Moore Chairman of the Board
------------------------ of Directors June 12, 2000
/s/ Larry Naritelli Larry Naritelli, Controller
------------------------ and Chief Accounting Officer June 12, 2000
/s/ James P. Hill James P. Hill, Director June 12, 2000
------------------------
/s/ Michael R. Moore Michael R. Moore, Director June 12, 2000
------------------------
/s/ Binh Q. Le Binh Q. Le, Director June 12, 2000
------------------------
/s/ Michael J. Genovese Michael J. Genovese, Director June 12, 2000
------------------------
/s/ Brian L. Kissinger Brian L. Kissinger, Director June 12, 2000
------------------------
/s/ John G. Hamilton, Jr. John G. Hamilton, Jr., Director June 12, 2000
------------------------
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit Page
----------- --------------------------------------------------------------------------------------- ----
<C> <S> <C>
4.4 1998 Stock Option Plan. A-1
4.5 Company Name Change from Photomatrix, Inc to National Manufacturing Technologies, Inc B-1
5 Opinion of Luce, Forward, Hamilton & Scripps, LLP, counsel to the Registrant. C-1
23.1 Consent of BDO Seidman, LLP, independent auditors. D-1
23.2 Consent of Luce, Forward, Hamilton & Scripps, LLP (included in Exhibit 5).
</TABLE>
<PAGE>
17
EXHIBIT 4.4
------------
PHOTOMATRIX, INC.
1998 STOCK OPTION PLAN
1. PURPOSE. This Stock Option Plan (the "Plan") is intended to serve as
an incentive to, and to encourage stock ownership by, certain eligible
participants rendering services to PHOTOMATRIX, INC., a California corporation
(the "Corporation"), and certain affiliates as set forth below, so that they may
acquire or increase their proprietary interest in the Corporation.
2. ADMINISTRATION.
2.1 Committee. The Plan shall be administered by the Board of
Directors of the Corporation (the "Board of Directors") or a compensation
committee of two or more members appointed by the Board of Directors (the
"Committee") who are Non-Employee Directors as defined in Rule 16b-3 promulgated
under Section 16 of the Securities Exchange Act of 1934 and an outside director
as defined in Treasury Regulation ss. 1.162-27(e)(3). The Committee shall select
one of its members as Chairman and shall appoint a Secretary, who need not be a
member of the Committee. The Committee shall hold meetings at such times and
places as it may determine and minutes of such meetings shall be recorded. Acts
by a majority of the Committee in a meeting at which a quorum is present and
acts approved in writing by a majority of the members of the Committee shall be
valid acts of the Committee.
2.2 Term. If the Board of Directors selects a Committee, the
members of the Committee shall serve on the Committee for the period of time
determined by the Board of Directors and shall be subject to removal by the
Board of Directors at any time. The Board of Directors may terminate the
function of the Committee at any time and resume all powers and authority
previously delegated to the Committee.
2.3 Authority. The Committee shall have sole discretion and
authority to grant options under the Plan to eligible participants rendering
services to the Corporation or any "parent" or "subsidiary" of the Corporation
("Parent or Subsidiary"), as defined in Section 424 of the Internal Revenue Code
of 1986, as amended (the "Code"), at such times, under such terms and in such
amounts as it may decide. For purposes of this Plan and any Stock Option
Agreement (as defined below), the term "Corporation" shall include any Parent or
Subsidiary, if applicable. Subject to the express provisions of the Plan, the
Committee shall have complete authority to interpret the Plan, to prescribe,
amend and rescind the rules and regulations relating to the Plan, to determine
the details and provisions of any Stock Option Agreement, to accelerate any
options granted under the Plan and to make all other determinations necessary or
advisable for the administration of the Plan.
A-1
<PAGE>
2.4 Type of Option. The Committee shall have full authority and
discretion to determine, and shall specify, whether the eligible individual will
be granted options intended to qualify as incentive options under Section 422 of
the Code ("Incentive Options") or options which are not intended to qualify
under Section 422 of the Code ("Non-Qualified Options"); provided, however,
that Incentive Options shall only be granted to employees of the Corporation,
or a Parent or Subsidiary thereof, and shall be subject to the special
limitations set forth herein attributable to Incentive Options.
2.5 Interpretation. The interpretation and construction by the
Committee of any provisions of the Plan or of any option granted under the Plan
shall be final and binding on all parties having an interest in this Plan or any
option granted hereunder. No member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
option granted under the Plan.
3. ELIGIBILITY.
3.1 General. All directors, officers and employees of the
Corporation, or any Parent or Subsidiary, relative to the Corporation's, or any
Parent's or Subsidiaries', management, operation or development shall be
eligible to receive options under the Plan. The selection of recipients of
options shall be within the sole and absolute discretion of the Committee. No
person shall be granted an Incentive Option under this Plan unless such person
is an employee of the Corporation, or a Parent or Subsidiary, on the date of
grant. No employee shall be granted more than 150,000 options in any one year
period.
3.2 Termination of Eligibility.
3.2.1 If an optionee ceases to be employed by the Corporation,
or its Parent or Subsidiary, or is no longer an officer or member of the Board
of Directors of the Corporation, or its Parent or Subsidiary for any reason
(other than for "cause," as hereinafter defined, or such optionee's death), any
option granted hereunder to such optionee shall expire three months after the
date the occurrence giving rise to such termination of eligibility (or 1 year in
the event an optionee is "disabled," as defined in Section 22(e)(3) of the Code)
or upon the date it expires by its terms, whichever is earlier. Any option that
has not vested in the optionee as of the date of such termination shall
immediately expire and shall be null and void. The Committee shall, in its sole
and absolute discretion, decide, utilizing the provisions set forth in Treasury
Regulations ss.1.421-7 (h), whether an authorized leave of absence or absence
for military or governmental service, or absence for any other reason, shall
constitute termination of eligibility for purposes of this Section.
A-2
<PAGE>
3.2.2 If an optionee ceases to be employed by the Corporation,
or its Parent or Subsidiary, or is no longer an officer or member of the Board
of Directors of the Corporation, or its Parent or Subsidiary and such
termination is as a result of "cause," as hereinafter defined, then all options
granted hereunder to such optionee shall expire on the date of the occurrence
giving rise to such termination of eligibility or upon the date it expires by
its terms, whichever is earlier, and such optionee shall have no rights with
respect to any unexercised options. For purposes of this Plan, "cause" shall
mean an optionee's personal dishonesty, misconduct, breach of fiduciary duty,
incompetence, intentional failure to perform stated obligations, willful
violation of any law, rule, regulation or final cease and desist order, or
any material breach of any provision of this Plan, any Stock Option Agreement
or any employment agreement.
3.3 Death of Optionee and Transfer of Option. In the event an
optionee shall die, an option may be exercised (subject to the condition that no
option shall be exercisable after its expiration and only to the extent that the
optionee's right to exercise such option had accrued at the time of the
optionee's death) at any time within six months after the optionee's death by
the executors or administrators of the optionee or by any person or persons who
shall have acquired the option directly from the optionee by bequest or
inheritance. Any option that has not vested in the optionee as of the date of
death or termination of employment, whichever is earlier, shall immediately
expire and shall be null and void. No option shall be transferable by the
optionee other than by will or the laws of intestate succession.
3.4 Limitation on Options. No person shall be granted any Incentive
Option to the extent that the aggregate fair market value of the Stock (as
defined below) to which such options are exercisable for the first time by the
optionee during any calendar year (under all plans of the Corporation as
determined under Section 422(d) of the Code) exceeds $100,000.
4. IDENTIFICATION OF STOCK. The Stock, as defined herein, subject to
the options shall be shares of the Corporation's authorized but unissued or
acquired or reacquired common stock (the "Stock"). The aggregate number of
shares subject to outstanding options shall not exceed 1,500,000 shares of Stock
(subject to adjustment as provided in Section 6). Notwithstanding the above, at
no time shall the total number of shares of Stock issuable upon exercise of all
outstanding options and the total number of shares of Stock provided for under
any stock bonus or similar plan of the Corporation exceed 30% as calculated in
accordance with the conditions and exclusions of ss.260.140.45 of Title 10,
California Code of Regulations, based on the shares of the issuer which are
outstanding at the time the calculation is made. If any option granted hereunder
shall expire or terminate for any reason without having been exercised in full,
the unpurchased shares subject thereto shall again be available for purposes of
this Plan.
A-3
<PAGE>
5. TERMS AND CONDITIONS OF OPTIONS. Any option granted pursuant to the
Plan shall be evidenced by an agreement ("Stock Option Agreement") in such form
as the Committee shall from time to time determine, which agreement shall comply
with and be subject to the following terms and conditions:
5.1 Number of Shares. Each option shall state the number of shares
of Stock to which it pertains.
5.2 Option Exercise Price. Each option shall state the option
exercise price, which shall be determined by the Committee; provided, however,
that (i) the exercise price of any Incentive Option shall not be less than the
fair market value of the Stock, as determined by the Committee, on the date of
grant of such option, (ii) the exercise price of any option granted to a person
who owns more than 10% of the total combined voting power of all classes of the
Corporation's stock, as determined for purposes of Section 422 of the Code,
shall not be less than 120% of the fair market value of the Stock, as determined
by the Committee, on the date of grant of such option, and (iii) the exercise
price of any Non-Qualified Option shall not be less than 100% of the fair
market value of the Stock, as determined by the Committee, on the date of
grant of such option.
5.3 Term of Option. The term of an option granted hereunder shall
be determined by the Committee at the time of grant, but shall not exceed ten
years from the date of the grant. The term of any Incentive Option granted to an
employee who owns more than 10% of the total combined voting power of all
classes of the Corporation's stock, as determined for purposes of Section 422 of
the Code, shall in no event exceed five years from the date of grant. All
options shall be subject to early termination as set forth in this Plan. In no
event shall any option be exercisable after the expiration of its term.
5.4 Method of Exercise. An option shall be exercised by written
notice to the Corporation by the optionee (or successor in the event of death).
Such written notice shall state the number of shares with respect to which the
option is being exercised and designate a time, during normal business hours of
the Corporation, for the delivery thereof ("Exercise Date"), which time shall be
at least 30 days after the giving of such notice unless an earlier date shall
have been mutually agreed upon. At the time specified in the written notice, the
Corporation shall deliver to the optionee at the principal office of the
Corporation, or such other appropriate place as may be determined by the
Committee, a certificate or certificates for such shares. Notwithstanding the
foregoing, the Corporation may postpone delivery of any certificate or
certificates after notice of exercise for such reasonable period as may be
required to comply with any applicable listing requirements of any securities
exchange. In the event an option shall be exercisable by any person other than
the optionee, the required notice under this Section shall be accompanied by
appropriate proof of the right of such person to exercise the option.
5.5 Medium and Time of Payment. The option exercise price shall be
payable in full on or before the option Exercise Date in any one of the
following alternative forms:
A-4
<PAGE>
5.5.1 Full payment in cash or certified bank or cashier's
check;
5.5.2 Full payment in shares of Stock having a fair market
value on the Exercise Date in the amount equal to the option exercise price;
5.5.3 A combination of the consideration set forth in Sections
5.5.1 and 5.5.2 equal to the option exercise price; or
5.5.4 Any other method of payment complying with the
provisions of Section 422 of the Code with respect to Incentive Options,
including, but not limited to, the delivery by optionee of an irrevocable
direction to a securities broker approved by the Corporation to sell the Stock
and to deliver all or part of the sales proceeds to the Corporation in payment
of all or part of the exercise price and any withholding taxes, provided that
the terms of payment are established by the Committee at the time of grant and
any other method of payment established by the Committee with respect to
Non-Qualified Options.
5.6 Fair Market Value. The fair market value of a share of Stock on
any relevant date shall be determined in accordance with the following
provisions:
5.6.1 If the Stock at the time is 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 Committee after taking into
account such factors as the Committee shall deem appropriate.
5.6.2 If the Stock is not at the time 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 Stock on the date in question 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 Stock on the date in question,
then the mean between the highest bid price and lowest asked price (or the
closing selling price) on the last preceding date for which such quotations
exist shall be determinative of fair market value.
5.6.3 If the 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 of one share of Stock on the date in question on the stock
exchange determined by the Committee to be the primary market for the Stock, as
such price is officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of 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.
A-5
<PAGE>
5.7 Right to Exercise. Except with respect to options granted to
officers or directors of the Corporation, options granted pursuant to this Plan
shall be exercisable or "vest" at the rate of at least 20% per year over the
5-year period beginning on the date the option is granted. Options granted to
officers and directors shall become exercisable or "vest," subject to reasonable
conditions, at any time during any period established by the Corporation.
5.8 Rights as a Shareholder. An optionee or successor shall have no
rights as a shareholder with respect to any Stock underlying any option until
the date of the issuance to such optionee of a certificate for such Stock. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such Stock certificate is issued, except as
provided in Section 6.
5.9 Modification, Extension and Renewal of Options. Subject to the
terms and conditions of the Plan, the Committee may modify, extend or renew
outstanding options granted under the Plan, or accept the surrender of
outstanding options (to the extent not exercised) and authorize the granting
of new options in substitution therefor.
5.10 Other Provisions. The Stock Option Agreements shall contain
such other provisions, including without limitation, restrictions or conditions
upon the exercise of options, as the Committee shall deem advisable.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
6.1 Subdivision or Consolidation. Subject to any required action by
shareholders of the Corporation, the number of shares of Stock covered by each
outstanding option, and the exercise price thereof, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Stock of
the Corporation resulting from a subdivision or consolidation of shares,
including, but not limited to, a stock split, reverse stock split,
recapitalization, continuation or reclassification, or the payment of a stock
dividend (but only on the Stock) or any other increase or decrease in the number
of such shares effected without receipt of consideration by the Corporation. Any
fraction of a share subject to option that would otherwise result from an
adjustment pursuant to this Section shall be rounded downward to the next full
number of shares without other compensation or consideration to the holder of
such option.
6.2 Capital Transactions. Upon a sale or exchange of all or
substantially all of the assets of the Corporation, a merger or consolidation in
which the Corporation is not the surviving corporation, a merger, reorganization
or consolidation in which the Corporation is the surviving corporation and
shareholders of the Corporation exchange their stock for securities or property,
a liquidation of the Corporation or similar transaction as determined by the
Committee ("Capital Transaction"), this Plan and each option issued under this
Plan, whether vested or unvested, shall terminate immediately prior to such
Capital Transaction; provided, however, that subject to terms approved by the
Committee, all optionees will have the right, during the 30 days prior to such
Capital Transaction, to exercise all vested options. Notwithstanding the
foregoing, in the event there is a Capital Transaction, all options granted
under this Plan shall vest 30 days prior to such Capital Transaction. The
Committee may, but shall not be obligated to, (i) accelerate the vesting of any
option or (ii) apply the foregoing provisions, including but not limited to,
termination of this Plan and any options granted pursuant to the Plan, in the
event there is a sale of 50% or more of the stock of the Corporation in any two
(2) year period or a transaction similar to a Capital Transaction.
A-6
<PAGE>
6.3 Adjustments. To the extent that the foregoing adjustments
relate to stock or securities of the Corporation, such adjustments shall be made
by the Committee, whose determination in that respect shall be final, binding
and conclusive.
6.4 Ability to Adjust. The grant of an option pursuant to the Plan
shall not affect in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure or to merge, consolidate, dissolve, liquidate, sell or
transfer all or any part of its business or assets.
6.5 Notice of Adjustment. Whenever the Corporation shall take any
action resulting in any adjustment provided for in this Section, the Corporation
shall forthwith deliver notice of such action to each optionee, which notice
shall set forth the number of shares subject to the option and the exercise
price thereof resulting from such adjustment.
6.6 Limitation on Adjustments. Any adjustment, assumption or
substitution of an Incentive Option shall comply with Section 425 of the Code,
if applicable.
7. NONASSIGNABILITY. Options granted under this Plan may not be sold,
pledged, assigned or transferred in any manner other than by will or by the laws
of intestate succession, and may be exercised during the lifetime of an optionee
only by such optionee. Any transfer by the optionee of any option granted under
this Plan in violation of this Section shall void such option and any Stock
Option Agreement entered into by the optionee and the Corporation regarding such
transferred option shall be void and have no further force or effect. No option
shall be pledged or hypothecated in any way, nor shall any option be subject to
execution, attachment or similar process.
8. NO RIGHT OF EMPLOYMENT. Neither the grant nor exercise of any option
nor anything in this Plan shall impose upon the Corporation or any other
corporation any obligation to employ or continue to employ any optionee. The
right of the Corporation and any other corporation to terminate any employee
shall not be diminished or affected because an option has been granted to such
employee.
9. TERM OF PLAN. This Plan is effective on the date the Plan is adopted
by the Board of Directors and options may be granted pursuant to the Plan from
time to time within a period of ten (10) years from such date, or the date of
any required shareholder approval required under the Plan, if earlier.
Termination of the Plan shall not affect any option theretofore granted.
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10. AMENDMENT OF THE PLAN. The Board of Directors of the Corporation
may, subject to any required shareholder approval, suspend, discontinue or
terminate the Plan, or revise or amend it in any respect whatsoever, including,
but not limited to, any changes required pursuant to any state securities rules
or regulations, with respect to any shares of Stock at that time not subject to
options.
11. APPLICATION OF FUNDS. The proceeds received by the Corporation from
the sale of Stock pursuant to options may be used for general corporate
purposes.
12. RESERVATION OF SHARES. The Corporation, during the term of this
Plan, shall at all times reserve and keep available such number of shares of
Stock as shall be sufficient to satisfy the requirements of the Plan.
13. NO OBLIGATION TO EXERCISE OPTION. The granting of an option shall
not impose any obligation upon the optionee to exercise such option.
14. APPROVAL OF BOARD OF DIRECTORS AND SHAREHOLDERS. The Plan shall not
take effect until approved by the Board of Directors of the Corporation. This
Plan shall be approved by a vote of the shareholders within 12 months from the
date of approval by the Board of Directors. In the event such shareholder vote
is not obtained, all options granted hereunder, whether vested or unvested,
shall be null and void. Further, any stock acquired pursuant to the exercise of
any options under this Agreement may not count for purposes of determining
whether shareholder approval has been obtained.
15. WITHHOLDING TAXES. Notwithstanding anything else to the contrary in
this Plan or any Stock Option Agreement, the exercise of any option shall be
conditioned upon payment by such optionee in cash, or other provisions
satisfactory to the Committee, of all local, state, federal or other withholding
taxes applicable, in the Committee's judgment, to the exercise or to later
disposition of shares acquired upon exercise of an option (including any
repurchase of an option or the Stock).
16. PARACHUTE PAYMENTS. Any outstanding option under the Plan may not
be accelerated to the extent any such acceleration of such option would, when
added to the present value of other payments in the nature of compensation which
becomes due and payable to the optionee would result in the payment to such
optionee of an excess parachute payment under Section 280G of the Code. The
existence of any such excess parachute payment shall be determined in the sole
and absolute discretion of the Committee.
17. SECURITIES LAWS COMPLIANCE. Notwithstanding anything contained
herein, the Corporation shall not be obligated to grant any option under this
Plan or to sell, issue or effect any transfer of any Stock unless such grant,
sale, issuance or transfer is at such time effectively (i) registered or exempt
from registration under the Act and (ii) qualified or exempt from qualification
under the California Corporate Securities Law of 1968 and any other applicable
state securities laws. As a condition to exercise of any option, each optionee
shall make such representations as may be deemed appropriate by counsel to the
Corporation for the Corporation to use any available exemption from registration
under the Act or any applicable state securities law.
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18. NOTICES. Any notice to be given under the terms of the Plan shall
be addressed to the Corporation in care of its Secretary at its principal
office, and any notice to be given to an optionee shall be addressed to such
optionee at the address maintained by the Corporation for such person or at
such other address as the optionee may specify in writing to the Corporation.
As adopted by the Board of Directors as of February , 1998.
PHOTOMATRIX, INC., a California corporation
By: /s/ Roy L. Gayhart
---------------------
Roy L. Gayhart
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EXHIBIT 4.5
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On September 23, 1999, at the Photomatrix, Inc., Annual Shareholder's
Meeting, the Shareholders approved a company name change from Photomatrix, Inc.,
to National Manufacturing Technologies, Inc.
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EXHIBIT 5
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OPINION AND CONSENT OF COUNSEL
(Luce, Forward, Hamilton & Scripps LLP Letterhead)
June 12, 2000
National Manufacturing Technologies, Inc.
1958 Kellogg Avenue
Carlsbad, CA 92008
Re: Registration Statement on Form S-8 for 1,500,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission to register 1,500,000 shares of common stock, no par value
per share (the "Common Stock"), of National Manufacturing Technologies, Inc., a
California corporation (the "Company"), to be issued pursuant to the Company's
1998 Stock Option Plan (the "Plan").
For purposes of rendering this opinion, we have made such legal and factual
examinations as we have deemed necessary under the circumstances and, as part of
such examination, we have examined, among other things, originals and copies,
certified or otherwise, identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing examination and assumptions,
we are of the opinion that assuming the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act of 1933, as amended,
the shares of Common Stock being offered under the Plan, when issued in
accordance with the Registration Statement and the provisions of the Plan, will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Luce, Forward, Hamilton & Scripps LLP
Luce, Forward, Hamilton & Scripps LLP
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
National Manufacturing Technologies, Inc.
Carlsbad, California
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated July 16, 1999, relating to the
consolidated financial statements of National Manufacturing Technologies, Inc.
(formerly Photomatrix, Inc.) appearing in the Company's Annual Report on Form
10-K for the year ended March 31, 1999. Our report contains an explanatory
paragraph regarding the Company's ability to continue as a going concern.
BDO Seidman, LLP
June 12, 2000
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