<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)
---------------------
1997 NON-OFFICER STOCK OPTION PLAN
(Full title of the plan)
Stephen F. Smith
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)
-----------------------
<PAGE> 2
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| 1,000,000 | $7.00 | $7,000,000 | $2,121.22
and Common | | | |
Stock (par | | | |
Value $.001 | | | |
==============================================================================
(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 February 3, 1998 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
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Exabyte Corporation (the "Company")
with the Securities and Exchange Commission are incorporated by reference
into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or either (1) the Company's latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for the
Company's latest fiscal year for which such statements have been filed, or
(2) the Company's effective registration statement on Form 10 or 20-F filed
under the Exchange Act containing audited financial statements for the
Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
reports, the prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained
in a registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part of this registration statement from the date of the filing of such
reports and documents.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's By-laws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under
the Company's By-laws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
law. The By-laws also require the Company to advance litigation expenses in
the case of stockholder derivative actions or other actions, against an
undertaking by the indemnified party to repay such advances if it is
ultimately determined that the indemnified party is not entitled to
indemnification.
The Company has entered into indemnity agreements with each of its directors
and executive officers. Such indemnity agreements contain provisions which
are in some respects broader than the specific indemnification provisions
contained in Delaware law.
<PAGE> 4
Item 8. 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 1997 Non-Officer Stock Option Plan, as adopted on December 23,1997.
99.2 Non-Statutory Stock Option Agreements used in connection with the
1997 Non-Officer Stock Option Plan.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) (sec. 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 (sec. 239.13 of this chapter) or Form
S-8 (sec. 239.16b of this chapter), and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference herein.
<PAGE> 5
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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 February 9, 1998.
EXABYTE CORPORATION
By: /s/ Stephen F. Smith
-----------------------
Stephen F. Smith
Title: Vice President, Chief
Financial Officer
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William L. Marriner and Stephen F. Smith, 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/ William L. Marriner Chairman of the Board,
- ------------------------ President and Chief February 9, 1998
William L. Marriner Executive Officer
/s/ Peter D. Behrendt Director February 9, 1998
- ------------------------
Peter D. Behrendt
/s/ Bruce M. Holland Director February 9, 1998
- ------------------------
Bruce M. Holland
/s/ Thomas E. Pardun Director February 9, 1998
- ------------------------
Thomas E. Pardun
/s/ Mark W. Perry Director February 9, 1998
- ------------------------
Mark W. Perry
/s/ Ralph Z. Sorenson Director February 9, 1998
- ------------------------
Ralph Z. Sorenson
/s/ Thomas G. Washing Director February 9, 1998
- ------------------------
Thomas G. Washing
<PAGE> 7
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 1997 Non-Officer Stock Option Plan, as adopted on December 23, 1997.
99.2 Non-Statutory Stock Option Agreements used in connection with the
1997 Non-Officer Stock Option Plan.
February 9, 1998
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 1,000,000 shares of the
Company's Common Stock, $.001 par value, (the "Shares") pursuant to its 1997
Non-Officer Stock Option 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 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,
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
February 9, 1998
Consent of General Counsel is contained in Exhibit 5.1.
Reference is made to the signature pages.
<PAGE> 1
EXABYTE CORPORATION
1997 NON-OFFICER STOCK OPTION PLAN
Adopted December 23, 1997
Stockholder Approval Not Required
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected
Employees and Consultants who are not Officers or Directors may be given an
opportunity to benefit from increases in value of the common stock of the
Company ("Common Stock") through the granting of Nonstatutory Stock Options.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are now Employees or Consultants (other than Officers and
Directors), to secure and retain the services of such new Employees and
Consultants and to provide incentives for such persons to exert maximum
efforts for the success of the Company and its Affiliates.
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in Sections
424(e) and (f) respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance
with subsection 3(c) of the Plan.
(e) "Company" means Exabyte Corporation, a Delaware corporation.
(f) "Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting services and who is compensated
for such services, provided that the term "Consultant" shall not include
Directors who are paid only a director's fee by the Company.
(g) "Continuous Service" means that the Optionee's employment or
service with the Company or an Affiliate of the Company, whether in the
Optionee's capacity as an Employee or a Consultant at the time the Option is
granted or whether in a different future capacity, is not interrupted or
terminated. The Optionee's Continuous Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Optionee
renders employment or service to the Company or an Affiliate or the Company or
a change in the entity for which the Optionee renders such employment or
service, provided that there is no interruption or termination of the
Optionee's Continuous Service. Therefore, an Optionee's capacity may change
to that of an Officer or a Director even though the Optionee initially would
not have been eligible to be granted an Option in the capacity of an Officer
or Director. The Board or the Chief Executive Officer of the Company, in that
party's sole discretion, may determine whether Continuous Service shall be
considered interrupted in the case of: (i) any leave of absence approved by
the Board or the Chief Executive Officer of the Company, including sick leave,
military leave, or any other personal leave; or (ii) transfers between
locations of the Company or between the Company, Affiliates or their
successors.
<PAGE> 2
(h) "Director" means a member of the Board.
(i) "Disability" means the permanent and total disability of the
Optionee within the meaning of Section 22(e)(3) of the Code.
(j) "Employee" means any person, including Officers and Directors,
employed by the Company or any Affiliate of the Company. Neither service as
a Director nor payment of a director's fee by the Company shall be sufficient
to constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(l) "Fair Market Value" means, as of any date, the value of the Common
Stock of the Company determined as follows:
(1) If the Common Stock is listed on any established stock
exchange, or traded on the Nasdaq National Market or the Nasdaq SmallCap
Market, the Fair Market Value of a share of Common Stock shall be the closing
sales price for such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or market (or the exchange or market with the greatest
volume of trading in Common Stock) on (i) the day of determination, as
reported in the Wall Street Journal or such other source as the Board deems
reliable, or (ii) if the day of determination is not a trading day, then the
trading day prior to the day of determination, as reported in the Wall Street
Journal or such other source as the Board deems reliable.
(2) In the absence of such markets for the Common Stock, the Fair
Market Value shall be determined in good faith by the Board.
(m) "Nonstatutory Stock Option" means an Option not intended to qualify
as an Incentive Stock Option within the meaning of Section 422 of the Code and
the regulations promulgated thereunder.
(n) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(o) "Option" means a Nonstatutory Stock Option granted pursuant to the
Plan.
(p) "Option Agreement" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the terms and conditions of
the Plan.
(q) "Optionee" means a person to whom an Option is granted pursuant to
the Plan.
(r) "Plan" means this Exabyte Corporation 1997 Stock Option Plan.
(s) "Securities Act" means the Securities Act of 1933, as amended.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in subsection 3(c).
<PAGE> 3
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Options; when and how each Option shall be
granted; the provisions of each Option granted (which need not be identical),
including the time or times when a person shall be permitted to receive stock
pursuant to an Option; and the number of shares with respect to which an
Option shall be granted to each such person.
(2) To construe and interpret the Plan and Options granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Option Agreement, in
a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(3) To amend the Plan or an Option as provided in Section 11.
(4) Generally, to exercise such powers and to perform such acts
as the Board deems necessary or expedient to promote the best interests of
the Company which are not in conflict with the provisions of the Plan.
(c) The Board may delegate administration of the Plan to a Committee
or Committees of one or more members of the Board. If administration is
delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board
(and references in this Plan to the Board shall thereafter be to the
Committee), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be issued pursuant to Options shall
not exceed in the aggregate One Million (1,000,000) shares of Common Stock.
If any Option shall for any reason expire or otherwise terminate, in whole or
in part, without having been exercised in full, the stock not acquired under
such Option shall revert to and again become available for issuance under the
Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. ELIGIBILITY.
Options may be granted only to Employees and Consultants who are not
Officers or Directors.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise)
the substance of each of the following provisions:
<PAGE> 4
(a) Term. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(b) Price. The exercise price of each Option shall be not less than
one hundred percent (100%) of the Fair Market Value of the stock subject to
the Option on the date the Option is granted. Notwithstanding the foregoing,
an Option may be granted with an exercise price lower than that set forth in
the preceding sentence if such Option is granted pursuant to an assumption or
substitution for another option in a manner satisfying the provisions of
Section 424(a) of the Code.
(c) Consideration. The purchase price of stock acquired pursuant to
an Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash or (ii) at the discretion of the Board at the
time of the grant of the Option, in any other form of legal consideration
that may be acceptable to the Board.
(d) Transferability. An Option may be transferred to the extent
provided in the Option Agreement; provided that if the Option Agreement does
not expressly permit the transfer of an Option, the Option shall not be
transferable except by will, by the laws of descent and distribution or
pursuant to a domestic relations order satisfying the requirements of Rule
16b-3 of the Exchange Act and shall be exercisable during the lifetime of the
person to whom the Option is granted only by such person or any transferee
pursuant to a domestic relations order. Notwithstanding the foregoing, the
person to whom the Option is granted may, by delivering written notice to the
Company, in a form satisfactory to the Company, designate a third party who,
in the event of the death of the Optionee, shall thereafter be entitled to
exercise the Option.
(e) Vesting. The total number of shares of stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). The Option Agreement may provide that from time to time
during each of such installment periods, the Option may become exercisable
("vest") with respect to some or all of the shares allotted to that period,
and may be exercised with respect to some or all of the shares allotted to
such period and/or any prior period as to which the Option became vested but
was not fully exercised. The Option may be subject to such other terms and
conditions on the time or times when it may be exercised (which may be based
on performance or other criteria) as the Board may deem appropriate.
(f) Termination of Continuous Service. In the event an Optionee's
Continuous Service terminates (other than upon the Optionee's death or
disability), the Optionee may exercise his or her Option (to the extent that
the Optionee was entitled to exercise it at the date of termination) but only
within such period of time ending on the earlier of (i) the date three (3)
months after the termination of the Optionee's Continuous Service (or such
longer or shorter period specified in the Option Agreement) or (ii) the
expiration of the term of the Option as set forth in the Option Agreement.
If, after termination, the Optionee does not exercise his or her Option within
the time specified in the Option Agreement, the Option shall terminate, and
the shares covered by such Option shall revert to and again become available
for issuance under the Plan.
An Optionee's Option Agreement may also provide that, if the exercise
of the Option following the termination of the Optionee's Continuous Service
(other than upon the Optionee's death or disability) would be prohibited at
any time solely because the issuance of shares would violate the registration
requirements under the Securities Act, then the Option shall terminate on the
<PAGE> 5
earlier of (i) the expiration of the term of the Option as described in
subsection 6(a) or (ii) the expiration of a period of three (3) months after
the termination of the Optionee's Continuous Service during which the
exercise of the Option would not be in violation of such registration
requirements (if such provisions would result in an extension of the time
during which the Option may be exercised beyond the period described in the
first paragraph of this subsection 6(f)).
(g) Disability of Optionee. In the event an Optionee's Continuous
Service terminates as a result of the Optionee's disability, the Optionee may
exercise his or her Option (to the extent that the Optionee was entitled to
exercise it at the date of termination), but only within such period of time
ending on the earlier of (i) the date six (6) months following such
termination (or such longer or shorter period specified in the Option
Agreement, or (ii) the expiration of the term of the Option as set forth in
the Option Agreement. If, at the date of termination, the Optionee is not
entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the shares covered by such Option shall revert to and again
become available for issuance under the Plan.
(h) Death of Optionee. In the event of the death of an Optionee
during, or within a period specified in the Option after the termination of,
the Optionee's Continuous Service, the Option may be exercised (to the extent
the Optionee was entitled to exercise the Option at the date of death) by the
Optionee's estate, by a person who acquired the right to exercise the Option
by bequest or inheritance or by a person designated to exercise the Option
upon the Optionee's death pursuant to subsection 6(d), but only within the
period ending on the earlier of (i) the date six (6) months following the
date of death (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of such Option as set forth in
the Option Agreement. If, at the time of death, the Optionee was not
entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan. If, after death, the Option is not exercised
within the time specified herein, the Option shall terminate, and the shares
covered by such Option shall revert to and again become available for
issuance under the Plan.
(i) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time before the Optionee's Continuous
Service terminates to exercise the Option as to any part or all of the shares
subject to the Option prior to the full vesting of the Option. Any unvested
shares so purchased may be subject to a repurchase right in favor of the
Company or to any other restriction the Board determines to be appropriate.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the Options, the Company shall keep available
at all times the number of shares of stock required to satisfy such Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares under Options; provided, however, that this undertaking
shall not require the Company to register under the Securities Act the Plan,
any Option or any stock issued or issuable pursuant to any such Option. If,
after reasonable efforts, the Company is unable to obtain from any such
<PAGE> 6
regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell
stock upon exercise of such Options unless and until such authority is
obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options shall constitute
general funds of the Company.
9. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or any part
thereof will vest, notwithstanding the provisions in the Option stating the
time at which it may first be exercised or the time during which it will vest.
(b) Neither an Optionee nor any person to whom an Option is transferred
in accordance with the Plan shall be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any shares subject to such
Option unless and until such person has satisfied all requirements for
exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Optionee or other holder of Options any
right to continue in the employ of the Company or any Affiliate or to continue
serving as a Consultant, or shall affect the right of the Company or any
Affiliate to terminate the employment of any Employee with or without notice
and with or without cause, or the right to terminate the relationship of any
Consultant pursuant to the terms of such Consultant's agreement with the
Company or Affiliate.
(d) The Company may require any person to whom an Option is granted,
or any person to whom an Option is transferred in accordance with the Plan,
as a condition of exercising or acquiring stock under any Option, (1) to give
written assurances satisfactory to the Company as to such person's knowledge
and experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable
and experienced in financial and business matters, and that he or she is
capable of evaluating, alone or together with the purchaser representative,
the merits and risks of exercising the Option; and (2) to give written
assurances satisfactory to the Company stating that such person is acquiring
the stock subject to the Option for such person's own account and not with
any present intention of selling or otherwise distributing the stock. The
foregoing requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise or acquisition of stock under the Option has been registered under a
then currently effective registration statement under the Securities Act, or
(ii) as to any particular requirement, a determination is made by counsel for
the Company that such requirement need not be met in the circumstances under
the then applicable securities laws. The Company may, upon advice of counsel
to the Company, place legends on stock certificates issued under the Plan as
such counsel deems necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the
transfer of the stock.
<PAGE> 7
(e) To the extent provided by the terms of an Option Agreement, the
person to whom an Option is granted may satisfy any federal, state or local
tax withholding obligation relating to the exercise or acquisition of stock
under an Option by any of the following means (in addition to the Company's
right to withhold from any compensation paid to such person by the Company)
or by a combination of such means: (1) tendering a cash payment; or (2)
authorizing the Company to withhold shares from the shares of the Common
Stock otherwise issuable to the participant as a result of the exercise or
acquisition of stock under the Option.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject
to any Option, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation,
stock dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by
the Company), the Plan will be appropriately adjusted in the class(es) and
maximum number of shares subject to the Plan pursuant to subsection 4(a), and
the outstanding Options will be appropriately adjusted in the class(es) and
number of shares and price per share of stock subject to such outstanding
Options. Such adjustments shall be made by the Board, the determination of
which shall be final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a "transaction
not involving the receipt of consideration by the Company.")
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or consolidation
in which the Company is not the surviving corporation; (3) a reverse merger
in which the Company is the surviving corporation but the shares of Common
Stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise; or (4) the acquisition by any person, entity or group within the
meaning of Section 13(d) or 14(d) of the Exchange Act, or any comparable
successor provisions (excluding any employee benefit plan, or related trust,
sponsored or maintained by the Company or any Affiliate of the Company) of
the beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act, or comparable successor rule) of securities of the Company
representing at least fifty percent (50%) of the combined voting power
entitled to vote in the election of directors, then, (i) any surviving
corporation or acquiring corporation shall assume any Options outstanding
under the Plan or shall substitute similar options (including an option to
acquire the same consideration paid to the stockholders in the transaction
described in this subsection 10(b)) for those outstanding under the Plan, or
(ii) in the event any surviving corporation or acquiring corporation refuses
to assume such Options or to substitute similar options for those outstanding
under the Plan, (A) with respect to Options held by persons whose Continuous
Service has not terminated, the vesting of such Options (and, if applicable,
the time during which such Options may be exercised) shall be accelerated
prior to such event and, if there is a surviving corporation or acquiring
corporation, the Options terminated if not exercised (if applicable) after
such acceleration and at or prior to such event, and (B) with respect to any
other Options outstanding under the Plan, if there is a surviving corporation
or acquiring corporation, such Options shall be terminated if not exercised
(if applicable) prior to such event.
<PAGE> 8
11. AMENDMENT OF THE PLAN AND OPTIONS.
(a) The Board at any time, and from time to time, may amend the Plan.
(b) The Board may in its sole discretion submit any amendment to the
Plan for stockholder approval.
(c) Rights under any Option granted before amendment of the Plan shall
not be impaired by any amendment of the Plan unless (i) the Company requests
the consent of the person to whom the Option was granted and (ii) such person
consents in writing.
(d) The Board at any time, and from time to time, may amend the terms
of any one or more Options; provided, however, that the rights under any
Option shall not be impaired by any such amendment unless (i) the Company
requests the consent of the person to whom the Option was granted and (ii)
such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate ten (10) years from the date the
Plan is adopted by the Board. No Options may be granted under the Plan while
the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Option granted while the Plan is
in effect shall not be impaired by suspension or termination of the Plan,
except with the consent of the person to whom the Option was granted.
13. EFFECTIVE DATE OF PLAN.
The Plan shall become effective on the date adopted by the Board.
<PAGE> 1
EXABYTE CORPORATION
NONSTATUTORY STOCK OPTION
- ----------, Optionee:
Exabyte Corporation (the "Company"), pursuant to its 1997 Non-Officer
Stock Option Plan (the "Plan"), has granted to you, the optionee named above,
an option to purchase shares of the common stock of the Company ("Common
Stock"). This option is not intended to qualify as and will not be treated
as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
The details of your option are as follows:
1. Total Number Of Shares Subject To This Option. The total number of shares
of Common Stock subject to this option is -----.
2. Vesting.
(a) Standard Vesting. Subject to the limitations contained herein, 2%
of the shares will vest (become exercisable) each month after the date of the
grant until either (i) your Continuous Service (as defined in the Plan)
terminates for any reason, or (ii) this option becomes fully vested.
(b) Accelerated Vesting. In addition to the standard vesting provided
for under Section 2(a) hereof, vesting of the shares subject to this option
shall be accelerated in the manner and to the extent set forth below:
(i) Upon certification in writing by the Chief Executive Officer
that the Company has achieved all of the Fiscal 1998 Corporate Performance
Goals established by the Board of Directors, a copy of which will be delivered
to you, 25% of the shares subject to this option, as set forth in Section 1
above, shall immediately become fully vested. The determination as to whether
such goals have been achieved shall be made by the Chief Executive Officer in
his sole discretion.
(ii) Upon certification in writing by the lead technical senior
manager of your department that you have achieved all of your Fiscal 1998
Individual Performance Goals established by the lead technical senior manager,
a copy of which will be delivered to you, an additional 25% of the shares
subject to this option, as set forth in Section 1 above, shall immediately
become fully vested. The determination as to whether such goals have been
achieved shall be made by the lead technical senior manager in his sole
discretion.
(iii) Any shares subject to this option, the vesting of which has
not been accelerated pursuant to subsections (i) or (ii) above, shall continue
to vest in accordance with Section 2(a) hereof.
3. Exercise Price And Method Of Payment.
(a) Exercise Price. The exercise price of this option is $---- per
share, being not less than the fair market value of the Common Stock on the
date of grant of this option.
(b) Method of Payment. Payment of the exercise price per share is due
in full upon exercise of all or any part of each installment which has
<PAGE> 2
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash (including
check) at the time of exercise;
(ii) Payment pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which, prior to the issuance of
Common Stock, results in either the receipt of cash (or check) by the Company
or the receipt of irrevocable instructions to pay the aggregate exercise
price to the Company from the sales proceeds; or
(iii) Payment by a combination of the methods of payment permitted
by subsection 3(b)(i) through 3(b)(ii) above.
4. Whole Shares. This option may not be exercised for any number of shares
which would require the issuance of anything other than whole shares.
5. Securities Law Compliance. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Securities Act of
1933, as amended (the "Securities Act"), or, if such shares are not then so
registered, the Company has determined that such exercise and issuance would
be exempt from the registration requirements of the Securities Act.
6. Term. The term of this option commences on -----, the date of grant, and
expires at midnight on ----- (the "Expiration Date," which is the day before
the tenth anniversary from the date of grant ) unless this option expires
sooner as set forth below or in the Plan. In no event may this option be
exercised after the Expiration Date. This option shall terminate prior to
the Expiration Date of its term as follows: three (3) months after the
termination of your Continuous Service unless one of the following
circumstances exists:
(a) Your termination of Continuous Service is due to your disability.
This option will then expire on the earlier of the Expiration Date set forth
above or six (6) months following such termination of Continuous Service.
(b) Your termination of Continuous Service is due to your death or your
death occurs within three (3) months following your termination of Continuous
Service. This option will then expire on the earlier of the Expiration Date
set forth above or six (6) months after your death.
(c) If during any part of such three (3) month period you may not
exercise your option solely because of the condition set forth in Section 5
above, then your option will not expire until the earlier of the Expiration
Date set forth above or until this option shall have been exercisable for an
aggregate period of three (3) months after your termination of Continuous
Service.
(d) However, this option may be exercised following termination of
Continuous Service only as to that number of shares as to which it was
exercisable on the date of termination of Continuous Service under the
provisions of Section 2 of this option.
<PAGE> 3
7. Exercise.
(a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other
person as the Company may designate, during regular business hours, together
with such additional documents as the Company may then require pursuant to
the Plan.
(b) By exercising this option you agree that as a precondition to the
completion of any exercise of this option, the Company may require you to
enter an arrangement providing for the payment by you to the Company of any
tax withholding obligation of the Company arising by reason of (1) the
exercise of this option; (2) the lapse of any substantial risk of forfeiture
to which the shares are subject at the time of exercise; or (3) the
disposition of shares acquired upon such exercise;
8. Transferability. This option is not transferable, except by will or by
the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to
the Company, in a form satisfactory to the Company, you may designate a third
party who, in the event of your death, shall thereafter be entitled to
exercise this option.
9. Option Not a Service Contract. This option is not an employment contract
and nothing in this option shall be deemed to create in any way whatsoever
any obligation on your part to continue in the employ of the Company or its
Affiliate, or of the Company or its Affiliate to continue your employment.
In addition, nothing in this option shall obligate the Company or its
Affiliate, or their respective stockholders, Board of Directors, officers or
employees to continue any relationship which you might have as a Consultant
for the Company or its Affiliate.
10. Notices. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at the
address specified below or at such other address as you hereafter designate
by written notice to the Company.
11. Governing Plan Document. This option is subject to all the provisions
of the Plan, a copy of which is attached hereto and its provisions are hereby
made a part of this option, including without limitation the provisions of
Section 6 of the Plan relating to option provisions, and is further subject
to all interpretations, amendments, rules and regulations which may from time
to time be promulgated and adopted pursuant to the Plan. In the event of
any conflict between the provisions of this option and those of the Plan, the
provisions of the Plan shall control.
Dated this ----- day of -------------, 199--.
Very truly yours,
EXABYTE CORPORATION
By
--------------------------------
Duly authorized on behalf
of the Board of Directors
<PAGE> 4
Attachments:
Exabyte Corporation 1997 Non-Officer Stock Option Plan
Notice of Exercise
* * * *
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option and the
Plan; and
(b) Acknowledges that as of the date of grant of this option, it
sets forth the entire understanding between the undersigned optionee and the
Company and its Affiliates regarding the acquisition of stock in the Company
and supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the
undersigned under stock option plans of the Company, and (ii) the following
agreements only:
None
-----------
(Initial)
Other
-----------------------
-----------------------
-----------------------
Optionee
----------------------------------
Address:
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