<PAGE>
Registration No. 333-82109
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WIND RIVER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 94-2873391
(State of Incorporation) (I.R.S. Employer Identification No.)
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500 Wind River Way
Alameda, California 94501
(510) 748-4100
(Address of principal executive offices)
1994 ROUTERWARE STOCK OPTION PLAN
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Richard W. Kraber
Vice President of Finance and Chief Financial Officer
WIND RIVER SYSTEMS, INC.
500 Wind River Way
Alameda, California 94501
(510) 748-4100
---------------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------------
Copies to:
Andrea Vachss, Esq. Wendi Okun, Esq.
Cooley Godward LLP Wind River Systems, Inc.
5 Palo Alto Square 500 Wind River Way
3000 El Camino Real Alameda, California 94501
Palo Alto, California 94306 (510) 748-4100
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED SHARE (1) PRICE (1) FEE (2)
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<S> <C> <C> <C> <C>
Stock Options and Common 634,065 $0.15 - $6.85 $615,298 $172
Stock (par value $.001)
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The offering price per share and
aggregate offering price are based upon with respect to the 650,325 shares
subject to outstanding options, the exercise prices of such options.
(2) The filing fee was previously paid.
<PAGE>
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT
ON FORM S-8 NO. 333-82109
The contents of Registration Statement on Form S-8
No. 333-82109 filed with the Securities and Exchange
Commission on July 1, 1999 are incorporated by reference
herein.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
5.1+ Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature page
99.1 1994 RouterWare Stock Option Plan
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+ Previously filed.
<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 Alameda, State of California, on
August 27, 1999.
WIND RIVER SYSTEMS, INC.
By: /s/ Richard W. Kraber
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Richard W. Kraber
CHIEF FINANCIAL OFFICER AND VICE
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Richard W. Kraber Chief Financial Officer (Principal August 27, 1999
- ---------------------- Financial Officer)
(Richard W. Kraber)
/s/ Jerry L. Fiddler Chairman of the Board August 27, 1999
- ----------------------
(Jerry L. Fiddler)
/s/ Ronald A. Abelmann Director August 27, 1999
- ----------------------
(Ronald A. Ablemann)
/s/ William B. Elmore Director August 27, 1999
- ----------------------
(William B. Elmore)
/s/ Grant M. Inman Director August 27, 1999
- ----------------------
(Grant M. Inman)
/s/ David B. Pratt Director August 27, 1999
- ----------------------
(David B. Pratt)
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1+ Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Cooley Godward is contained in Exhibit 5.1
to this Registration Statement
24.1 Power of Attorney is contained on the signature page
99.1 1994 RouterWare Stock Option Plan
- ------------------------------
+ Previously filed.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (No. 333-82109) of our report dated February 24, 1999
relating to the financial statements and financial statement schedule of Wind
River Systems, Inc., which appears in Wind River Systems, Inc.'s Annual
Report on Form 10-K for the year ended January 31, 1999.
PricewaterhouseCoopers LLP
San Jose, California
August 27, 1999
<PAGE>
Exhibit 99.1
WIND RIVER SYSTEMS, INC.
1994 ROUTERWARE STOCK OPTION PLAN
1. Purpose. The purpose of the 1994 RouterWare, Inc. Stock Option Plan
(the "Plan") is to strengthen RouterWare, Inc., a California corporation and
wholly-owned subsidiary of Wind River Systems, Inc. ("Corporation"), by
providing to employees, officers, directors, consultants and independent
contractors of the Corporation or any of its subsidiaries (including dealers,
distributors, and other business entities or persons providing services on
behalf of the Corporation or any of its subsidiaries) added incentive for
high levels of performance and unusual efforts to increase the earnings of
the Corporation. The Plan seeks to accomplish this purpose by enabling
specified persons to purchase shares of the common stock of the Corporation,
thereby increasing their proprietary interest in the Corporation's success
and encouraging them to remain in the employ or service of the Corporation.
2. Certain Definitions. As used in this Plan, the following words and
phrases shall have the respective meanings set forth below, unless the
context clearly indicates a contrary meaning:
2.1 "Board of Directors." The Board of Directors of the Corporation.
2.2 "Committee." The Committee which shall administer the Plan shall
consist of all of the members of the Board of Directors.
2.3 "Fair Market Value Per Share." The fair market value per share of
the Shares as determined by the Committee in good faith. The Committee is
authorized to make its determination as to the fair market value per share of
the Shares on the following basis; (i) if the Shares are traded only
otherwise than on a securities exchange and are not quoted on the National
Association of Securities Dealers' Automated Quotation System ("NASDAQ"), but
are quoted in the "pink sheets" published by the National Daily Quotation
Bureau, the greater of (a) the average of the mean between the average daily
bid and average daily asked prices of the Shares during the thirty (30) day
period preceding the date of grant of an Option, as quoted in the "pink
sheets" published by the National Daily Quotation Bureau, or (b) the mean
between the average daily bid and average daily asked prices of the Shares on
the date of grant, as published in such "pink sheets;" (ii) if the Shares are
traded only otherwise than on a securities exchange and are quoted on the
Nasdaq National Market, the greater of (a) the average of the mean between
the closing bid and closing asked prices of the Shares during the thirty (30)
day period preceding the date of grant of an Option, as reported by the Wall
Street Journal and (b) the mean between the closing bid and closing asked
prices of the Shares on the date of grant of an Option, as reported by the
Wall Street Journal; (iii) if the Shares are admitted to trading on a
securities exchange, the greater of (a) the average of the daily closing
prices of the Shares during the ten (10) trading days preceding the date of
grant of an Option, as quoted in the Wall Street Journal, or (b) the daily
closing price of the Shares on the date of grant of an Option, as quoted in
the Wall Street Journal; or (iv) if the Shares are traded only otherwise than
as described in (i), (ii) or (iii) above, or if the Shares are not publicly
traded, the value determined by the Committee in
1.
<PAGE>
good faith based upon the fair market value as determined by completely
independent and well qualified experts.
2.4 "Option." A stock option granted under the Plan.
2.5 "Incentive Stock Option." An Option intended to qualify for
treatment as an incentive stock option under Code Sections 421 and 422, and
designated as an Incentive Stock Option.
2.6 "Nonqualified Option." An Option not qualifying as an Incentive
Stock Option.
2.7 "Optionee." The holder of an Option.
2.8 "Option Agreement." The document setting forth the terms and
conditions of each Option.
2.9 "Shares." The shares of common stock of Wind River Systems, Inc.
2.10 "Code." The Internal Revenue Code of 1986, as amended.
2.11 "Subsidiary." Any corporation of which fifty percent (50%) or
more of total combined voting power of all classes of stock of such
corporation is owned by the Corporation or another Subsidiary (as so defined).
3. Administration Of Plan
3.1 In General. This Plan shall be administered by the Committee. Any
action of the Committee with respect to administration of the Plan shall be
taken pursuant to (i) a majority vote at a meeting of the Committee (to be
documented by minutes), or (ii) the unanimous written consent of its members.
3.2 Authority. Subject to the express provisions of this Plan, the
Committee shall have the authority to: (i) construe and interpret the Plan,
decide all questions and settle all controversies and disputes which may
arise in connection with the Plan and to define the terms used therein;
(ii)prescribe, amend and rescind rules and regulations relating to
administration of the Plan; (iii) determine the purchase price of the Shares
covered by each Option and the method of payment of such price, individuals
to whom, and the time or times at which, Options shall be granted and
exercisable and the number of Shares covered by each Option; (iv) determine
the terms and provisions of the respective Option Agreements (which need not
be identical); (v) determine the duration and purposes of leaves of absence
which may be granted to participants without constituting a termination of
their employment for purposes of the Plan; and (vi)make all other
determinations necessary or advisable to the administration of the Plan.
Determinations of the Committee on matters referred to in this Section 3
shall be conclusive and binding on all parties howsoever concerned. With
respect to Incentive Stock Options, the Committee shall administer the Plan
in compliance with the provisions of Code Section 422 as the same may
hereafter be amended from time to time. 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.
2.
<PAGE>
4. Eligibility And Participation
4.1 In General. Only officers, employees and directors who are also
employees of the Corporation or any Subsidiary shall be eligible to receive
grants of Incentive Stock Options. Officers, employees and directors (whether
or not they are also employees) of the Corporation or any Subsidiary, as well
as consultants, independent contractors or other service providers of the
Corporation or any Subsidiary shall be eligible to receive grants of
Nonqualified Options. Within the foregoing limits, the Committee, from time
to time, shall determine and designate persons to whom Options may be
granted. All such designations shall be made in the absolute discretion of
the Committee and shall not require the approval of the stockholders. In
determining (i) the number of Shares to be covered by each Option, (ii) the
purchase price for such Shares and the method of payment of such price
(subject to the other sections hereof), (iii) the individuals of the eligible
class to whom Options shall be granted, (iv) the terms and provisions of the
respective Option Agreements, and (v) the times at which such Options shall
be granted, the Committee shall take into account such factors as it shall
deem relevant in connection with accomplishing the purpose of the Plan as set
forth in Section 1. An individual who has been granted an Option may be
granted an additional Option or Options if the Committee shall so determine.
No Option shall be granted under the Plan after July 2, 2004, but Options
granted before such date may be exercisable after such date.
Certain Limitations. In no event shall Incentive Stock Options be granted to
an Optionee such that the sum of (i) aggregate fair market value (determined
at the time the Incentive Stock Options are granted) of the Shares subject to
all Options granted under the Plan which are exercisable for the first time
during the same calendar year, plus (ii) the aggregate fair market value
(determined at the time the options are granted) of all stock subject to all
other incentive stock options granted to such Optionee by the Corporation,
its parent and Subsidiaries which are exercisable for the first time during
such calendar year, exceeds One Hundred Thousand Dollars ($100,000). For
purposes of the immediately preceding sentence, fair market value shall be
determined as of the date of grant based on the Fair Market Value Per Share
as determined pursuant to Section 2.3.
5. Available Shares And Adjustments Upon Changes In Capitalization.
5.1 Shares. Subject to adjustment as provided in Section 5.2 below,
the total number of Shares to be subject to Options granted pursuant to this
Plan shall not exceed 350,000 Shares. Shares subject to the Plan may be
either authorized but unissued shares or shares that were once issued and
subsequently reacquired by the Corporation; the Committee shall be empowered
to take any appropriate action required to make Shares available for Options
granted under this Plan. If any Option is surrendered before exercise or
lapses without exercise in full or for any other reason ceases to be
exercisable, the Shares reserved therefore shall continue to be available
under the Plan.
5.2 Adjustments. As used herein, the term "Adjustment Event" means an
event pursuant to which the outstanding Shares of the Corporation are
increased, decreased or changed into, or exchanged for a different number or
kind of shares or securities, without receipt of consideration by the
Corporation, through reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split, stock dividend, stock
consolidation or otherwise.
3.
<PAGE>
Upon the occurrence of an Adjustment Event, (i) appropriate and proportionate
adjustments shall be made to the number and kind of shares and exercise price
for the shares subject to the Options which may thereafter be granted under
this Plan, (ii) appropriate and proportionate adjustments shall be made to
the number and kind of and exercise price for the shares subject to the then
outstanding Options granted under this Plan, and (iii)appropriate amendments
to the Option Agreements shall be executed by the Corporation and the
Optionees if the Committee determines that such an amendment is necessary or
desirable to reflect such adjustments. If determined by the Committee to be
appropriate, in the event of an Adjustment Event which involves the
substitution of securities of a corporation other than the Corporation, the
Committee shall make arrangements for the assumptions by such other
corporation of any Options then or thereafter outstanding under the Plan.
Notwithstanding the foregoing, such adjustment in an outstanding Option shall
be made without change in the total exercise price applicable to the
unexercised portion of the Option, but with an appropriate adjustment to the
number of shares, kind of shares and exercise price for each share subject to
the Option. The determination by the Committee as to what adjustments,
amendments or arrangements shall be made pursuant to this Section 5.2, and
the extent thereof, shall be final and conclusive. No fractional Shares shall
be issued under the Plan on account of any such adjustment or arrangement.
6. Terms And Conditions Of Options
6.1 Intended Treatment as Incentive Stock Options. Incentive Stock
Options granted pursuant to this Plan are intended to be "incentive stock
options" to which Code Sections 421 and 422 apply, and the Plan shall be
construed and administered to implement that intent. If all or any part of an
Incentive Stock Option shall not be an "incentive stock option" subject to
Sections 421 or 422 of the Code, such Option shall nevertheless be valid and
carried into effect. All Options granted under this Plan shall be subject to
the terms and conditions set forth in this Section 6 (except as provided in
Section 5.2) and to such other terms and conditions as the Committee shall
determine to be appropriate to accomplish the purpose of the Plan as set
forth in Section 1.
6.2 Amount and Payment of Exercise Price.
6.2.1 Exercise Price. The exercise price per Share for each Share
which the Optionee is entitled to purchase under a Nonqualified Option shall
be determined by the Committee but shall not be less than eighty-five percent
(85%) of the Fair Market Value Per Share on the date of the grant of the
Nonqualified Option. The exercise price per Share for each Share which the
Optionee is entitled to purchase under an Incentive Stock Option shall be
determined by the Committee but shall not be less than the Fair Market Value
Per Share on the date of the grant of the Incentive Stock Option; provided,
however, that the exercise price shall not be less than one hundred ten
percent (110%) of the Fair Market Value Per Share on the date of the grant of
the Incentive Stock Option in the case of an individual then owning (within
the meaning of Code Section 424(d)) more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation or of its
parent or Subsidiaries.
6.2.2 Payment of Exercise Price. The consideration to be paid for
the Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Committee and may consist of promissory
notes, shares of the common stock of the
4.
<PAGE>
Corporation or such other consideration and method of payment for the Shares
as may be permitted under applicable state and federal laws.
6.3 Exercise of Options.
6.3.1 Each Option granted under this Plan shall be exercisable at
such times and under such conditions as may be determined by the Committee at
the time of the grant of the Option and as shall be permissible under the
terms of the Plan; provided, however, in no event shall an Option be
exercisable after the expiration of ten (10) years from the date it is
granted, and in the case of an Optionee owning (within the meaning of Code
Section 424(d)), at the time an Incentive Stock Option is granted, more than
ten percent (10%) of the total combined voting power of all classes of stock
of the Corporation or of its parent or Subsidiaries, such Incentive Stock
Option shall not be exercisable later than five (5) years after the date of
grant.
6.3.2 An Optionee may purchase less than the total number of
Shares for which the Option is exercisable, provided that a partial exercise
of an Option may not be for less than One Thousand (1,000) Shares and shall
not include any fractional shares.
6.4 Nontransferability of Options. All Options granted under this Plan
shall be nontransferable, either voluntarily or by operation of law,
otherwise than by will or the laws of descent and distribution, and shall be
exercisable during the Optionee's lifetime only by such Optionee.
6.5 Effect of Termination of Employment or Other Relationship. Except
as otherwise determined by the Committee in connection with the grant of
Nonqualified Options, the effect of termination of an Optionee's employment
or other relationship with the Corporation on such Optionee's rights to
acquire Shares pursuant to the Plan shall be as follows:
6.5.1 Termination for Other than Disability, Cause, or Death. If
an Optionee ceases to be employed by, or ceases to have a relationship with,
the Corporation for any reason other than for disability, cause, or death,
such Optionee's Options shall expire not later than three (3) months
thereafter. During such three (3) month period and prior to the expiration of
the Option by its terms, the Optionee may exercise any Option granted to him,
but only to the extent such Options were exercisable on the date of
termination of his employment or relationship and except as so exercised,
such Options shall expire at the end of such three (3) month period unless
such Options by their terms expire before such date. The decision as to
whether a termination for a reason other than disability, cause or death has
occurred shall be made by the Committee, whose decision shall be final and
conclusive, except that employment shall not be considered terminated in the
case of sick leave or other bona fide leave of absence approved by the
Corporation.
6.5.2 Disability. If an Optionee ceases to be employed by, or
ceases to have a relationship with, the Corporation by reason of disability
(within the meaning of Code Section 22(e)(3)), such Optionee's Options shall
expire not later than one (1) year thereafter. During such one (1) year
period and prior to the expiration of the Option by its terms, the Optionee
may exercise any Option granted to him, but only to the extent such Options
were exercisable on the date the Optionee ceased to be employed by, or ceased
to have a relationship with, the
5.
<PAGE>
Corporation by reason of disability and except as so exercised, such Options
shall expire at the end of such one (1) year period unless such Options by
their terms expire before such date. The decision as to whether a termination
by reason of disability has occurred shall be made by the Committee, whose
decision shall be final and conclusive.
6.5.3 Termination for Cause. If an Optionee's employment by, or
relationship with, the Corporation is terminated for cause, such Optionee's
Option shall expire immediately; provided, however, the Committee may, in its
sole discretion, within thirty (30) days of such termination, waive the
expiration of the Option by giving written notice of such waiver to the
Optionee at such Optionee's last known address. In the event of such waiver,
the Optionee may exercise the Option only to such extent, for such time, and
upon such terms and conditions as if such Optionee had ceased to be employed
by, or ceased to have a relationship with, the Corporation upon the date of
such termination for a reason other than disability, cause, or death.
Termination for cause shall include termination for malfeasance or gross
misfeasance in the performance of duties or conviction of illegal activity in
connection therewith or any conduct detrimental to the interests of the
Corporation. The determination of the Committee with respect to whether a
termination for cause has occurred shall be final and conclusive.
6.5.4 Death of an Optionee. If the Optionee ceases to be employed
by, or ceases to have a relationship with, the Corporation by reason of
death, such Optionee's Options shall expire not later than six (6) months
thereafter. During such six (6) month period and prior to the expiration of
the Option by its terms, such Option may be exercised by his executor or
administrator or the person or persons to whom the Option is transferred by
will or the applicable laws of descent and distribution, but only to the
extent such Options were exercisable on the date Optionee ceased to be
employed by, or ceased to have a relationship with, the Corporation by reason
of death.
6.6 Withholding of Taxes. As a condition to the exercise, in whole or
in part, of any Options the Board of Directors may in its sole discretion
require the Optionee to pay, in addition to the purchase price of the Shares
covered by the Option an amount equal to any Federal, state or local taxes
that may be required to be withheld in connection with the exercise of such
Option.
6.7 No Rights to Continued Employment or Relationship. Nothing
contained in this Plan or in any Option Agreement shall obligate the
Corporation to employ or have another relationship with any Optionee for any
period or interfere in any way with the right of the Corporation to reduce
such Optionee's compensation or to terminate the employment of or
relationship with any Optionee at any time.
6.8 Time of Granting Options. The time an Option is granted, sometimes
referred to herein as the date of grant, shall be the day the Corporation
executes the Option Agreement; provided, however, that if appropriate
resolutions of the Committee indicate that an Option is to be granted as of
and on some prior or future date, the time such Option is granted shall be
such prior or future date.
6.9 Privileges of Stock Ownership. No Optionee shall be entitled to
the privileges of stock ownership as to any Shares not actually issued and
delivered to such Optionee. No Shares shall be purchased upon the exercise
of any Option unless and until, in the opinion of the
6.
<PAGE>
Corporation's counsel, any then applicable requirements of any laws or
governmental or regulatory agencies having jurisdiction and of any exchanges
upon which the stock of the Corporation may be listed shall have been fully
complied with.
6.10 Securities Laws Compliance. The Corporation will diligently
endeavor to comply with all applicable securities laws before any Options are
granted under the Plan and before any Shares are issued pursuant to Options.
Without limiting the generality of the foregoing, the Corporation may require
from the Optionee such investment representation or such agreement, if any,
as counsel for the Corporation may consider necessary or advisable in order
to comply with the Securities Act of 1933 as then in effect, and may require
that the Optionee agree that any sale of the Shares will be made only in such
manner as is permitted by the Committee. The Committee in its discretion may
cause the Shares underlying the Options to be registered under the Securities
Act of 1933, as amended, by the filing of a Form S-8 Registration Statement
covering the Options and Shares underlying such Options. Optionee shall take
any action reasonably requested by the Corporation in connection with
registration or qualification of the Shares under federal or state securities
laws.
6.11 Option Agreement. Each Incentive Stock Option and Nonqualified
Option granted under this Plan shall be evidenced by the appropriate written
Stock Option Agreement ("Option Agreement") executed by the Corporation and
the Optionee in a form substantially the same as the appropriate form of
Option Agreement attached as Exhibit I or II hereto (and made a part hereof
by this reference) and shall contain each of the provisions and agreements
specifically required to be contained therein pursuant to this Section 6, and
such other terms and conditions as are deemed desirable by the Committee and
are not inconsistent with the purpose of the Plan as set forth in Section 1.
7. Plan Amendment And Termination
7.1 Authority of Committee. The Committee may at any time discontinue
granting Options under the Plan or otherwise suspend, amend or terminate the
Plan and may, with the consent of an Optionee, make such modification of the
terms and conditions of such Optionee's Option as it shall deem advisable;
provided that, except as permitted under the provisions of Section 5.2, the
Committee shall have no authority to make any amendment or modification to
this Plan or any outstanding Option thereunder which would: (i) increase the
maximum number of shares which may be purchased pursuant to Options granted
under the Plan, either in the aggregate or by an Optionee (except pursuant to
Section 5.2); (ii) change the designation of the class of the employees
eligible to receive Incentive Stock Options; (iii) extend the term of the
Plan or the maximum Option period thereunder; (iv) decrease the minimum
Incentive Stock Option price or permit reductions of the price at which
shares may be purchased for Incentive Stock Options granted under the Plan;
or (v) cause Incentive Stock Options issued under the Plan to fail to meet
the requirements of incentive stock options under Code Section 422. An
amendment or modification made pursuant to the provisions of this Section 7
shall be deemed adopted as of the date of the action of the Committee
effecting such amendment or modification and shall be effective immediately,
unless otherwise provided therein, subject to approval thereof (1) within
twelve (12) months before or after the effective date by stockholders of the
Corporation holding not less than a majority vote of the voting power of the
Corporation voting in person or by proxy at a duly held stockholders meeting
when required to maintain or satisfy
7.
<PAGE>
the requirements of Code Section 422 with respect to Incentive Stock Options,
and (2) by any appropriate governmental agency. No Option may be granted
during any suspension or after termination of the Plan.
7.2 Ten (10) Year Maximum Term. Unless previously terminated by the
Committee, this Plan shall terminate on July 2, 2004, and no Options shall be
granted under the Plan thereafter.
7.3 Effect on Outstanding Options. Amendment, suspension or
termination of this Plan shall not, without the consent of the Optionee,
alter or impair any rights or obligations under any Option theretofore
granted.
8. Effective Date Of Plan. This Plan shall be effective as of July 2,
1994, the date the Plan was adopted by the Board of Directors, subject to the
approval of the Plan by the affirmative vote of a majority of the issued and
outstanding Shares of common stock of the Corporation represented and voting
at a duly held meeting at which a quorum is present within twelve (12) months
thereafter. The Committee shall be authorized and empowered to make grants
of Options pursuant to this Plan prior to such approval of this Plan by the
stockholders; provided, however, in such event the Option grants shall be
made subject to the approval of this Plan and such Option grants by the
stockholders in accordance with the provisions of this Section 8.
9. Miscellaneous Provisions
9.1 Exculpation and Indemnification. The Corporation shall indemnify
and hold harmless the Committee from and against any and all liabilities,
costs and expenses incurred by such persons as a result of any act, or
omission to act, in connection with the performance of such persons' duties,
responsibilities and obligations under the Plan, other than such liabilities,
costs and expenses as may result from the gross negligence, bad faith,
willful conduct and/or criminal acts of such persons.
9.2 Governing Law. The Plan shall be governed and construed in
accordance with the laws of the State of California and the Code.
9.3 Compliance with Applicable Laws. The inability of the Corporation
to obtain from any regulatory body having jurisdiction authority deemed by
the Corporation's counsel to be necessary to the lawful issuance and sale of
any Shares upon the exercise of an Option shall relieve the Corporation of
any liability in respect of the non-issuance or sale of such Shares as to
which such requisite authority shall not have been obtained.
8.
