As filed with the Securities and Exchange Commission on May 6, 1998
Registration No. 333-44477
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMCOR CAPITAL CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
33-0329559
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(I.R.S. Employer Identification No.)
52300 Enterprise Way, Coachella, California 92236
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(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan
Warrants Granted to Tiger Group, Inc.
Warrants Granted to PM&A Financial Communications
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(Full Title of the Plan)
Fred H. Behrens, 52300 Enterprise Way, Coachella, California 92236
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(Name and Address of Agent for Service)
(760) 398-9520
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(Telephone Number, Including Area Code, of Agent for Service)
<PAGE>
AMCOR Capital Corporation, a Delaware corporation (the "Registrant"), has
previously filed with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-8 on January 20, 1998 (the "Registration
Statement"). Pursuant to Rule 456 and Rule 462 of the Rules and Regulations
promulgated under the Securities Act of 1933, as amended, the Registration
Statement became effective automatically upon filing.
This Post-Effective Amendment No. 1 to Registration Statement on Form S-8
is being filed by the Registrant solely for the purpose of filing Exhibit No.
10.4, which contains an amended and restated version of the Registrant's 1994
Stock Option Plan that was filed as Exhibit No. 10.1 to the Registration
Statement.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Amendment No. 1 to
the Registrant's Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Costa Mesa, State of
California, on this 1st day of May, 1998.
AMCOR CAPITAL CORPORATION
By: /S/ FRED H. BEHRENS
----------------------
Fred H. Behrens, Chairman of
the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 4, 1998.
Signature Title
--------- -----
/S/ FRED H. BEHRENS Chairman of the Board, Chief Executive
- --------------------------------- Officer (principal executive officer)
Fred H Behrens and Director
/S/ ROBERT A. WRIGHT President, Chief Operating Officer and
- --------------------------------- Director
Robert A. Wright
/S/ EUGENE W. TIDGEWELL Vice President, Treasurer and Chief
- --------------------------------- Financial Officer (principal financial
Eugene W. Tidgewell and accounting officer)
/S/ DALE P. PAISLEY Director
- ---------------------------------
Dale P. Paisley
/S/ MARLIN T. MCKEEVER Director
- ---------------------------------
Marlin T. McKeever
/S/ MARLENE A. TAPIE Director
- ---------------------------------
Marlene A. Tapie
/S/ RICHARD MORA Director
- ---------------------------------
Richard Mora
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
10.4 Amended and Restated AMCOR Capital Corporation
1994 Stock Option Plan
<PAGE>
EXHIBIT 10.4
<PAGE>
EXHIBIT 10.4
AMENDED AND RESTATED
AMCOR CAPITAL CORPORATION
1994 STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of this Amended and Restated AMCOR Capital Corporation
1994 Stock Option Plan ("Plan") of AMCOR Capital Corporation, a Delaware
corporation ("Company") is to provide the Company with a means of attracting
and retaining the services of highly motivated and qualified key personnel.
The Plan is intended to advance the interests of the Company by affording to
key employees, upon whose skill, judgment, initiative and efforts the Company
is largely dependent for the successful conduct of its business, an opportunity
for investment in the Company and the incentives inherent in stock Ownership in
the Company. In addition, the Plan contemplates the opportunity for investment
in the Company by consultants to the Company and by employees of companies that
do business with the Company. For purposes of this Plan, the term Company shall
include subsidiaries, if any, of the Company.
2. Legal Compliance.
It is the intent of the Plan that all options granted under it
("Options") shall be either "Incentive Stock Options" ("ISOs"), as such term is
defined in Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), or non-qualified stock options ("NQOs"); provided, however, that ISOs
shall be granted only to employees of the Company. An Option shall be
identified as an ISO or an NQO in writing in the document or documents
evidencing the grant of the Option. All Options that are not so identified as
ISOs are intended to be NQOs. In addition, the Plan provides for the grant of
NQOs to employees of companies that do business with the Company. It is the
further intent of the Plan that it conform in all respects with the requirements
of Rule 16b-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended ("Rule 16b-3"). To the extent that any aspect
of the Plan or its administration shall at any time be viewed as inconsistent
with the requirements of Rule 16b-3 or, in connection with ISOs, the Code, such
aspect shall be deemed to be modified, deleted or otherwise changed as necessary
to ensure continued compliance with such provisions.
3. Administration of the Plan.
3.1 Plan Committee.
The Plan shall be administered by a committee ("Committee").
The members of the Committee shall be appointed from time to time by the Board
of Directors of the Company ("Board") and shall consist of not less than two
(2) nor more than three (3) persons who are not eligible to receive Options
under the Plan and who are not, and have not at any time within one year, been
eligible to receive stock options pursuant to the Plan or the terms of any
other plan of the Company or its affiliates. Such persons shall be directors
of the Company.
3.2 Grants of Options by the Committee.
In accordance with the provisions of the Plan, the Committee,
by resolution, shall select those eligible persons to whom Options shall be
granted ("Optionees");shall determine the time or times at which each Option
shall be granted, whether an Option is an ISO or an NQO and the number of shares
to be subject to each Option; and shall fix the time and manner in which the
Option may be exercised, the Option exercise price, and the Option period.
The Committee shall determine the form of option agreement to evidence the
<PAGE>
foregoing terms and conditions of each Option, which need not be identical,
in the form provided for in Section 7. Such option agreement may include such
other provisions as the Committee may deem necessary or desirable consistent
with the Plan, the Code and Rule 16b-3; provided, however, that in no
event shall an Option vest at less than twenty percent (20%) per year over a
consecutive five (5) year period.
3.3 Committee Procedures.
The Committee from time to time may adopt such rules and
regulations for carrying out the purposes of the Plan as it may deem proper and
in the best interests of the Company. The Committee shall keep minutes of its
meetings and records of its actions. A majority of the members of the
Committee shall constitute a quorum for the transaction of any business by the
Committee. The Committee may act at any time by an affirmative vote of a
majority of those members voting. Such vote may be taken at a meeting (which
may be conducted in person or by any telecommunication medium) or by written
consent of Committee members without a meeting.
3.4 Finality of Committee Action.
The Committee shall resolve all questions arising under the Plan
and option agreements entered into pursuant to the Plan. Each determination,
interpretation, or other action made or taken by the Committee shall be final
and conclusive and binding on all persons, including, without limitation, the
Company, its stockholders, the Committee and each of the members of the
Committee, and the directors, officers, and employees of the Company,
including Optionees and their respective successors in interest.
3.5 Non-Liability of Committee Members.
No Committee member shall be liable for any action or
determination made by him in good faith with respect to the Plan or any Option
granted under it.
4. Board Power to Amend, Suspend, or Terminate the Plan.
The Board may, from time to time, make such changes in
or additions to the Plan as it may deem proper and in the best interests of the
Company and its stockholders. The Board may also suspend or terminate the Plan
at any time, without notice, and in its sole discretion.
Notwithstanding the foregoing, no such change, addition,
suspension, or termination by the Board shall (i) materially impair any option
previously granted under the Plan without the express written consent of the
optionee; or (ii) materially increase the number of shares subject to the Plan,
materially increase the benefits accruing to optionees under the Plan,
materially modify the requirements as to eligibility to participate in the Plan
or alter the method of determining the option exercise price described in
Section 8, without stockholder approval.
5. Shares Subject to the Plan.
For purposes of the Plan, the Committee is authorized to
grant Options for up to 500,000 shares of the Company's common stock, $.002 par
value per share ("Common Stock"), or the number and kind of shares of stock or
other securities which, in accordance with Section 13, shall be substituted for
such shares of Common Stock or to which such shares shall be adjusted. The
Committee is authorized to grant Options under the Plan with respect to such
<PAGE>
shares. Any or all unsold shares subject to an Option which for any reason
expires or otherwise terminates (excluding shares resumed to the Company in
payment of the exercise price for additional shares) may again be made
subject to grant under the Plan.
6. Optionees.
Options shall be granted only to full-time elected or
appointed officers or other full-time key employees of the Company, consultants
to the Company or employees of companies that do business with the Company
designated by the Committee from time to time as Optionees, including, without
limitation, members of the Board who are also full-time officers or key
employees at the time of grant. In no event, however, may a member of the
Committee be granted an Option under the Plan. Any Optionee may hold more
than one option to purchase Common Stock, whether such option is an Option
held pursuant to the Plan or otherwise. An Optionee who is an employee of the
Company ("Employee Optionee") and who holds an Option must remain a continuous
full or part-time employee of the Company from the time of grant of the Option
to him until the time of its exercise, except as provided in Section 10.3.
7. Grants of Options.
The Committee shall have the sole discretion to grant Options under
the Plan and to determine whether any Option shall be an ISO or an NQO. The
terms and conditions of Options granted under the Plan may differ from one
another as the Committee, in its absolute discretion, shall determine as
long as all Options granted under the Plan satisfy the requirements of the Plan.
Upon determination by the Committee that an Option is to be granted to an
Optionee, a written option agreement evidencing such Option shall be given to
the Optionee, specifying the number of shares subject to the Option, the Option
exercise price, whether the Option is an ISO or an NQO, and the other individual
terms and conditions of such Option. Such option agreement may incorporate
generally applicable provisions from the Plan, a copy of which shall be provided
to all Optionees at the time of their initial grants under the Plan. The Option
shall be deemed granted as of the date specified in the grant resolution of the
Committee, and the option agreement shall be dated as of the date of such
resolution.
8. Option Exercise Price.
The price per share to be paid by the Optionee at the time an ISO is
exercised shall not be less than one hundred percent (100%) of the Fair Market
Value (as hereinafter defined) of one share of the optioned Common Stock on the
date on which the Option is granted. No ISO may be granted under the Plan to
any person who, at the time of such grant, owns (within the meaning of Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any parent
thereof, unless the exercise price of such ISO is at least equal to one hundred
and ten percent (110%) of Fair Market Value on the date of grant. The price per
share to be paid by the Optionee at the time an NQO is exercised shall not be
less than eighty-five percent (85%) of the Fair Market Value on the date on
which the NQO is granted, as determined by the Committee.
For purposes of the Plan, the "Fair Market Value" of a share of the
Company's Common Stock as of a given date shall be: (i) the closing price of
a share of the Company's Common Stock on the principal exchange on which shares
of the Company's Common Stock are then trading, if any, on such date, or, if
shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if the Company's Common Stock is
<PAGE>
not traded on an exchange but is quoted on NASDAQ or a successor quotation
system, (1) the last sales price (if the Common Stock is then listed as a
National Market Issue under the NASD National Market System) or (2) the mean
between the closing representative bid and asked prices (in all other cases)
for the Common Stock on such date as reported by NASDAQ or such successor
quotation system; or (iii) if the Company's Common Stock is not publicly traded
on an exchange and not quoted on NASDAQ or a successor quotation system, the
mean between the closing bid and asked prices for the Common Stock on such date
as determined in good faith by the Committee; or (iv) if the Company's Common
Stock is not publicly traded, the fair market value established by the Committee
acting in good faith. In addition, with respect to any ISO, the Fair Market
Value on any given date shall be determined in a manner consistent with any
regulations issued by the Secretary of the Treasury for the purpose of
determining fair market value of securities subject to an ISO plan under the
Code.
9. Ceiling of ISO Grants.
The aggregate Fair Market Value (determined at the time any ISO is
granted) of the Common Stock with respect to which an Optionee's ISOs, together
with incentive stock options granted under any other plan of the Company and
any parent, are exercisable for the first time by such Optionee during any
calendar year shall not exceed $100,000. In the event that an Optionee holds
such incentive stock options that become first exercisable (including as a
result of acceleration of exercisability under the Plan) in any one year for
shares having a Fair Market Value at the date of grant in excess of $100,000,
then the most recently granted of such ISOs, to the extent that they are
exercisable for shares having an aggregate Fair Market Value in excess of such
limit, shall be deemed to be NQOs.
10. Duration, Exercisability, and Termination of Options.
10.1 Option Period.
The option period shall be determined by the Committee with
respect to each Option granted. In no event, however, may the option period
exceed ten (10) years from the date on which the Option is granted, or five
(5) years in the case of a grant of an ISO to an Optionee who is a ten percent
(10%) stockholder at the date on which the Option is granted as described in
Section 10.
10.2 Exercisability of Options and Acceleration of Exercisability.
Each Option shall be exercisable in whole or in consecutive
installments, cumulative or otherwise, during its term as determined in the
discretion of the Committee; provided, however, that no Option shall be
exercisable before six (6) months after the date of grant of such Option.
Notwithstanding the foregoing, the Committee at the time of grant
may provide that the vesting of the right to exercise a given Option or portion
thereof may be accelerated, during the term of the Option, under one or more of
the following circumstances: (i) if the Common Stock of the Company shall be
the subject of a tender offer by any person other than the Company which, by its
terms, could result in the offerer acquiring more than twenty-five percent (25%)
of the then outstanding shares of Common Stock of the Company, or (ii) if the
stockholders shall consider, or be asked to consider, merging or consolidating
the Company with any other person, or transferring all or substantially all of
its assets to any other person, or (iii) if more than twenty-five percent (25%)
<PAGE>
of the Company's then outstanding voting shares shall be purchased by any person
other than the Company, such that granted but unexercisable Options may be
exercised at any time following the first public announcement of such event;
provided, however, that in no event shall an option be exercised prior to six
months after the date of grant or beyond its stated term.
10.3 Termination of Options due to Termination of Employment,
Disability, or Death of Optionee; Termination for "Cause", or
Resignation in Violation of an Employment Agreement.
All Options granted under the Plan to any Employee Optionee shall
terminate and may no longer be exercised if the Employee Optionee ceases, at any
time during the period between the grant of the Option and its exercise, to be
an employee of the Company; provided, however, that the Committee may alter the
termination date of the Option if the Optionee transfers to an affiliate of the
Company.
Notwithstanding the foregoing, (i) if the Employee Optionee's
employment with the Company shall have terminated for any reason (other than
involuntary dismissal for "cause" or voluntary resignation in violation of any
agreement to remain in the employ of the Company, including, without limitation,
any such agreement pursuant to Section 15), he may, at any time before the
expiration of three (3) months after such termination or before expiration of
the Option, whichever shall first occur, exercise the Option (to the extent
that the Option was exercisable by him on the date of the termination of his
employment); (ii) if the Employee Optionee's employment shall have terminated
due to disability (as defined in Section 22(e)(3) of the Code and subject to
such proof of disability as the Committee may require), such Option may be
exercised by the Employee Optionee (or by his guardian(s), or conservator(s),
or other legal representative(s)) before the expiration of twelve (12) months
after such termination or before expiration of the Option, whichever shall first
occur (to the extent that the Option was exercisable by him on the date of the
termination of his employment); (iii) in the event of the death of the Employee
Optionee, an Option exercisable by him at the date of his death shall be
exercisable by his legal representative(s), legatee(s), or heir(s), or by his
beneficiary or beneficiaries so designated by him as permitted by Section 14,
as the case may be, within twelve (12) months after his death or before the
expiration of the Option, whichever shall first occur (to the extent that the
Option was exercisable by him on the date of his death); and (iv) if the
Employee Optionee's employment is terminated for "cause" or in violation of
any agreement to remain in the employ of the Company, including, without
limitation, any such agreement pursuant to Section 15, he may, at any time
before the expiration of thirty (30) days after such termination or before the
expiration of the Option, whichever shall first occur, exercise the Option
(to the extent that the Option was exercisable by him on the date of termination
of his employment). For purposes of the Plan, "cause" may include, without
limitation, any illegal or improper conduct (l) which injures or impairs the
reputation, goodwill, or business of the Company; (2) which involves the
misappropriation of funds of the Company, or the misuse of data, information,
or documents acquired in connection with employment by the Company; or
(3) which violates any other directive or policy promulgated by the Company.
A termination for "cause" may also include any resignation in anticipation of
discharge for "cause" or resignation accepted by the Company in lieu of a formal
discharge for "cause."
<PAGE>
11. Manner of Option Exercise; Rights and Obligations of Optionees.
11.1 Written Notice of Exercise.
An Optionee may elect to exercise an Option in whole or in part,
from time to time, subject to the terms and conditions contained in the Plan and
in the agreement evidencing such Option, by giving written notice of exercise
to the Company at its principal executive office.
11.2 Cash Payment for Optioned Shares.
If an Option is exercised for cash, such notice shall be
accompanied by a cashier's or personal check, or money order, made payable to
the Company for the full exercise price of the shares purchased.
11.3 Stock Swap Feature.
At the time of the Option exercise, and subject to the discretion
of the Committee to accept payment in cash only, the Optionee may determine
whether the total purchase price of the shares to be purchased shall be paid
solely in cash or by transfer from the Optionee to the Company of previously
acquired shares of Common Stock, or by a combination thereof. In the event
that the Optionee elects to pay the total purchase price in whole or in part
with previously acquired shares of Common Stock, the value of such shares shall
be equal to their Fair Market Value on the date of exercise, determined by the
Committee in the same manner used for determining Fair Market Value at the time
of grant for purposes of Section 8.
11.4 Investment Representation for Non-Registered Shares and Legality
of Issuance.
The receipt of shares of Common Stock upon the exercise of an
Option shall be conditioned upon the Optionee (or any other person who exercises
the Option on his or her behalf as permitted by Section 10.3) providing to the
Committee a written representation that, at the time of such exercise, it is
the intent of such person(s) to acquire the shares for investment only and not
with a view toward distribution. The certificate for unregistered shares
issued for investment shall be restricted by the Company as to transfer unless
the Company receives an opinion of counsel satisfactory to the Company to the
effect that such restriction is not necessary under then pertaining law. The
providing of such representation and such restrictions on transfer shall not,
however, be required upon any person's receipt of shares of Common Stock under
the Plan in the event that, at the time of grant of the Option relating to
such receipt or upon such receipt, whichever is the appropriate measure under
applicable federal or state securities laws, the shares subject to the Option
shall be (i) covered by an effective and current registration statement under
the Securities Act of 1933, as amended, and (ii) either qualified or exempt
from qualification under applicable state securities laws. The Company shall,
however, under no circumstances be required to sell or issue any shares under
the Plan if, in the opinion of the Committee, (i) the issuance of such shares
would constitute a violation by the Optionee or the Company of any applicable
law or regulation of any governmental authority, or (ii) the consent or
approval of any governmental body is necessary or desirable as a condition of,
or in connection with, the issuance of such shares.
<PAGE>
11.5 Stockholder Rights of Optionee.
Upon exercise, the Optionee (or any other person who exercises
the Option on his behalf as permitted by Section 10.3) shall be recorded on the
books of the Company as the owner of the shares, and the Company shall deliver
to such record owner one or more duly issued stock certificates evidencing such
ownership. No person shall have any rights as a stockholder with respect to any
shares of Common Stock covered by an Option granted pursuant to the Plan until
such person shall have become the holder of record of such shares. Except as
provided in Section 13, no adjustments shall be made for cash dividends or other
distributions or other rights as to which there is a record date preceding the
date such person becomes the holder of record of such shares.
11.6 Holding Periods for Tax Purposes.
The Plan does not provide that an Optionee must hold shares of
Common Stock acquired under the Plan for any minimum period of time. Optionees
are urged to consult with their own tax advisors with respect to the tax
consequences to them of their individual participation in the Plan.
12. Successive Grants.
Successive grants of Options may be made to any Optionee under the
Plan.
13. Adjustments.
If the outstanding Common Stock shall be hereafter increased or
decreased, or changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another corporation, by reason
of a recapitalization, reclassification, reorganization, merger, consolidation,
share exchange, or other business combination in which the Company is the
surviving parent corporation, stock split-up, combination of shares, or dividend
or other distribution payable in capital stock or rights to acquire capital
stock, appropriate adjustment shall be made by the Committee in the number and
kind of shares for which options may be granted under the Plan. In addition,
the Committee shall make appropriate adjustment in the number and kind of shares
as to which outstanding and unexercised options shall be exercisable, to the end
that the proportionate interest of the holder of the option shall, to the extent
practicable, be maintained as before the occurrence of such event. Such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of the option but with a
corresponding adjustment in the exercise price per share.
In the event of the dissolution or liquidation of the Company, any
outstanding and unexercised options shall terminate as of a future date to be
fixed by the Committee.
In the event of a Reorganization (as hereinafter defined), then,
a. If there is no plan or agreement with respect to the
Reorganization ("Reorganization Agreement"), or if the Reorganization
Agreement does not specifically provide for the adjustment, change,
conversion, or exchange of the outstanding and unexercised options for
cash or other property or securities of another corporation, then any
outstanding and unexercised options shall terminate as of a future
date to be fixed by the Committee; or
<PAGE>
b. If there is a Reorganization Agreement, and the
Reorganization Agreement specifically provides for the adjustment,
change, conversion, or exchange of the outstanding and unexercised
options for cash or other property or securities of another
corporation, then the Committee shall adjust the shares under
such outstanding and unexercised options, and shall adjust the shares
remaining under the Plan which are then available for the issuance of
options under the Plan if the Reorganization Agreement makes specific
provisions therefor, in a manner not inconsistent with the provisions
of the Reorganization Agreement for the adjustment, change,
conversion, or exchange of such options and shares.
The term "Reorganization" as used in this Section 13 shall mean any
reorganization, merger, consolidation, share exchange, or other business
combination pursuant to which the Company is not the surviving parent
corporation after the effective date of the Reorganization, or any sale or
lease, of all or substantially all of the assets of the Company. Nothing
herein shall require the Company to adopt a Reorganization Agreement, or to
make provision for the adjustment, change, conversion, or exchange of any
options, or the shares subject thereto, in any Reorganization Agreement which
it does adopt.
The Committee shall provide to each Optionee then holding an
outstanding and unexercised option not less than thirty (30) calendar days'
advanced written notice of any date fixed by the Committee pursuant to this
Section 13 and of the terms of any Reorganization Agreement providing for the
adjustment, change, conversion, or exchange of outstanding and unexercised
options. Except as the Committee may otherwise provide, each Optionee shall
have the right during such period to exercise his option only to the extent
that the option was exercisable on the date such notice was provided to the
Optionee.
Any adjustment to any outstanding ISO pursuant to this Section 13,
if made by reason of a transaction described in Section 424(a) of the Code,
shall be made so as to conform to the requirements of that Section and the
regulations thereunder. If any other transaction described in Section 424(a)
of the Code affects the Common Stock subject to any unexercised ISO theretofore
granted under the Plan (hereinafter for purposes of this Section 13 referred to
as the "old option"), the Board of Directors of the Company or of any surviving
or acquiring corporation may take such action as it deems appropriate, in
conformity with the requirements of that Code section and the regulations
thereunder, to substitute a new option for the old option, in order to make
the new option, as nearly as may be practicable, equivalent to the old option,
or to assume the old option.
No modification, extension, renewal, or other change in any option
granted under the Plan may be made, after the grant of such option, without
the Optionee's consent, unless the same is permitted by the provisions of the
Plan and the option agreement. In the case of an ISO, Optionees are hereby
advised that certain changes may disqualify the ISO from being considered
as such under Section 422 of the Code, or constitute a modification, extension,
or renewal of the ISO under Section 424(h) of the Code.
All adjustments and determinations under this Section 13 shall be
made by the Committee in good faith in its sole discretion.
<PAGE>
14. Non-Transferability of Options.
An Option shall be exercisable only by the Optionee, or in the event
of his disability, by his guardian(s), conservator(s), or other legal
representative(s), during the Optionee's lifetime. In the event of the death
of the Optionee, an Option shall be exercisable by his legal representative(s),
legatee(s), or heir(s), as the case may be, or by such person(s) as he may
designate as his beneficiary or beneficiaries in a signed statement included as
a part of the option agreement.
No Option shall be transferable by the Optionee, either voluntarily
or involuntarily, except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act, or the rules thereunder.
Any attempt to exercise, transfer or otherwise dispose of an interest in an
Option in contravention of the terms and conditions of the Plan, or of the
option agreement for the Option, shall immediately void the Option.
15. Continued Employment.
As determined in the sole discretion of the Committee at the time of
grant and if so stated in a writing signed by the Company, each Option may have
as a condition the requirement of an Employee Optionee to remain in the employ
of the Company, or of its affiliates, and to render to it his or her exclusive
service, at such compensation as may be determined from time to time by it, for
a period not to exceed the term of the Option, except for earlier termination
of employment by or with the express written consent of the Company or on
account of disability or death. The failure of any Employee Optionee to abide
by such agreement as to any Option under the Plan may result in the termination
of all of his or her then outstanding Options granted pursuant to the Plan.
Neither the creation of the Plan nor the granting of Option(s) under
it shall be deemed to create a right in an Employee Optionee to continued
employment with the Company, and each such Employee Optionee shall be and shall
remain subject to discharge by the Company as though the Plan had never come
into existence. Except as specifically provided by the Committee in any
particular case, the loss of existing or potential profit in options granted
under this Plan shall not constitute an element of damages in the event of
termination of the employment of an employee even if the termination is in
violation of an obligation of the Company to the employee by contract or
otherwise.
16. Tax Withholding.
The exercise of any option granted under the Plan is subject to the
condition that if at any time the Company shall determine, in its discretion,
that the satisfaction of withholding tax or other withholding liabilities under
any federal, state or local law is necessary or desirable as a condition of,
or in connection with, such exercise or a later lapsing of time or restrictions
on or disposition of the shares of Common Stock received upon such exercise,
then in such event, the exercise of the option shall not be effective unless
such withholding shall have been effected or obtained in a manner acceptable
to the Company. When an Optionee is required to pay to the Company an amount
required to be withheld under applicable income tax laws in connection with the
exercise of any option, the optionee may, subject to the approval of the
Committee, which approval shall not have been disapproved at any time after
the election is made, satisfy the obligation, in whole or in part, by electing
to have the Company withhold shares of Common Stock having a value equal to the
amount required to be withheld. The value of the Common Stock withheld pursuant
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to the election shall be determined by the Committee, in accordance with the
criteria set forth in Section 8, with reference to the date the amount of tax
to be withheld is determined ("Tax Determination Date"). The Optionee shall
pay to the Company in cash any amount required to be withheld that would
otherwise result in the withholding of a fractional share. The election by
an Optionee who is a director or officer of the Company within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended ("Section 16 of
the 1934 Act"), to be effective, must meet all of the following requirements:
(i) the election must be made on or prior to Tax Determination Date; (ii) the
election must be irrevocable; (iii) the exercise of an option may only be made
six months or more subsequent to the grant of that option (except that this
limitation will not apply in the event death or disability of the Optionee
occurs prior to the expiration of the six-month period); and (iv) the
election must be made either (a) six months or more prior to the Tax
Determination Date, or (b) within a ten-day "window period" beginning on the
third business day following the release of the Company's annual or quarterly
summary statement of sales and earnings and ending on the twelfth business day
following the date of such release. Where the Tax Determination Date of a
director or officer of the Company within the meaning of Section 16 of the
1934 Act is deferred until six months after exercise and that director or
officer elects to have the Company withhold shares pursuant to the terms of
this Section 16, the full amount of option shares shall be issued or transferred
to him upon exercise but he will be unconditionally obligated to tender back
to the Company on the Tax Determination Date the proper number of shares of
Common Stock to satisfy withholding requirements, plus cash for any fractional
amount.
17. Term of Plan.
17.1 Effective Date.
Subject to stockholder approval, the Plan shall become effective
as of May 3, 1994.
17.2 Termination Date.
Except as to options previously granted and outstanding under the
Plan, the Plan shall terminate at midnight on May 2, 2004, and no Option shall
be granted after that time. Options then outstanding may continue to be
exercised in accordance with their terms. The Plan may be suspended or
terminated at any earlier time by the Board within the limitations set forth in
Section 4.
18. Non-Exclusivity of the Plan.
Nothing contained in the Plan is intended to amend, modify, or rescind
any previously approved compensation plans, programs or options entered into by
the Company. This Plan shall be construed to be in addition to and independent
of any and all such other arrangements. Neither the adoption of the Plan by
the Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power or
authority of the Board to adopt, with or without stockholder approval, such
additional or other compensation arrangements as the Board may from time to time
deem desirable.
19. Governing Law.
The Plan and all rights and obligations under it shall be construed and
enforced in accordance with the laws of the State of California.
