<PAGE> 1
UNITED STATES
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 | $5.3594 | $5,395,400 | $1,499.93
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 22, 1999 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 STATEMENT ON FORM S-8
NO. 333-45853
The contents of the Registration Statement on Form S-8 No. 333-45853
filed with the Securities and Exchange Commission on February 9, 1998 is
incorporated by reference herein.
EXHIBITS
Exhibit
Number
- -------
5.1 Opinion of General Counsel.
23.1 Consent of PricewaterhouseCoopers 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 amended and restated on
January 29, 1999.
<PAGE> 4
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boulder, State of
Colorado, on February 26, 1999.
EXABYTE CORPORATION
By: /s/ Stephen F. Smith
-----------------------
Stephen F. Smith
Title: Vice President, Chief Financial
Officer, General Counsel,
Secretary
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, February 26, 1999
- ------------------------ President and Chief
William L. Marriner Executive Officer
(Principal Executive Officer)
/s/ Stephen F. Smith Vice President, Chief February 26, 1999
- ------------------------ Financial Officer
Stephen F. Smith General Counsel, Secretary
(Principal Finanical Officer)
<PAGE> 5
/s/ Peter D. Behrendt Director February 26, 1999
- ------------------------
Peter D. Behrendt
/s/ Thomas E. Pardun Director February 26, 1999
- ------------------------
Thomas E. Pardun
/s/ Mark W. Perry Director February 26, 1999
- ------------------------
Mark W. Perry
/s/ Ralph Z. Sorenson Director February 26, 1999
- ------------------------
Ralph Z. Sorenson
/s/ Stephen C. Johnson Director February 26, 1999
- ------------------------
Stephen C. Johnson
/s/ A. Laurence Jones Director February 26, 1999
- ------------------------
A. Laurence Jones
<PAGE> 6
INDEX TO EXHIBITS
-----------------
Exhibit
Number
- -------
5.1 Opinion of General Counsel.
23.1 Consent of PricewaterhouseCoopers 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 amended
and restated on January 29, 1999.
February 26, 1999
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, $.00l par value, (the "Shares") pursuant to its
1997 Non-Officer Stock Optin 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 21, 1998, appearing on
page 36 of Exabyte Corporation's Annual Report on Form 10-K for the year
ended January 3, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Boulder, Colorado
February 26, 1999
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.
(c) "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.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means a Committee appointed by the Board in
accordance with subsection 3(c) of the Plan.
(d) "Company" means Exabyte Corporation, a Delaware corporation.
(e) "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.
(f) "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,
<PAGE> 2
military leave, or any other personal leave; or (ii) transfers between
locations of the Company or between the Company, Affiliates or their
successors.
(g) "Director" means a member of the Board.
(h) "Disability" means the permanent and total disability of the
Optionee within the meaning of Section 22(e)(3) of the Code.
(i) "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.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "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.
(l) "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.
(m) "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.
(n) "Option" means a Nonstatutory Stock Option granted pursuant to
the Plan.
(o) "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.
(p) "Optionee" means a person to whom an Option is granted pursuant
to the Plan.
(q) "Plan" means this Exabyte Corporation 1997 Stock Option Plan.
(r) "Securities Act" means the Securities Act of 1933, as amended.
<PAGE> 3
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).
(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 Two Million (2,000,000) 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.
<PAGE> 4
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:
(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,
<PAGE> 5
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
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.
<PAGE> 6
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 under-
taking 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
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,
<PAGE> 7
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.
(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) author-
izing the Company to withhold shares from the shares of the Common Stock
otherwise issuable to the participant as a result of the exercise or acqui-
sition 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, reincorpor-
ation, 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
<PAGE> 8
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.
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.
