<PAGE> 1
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
(Address of principal executive offices)
---------------------
INCENTIVE STOCK PLAN
(Full title of the plans)
William L. Marriner
President (acting), Chief Executive Officer (acting)
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)
-----------------------
CALCULATION OF REGISTRATION FEE
==============================================================================
| | | |
Title of | Amount to be | Proposed | Proposed | Amount of
Securities | Registered | Maximum | Maximum | Registration
to be | | Offering Price | Aggregate | Fee
Registered | | Per Share(1) | Offering |
| | | Price |
- ------------------------------------------------------------------------------
Stock Option| 1,500,000 | $12.91 | $19,365,000 | $5,868.19
and Common | | | |
Stock (par | | | |
Value $.001 | | | |
==============================================================================
<PAGE> 2
(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 June 11, 1997 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> 3
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENTS ON FORM S-8
NOS. 33-33414, 33-42182, 33-65168 AND 33-64591
The contents of the Registration Statements on Form S-8 Nos. 33-33414,
33-42182, 33-65168 and 33-64591 filed with the Securities and Exchange
Commission on February 9, 1990, November 12, 1991, June 25, 1993, and
November 27, 1995, respectively, are incorporated by reference herein.
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 January 16, 1997.
<PAGE> 4
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certified 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 June 17, 1997.
EXABYTE CORPORATION
By: /s/ William L. Marriner
-----------------------
William L. Marriner
Title: President (acting) and
Chief Executive Officer (acting)
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, as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, 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 substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Peter D. Behrendt Chairman of the Board June 17, 1997
- ------------------------
Peter D. Behrendt
/s/ William L. Marriner President (acting) and Chief June 17, 1997
- ------------------------ Executive Officer (acting)
William L. Marriner (Principal Executive Officer)
Executive Vice President
Chief Financial Officer
/s/ David L. Riegel Executive Vice President June 17, 1997
- ------------------------ and Chief Operating Officer
David L. Riegel
<PAGE> 5
/s/ Bruce M. Holland Director June 17, 1997
- ------------------------
Bruce M. Holland
/s/ Thomas E. Pardun Director June 17, 1997
- ------------------------
Thomas E. Pardun
/s/ Mark W. Perry Director June 17, 1997
- ------------------------
Mark W. Perry
/s/ Ralph Z. Sorenson Director June 17, 1997
- ------------------------
Ralph Z. Sorenson
/s/ Thomas G. Washing Director June 17, 1997
- ------------------------
Thomas G. Washing
<PAGE> 6
INDEX TO 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
January 16, 1997.
June 17, 1997
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
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 16, 1997, appearing on
page 38 of Exabyte Corporation's Annual Report on Form 10-K for the year
ended December 28, 1996.
PRICE WATERHOUSE LLP
Boulder, Colorado
June 16, 1997
Consent of General Counsel is contained in Exhibit 5.1.
Reference is made to the signature pages.
<PAGE> 1
EXABYTE CORPORATION
INCENTIVE STOCK PLAN
AS AMENDED THROUGH JANUARY 16, 1997
-----------------------------------
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 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 Consultants and
Directors who are not Employees shall be Nonstatutory Stock Options. The
Board also has the discretion to grant Stock Purchase Rights to Employees,
Directors 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 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 in accordance with Section 4 of the Plan, if one is appointed.
(f) "Consultant" shall mean any person, 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.
(g) "Continuous Status as an Employee, Director or
Consultant" shall mean the absence of any interruption or termination of
service as an Employee, Director or Consultant, as applicable. Continuous
Status as an Employee, Director 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.
<PAGE> 2
(i) "Director" shall mean a member of the Board of
Directors.
(j) "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.
(k) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(l) "Incentive Stock Option" shall mean an Option
intended to qualify as an Incentive Stock Option within the meaning of Section
422 of the Code.
(m) "Non-Insider Director" shall mean a director of the
Corporation who is not an Employee provided, however, such director may be a
Consultant.
(n) "Non-Employee Director" shall mean a director of the
Corporation who either is not a current employee or officer of the company or
its parent or subsidiary, does not receive compensation (directly or
indirectly) from the Corporation or its parent or subsidiary for services
rendered as a consultant or in any capacity other than as a director (except
for an amount as to which disclosure would not be required under Item 404(a)
of Regulation S-K promulgated pursuant to the Securities Act of 1933
("Regulation S-K"), does not possess an interest in any other transaction as
to which disclosure would be required under Item 404(a) of Regulation S-K,
and is not engaged in a business relationship as to which disclosure would be
required under Item 404(b) of Regulation S-K; or is otherwise considered a
"non-employee director" for purposes of Rule 16b-3.
(o) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option.
(p) "Option" shall mean a Stock Option granted pursuant
to the Plan.
(q) "Optioned Stock" shall mean the Stock subject to an
Option.
(r) "Optionee" shall mean an Employee, Consultant or
Non-Insider Director, as applicable, who receives an Option.
(s) "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.
(t) "Parent" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 424(e) of the Code.
<PAGE> 3
(u) "Plan" shall mean this Incentive Stock Plan.
(v) "Purchaser" shall mean an Employee, Director or
Consultant who exercises a Stock Purchase Right.
(w) "Share" shall mean a share of the Stock, as adjusted
in accordance with Section 14 of the Plan.
(x) "Stock" shall mean the Common Stock of the
Corporation.
(y) "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.
(z) "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.
(aa) "Stock Purchase Right" shall mean a right to
purchase Stock pursuant to the Plan.
(ab) "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 8,000,000 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 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. In the discretion of the Board, the
Committee may consist solely of two or more Outside Directors, in accordance
with Code Section 162(m), or solely of two or more Non-Employee Directors, in
accordance with Rule 16b-3. 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
<PAGE> 4
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) Powers of the Board. Subject to the provisions of
the Plan, 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 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, Directors 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 13 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, DIRECTORS AND CONSULTANTS. With
respect to Options and Stock Purchase Rights granted to Employees, Directors
and Consultants:
(a) Generally. Options and Stock Purchase Rights may be
granted to Employees, Directors and Consultants, provided that Incentive Stock
Options may only be granted to Employees. An Employee, Director 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) Criteria. In making any determination as to
Employees, Directors 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, Director's or Consultant's loyalty,
performance, and experience.
(c) 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
<PAGE> 5
the Option, and such Option is by its terms not exercisable after the
expiration of five years from date such Option is granted.
(d) 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 time by any individual Employee during any single
calendar year under this Plan and all the incentive stock plans of the
Corporation (and its Affiliates, if any), shall not exceed $100,000.
(e) Subject to the provisions of Section 13 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 in any calendar year.
6. PRICES FOR OPTIONS AND STOCK PURCHASE RIGHTS. With respect
to Options and Stock Purchase Rights:
(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, the exercise price of the Shares which
shall be covered by each Stock Option shall be at least 100% of the fair
market value of the Shares at the time of granting the 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 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. OPTION PROVISIONS.
(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 exercise price of
the Option, and all other terms and conditions of the Option.
(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.
<PAGE> 6
(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 13 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, Director 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 an
Optionee's Continuous Status as an Employee, Director or Consultant shall be
terminated other than by reason of death or disability, such Option may be
exercised (to the extent that the Optionee shall have been entitled to do so
at the termination of Continuous Status as an Employee, Director or
Consultant) 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,
Director 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 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 Optionee does not maintain
Continuous Status as an Employee, Director or Consultant as a result of his
total and permanent disability (as defined in Section 22(e)(3) of the Code),
<PAGE> 7
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, Director or Consultant and who shall
have been in Continuous Status as an Employee, Director or Consultant since
the date of grant of the Option, or with respect to an Optionee who was such
an Employee, Director 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 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, Director 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's Continuous Status as an Employee, Director 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 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.
<PAGE> 8
9. NON-DISCRETIONARY GRANTS TO NON-INSIDER DIRECTORS.
(a) New Non-Insider Directors. Each person who is on
or after January 27, 1993 elected for the first time to be a Non-Insider
Director shall, upon the date of his initial election to be a Non-Insider
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-Insider
Director and has been a Non-Insider 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.
10. PRICES FOR NON-INSIDER DIRECTORS.
(a) Generally. The exercise price of each Option
granted under Section 9 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-Insider 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-Insider 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 10(b)(i) and 10(b)(ii) above.
11. NON-INSIDER DIRECTORS' OPTION PROVISIONS.
Notwithstanding any provisions in this Plan to the contrary,
each Option issued to Non-Insider 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-Insider Director to whom a Non-Insider 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
<PAGE> 9
Non-Insider 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-Insider 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 11(b) to the contrary, the services of a Non-Insider
Director shall not be deemed terminated if such Non-Insider Director
subsequently becomes an Employee, Director or Consultant.
(c) Disability of Optionee. Notwithstanding the
provisions of Section 11(b) above, in the event a Non-Insider Director is
unable to perform services as a Non-Insider 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-Insider Director of the
Corporation and who shall have continuously served as a Non-Insider Director
since the date of grant of the Option, or with respect to an Optionee who was
a Non-Insider 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-Insider Director under
Section 9 shall terminate later than its original Expiration Date.
(f) Exercisability. Options granted under Section 9
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-Insider
Director or subsequent to serving as a Non-Insider Director continuously
served as an Employee, Director 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.
12. 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, provided that the Board may grant a Nonstatutory Stock
Option that is transferable to the extent provided in the Stock Option
Agreement.
<PAGE> 10
13. 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 covered by
each outstanding Option and Stock Purchase Right, the number of Shares 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(e), as well as the price per Share
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 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 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 subject to an Option or
Stock Purchase Right.
(b) Reorganization. With respect to Options granted
other than to Non-Insider Directors pursuant to Section 9, 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, Director 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 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 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-
Insider Directors pursuant to Section 9, 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
<PAGE> 11
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-Insider 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.
14. EFFECTIVENESS OF PLAN. The Plan became effective on
January 22, 1987.
15. 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.
16. 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.
17. WITHHOLDING. To the extent provided by the terms of a Stock
Option Agreement or Stock Purchase Agreement, any Optionee or Purchaser 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.
18. 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
11(g), the Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 13(a) relating to adjustments upon
changes in Stock, no amendment shall be effective unless approved by the
Stockholders of the Corporation to the extent stockholder approval is
necessary to satisfy the requirements of Section 422(b) of the Code, to comply
with the requirements of Rule 16b-3 promulgated under the Exchange Act, or to
satisfy any Nasdaq or securities exchange listing requirements. 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
<PAGE> 12
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.
19. 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.
20. 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
necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Corporation of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
