<PAGE> 1
As filed with the Securities and Exchange Commission on November 26, 1996
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MODTECH, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-00444888
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2830 BARRETT AVENUE
PERRIS, CALIFORNIA 92370
(Address of Principal Executive Office)(Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plans)
EVAN M. GRUBER
2830 BARRETT AVENUE
PERRIS, CALIFORNIA 92370
(Name and address of agent for service)
(909) 943-4014
(Telephone number, including area code, of agent for service)
----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share (1) offering price (1) fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 $4.50 $2,250,000 $775.86
$.001 par value
==========================================================================================================
</TABLE>
(1) Pursuant to Rule 457(a), estimated solely for the purpose of calculating
the registration fee.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I (plan
information and registrant information) will be sent or given to participants
as specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed by Modtech, Inc. (the
"Company") with the Commission are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1996;
3 The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed
under the Securities Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into the
prospectus and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and Bylaws permit the Company
to indemnify its officers and directors to the fullest extent permitted by
California law. This is intended to eliminate the personal liability of a
director for monetary damages in an action brought by or in the right of the
Company for breach of a director's duties to the Company or its shareholders
except for liability for acts or omissions that involve intentional misconduct
or knowing and culpable violation of the law, for acts or omissions that a
director believes to be contrary to the best interests of the Company or its
shareholders or that involve the absence of good faith on the part of the
director, for any transaction from which a director derived an improper
personal benefit, for acts or omissions that show a reckless disregard for the
director's duty to the Company or its shareholders in circumstances in which
the director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Company or
its shareholders, for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its shareholders, with respect to certain contracts in which a director has
a material financial interest and for approval of certain improper
distributions to shareholders or certain loans or guarantees. This provision
does not limit or eliminate the rights of the Company or any shareholder to
seek non-monetary relief such as an injunction or rescission in the event of a
breach of a director's duty of care.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to officers, directors or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
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.
II-1
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Phillips & Haddan
10.1 Modtech, Inc. 1996 Stock Option Plan
23.1 Consent of KPMG Peat Marwick L.L.P.
24.2 Consent of Phillips & Haddan (included in Exhibit 5.1).
II-2
<PAGE> 5
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) 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 of 1933 (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,
represents a fundamental change in the information set forth in the
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)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 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 in the registration statement.
(2) 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.
(3) 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.
(b) 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.
(h) 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 pubic policy as expressed in the 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.
II-3
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, 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 Newport Beach, State of California, on November
26, 1996.
MODTECH, INC.
By: s/Evan M. Gruber
---------------------------------------
Evan M. Gruber, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
s/Evan M. Gruber Director, Chief Executive November 26, 1996
- -------------------------- Officer
Evan M. Gruber
s/Gerald B. Bashaw Director, Chairman of the Board, November 26, 1996
- -------------------------- Secretary
Gerald B. Bashaw
s/James D. Goldenetz Director November 26, 1996
- --------------------------
James D. Goldenetz
s/James M. Phillips, Jr. Director November 26, 1996
- --------------------------
James M. Phillips, Jr.
s/Robert W. Campbell Director November 26, 1996
- --------------------------
Robert W. Campbell
s/Myron A. Wick III Director November 26, 1996
- --------------------------
Myron A. Wick III
s/Charles C. McGettigan Director November 26, 1996
- --------------------------
Charles C. McGettigan
s/Michael G. Rhodes Chief Financial Officer November 26, 1996
- --------------------------
Michael G. Rhodes
</TABLE>
II-4
<PAGE> 1
Exhibit 5.1
-----------
[PHILLIPS & HADDAN LETTERHEAD]
November 26, 1996
Modtech, Inc.
2830 Barrett Avenue
Perris, California 92370
Re: Registration of Shares of Common Stock Issuable
Pursuant to the 1996 Stock Option Plan
-----------------------------------------------
Ladies and Gentlemen:
In connection with the pending Registration Statement on Form S-8 (the
"Registration Statement") filed by our client, Modtech, Inc., a California
corporation (the "Company"), pertaining to the issuance and sale of up to an
aggregate of 500,000 shares of the Company's Common Stock, $.001 par value (the
"Shares"), issuable upon exercise of options granted and to be granted under
the Company's 1996 Stock Option Plan (the "Plan"), we have been requested to
provide our opinion as to certain legal matters regarding the issuance of the
Shares.
For the purpose of rendering this opinion, we have made such legal and
factual examination and inquiries as we have deemed necessary or appropriate
for purposes of this opinion. On the basis of such examination and inquiries,
and relying thereon, we are of the opinion that the Shares, when issued and
sold upon exercise of options granted and to be granted under the Plan on the
terms and conditions set forth therein, will be duly authorized and validly
issued, fully paid and nonassessable under the laws of the State of California.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to us under Item 5 of Part II of
the Registration Statement.
Very truly yours,
PHILLIPS & HADDAN
By: /s/ JAMES M. PHILLIPS, JR.
----------------------------------
James M. Phillips, Jr.
<PAGE> 1
Exhibit 10.1
------------
MODTECH, INC.
1996 STOCK OPTION PLAN
1. PURPOSE. The Plan is intended to provide incentive to key
employees and directors of, and key consultants, vendors, customers, and others
expected to provide significant services to, the Corporation, to encourage
proprietary interest in the Corporation, to encourage such key employees to
remain in the employ of the Corporation and its Subsidiaries, to attract new
employees with outstanding qualifications, and to afford additional incentive
to consultants, vendors, customers, and others to increase their efforts in
providing significant services to the Corporation.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the committee, if any, appointed by the
Board in accordance with Section 4 of the Plan.
(d) "Common Stock" shall mean the Common Stock, $.01 par value, of
the Corporation.
(e) "Corporation" shall mean Modtech, Inc., a California
corporation.
(f) "Disability" shall mean the condition of an Employee who is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months.
(g) "Employee" shall mean an individual who is employed (within
the meaning of Code Section 3401 and the regulations thereunder) by the
Corporation or a Subsidiary.
(h) "Exercise Price" shall mean the price per Share of Common
Stock, determined by the Board or the Committee, at which an Option may
exercised.
(i) "Fair Market Value" shall mean the value of one (1) Share of
Common Stock, determined as follows:
(1) If the Shares are traded on an exchange, the price at
which Shares traded at the close of business on the
date of valuation;
(2) If the Shares are traded over-the-counter on the
NASDAQ System, the closing price if one is available,
or the mean between the bid and asked prices on said
System at the close of business on the date of
valuation; and
-1-
<PAGE> 2
(3) If neither (1) nor (2) applies, the fair market value
as determined by the Board or the Committee in good
faith. Such determination shall be conclusive and
binding on all persons.
(j) "Incentive Stock Option" shall mean an option described in
Section 422A(b) of the Code; provided, however, that no Incentive Stock Option
can be granted hereunder unless and until the Plan has been approved by the
shareholders of the Corporation.
(k) "Non-Employee Director" shall mean a member of the Board who
is not an Employee.
(l) "Nonstatutory Stock Option" shall mean an option not described
in Section 422(b), 422A(b), 423(b) or 424(b) of the Code.
(m) "Option" shall mean any stock granted pursuant to the Plan.
(n) "Optionee" shall mean an employee who has received an Option.
(o) "Plan" shall mean the Modtech, Inc. 1996 Stock Option Plan, as
it may be amended from time to time.
(p) "Purchase Price" shall mean the Exercise Price times the
number of Shares with respect to which an Option is exercised.
(q) "Retirement" shall mean the voluntary termination of
employment by an Employee upon the attainment of age sixty-five (65) and the
completion of not less than twenty (20) years of service with the Corporation
or a Subsidiary.
(r) "Share" shall mean one (1) share of Common Stock, adjusted in
accordance with Section 10 of the Plan (if applicable).
(s) "Subsidiary" shall mean any corporation at least fifty percent
(50%) of the total combined voting power of which is owned by the Corporation
or by another Subsidiary.
3. EFFECTIVE DATE. The Plan was adopted by the Board on July 11,
1996, which shall be the Effective Date of the Plan.
4. ADMINISTRATION. The Plan shall be administered by the Board,
or by a committee appointed by the Board which shall consist of not less than
three (3) members (the "Committee"). The Board shall appoint one of the
members of the Committee, if there be one, as Chairman of the Committee. If a
Committee has been appointed, the Committee shall hold meetings at such times
and places as it may determine. Acts of a majority of the Committee at which a
quorum is present, or acts reduced to or approved in writing by a majority of
the members of the Committee, shall be the valid acts of the Committee. The
Board, or the Committee if there be one, shall from time to time at its
discretion select the Employees, directors
-2-
<PAGE> 3
and consultants who are to be granted Options, determine the number of Shares
to be granted to each Optionee and designate such Options such as Incentive
Stock Options or Nonstatutory Stock Options, except that no Incentive Stock
Option may be granted to a non-Employee director or a non-Employee consultant.
No member of the Board or a Committee member shall in no event participate in
any determination relating to Options held by or to be granted to such Board or
Committee member. The interpretation and construction by the Board, or by the
Committee if there be one, of any provision of the Plan or of any Option
granted thereunder shall be final. No member of the Board or of the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any Option granted thereunder.
5. ELIGIBILITY AND PARTICIPATION.
(a) Eligibility. The Optionees shall be such persons as the
Board, or the Committee if there be one, may select from among the following
classes of persons, subject to the terms and conditions of (b) below:
(i) Employees of the Corporation or of a Subsidiary (who
may be officers, whether or not they are directors);
(ii) Non Employee Directors of the Corporation or of a
Subsidiary; and
(ii) Consultants, vendors, customers, and others expected
to provide significant services to the Corporation or
a Subsidiary.
For purposes of this Plan, an Optionee who is a director or a
consultant, vendor, customer, or other provider of significant services to the
Corporation or a Subsidiary shall be deemed to be an Employee, and service as a
director, consultant, vendor, customer, or other provider of significant
services to the Corporation or a Subsidiary shall be deemed to be employment,
except that no Incentive Stock Option may be granted to a Non-Employee director
or non-Employee consultant, vendor, customer, or other provider of significant
services to the Corporation or a Subsidiary, and except that no Nonstatutory
Stock Option may be granted to a non-Employee consultant, vendor, customer, or
other provider of significant services to the Corporation or a Subsidiary other
than upon a vote of a majority of disinterested directors finding that the
value of the services rendered or to be rendered to the Corporation or a
Subsidiary by such non-Employee director or non- Employee consultant, vendor,
customer, or other provider of services is at least equal to the value of the
option or options granted.
(b) Non-Employee Directors. Each Non-Employee Director who was
re-elected to the Board at the Annual Meeting of Shareholders held on the
Effective Date shall be granted as of the Effective Date a Nonstatutory Stock
Option to purchase 5,000 Shares for each full year of continuous service on the
Board since the 1994 Annual Meeting of Shareholders. In addition, on each
anniversary of the Effective Date, each Non-Employee Director automatically
shall be granted a Nonstatutory Stock Option to purchase 5,000 Shares, provided
that such Non-Employee Director continues to serve on the Board as of such
anniversary of the Effective Date. The
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<PAGE> 4
Exercise Price of each Option granted pursuant to the provisions of this
Section 5(b) shall be the Fair Market Value of a Share on the date of grant.
(c) Ten-Percent Shareholders. An Employee who owns more than ten
percent (10%) of the total combined voting power of all classes of outstanding
stock of the Corporation, its parent or any of its Subsidiaries shall not be
eligible to receive an Incentive Stock Option unless (i) the Exercise Price of
the Shares subject to such Option is at least one hundred ten percent (110%) of
the Fair Market Value of such Shares on the date of grant and (ii) such Option
by its terms is not exercisable after the expiration of five (5) years from the
date of grant.
(d) Stock Ownership. For purposes of (b) above, in determining
stock ownership an Employee shall be considered as owning the stock owned,
directly or indirectly, by or for his brothers, sisters, spouses, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust shall be considered as being owned
proportionately by or for its shareholders, partners or beneficiaries. Stock
with respect to which such Employee holds an Option shall not be counted.
(e) Outstanding Stock. For purposes of (b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately
after the grant of the Option to the Optionee. "Outstanding stock" shall not
include shares authorized for issue under outstanding Options held by the
Optionee or by any other person.
6. STOCK. The stock subject to Options granted under the Plan
shall be Shares of the Corporation's authorized but unissued or reacquired
Common Stock. The aggregate number of Shares which may be issued upon exercise
of Options under the Plan shall not exceed 500,000 shares. The number of
Shares subject to Options outstanding at any time shall not exceed the number
of Shares remaining available for issuance under the Plan. In the event that
any outstanding Option for any reason expires or is terminated, the Shares
allocable to the unexercised portion of such Option may again be made subject
to any Option. The limitations established by this Section 6 shall be subject
to adjustment in the manner provided in Section 10 hereof upon the occurrence
of an event specified therein.
7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreements. Options shall be evidenced by
written stock option agreements in such form as the Board, or the Committee if
there be one, shall from time to time determine. Such agreements shall comply
with and be subject to the terms and conditions set forth below.
(b) Number of Shares. Each Option shall state the number of
Shares to which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 10 hereof.
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<PAGE> 5
(c) Exercise Price. Each Option shall state the Exercise Price.
The Exercise Price in the case of any Incentive Stock Option shall not be less
than the Fair Market Value on the date of grant and, in the case of any
Incentive Stock Option granted to an Optionee described in Section 5(b) hereof,
shall not be less than one hundred ten percent (110%) of the Fair Market Value
on the date of grant. The Exercise Price in the case of any Nonstatutory Stock
Option shall not be less than 85% of the Fair Market Value on the date of
grant.
(d) Medium and Time of Payment. The Purchase Price shall be
payable in full in United States dollars upon the exercise of the Option;
provided, however, that if the applicable Option Agreement so provides the
Purchase Price may be paid (i) by the surrender of Shares in good form for
transfer, owned by the person exercising the Option and having a Fair Market
Value on the date of exercise equal to the Purchase Price, or in any
combination of cash and Shares, as long as the sum of the cash so paid and the
Fair Market Value of the Shares so surrendered equal the Purchase Price, (ii)
by cancellation of indebtedness owed by the Corporation to the Optionee, (iii)
with a full recourse promissory note executed by the Optionee, or (iv) any
combination of the foregoing. The interest rate and other terms and conditions
of such note shall be determined by the Board, or the Committee if there be
one. The Board, or the Committee if there be one, may require that the
Optionee pledge his or her Shares to the Corporation for the purpose of
securing the payment of such note. In no event shall the stock certificate(s)
representing such Shares by released to the Optionee until such note shall be
been paid in full. In the event the Corporation determines that it is required
to withhold state or Federal income tax as a result of the exercise of an
Option, as a condition to the exercise thereof, an Employee may be required to
make arrangements satisfactory to the Corporation to enable it to satisfy such
withholding requirements.
(e) Term and Nontransferability of Options. Each Option shall
state the time or times, and the conditions upon which, all or part thereof
becomes exercisable. No Option shall be exercisable after the expiration of
ten (10) years from the date it was granted, and no Incentive Stock Option
granted to an Optionee described in Section 5(b) hereof shall be exercisable
after the expiration of five (5) years from the date it was granted. During
the lifetime of the Optionee, the Option shall be exercisable only by the
Optionee and shall not be assignable or transferable. In the event of the
Optionee's death, the Option shall not be transferable. In the event of the
Optionee's death, the Option shall not be transferable by the Optionee other
than by will or the laws of descent and distribution.
(f) Termination of Employment, Except by Death, Disability or
Retirement. If an Optionee ceases to be an Employee for any reason other than
his or her death, Disability or Retirement, such Optionee shall have the right,
subject to the restrictions of (e) above, to exercise the Option at any time
within three months after termination of employment, but only to the extent
that, at the date of termination of employment, the Optionee's right to
exercise such Option had accrued pursuant to the terms of the applicable option
agreement and had not previously been exercised; provided, however, that if the
Optionee was terminated for cause (as defined in the applicable option
agreement) any Option not exercised in full prior to such termination shall be
canceled. For this purpose, the employment relationship shall be treated as
continuing intact while the Optionee is on military leave, sick leave or other
bona fide leave of absence (to be determined
-5-
<PAGE> 6
in the sole discretion of the Committee). The foregoing notwithstanding, (i)
in the case of an Incentive Stock Option, employment shall not be deemed to
continue beyond the ninetieth (90th) day after the Optionee's reemployment
rights are guaranteed by statute or by contract, and (ii) in the case of a
Nonstatutory Stock Option, the Board, or the Committee if there be one, may
extend or otherwise modify the period of time specified herein during which the
Option may be exercised following termination of Optionee's employment.
(g) Death of Optionee. If an Optionee dies while an Employee, or
after ceasing to be an Employee but during the period while he or she could
have exercised the Option under this Section 7, and has not fully exercised the
Option, then the Option may be exercised in full, subject to the restrictions
of (e) above, at any time within twelve (12) months after the Optionee's death,
by the executors or administrators of his or her estate or by any person or
persons who have acquired the Option directly from the Optionee by bequest or
inheritance, but only to the extent that, at the date of death, the Optionee's
right to exercise such Option had accrued and had not been forfeited pursuant
to the terms of the applicable Option Agreement and had not previously been
exercised. The foregoing notwithstanding, in the case of a Nonstatutory Stock
Option, the Board, or the Committee if there be one, may extend or otherwise
modify the period of time specified herein during which the Option may be
exercised following termination of Optionee's employment.
(h) Disability of Optionee. If an Optionee ceases to be an
Employee by reason of Disability, such Optionee shall have the right, subject
to the restrictions of (f) above, to exercise the Option at any time within
twelve (12) months after termination of employment, but only to the extent
that, at the date of termination of employment, the Optionee's right to
exercise such Option had accrued pursuant to the terms of the applicable Option
Agreement and had not previously been exercised. The foregoing
notwithstanding, in the case of a Nonstatutory Stock Option, the Board, or the
Committee if there be one, may extend or otherwise modify the period of time
specified herein during which the Option may be exercised following termination
of Optionee's employment.
(i) Retirement of Optionee. If an Optionee ceases to be an
Employee by reason of Retirement, such Optionee shall have the right, subject
to the restrictions of (e) above, to exercise the Option at any time within
three (3) months after termination of employment, but only to the extent that,
at the date of termination of employment, the Optionee's right to exercise such
Option had accrued pursuant to the terms of the applicable Option Agreement and
had not previously been exercised. The foregoing notwithstanding, in the case
of a Nonstatutory Stock Option, the Board, or the Committee if there be one,
may extend or otherwise modify the period of time specified herein during which
the Option may be exercised following termination of Optionee's employment.
(j) Rights as a Stockholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions or other
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<PAGE> 7
rights for which the record date is prior to the date such stock certificate is
issued, except as provided in Section 10 hereof.
(k) Modification, Extension and Renewal of Option. Within the
limitations of the Plan, the Board, or the Committee if there be one, may
modify, extend or renew outstanding Options or accept the cancellation of
outstanding Options (to the extent not previously exercised) for the granting
of new Options in substitution therefor. The foregoing notwithstanding, no
modification of an Option shall, without the consent of the Optionee, alter or
impair any rights or obligations under any Option previously granted.
(l) Other Provisions. The stock option agreements authorized
under the Plan may contain such other provisions not inconsistent with the
terms of the Plan (including, without limitation, restrictions upon the
exercise of the Option) as the Board, or the Committee if there be one, shall
deem advisable.
8. LIMITATION ON VALUE OF EXERCISABLE SHARES. In the case of
Incentive Stock Options granted hereunder, the aggregate Fair Market Value
(determined as of the date of the grant thereof) of the Shares with respect to
which Incentive Stock Options become exercisable by any employee of the
Corporation for the first time during any calendar year (under this Plan and
all other plans maintained by the Corporation, its parent or its Subsidiaries)
shall not exceed $100,000.
9. TERM OF PLAN. Options may be granted pursuant to the Plan
until the expiration of ten (10) years from the Effective Date of the Plan.
10. RECAPITALIZATIONS. Subject to any required action by
shareholders, the number of Shares covered by the Plan as provided in Section 6
hereof, the number of Shares covered by each outstanding Option and the
Exercise Price thereof shall be proportionately adjusted for any increase of
decrease in the number of issued Shares resulting from a subdivision or
consolidation of Shares or the payment of a stock dividend (but only of Common
Stock) or any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Corporation. Subject to any
required action by stockholders, if the Corporation is the surviving
corporation in any merger or consolidation, each outstanding Option shall
pertain and apply to the securities to which a holder of the number of Shares
subject to the Option would have been entitled. In the event of a merger or
consolidation in which the Corporation is not the surviving corporation, the
date of exercisability of each outstanding Option shall be accelerated to a
date prior to such merger or consolidation, unless the agreement of merger or
consolidation provides for the assumption of the Option by the successor to the
Corporation. To the extent that the foregoing adjustments relate to securities
of the Corporation, such adjustments shall be made by the Board, or the
Committee if there be one, whose determination shall be conclusive and binding
on all persons. Except as expressly provided in this Section 10, the Optionee
shall have no rights by reason of subdivision or consolidation of shares of
stock of any class, the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger or consolidation or spin-off of assets or
stock of another corporation, and any issue by the Corporation of shares of
stock of any class, or
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securities convertible into shares of stock of any class, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power to the Corporation
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to merge or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business assets.
11. SECURITIES LAW REQUIREMENTS.
(a) Legality of Issuance. The issuance of any Shares upon the
exercise of any Option and the grant of any Option shall be contingent upon the
following:
(1) the Corporation and the Optionee shall have taken all
actions required to register the Shares under the Securities Act of
1933, as amended (the "Act"), and to qualify the Option and the Shares
under any and all applicable state securities or "blue sky" laws or
regulations, or to perfect an exemption from the respective
registration and qualification requirements thereof;
(2) any applicable listing requirement of any stock exchange
on which the Common Stock is listed shall have been satisfied; and
(3) any other applicable provision of state of Federal law
shall have been satisfied.
(b) Restrictions on Transfer. Regardless of whether the offering and
sale of Shares under the plan has been registered under the Act or has been
registered or qualified under the securities laws of any state, the Corporation
may impose restrictions on the sale, pledge or other transfer of such Shares
(including the placement of appropriate legends on stock certificates) if, in
the judgment of the Corporation and its counsel, such restrictions are
necessary or desirable in order to achieve compliance with the provisions of
the Act, the securities laws of any state or any other law. In the event that
the sale of Shares under the Plan is not registered under the Act but an
exemption is available which required an investment representation or other
representation, each Optionee shall be required to represent that such Shares
are being acquired for investment, and not with a view to the sale or
distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Corporation and its counsel. Any determination
by the Corporation and its counsel in connection with any of the matters set
forth in this Section 11 shall be conclusive and binding on all persons. Stock
certificates evidencing Shares acquired under the Plan pursuant to an
unregistered transaction shall bear the following restrictive legend and such
other restrictive legends as are required or deemed advisable under the
provisions of any applicable law.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). ANY TRANSFER OF SUCH SECURITIES
WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS
TO SUCH TRANSFER OR IN THE OPINION OF
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COUNSEL FOR THE ISSUER SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER TO COMPLY WITH THE ACT."
(c) Registration or Qualification of Securities. The Corporation
may, but shall not be obligated to register or qualify the issuance of Options
and/or the sale of Shares under the Act or any other applicable law. The
Corporation shall not be obligated to take any affirmative action in order to
cause the issuance of Options or the sale of Shares under the plan to comply
with any law.
(d) Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock certificate
representing shares sold under the Plan is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Shares but lacking such legend.
12. AMENDMENT OF THE PLAN. The Board may from time to time, with
respect to any Shares at the time not subject to Options, suspend or
discontinue the plan or revise or amend it in any respect whatsoever, except
that, if the Plan has been approved by the shareholders of the Corporation,
without the approval of the Corporation's shareholders, no such revision or
amendment that has not been approved by the Corporation's shareholders shall:
(a) Increase the number of Shares subject to the Plan;
(b) Change the designation in Section 5 hereof with respect to the
classes of persons eligible to receive Options; or
(c) Amend this Section 12 to defeat its purpose.
13. APPLICATION OF FUNDS. The proceeds received by the
Corporation from the sale of Common Stock pursuant to the exercise of an Option
will be used for general corporate purposes.
14. EXECUTION. To record the adoption of the Plan in the form set
forth above by the Board effective as of the date specified in Section 3 above,
the Corporation has caused this Plan to be executed in the name and on behalf
of the Corporation where provided below by an officer of the Corporation
thereunto duly authorized.
MODTECH, INC.
By:
-------------------------------
President
By:
-------------------------------
Secretary
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Shareholders
of Modtech, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Modtech, Inc. of our report dated March 8, 1996, relating to the
balance sheets of Modtech Inc. as of December 31, 1994 and 1995, and the
related statements of operations, shareholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1995, which report
appears in the December 31, 1995 annual report on Form 10-K of Modtech, Inc.
/s/ KPMG Peat Marwick LLP
-------------------------------
KPMG Peat Marwick LLP
Orange County, California
November 26, 1996
