<PAGE>
As filed with the Securities and Exchange Commission on November 17, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
EXABYTE CORPORATION
(Exact name of registrant as specified in its charter)
-----------------
Delaware 84-0988566
- ---------------------------- ----------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
-----------------
1685 38th Street
Boulder, Colorado 80301
(303) 442-4333
(Address and telephone number of principal executive offices)
-----------------
INCENTIVE STOCK PLAN
(Full title of the plans)
William L. Marriner
Executive Vice President, Chief Financial Officer
Exabyte Corporation
1685 38th Street
Boulder, Colorado 80301
(303) 442-4333
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------
Copies to:
Frederick T. Muto, Esq.
Cooley Godward Castro Huddleson & Tatum
4365 Executive Drive, Suite 1200
San Diego, California 92121
(619) 453-3555
-----------------
Total Number of Pages:
Exhibit Index at Page:
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
====================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum
to be Registered Registered Offering Price Per Aggregate Offering Amount of
Share (1) Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Option and
Common Stock (par 1,500,000 $12.50 $18,750.00 $6,465.67
value $.001)
====================================================================================================
====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h) of the Securities Act of
1933. The price per share and aggregate offering price are based upon the
average of the high and low price of the Registrant's Common Stock on
November 17, 1995 as reported on the Nasdaq National Market.
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENTS ON FORM S-8 NOS. 33-33414, 33-42182 AND 33-65168
The contents of the Registration Statements on Form S-8 Nos. 33-33414,
33-42182 and 33-65168 filed with the Securities and Exchange Commission on
February 9, 1990, November 12, 1991 and June 25, 1993, respectively, are
incorporated by reference herein (with the modification set forth below):
The Company has entered into a new form of indemnification agreement with
executive officers, directors and other agents. Among other things, a new
form of agreement permits the Company to establish an irrevocable standby
letter of credit in the amount of $300,000.00 per agent to secure the
Company's indemnification obligations. In addition, it is anticipated that
indemnification would be more readily available under the new form of
agreement permitting, among other things, more expansive coverage with
respect to derivative actions and actions by the Company.
EXHIBITS
Exhibit
Number
- ------
5.1 Opinion of General Counsel.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of General Counsel is contained in Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature pages.
99.1 Incentive Stock Plan, as amended and restated on February 3, 1995.
<PAGE>
SIGNATURES
The Registrant. 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 Boulder, State of
Colorado on November 17, 1995.
EXABYTE CORPORATION
By: /s/ William L. Marriner
----------------------------------
William L. Marriner
Executive Vice President,
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter D. Behrendt and William L.
Marriner, and each or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and restitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
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/ Peter D. Behrendt President, Chief Executive November 17, 1995
- ---------------------------- Officer and Director
(Peter D. Behrendt) (Principal Executive Officer)
/s/ William L. Marriner Executive Vice President, November 17, 1995
- ---------------------------- Chief Financial Officer
(William L. Marriner) (Principal Financial and
Accounting Officer)
/s/ Bruce M. Holland Director November 17, 1995
- ----------------------------
(Bruce M. Holland)
/s/ James M. McCoy Director November 17, 1995
- ----------------------------
(James M. McCoy)
/s/ Thomas E. Pardun Director November 17, 1995
- ----------------------------
(Thomas E. Pardun)
/s/ Mark W. Perry Director November 17, 1995
- ----------------------------
(Mark W. Perry)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Ralph Z. Sorenson Director November 17, 1995
- ----------------------------
(Ralph Z. Sorenson)
/s/ Thomas G. Washing Director November 17, 1995
- ----------------------------
(Thomas G. Washing)
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequential
Number Page Number
5.1 Opinion of General Counsel.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of General Counsel is contained in
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to
the signature pages.
99.1 Incentive Stock Plan, as amended and restated
on February 3, 1995.
<PAGE>
EXHIBIT 5.1
November 15, 1995
Exabyte Corporation
1685 38th Street
Boulder, CO 80301
To whom it may concern:
You have requested my opinion with respect to certain matters in connection with
the filing by Exabyte Corporation (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 1,500,000 shares of the Company's
Common Stock, $.00l par value, (the "Shares") pursuant to its Incentive Stock
Plan (the "Plan").
In connection with this opinion, I have examined the Registration Statement, the
Restated Certificate of Incorporation and By-laws, as amended, and such other
documents, records, certificates, memoranda, and other instruments as I deem
necessary as a basis for this opinion. I have assumed the genuineness and
authenticity of all documents submitted to me as originals, the conformity to
originals of all documents submitted to me as copies thereof and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing and in reliance thereon, I am of the opinion that
the Shares, when sold and issued in accordance with the Plan and the
Registration Statement, will be validly issued, fully paid and nonassessable
(except as to those Shares issued pursuant to certain deferred payment
arrangements, which will be fully paid and nonassessable when such deferred
payments are made in full).
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Stephen F. Smith
Stephen F. Smith
General Counsel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 17, 1995, appearing on page 28
of Exabyte Corporation's Annual Report on Form 10-K for the year ended December
31, 1994.
PRICE WATERHOUSE LLP
Boulder, Colorado
November 17, 1995
<PAGE>
EXHIBIT 99.1
EXABYTE CORPORATION
INCENTIVE STOCK PLAN
AS AMENDED THROUGH FEBRUARY 3, 1995
1. PURPOSE OF PLAN. This Incentive Stock Plan is intended to
encourage ownership of shares of Exabyte Corporation (the "Corporation") (i) by
key Employees and Consultants, thereby providing additional incentive for such
Employees and Consultants to promote the success of the business, and (ii) by
each director of the Corporation who is not an Employee of the Corporation or an
Affiliate of the Corporation, thereby securing the services of such qualified
directors and providing them with incentives to exert maximum efforts for the
success of the Corporation. Options granted hereunder to Employees and
Consultants may be either Incentive Stock Options or Nonstatutory Stock Options,
at the discretion of the Board and as reflected in the terms of the written
Stock Option Agreement. Options granted hereunder to Non-Employee Directors
shall be Nonstatutory Stock Options. The Board also has the discretion to grant
Stock Purchase Rights to Employees and Consultants.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "AFFILIATE" shall mean any Parent or Subsidiary, whether now or
hereafter existing.
(b) "BOARD" shall mean the Committee, if one has been appointed, or
the Board of Directors of the Corporation, if no Committee is appointed.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "CORPORATION" shall mean Exabyte Corporation, a Delaware
corporation.
(e) "COMMITTEE" shall mean the Committee appointed by the Board of
Directors in accordance with Section 4 of the Plan, if one is appointed.
(f) "CONSULTANT" shall mean any person, including directors,
performing services for the benefit of the Corporation (or of any Affiliate of
the Corporation) as an independent consultant or advisor; provided, however,
that directors who receive only directors' fees are not consultants or advisors.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE OR A CONSULTANT" shall mean
the absence of any interruption or termination of service as an Employee or a
Consultant, as applicable. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Board.
(h) "COVERED EMPLOYEE" shall mean the Chief Executive Officer and
the four other highest compensated officers of the Corporation for whom total
compensation is required to be reported to stockholders under the Exchange Act,
as determined for purposes of Section 162(m) of the Code.
(i) "EMPLOYEE" shall mean any person employed by the Corporation or
by any Affiliate of the Corporation. The payment of a director's fee by the
Corporation shall not be sufficient to constitute "employment" by the
Corporation.
(j) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
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(k) "INCENTIVE STOCK OPTION" shall mean an Option intended to
qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code.
(l) "NON-EMPLOYEE DIRECTOR" shall mean a director of the
Corporation who is not an Employee; provided, however, such director may be a
Consultant.
(m) "NONSTATUTORY STOCK OPTION" shall mean an Option not intended
to qualify as an Incentive Stock Option.
(n) "OPTION" shall mean a stock option granted pursuant to the
Plan.
(o) "OPTIONED STOCK" shall mean the Stock subject to an Option.
(p) "OPTIONEE" shall mean an Employee, Consultant or Non-Employee
Director, as applicable, who receives an Option.
(q) "OUTSIDE DIRECTOR" means a director who either (i) is not a
current Employee of the Corporation or an "affiliated corporation" (as defined
in the Treasury regulations promulgated under Section 162(m) of the Code), is
not a former Employee of the Corporation or of an affiliated corporation
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Corporation or of an
affiliated corporation at any time, and is not currently receiving direct or
indirect remuneration for services in any capacity other than as a director, or
(ii) is otherwise considered an "Outside Director" for purposes of Section
162(m) of the Code.
(r) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(s) "PLAN" shall mean this Incentive Stock Plan.
(t) "PURCHASER" shall mean an Employee or Consultant who exercises
a Stock Purchase Right.
(u) "SHARE" shall mean a share of the Stock, as adjusted in
accordance with Section 10 of the Plan.
(v) "STOCK" shall mean the Common Stock of the Corporation.
(w) "STOCK OPTION AGREEMENT" shall mean the written agreement
setting forth the grant of an Option and terms and conditions relating thereto
(which need not be the same for each Option), in such form as the Board in its
discretion may approve and for Non-Employee Directors, in the form attached
hereto.
(x) "STOCK PURCHASE AGREEMENT" shall mean a written agreement
(which need not be the same for each Stock Purchase Right) setting forth the
terms and conditions relating to the purchase of Stock under a Stock Purchase
Right, in the form attached hereto or such other form as the Board in its
discretion may approve.
(y) "STOCK PURCHASE RIGHT" shall mean a right to purchase Stock
pursuant to the Plan.
(z) "SUBSIDIARY" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. SHARES SUBJECT TO THE PLAN. There will be reserved for use from
time to time under the Plan, an aggregate of 7,500,000 shares of Stock of $0.001
par value of the Corporation. As the Board shall from time to time determine,
the Shares may be in whole or in part, authorized but unissued Shares or issued
Shares which shall have been reacquired by the Corporation. If an Option or
Stock Purchase Right should expire or become unexercisable for any
2
<PAGE>
reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall become available for future grant or sale under the Plan
unless the Plan shall have been terminated.
4. ADMINISTRATION OF PLAN.
(a) COMMITTEE. The Plan shall be administered by the Board;
provided that the Board may appoint a Committee, which shall consist of not
fewer than two members of the Board, all of whom shall be disinterested persons,
if required and as defined by the provisions of Section 4(b), and may also be,
in the discretion of the Board, Outside Directors. The Board may from time to
time appoint members of the Committee in substitution for or in addition to
members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee shall select one of its members as its chairman and
shall hold its meetings at such times and places as it shall deem advisable. A
majority of its members shall constitute a quorum. All action of the Committee
shall be taken by a majority of its members. Any action may be taken by a
written instrument signed by a majority of the members and action so taken shall
be fully as effective as if it had been taken by a vote held. The Committee may
appoint a secretary, shall keep minutes of its meetings, and shall make such
rules and regulations for the conduct of its business as it shall deem
advisable. The Committee's interpretation and construction of any of the
provisions of this Plan, or of any rules promulgated under this Plan, or of any
agreements entered into under this Plan, shall be final and binding on all
Optionees, Purchasers, and any other holders of any Options or Stock Purchase
Rights granted under the Plan. No member of the Committee shall be liable for
any action or determination made in good faith in connection with this Plan.
Notwithstanding anything in this Section 4 to the contrary, the Board or the
Committee may delegate to a committee of one or more members of the Board the
authority to grant Options and Stock Purchase Rights to eligible persons who (1)
are not then subject to Section 16 of the Exchange Act and/or (2) are either:
(i) not then Covered Employees and are not expected to be Covered Employees at
the time of recognition of income resulting from such Option or Stock Purchase
Right; or (ii) not persons with respect to whom the Corporation wishes to comply
with Section 162(m) of the Code.
(b) DISINTERESTED DIRECTORS. The term "disinterested person," as used
in this Plan, shall mean an administrator of the Plan, whether a member of the
Board or of any Committee to which responsibility for administration of the Plan
has been delegated pursuant to Section 4(a) (i) who was not during the one year
prior to service as an administrator of the Plan granted or awarded equity
securities pursuant to the Plan or any other plan of the Corporation or any of
its Affiliates entitling the participants therein to acquire equity securities
of the Corporation or any of its Affiliates except as permitted by Rule 16b-
3(c)(2)(i) promulgated under the Exchange Act or; (ii) who is otherwise
considered to be a "disinterested person" in accordance with Rule 16b-
3(c)(2)(i), or any other applicable rules, regulations or interpretations of the
Securities and Exchange Commission. Any such person shall otherwise comply with
the requirements of Rule 16b-3 promulgated under the Exchange Act. Any
requirement that an administrator of the Plan be a "disinterested person" shall
not apply if the Board or Committee expressly declares that such requirement
shall not apply.
(c) POWERS OF THE BOARD. Subject to the provisions of the Plan, with
respect to Options and Stock Purchase Rights granted to Employees and
Consultants, the Board shall have the authority, in its discretion: (i) to grant
Incentive Stock Options, Nonstatutory Stock Options or Stock Purchase Rights;
(ii) to determine, upon review of relevant information in
3
<PAGE>
accordance with Section 6 of the Plan, the fair market value of the Stock; (iii)
to determine the exercise price per share of Options or Stock Purchase Rights to
be granted, which exercise price shall be determined in accordance with Section
6 of the Plan; (iv) to determine the Employees and Consultants to whom, and the
time or times at which, Options, or Stock Purchase Rights shall be granted and
the number of shares to be represented by each Option or Stock Purchase Right;
(v) to interpret the Plan; (vi) to prescribe, amend, and rescind rules and
regulations relating to the Plan; (vii) to determine the terms and provisions of
each Option granted (which need not be the same for each Option granted) and,
with the consent of the holder thereof, modify, terminate or amend each Option
provided, however, that the Board shall not have the power to lower the option
price except pursuant to the terms of Section 14 of the Plan; (viii) to
accelerate or defer (with the consent of the Optionee) the exercise date of any
Option; (ix) to authorize any person to execute on behalf of the Corporation any
instrument required to effectuate the grant of an Option or Stock Purchase Right
previously granted by the Board; and (x) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
5. ELIGIBILITY OF EMPLOYEES AND CONSULTANTS. With respect to Options
and Stock Purchase Rights granted to Employees and Consultants:
(a) GENERALLY. Options and Stock Purchase Rights may be granted to
Employees and Consultants, provided that Incentive Stock Options may only be
granted to Employees. An Employee or Consultant who has been granted an Option
or Stock Purchase Right may, if he is otherwise eligible, be granted additional
Options or Stock Purchase Rights.
(b) Notwithstanding the foregoing, a director who is an Employee
or Consultant shall in no event be eligible for the benefits of the Plan unless
at the time discretion is exercised in the selection of the director as a person
to whom Options and Stock Purchase Rights may be granted, or in the
determination of the number of shares which may be covered thereby: (1) the
Board has delegated its discretionary authority over the Plan to a Committee
which consists solely of "disinterested persons" as defined in subparagraph
4(b); or (2) the Plan otherwise complies with the requirements of Rule 16b-3
promulgated under the Exchange Act, as from time to time in effect. The Board
shall otherwise comply with the requirements of Rule 16b-3 promulgated under the
Exchange Act, as from time to time in effect. This Section 5(b) shall not apply
if the Board or Committee expressly declare that such requirement shall not
apply.
(c) CRITERIA. In making any determination as to Employees and
Consultants to whom Options and Stock Purchase Rights shall be granted, the
Committee shall take into account such factors as it shall deem relevant in
accomplishing the purpose of the Plan, including but not limited to the
Employee's or Consultant's loyalty, performance, and experience.
(d) ISO LIMITATIONS WITH RESPECT TO PRICE AND TERM. In no event
shall an Incentive Stock Option be granted to an Employee who, at the time such
Option is granted, owns (as defined in Section 422 of the Code) Shares
possessing more than 10% of the total combined voting power of all classes of
Shares of the Corporation or any of its Affiliates, unless the option price is
at least 110% of the fair market value of the Stock subject to the Option, and
such Option is by its terms not exercisable after the expiration of five years
from date such Option is granted.
(e) ISO LIMITATIONS WITH RESPECT TO SHARES. Moreover, the
aggregate fair market value (determined as of the time that option is granted)
of the Shares with respect to which Incentive Stock Options are exercisable for
the first
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time by any individual Employee during any single calendar year under this
Plan and all the incentive stock option plans of the Corporation (and its
Affiliates, if any), shall not exceed $100,000.
(f) (i) Subject to the provisions of Section 14 relating to
adjustments upon changes in Stock, no person shall be eligible to be granted
Options or Stock Purchase Rights covering more than Five Hundred Thousand
(500,000) Shares of the Corporation's Stock in any calendar year.
(ii) Stock subject to an Option repriced or canceled and
granted in substitution therefor under the Plan shall continue to be counted
against the maximum award of Options permitted to be granted pursuant to
subsection 5(f)(i) of the Plan. The repricing of an Option, resulting in a
reduction of the exercise price, shall be deemed to be a cancellation of the
original Option and the grant of a substitute Option; in the event of such
repricing, both the original and the substituted Options shall be counted
against the maximum awards of Options permitted to be granted pursuant to
subsection 5(f)(i) of the Plan. The provisions of this subsection shall be
applicable only to the extent required by Section 162(m) of the Code.
6. PRICES FOR EMPLOYEES AND CONSULTANTS. With respect to Options and
Stock Purchase Rights granted to Employees and Consultants:
(a) GENERALLY. The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined by
the Board. However: (i) the exercise price of the Shares which shall be covered
by each Incentive Stock Option shall be at least 100% of the fair market value
of the Shares at the time of granting the Incentive Stock Option; and (ii) the
exercise price of the Shares which shall be covered by each Nonstatutory Stock
Option shall be at least 100% of the fair market value of the Shares at the time
of granting of the Nonstatutory Stock Option.
(b) PAYMENT. The consideration to be paid for the Shares to be
issued upon exercise of an Option, or Stock Purchase Right, including the method
of payment, shall be determined by the Board and may consist entirely of cash,
check, or other Shares of Stock of the Corporation having a fair market value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which said Option or Stock Purchase Right shall be exercised, or any combination
of such methods of payment, or such other consideration and method of payment
for the issuance of Shares to the extent permitted under applicable law. In
addition, the Corporation may accept a promissory note issued by a person
exercising an Option or a Stock Purchase Right; provided that such person pay in
cash at the time of purchase at least the aggregate par value of the Shares
purchased and the promissory note be for an amount no greater than the full
purchase price less such aggregate par value amount. In making its determination
as to the type of consideration to accept, the Board shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Corporation.
7. EMPLOYEE AND CONSULTANT OPTION PROVISIONS. With respect to Options
granted to Employees and Consultants:
(a) GENERALLY. Subject to the provisions of the Plan, the Board
shall determine for each Option (which need not be identical) the number of
shares for which the Option shall be granted, the Option price of the Option,
and all other terms and conditions of the Option.
5
<PAGE>
(b) TERM OF OPTION. The term of each Option may be up to 10 years
from the date of grant thereof or such shorter term as may be provided in the
Stock Option Agreement. However, in the case of an Incentive Stock Option
granted to an Employee who, at the time the Incentive Stock Option is granted,
owns stock representing more than 10% of the voting power of all classes of
stock of the Corporation or any Affiliate of the Corporation, the term of the
Incentive Stock Option shall be five years from the date of grant thereof or
such shorter time as may be provided in the Stock Option Agreement.
(c) EXERCISE OF OPTION.
(i) Any Option granted hereunder shall be exercisable at such
times and under such conditions as determined by the Board, including
performance criteria with respect to the Corporation or the Optionee, or both,
and as such shall be permissible under the terms of the Plan.
(ii) An Option may not be exercised for a fraction of a Share.
(iii) An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Corporation in accordance with the
terms of the Option by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has been
received by the Corporation. Full payment may, as authorized by the Board,
consist of any consideration and method of payment allowable under Section 6 of
the Plan. Until the issuance (as evidenced by the appropriate entry on the books
of the Corporation or of a duly authorized transfer agent of the Corporation) of
the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights of a stockholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. No adjustment will
be made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in Section 14 of the
Plan.
(iv) Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
(v) Except as otherwise specifically provided herein or in the
Stock Option Agreement, an Option may not be exercised at any time unless the
holder thereof shall have maintained Continuous Status as an Employee or
Consultant of the Corporation or of one or more of its Affiliates, from the date
of the granting of the Option to the date of its exercise.
(d) TERMINATION OF EMPLOYMENT. In the event that employment of an
Employee or the engagement of a Consultant to whom an Option shall have been
granted shall be terminated other than by reason of death or disability, such
Option may be exercised (to the extent that the Employee or Consultant shall
have been entitled to do so at the termination of his employment or consultancy)
at any time within three months after such termination or such other longer or
shorter period as set forth in the Stock Option Agreement, but in any event no
later than the date of expiration of the Option term. So long as the holder of
an Option shall maintain Continuous Status as an Employee or Consultant, his
Option shall not be affected by any change of duties or position. To the extent
that the holder of an Option was not entitled to exercise his
6
<PAGE>
Option at the time of his termination, or insofar as he does not exercise such
Option to the extent he was entitled within the time specified herein, the
Option shall itself terminate at the time of such termination.
(e) DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 7(d) above, in the event an Employee or Consultant does not maintain
Continuous Status as an Employee or Consultant as a result of his total and
permanent disability (as defined in Section 22(e)(3) of the Code), he may, but
only within six months after termination due to such disability (or such other
longer or shorter period as set forth in the Stock Option Agreement), exercise
his Option to the extent he was entitled to exercise it at the date of such
disability. To the extent that he was not entitled to exercise the Option at the
date of disability, or insofar as he does not exercise such Option to the extent
he was entitled within the time specified herein, the Option shall terminate.
(f) DEATH OF OPTIONEE. Unless otherwise set forth in the Stock
Option Agreement, in the event of the death of an Optionee who at the time of
his death is an Employee or Consultant and who shall have been in Continuous
Status as an Employee or Consultant since the date of grant of the Option, or
with respect to an Optionee who was such an Employee or Consultant within the
preceding three months, the Option may be exercised, at any time within six
months following the date of death (or such longer or shorter period as set
forth in the Stock Option Agreement), by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent of the right to exercise that has accrued at the date of such
termination or otherwise pursuant to the terms of the Stock Option Agreement.
(g) OTHER. Notwithstanding any provision in this Plan to the
contrary, no Option granted to an Employee or a Consultant shall terminate later
than the original expiration date set forth in any related Stock Option
Agreement.
8. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. After the Board determines that it will
offer an Employee or Consultant the right to purchase Shares (other than
pursuant to an Option) under the Plan, it shall advise the offeree in writing of
the terms, conditions, and restrictions relating to the offer, including the
number of Shares which such person shall be entitled to purchase, the proposed
Stock Purchase Agreement, and the time within which such person must accept such
offer, which shall in no event exceed nine months from the date upon which the
Board made the determination to grant the Stock Purchase Right. The offer may be
accepted by execution of the Stock Purchase Agreement and its return to the
Corporation (together with payment for the Stock being purchased) within the
time specified.
(b) ISSUANCE OF SHARES. Forthwith after payment therefor, the
Shares purchased shall be duly issued; provided, however, that the Board may
require that the Purchaser make adequate provision for any Federal and State
withholding obligations as a condition to the Purchaser purchasing such Shares.
(c) REPURCHASE OPTION. Unless the Board determines otherwise, the
Stock Purchase Agreement shall (i) grant the Corporation a repurchase option
exercisable upon the voluntary or involuntary termination of the Purchaser as an
Employee or Consultant for any reason; and (ii) set the purchase price for
Shares repurchased at the original price paid by the Purchaser (plus interest,
if any, to be paid pursuant to the Stock Purchase Agreement), which may be paid
by
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cancellation of any indebtedness of the Purchaser to the Corporation. The
repurchase option shall lapse at such rate as the Board may determine.
(d) OTHER PROVISIONS. The Stock Purchase Agreement shall contain
such other terms, provisions, and conditions not inconsistent with the Plan as
may be determined by the Board.
9. ELIGIBILITY OF NON-EMPLOYEE DIRECTORS
(a) GENERALLY. Options under Section 10 shall be granted only to
Non-Employee Directors of the Corporation.
(b) NO ADDITIONAL OPTIONS OR STOCK PURCHASE RIGHTS. Except as
provided in Section 10, Non-Employee Directors shall not be entitled to receive
any Option or other Stock Purchase Right under this Plan and shall not be
granted or awarded any equity securities pursuant to any other plan of the
Corporation or any affiliate of the Corporation.
10. NON-DISCRETIONARY GRANTS TO NON-EMPLOYEE DIRECTORS.
(a) NEW NON-EMPLOYEE DIRECTORS. Each person who is on or after
January 27, 1993 elected for the first time to be a Non-Employee Director shall,
upon the date of his initial election to be a Non-Employee Director by the Board
or stockholders of the Corporation, whichever shall first occur, be granted a
Nonstatutory Stock Option to purchase 10,000 shares of Common Stock of the
Corporation on the terms and conditions set forth herein.
(b) ANNUAL GRANTS. On January 27th of each fiscal year, commencing
with January 27, 1993, each person who is then a Non-Employee Director and has
been a Non-Employee Director for at least three months shall be granted a
Nonstatutory Stock Option to purchase 5,000 shares of Common Stock of the
Corporation on the terms and conditions set forth herein.
11. PRICES FOR NON-EMPLOYEE DIRECTORS.
(a) GENERALLY. The exercise price of each Option granted under
Section 10 shall be 100% of the fair market value of the Common Stock (which
shall be the closing sales price) subject to such Option on the date such Option
is granted; provided, however, that if such date of grant is not a trading
day, the exercise price of such Option shall be 100% of the fair market value of
the Common Stock subject to such Option on the trading day immediately preceding
the date such Option is granted.
(b) PAYMENT. Each Non-Employee Director may elect to make payment
of the exercise price under one of the following alternatives:
(i) Payment of the exercise price per share in cash at the
time of exercise; or
(ii) Provided that at the time of the exercise the
Corporation's Common Stock is publicly traded and quoted regularly in The Wall
Street Journal, payment by delivery of shares of Common Stock of the Corporation
already owned by the Non-Employee Director, held for the period required to
avoid a charge to the Corporation's reported earnings, and owned free and clear
of any liens, claims, encumbrances or security interest, which Common Stock
shall be valued at fair market value on the date preceding the date of exercise;
or
(iii) Payment by a combination of methods of payment specified
in subparagraph 11(b)(i) and 11(b)(ii) above.
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12. NON-EMPLOYEE DIRECTORS' OPTION PROVISIONS.
Each Option issued to Non-Employee Directors under Section 10
shall contain the following terms and conditions:
(a) TERM OF OPTION. The term of each Option commences on the date
it is granted and, unless sooner terminated as set forth herein, expires on the
date ("Expiration Date") ten years from the date of grant.
(b) TERMINATION OF SERVICE. In the event that the services of a
Non-Employee Director to whom a Non-Employee Director Option has been granted
terminate for any reason or no reason, other than by reason of death or
disability, such Option may be exercised (to the extent that the Non-Employee
Director shall have been entitled to do so at the termination of his service) at
any time within three months after such termination. To the extent that such
Non-Employee Director was not entitled to exercise his Option at the time of his
termination, or insofar as he does not exercise such Option to the extent he was
entitled within the time specified herein, the Option shall itself terminate at
the time of such termination. Notwithstanding any provision in this Section
12(b) to the contrary, the services of a Non-Employee Director shall not be
deemed terminated if such Non-Employee Director subsequently becomes an Employee
or Consultant.
(c) DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 12(b) above, in the event a Non-Employee Director is unable to perform
services as a Non-Employee Director for the benefit of the Corporation as a
result of his total and permanent disability (as defined in Section 22(e)(3) of
the Code), he may, but only within six months after termination due to such
disability, exercise his Option to the extent he was entitled to exercise it at
the date of such disability. To the extent that he was not entitled to exercise
the Option at the date of disability, or insofar as he does not exercise such
Option to the extent he was entitled within the time specified herein, the
Option shall terminate.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee
who at the time of his death is a Non-Employee Director of the Corporation and
who shall have continuously served as a Non-Employee Director since the date of
grant of the Option, or with respect to an Optionee who was a Non-Employee
Director within the preceding three months, the Option may be exercised, at any
time within six months following the date of death, by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the right to exercise that has accrued at
the date of such termination or otherwise pursuant to the terms of the Stock
Option Agreement.
(e) NO EXTENSION. Notwithstanding any provision in this Plan to
the contrary, no Option granted to a Non-Employee Director shall terminate later
than its original Expiration Date.
(f) EXERCISABILITY. The Option shall become exercisable from the
date of grant at the rate of 2% per month over a period of 50 months; provided
that the Optionee has, during the entire period prior to such vesting date,
continuously served as a Non-Employee Director or subsequent to serving as a
Non-Employee Director continuously served as an Employee or Consultant,
whereupon such Option shall become fully exercisable in accordance with its
terms with respect to that portion of the shares represented by that
installment.
(g) AMENDMENTS. The Board shall not amend more than once every six
months any provision of this Plan relating to the amount, price and timing of
grants of Options to Non-Employee Directors, including amendments to
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Sections 9 through 12 of this Plan, except to comply with changes in the Code,
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations thereunder.
13. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. The
Options and Stock Purchase Rights may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by
the laws of descent or distribution and may be exercised, during the lifetime of
the Optionee or Purchaser, only by the Optionee or Purchaser.
14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) PROPORTIONAL ADJUSTMENTS. Subject to any required action by
the stockholders of the Corporation, the number of shares of Stock covered by
each outstanding Option and Stock Purchase Right, the number of shares of Stock
which have been authorized for issuance under the Plan but as to which no
Options or Stock Purchase Rights have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, and the maximum number of shares subject to award to any person
during any calendar year period pursuant to Section 5(f)(i), as well as the
price per share of Stock covered by each such outstanding Option or Stock
Purchase Right, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Stock resulting from a stock split, the
payment of a stock dividend with respect to the Stock, or any other increase or
decrease in the number of issued shares of Stock effected without receipt of
consideration by the Corporation; provided, however, that conversion of any
convertible securities of the Corporation shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Corporation
of shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Stock
subject to an Option or Stock Purchase Right.
(b) REORGANIZATION. With respect to Options granted to Employees
or Consultants, in the event of the proposed dissolution or liquidation of the
Corporation, or in the event of a proposed sale of all or substantially all of
the assets of the Corporation, or the merger of the Corporation with or into
another corporation, at the sole discretion of the Board and to the extent
permitted by applicable law: (i) any surviving corporation shall assume any
Options outstanding under the Plan or shall substitute similar Options for those
outstanding under the plan; (ii) such Options shall continue in full force and
effect; or (iii) each Option held by an Optionee then performing services as an
Employee or Consultant will become fully exercisable with respect to all of the
Shares subject to the Option prior to the consummation of such proposed action
at such time as the Board in its discretion may determine and the Option
terminated if not exercised prior to such event. The Board of Directors may also
in its discretion require that all of the Shares purchased pursuant to the
foregoing clause (iii) which would not otherwise be purchasable at such time
except by operation of such clause (iii) shall be subject to a repurchase right
of the Corporation (or its successor) which repurchase right shall expire at the
same (or earlier) times and to the same (or greater) extent as such Shares would
have become purchasable under the Option had the Option not become fully
exercisable pursuant to clause (iii). For this purpose, the Board may require
that the Optionee and the Corporation (or its successor) execute an agreement
(in such form as determined by the Board) with respect to such Shares to reflect
the Corporation's (or its successor's) repurchase right. If such Option is to be
assumed or substituted, then such Option shall be appropriately adjusted to
apply to the kind, class and number of securities or other property which would
have been issuable to
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the Optionee in the consummation of such transaction had the Option been
exercised immediately prior to such transaction and appropriate adjustments
shall also be made to the price payable per share, provided that the aggregate
Option price payable thereunder shall remain the same. With respect to Options
granted to Non-Employee Directors, in the event of the proposed dissolution or
liquidation of the Corporation, or in the event of a proposed sale of all or
substantially all of the assets of the Corporation, or the merger of the
Corporation with or into another corporation, to the extent permitted by
applicable law, each Option held by an Optionee then performing services as a
Non-Employee Director will become fully exercisable with respect to all of the
Shares subject to the Option immediately prior to the consummation of such
proposed action and the Option terminated if not exercised prior to such event.
15. EFFECTIVENESS OF PLAN. The Plan shall become effective on such
date as the Board of Directors shall determine, but only after the stockholders
of the Corporation shall, by the affirmative vote of a majority in interest of
all the shares of the Corporation taken within 12 months after the date the Plan
is adopted, have approved the Plan.
16. TIME OF GRANTING OPTIONS. Unless otherwise specifically determined
by the Board, the granting of an Option shall be deemed to occur at such time as
final corporate action necessary to authorize the grant shall have occurred.
17. NO EMPLOYEE CONTRACT. The Plan shall not confer upon any holder
of an Option or holder of a Stock Purchase Right any right with respect to
continuation of employment by or the rendition of consulting or director
services to the Corporation or any Affiliate of the Corporation, nor shall it
interfere in any way with his right or the Corporation's or its Affiliates' (and
in the case of directors, the stockholders') right to terminate his employment
or services as a Consultant or director at any time.
18. WITHHOLDING. To the extent provided by the terms of a Stock
Option Agreement or Stock Purchase Agreement, any Employee or Consultant may
satisfy any federal, state or local tax withholding obligation relating to the
purchase of stock by any of the following means or by a combination of such
means: (1) tendering a cash payment; (2) authorizing the Corporation to withhold
from the Shares otherwise issuable to the purchaser a number of Shares having a
fair market value less than or equal to the amount of the withholding tax
obligation; or (3) delivering to the Corporation owned and unencumbered Shares
having a fair market value less than or equal to the amount of withholding tax
obligation. Any Non-Employee Director may satisfy any federal, state or local
tax withholding obligation relating to the purchase of stock by any of the
following means or by a combination of such means: (1) tendering a cash
payment; (2) authorizing the Corporation to withhold from the Shares otherwise
issuable to the purchaser a number of Shares having a fair market value less
than or equal to the amount of the withholding tax obligation; or (3) delivering
to the Corporation owned and unencumbered Shares having a fair market value less
than or equal to the amount of withholding tax obligation.
19. TERMINATION AND AMENDMENT OF PLAN.
(a) TERMINATION. The Plan shall terminate on February 4, 2005, and
no Option or Stock Purchase Right shall be granted under the Plan after that
date.
(b) AMENDMENT. Except as otherwise set forth in Section 12(g), the
Board at any time, and from time to time, may amend the Plan. However, except as
provided in Section 14(a) relating to adjustments upon changes in stock, no
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amendment shall be effective unless approved by the stockholders of the
Corporation within 12 months before or after the adoption of the amendment,
where the amendment will:
(i) Increase the number of shares reserved for Options and
Stock Purchase Rights under the Plan;
(ii) Modify the requirements as to eligibility for
participation in the Plan (to the extent such modification requires stockholder
approval in order for the Plan to satisfy the requirements of Section 422(b) of
the Code); or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to satisfy the requirements
of Section 422(b) of the Code or to comply with the requirements of Rule 16b-3
promulgated under the Exchange Act. The Board may, in its sole discretion,
submit any other amendment to the Plan for stockholder approval, including, but
not limited to, amendments to the Plan intended to satisfy the requirements of
Section 162(m) of the Code and the regulations promulgated thereunder regarding
the exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to certain executive officers.
(c) It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide optionees with
the maximum benefits provided or to be provided under the provisions of the Code
and the regulations promulgated thereunder relating to employee incentive stock
options and/or to bring the Plan and/or Incentive Stock Options granted under it
into compliance therewith.
(d) Rights and obligations under any Option granted before
amendment or termination of the Plan shall not be altered or impaired by any
amendment of the Plan unless: (i) the Corporation requests the consent of the
person to whom the Option was granted; and (ii) such person consents in writing.
20. ISSUANCE OF SHARES.
(a) The Corporation shall not be required to issue Shares pursuant
to the exercise of an Option or Stock Purchase Right unless the exercise of such
Option or Stock Purchase Right and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Corporation with respect to such
compliance; provided, however, that this provision shall not require the
Corporation to register under the Securities Act of 1933, as amended, either the
Plan, any Option or Stock Purchase Right, or any Stock issued or issuable
pursuant to such Option or Right.
(b) As a condition to the exercise of an Option or Stock Purchase
Right, the Corporation may impose various conditions, including a requirement
that the person exercising such Option represent and warrant, at the time of any
such exercise, that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares.
21. RESERVATION OF SHARES. The Corporation, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Corporation to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Corporation's counsel to be
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necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Corporation of any liability in respect to the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
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