<PAGE>
As filed with the Securities and Exchange Commission on October ____, 1997
S.E.C. File No. 33-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________________________________
PREMIER CONCEPTS, INC.
----------------------------------------------
(Name of Small Business Issuer in its Charter)
COLORADO 84-1186026
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3033 SOUTH PARKER ROAD, SUITE 120
AURORA, COLORADO 80014
------------------------------------------------------------
(Address of principal executive offices, including Zip Code)
__________________________________________________________
PREMIER CONCEPTS, INC.
1993 INCENTIVE STOCK OPTION PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
__________________________________________________________
Sissel B. Greenberg, President
3033 South Parker Road, Suite 120
Aurora, Colorado 80014
----------------------------------------
(Name and address of agent for service)
(303) 338-1800
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
__________________________________________________________
Copy To:
Clifford L. Neuman, Esq.
Nathan L. Stone, Esq.
Neuman & Drennen, LLC
Temple-Bowron House
1507 Pine Street
Boulder, Colorado 80302
(303) 449-2100
__________________________________________________________
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effective date of the Registration Statement.
==============================================================================
<PAGE>
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Maximum Proposed
Title of Amount Offering Maximum Amount Of
Securities To Be Price Aggregate Registration
To Be Registered Registered Per Share (1) Offering Price Fee
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.002 par value 53,000 Shares $1.875 (1) $99,375.00 (1) $30.11
- ------------------------------------------------------------------------------
97,000 Shares 2.50 (1) 242,500.00 (1) 73.49
- ------------------------------------------------------------------------------
73,000 Shares 3.25 (1) 237,250.00 (1) 71.89
- ------------------------------------------------------------------------------
7,000 Shares 3.50 (2) 24,500.00 (2) 7.42
- ------------------------------------------------------------------------------
60,000 Shares 3.50 (2) 210,000.00 (2) 63.64
- ------------------------------------------------------------------------------
TOTAL $813,625.00 $246.55
- ------------------------------------------------------------------------------
</TABLE>
(1) Based on the exercise price of outstanding options in accordance with
paragraph (h) of Rule 457.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with paragraphs (c) and (h) of Rule 457 on the basis of the
average of the bid and asked prices of the Common Stock on October 3,
1997, as quoted on the Nasdaq SmallCap Market.
<PAGE>
<PAGE>
PROSPECTUS
PREMIER CONCEPTS, INC.
3033 South Parker Rd., Suite 120
Aurora, Colorado 80014
Telephone: (303) 338-1800
____________________________________________________________________
290,000 Shares
PREMIER CONCEPTS, INC.
Common Stock
($.002 Par Value)
Under
PREMIER CONCEPTS, INC.
1993 INCENTIVE STOCK OPTION PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
____________________________________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_____________________________________________________________________
The date of this Prospectus is October ___, 1997.<PAGE>
<PAGE>
TABLE OF CONTENTS
Item 1. Plan Information . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. 1993 INCENTIVE STOCK OPTION PLAN
The Plan: Adoption. . . . . . . . . . . . . . . . . . . . . . . 4
Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Duration and Modifications . . . . . . . . . . . . . . . . . . . 4
Class and Amount of Securities Subject to the Plan . . . . . . . 5
Administration . . . . . . . . . . . . . . . . . . . . . . . . . 5
Adjustment for Changes in Securities . . . . . . . . . . . . . . 6
Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Granting of Options. . . . . . . . . . . . . . . . . . . . . . . 7
Exercise of Options. . . . . . . . . . . . . . . . . . . . . . . 7
Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . . 8
Death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Termination of Employment. . . . . . . . . . . . . . . . . . . . 9
Transferability of Options . . . . . . . . . . . . . . . . . . .10
Resale of Shares Acquired Upon Exercise of Options . . . . . . .10
Tax Consequences . . . . . . . . . . . . . . . . . . . . . . . .10
Outstanding Options. . . . . . . . . . . . . . . . . . . . . . .12
B. 1995 EMPLOYEE STOCK PURCHASE PLAN
The Plan: Adoption. . . . . . . . . . . . . . . . . . . . . . .12
Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Duration and Modifications . . . . . . . . . . . . . . . . . . .13
Class and Amount of Securities Subject to the Plan . . . . . . .13
Administration . . . . . . . . . . . . . . . . . . . . . . . . .13
Adjustment for Changes in Securities . . . . . . . . . . . . . .14
Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . .15
Granting of Options. . . . . . . . . . . . . . . . . . . . . . .15
Exercise of Options. . . . . . . . . . . . . . . . . . . . . . .15
Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . .16
Death and Designation of Beneficiary . . . . . . . . . . . . . .16
Withdrawal: Termination of Employment . . . . . . . . . . . . .17
Transferability of Options . . . . . . . . . . . . . . . . . . .17
Resale of Shares Acquired Upon Exercise of Options . . . . . . .17
Tax Consequences . . . . . . . . . . . . . . . . . . . . . . . .18
Outstanding Options. . . . . . . . . . . . . . . . . . . . . . .18
Item 2. Registrant Information and Employee Plan Annual Information. . .18
Item 3. Incorporation of Documents by Reference. . . . . . . . . . . . .20
Item 4. Description of Securities. . . . . . . . . . . . . . . . . . . .20
Item 5. Interests of Named Experts and Counsel . . . . . . . . . . . . .20
Item 6. Indemnification of Directors and Officers. . . . . . . . . . . .21
Item 7. Exemption from Registration Claimed. . . . . . . . . . . . . . .26
Item 8. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Item 9. Undertakings . . . . . . . . . . . . . . . . . . . . . . . . . .27
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
- ------ ----------------
COMPANY
-------
Premier Concepts, Inc, (hereinafter referred to as "PCI" or the
"Company") is a Colorado corporation having its principal executive offices at
3033 South Parker Road, Suite 120, Aurora, Colorado 80014 (telephone number:
(303) 338-1800).
The use of masculine pronouns in this Prospectus is done for
convenience only and refers to both males and females.
A. 1993 INCENTIVE STOCK OPTION PLAN
--------------------------------
The Plan: Adoption
------------------
The Board of Directors adopted the 1993 Incentive Stock Option Plan
(hereinafter referred to as the ISOP). The ISOP was ratified and approved
by the Company's shareholders at the annual meeting held November 23, 1992.
The ISOP provides for the granting of (1) Incentive Stock Options
(ISO's) which are intended to qualify as such within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the Code), and (2)
Non-qualified Stock Options (NSO's)
The ISOP is not subject to any provisions of the Employee Retirement
Income Security Act of 1974; and the ISOP is not subject to the qualification
requirements under Section 401(a) of the Code.
Purpose
-------
The general purpose of the ISOP is to provide directors, executive
officers and key employees of the Company and of any present or future Parent
or Subsidiary of the Company, who have contributed to the continued growth and
development of the Company, with an opportunity to acquire a proprietary
interest in the Company and thus to create in such directors, executive
officers and key employees an increased interest in, and a greater concern
for, the welfare of the Company.
Duration and Modifications
--------------------------
Options may be granted under the ISOP at any time up to December 31,
2003, when the ISOP will expire except as to any Options outstanding, which
Options will remain in effect until they have been exercised or have expired.
Class and Amount of Securities Subject to the Plan
--------------------------------------------------
Subject to adjustment as described below, an aggregate of up to
230,000 shares of the Company's Common Stock, $.002 par value, are authorized
to be issued upon exercise of Options granted under the ISOP.
Under the terms of the ISOP, shares subject to and not issued under
an Option which expires or terminates or is cancelled for any reason during
the term of the ISOP are again available for the granting of Options under the
ISOP.
Administration
--------------
A Committee (Committee) of the Company's Board of Directors (the
Board) consisting of not less than two (2) disinterested members of the
Board (within the meaning of Rule 16b-3(c )(2)(I) promulgated under the
Securities Exchange Act of 1934, as amended) is responsible for the
administration of the ISOP. The Committee members may be removed or replaced
by a vote of the majority of the Board. Any or all powers and functions of
the committee may at any time be exercised by the Board; provided, however,
that such exercise by the Board must involve a majority of disinterested Board
members (within the meaning of Rule 16b-3(c )(2)(I) promulgated under the
Exchange Act. All determinations by the Committee or Board are final and
conclusive.
The committee is authorized, subject to the provisions of the ISOP,
to:
(1) Determine the directors, executive officers and key employees
to whom Options shall be granted, the time when such Options shall be granted,
the number of shares which shall be subject to each Option, the purchase price
or exercise price of each share which shall be subject to each Option, the
periods during which such Options shall be exercisable (whether in whole or in
part) and the other terms and provisions with respect to the Options (which
need not be identical);
(2) Determine, upon review of relevant information and in
accordance with other provisions below, the fair market value of the Common
Stock underlying the Options;
(3) Construe the ISOP and Options granted thereunder;
(4) Accelerate or defer (with consent of the Optionee) the exercise
of any Option, consistent with other provisions in the ISOP;
(5) Authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option;
(6) Prescribe, amend and rescind rules and regulations relating to
the ISOP;
(7) Make all other determinations deemed necessary or advisable for
the administration of the ISOP.
Adjustment for Changes in Securities
------------------------------------
The ISOP requires the Board to make appropriate adjustments in the
number and kind of shares available under the ISOP and in the number, price
and kind of shares covered by Options granted or to be granted under the ISOP,
in the event of a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of the Company's Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration". The foregoing
notwithstanding, no issuance by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made, with respect to the number or
price of shares of Common Stock subject to an Option
The ISOP also provides that, upon the dissolution or liquidation of
the Company, all outstanding Options will terminate immediately prior to the
consummation of such action, unless otherwise provided by the Board. The
Board may, in the exercise of its sole discretion in such instances, declare
that any Option shall terminate as of a date fixed by the Board and give each
Optionee the right to exercise his Option as to all or any part of the
Optioned Stock, including shares as to which the Option would not otherwise be
exercisable. In the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into another
corporation, the Option shall be assumed or an equivalent Option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless such successor corporation does not agree to
assume the Option or to substitute an equivalent Option, in which case the
Board shall, in lieu of such assumption or substitution provide for the
Optionee to have the right to exercise the Option as to all of the Optioned
Stock, including shares as to which the Option would not otherwise be
exercisable. If the Board makes an Option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Board shall notify the Optionee that the Option shall be fully exercisable for
a period of fifteen (15) days from the date of such notice, and the Option
will terminate upon the expiration of such period.
If, as a result of accelerating the time period during which all
Options are exercisable in full in the event of a merger or asset transaction
an Optionee would incur liability under Section 16(b) of the Securities
Exchange Act of 1934, such Optionee may request the Company to, and the
Company is obligated to, repurchase such Option for cash equal to the excess
of the fair market value on the advanced termination date of the shares
subject to the Option over the Option exercise price.
Eligibility
-----------
Except as otherwise provided in the ISOP, NSO's may be granted to
directors, officers, key salaried employees of the Company and consultants and
advisors to the Company, or any subsidiary or parent corporation, now existing
or hereinafter formed or acquired. Any person who shall have retired from
active employment by the Company shall not be eligible to receive a NSO.
ISO's may be granted only to salaried key employees of the Company
or any Subsidiary corporation or Parent corporation of the Company, now
existing or hereafter formed or acquired, and not to any director who is not
also an employee.
Granting of Options
-------------------
The plan provides that the Committee shall have the authority, in
its discretion, to determine the directors, executive officers and key
employees to whom Options shall be granted, the time when such Options shall
be granted, the number of shares which shall be subject to each Option, the
purchase price or exercise price of each share which shall be subject to each
Option, the periods during which such Options shall be exercisable (whether in
whole or in part) and the other terms and provisions with respect to the
Options (which need not be identical).
There is no minimum or maximum amount of shares for which any one
eligible person may receive NSO's. However, the amount of aggregate fair
market value of the stock determined at the time of the grant of an ISO for
which any employee may be granted ISO's under the ISOP in any calendar year
shall not exceed the sum of (i) $100,000 plus (ii) an unused limit carryover
amount for any year after the date of the ISOP but prior to the calendar year
under consideration. The unused limit carryover amount shall be determined as
one-half of the amount by which $100,000 exceeds the aggregate fair market
value at the time of grant of an ISO under the ISOP for which ISO's were
granted in any prior year, but carried over for not more than three (3) years.
For this purpose, ISO's granted in any year shall be deemed to first use up
the $100,000 current year limitation and then the unused limit carryover
amount from the earliest available year.
Each Option is to be evidenced by a written agreement (an Option
Agreement) containing terms and conditions established by the Board
consistent with the provisions of the ISOP.
Exercise of Options
-------------------
Any Option may be exercised by the Participant holding such Option
for such period or periods as the Committee shall determine at the date of
grant of such Option. In no event shall any ISO granted to a Participant
owning more than ten percent (10%) of the voting power of all classes of the
Company's Stock, or the stock of any Subsidiary or Parent corporation, be
exercisable by its terms after the expiration of five (5) years from the date
it is granted, nor shall any other ISO granted under this ISOP be exercisable
by its terms after ten (10) years from the date it is granted. The Committee
shall have the right to accelerate, in whole or in part, the expiration date
of any Option; and to the extent that an Option is not exercised within the
period of exercisability specified therein, it shall expire as to the then
unexercised portion.
Although the Company intends to exert its best efforts so that the
shares purchasable upon the exercise of an Option, when it first becomes
exercisable, will be registered under, or exempt from the registration
requirements of, the Securities Act of 1933 (the Act) and any applicable
state securities law, if the exercise of an Option would otherwise result in
the violation by the Company of any provision of the Act or of any state
securities law, the Company may require that such exercise be deferred until
the Company has taken appropriate action to avoid any such violation.
An Option holder will not be deemed the holder of any shares subject
to an Option until such shares are fully paid and issued to him upon exercise
of such Option.
Exercise Price
--------------
The purchase price for each share purchasable under any NSO granted
under the ISOP shall be such amount as the Committee shall deem appropriate.
The exercise price at which shares may be purchased under each ISO
cannot be less than 100% of the fair market value of the stock on the date on
which the Option is granted. If the Company's shares are listed on a national
securities exchange in the United States on any date on which the fair market
value per share is to be determined, the fair market value per share shall be
deemed to be the average of the high and low quotations at which such shares
are sold on such national securities exchange on such date. If the shares are
listed on a national securities exchange in the United States on such date but
the shares are not traded on such date, or such national securities exchange
is not open for business on such date, the fair market value per share shall
be determined as of the closest preceding date on which such exchange shall
have been open for business and the shares were traded. If the shares are
listed on more than one national securities exchange in the United States on
the date any such Option is granted, the Committee shall determine which
national securities exchange shall be used for the purpose of determining the
fair market value per share. If a public market exists for the shares on any
date on which the fair market value per share is to be determined but the
shares are not listed on a national securities exchange in the United States,
the fair market value per share shall be deemed to be the mean between the
closing bid and asked quotations in the over-the-counter market for the shares
on such date. If there are no bid and asked quotations for the shares on such
date, the fair market value per share shall be deemed to be the mean between
the closing bid and asked quotations in the over-the-counter market for the
shares on the closest date preceding such date for which such quotations are
available. If no public market exists for the shares on any date on which the
fair market value per share is to be determined, the Committee shall, in its
sole discretion and best judgment, determine the fair market value of a share.
For purposes of the ISOP, the determination by the Committee of the fair
market value of a share shall be conclusive..
If any grantee of an ISO (directly and under attribution rules of
the Code) stock possessing more than 10% of the total combined voting power of
PCI (or any parent or subsidiary of PCI) the Option price of that ISO shall be
not less than 110% of the fair market value of shares subject to the Option
and such Option shall not be exercisable after the expiration of five years
from its date of grant.
The exercise price for shares purchased must be paid in full at the
time of exercise; no shares will be issued until full payment is made. Such
payment may be made either (1) in cash; (2) by check; or (3) in the
discretion of the Committee, by delivering shares of the Company's Common
Stock, valued at its fair market value determined as of the date of exercise
of the Option, or a combination of the foregoing.
Cash proceeds from the exercise of Options are added to the general
funds of the Company available for its corporate purposes.
Death
-----
If an Option holder dies while in the employ of the Company or a
Subsidiary or Parent, the person or persons to whom the Option is transferred
by will or the laws of descent and distribution, may, at any time within one
(1) year after the date of death, but no later than the date of expiration of
the Option, exercise the Option. Any Options or portions of Options of
deceased employees not so exercised will terminate.
Termination of Employment
-------------------------
Disability
----------
If the employment or service of an Optionee is terminated by
reason of disability [defined in Section 22(e)(3) of the Code in the case of
an ISO, and determined by the Board of Directors], the Option then held by the
Optionee may be exercised, to the extent the Option was exercisable at the
time of such termination, within one (1) year after such termination, but not
later than the date of expiration of the Option. Any Options, or portions
thereof, no so exercised will terminate.
Other Termination
-----------------
Upon termination of directorship or employment with the
Company, or a Subsidiary or Parent, for any reason except death or disability,
an Option holder may, at any time within three (3) months after the date of
such termination, but not later than the date of expiration of the Option,
exercise the Option to the extent he was entitled to do so on the date of such
termination; provided, however, that if such director or employee voluntarily
terminates his directorship or employment, or is discharged for cause, of
which the Board is the sole judge, his Option will expire immediately. An
Optionee whose directorship or employment is terminated by retirement in
accordance with the Company's normal retirement policies, as determined by the
Committee, will be permitted to exercise any Options held by such Optionee, to
the extent he was entitled to do so on the date of such retirement, within
three (3) months after the date of such termination, but not later than the
date on which such Options would otherwise expire. Any Options or portions of
Options of terminated employees not so exercised will terminate.
A participant on a bona fide leave of absence shall be
considered an employee for purposes of the exercise of an Option and shall be
entitled to exercise such Option during such leave (but in the case of ISO's,
only to the extent that his employment is not determined to be interrupted
thereby for purposes of Section 422 of the Code) Also, a transfer from the
Company to a Parent or subsidiary or from a Parent or Subsidiary to the
Company will not be deemed a termination or interruption of employment for
purposes of the ISOP.
Nothing in the ISOP, or in any Option granted thereunder,
confers on any person any right with respect to continuation of employment or
retention in service in any capacity by the Company or a Parent or Subsidiary,
and the grant of an Option under the ISOP shall not constitute an employment
agreement of any kind.
Transferability of Options
--------------------------
An Option granted under the ISOP may not be transferred except by
will or the laws of descent and distribution and, during the lifetime of an
Optionee, the Option may be exercised only by him or his legal guardian or
legal representative.
Resale of Shares Acquired Upon Exercise of Options
--------------------------------------------------
Generally, Optionees who are not "affiliates" (controlling persons)
of the Company at the time of a proposed resale may sell shares acquired after
the date of this Prospectus upon exercise of Options granted under the ISOP
without regard to securities law registration restrictions, since such shares
have been registered under the Securities Act of 1933 and will not be
"restricted securities." An "affiliate" is a person having sole power or
sharing the power to direct or cause the direction of the management and
policies of the Company. Unless a separate resale prospectus is prepared and
filed with the Securities and Exchange Commission ("SEC") by the Company,
affiliates must make resales of such shares in compliance with SEC Rule 144
(except that the holding period requirement of Rule 144 is not applicable to
the resale of such shares), or another available exemption from registration
under the Securities Act of 1933. Thus, affiliates are subject generally to
the same restrictions with regard to the resale of shares acquired under the
ISOP as they are with respect to the resale of otherwise-acquired shares of
the Company's Common Stock, including the restrictions resulting from the
provisions of Section 16(b) of the Securities Exchange Act of 1934.
Section 16(b) of the Securities Exchange Act of 1934 provides for recapture by
the Company of "profit" realized by an officer, director or more than 10%
shareholder of the Company from any purchase (including the exercise of an
Option) and sale, or any sale and purchase, of any equity security of the
Company within any period of less than six months.
Tax Consequences
----------------
The Company has been advised that under the present provisions of
the Code, and subject to all regulations promulgated under Section 422
thereof, the federal income tax consequences with respect to Options which may
be granted under the ISOP can be summarized as follows:
(1) An Optionee will not recognize income nor will the Company be
entitled to a deduction at the time an ISO is granted or exercised. Any gain
upon the subsequent sale of the shares acquired on exercise of an ISO is
subject to tax at capital gains rates; provided that the Optionee makes no
disposition of the shares within two (2) years after the ISO is granted or
within one year after the shares are transferred to the Optionee, whichever is
later. The spread between the ISO price and the fair market value of the
shares at the time o exercise is, however, a preference item and must be
recognized for purposes of the alternative minimum tax. The Company is not
entitled to any tax deduction if the Optionee satisfies the holding period
requirements described above.
(2) If the Optionee makes a disposition of shares purchased upon
exercise of an ISO before the expiration of the requisite holding periods
described above, the Optionee will be taxed as if he had received compensation
income in the year of disposition and the Company will be entitled to a
corresponding deduction in that year; provided it satisfies certain
withholding requirements. The holding period requirements are waived in the
event of the employee's death. The amount of income (and the Company's
deduction) will be equal to the difference between the ISO exercise price and
the fair market value o the shares on the date of exercise. Any balance of
the Optionee's gain on disposition of the shares will be subject to tax as a
capital gain determined under the normal capital asset holding period rules.
However, if the Optionee makes a disqualifying disposition of shares before
the expiration of the holding periods described above that is a sale or
exchange with respect to which a loss (if sustained) would be recognized (i.e.
not to a related party), the amount of compensation income recognized by the
Optionee (and the Company's deduction) will not exceed the excess, if any, of
the amount realized over the adjusted basis of the shares.
(3) Shares purchased upon the exercise o an ISO may be paid for in
whole or part by delivering previously acquired shares of Common Stock of the
Company. However, all stock acquired pursuant to the exercise of an ISO is
subject to the holding period rules and disqualifying disposition rules
described above, regardless of whether such stock is paid for with cash or
previously acquired shares. Furthermore, the exercise of an ISO with
previously acquired shares will be deemed to be an exchange to which Section
1036 of the Code applies. The Optionee's basis and holding period in the
number of shares of ISO stock that equals the number of previously acquired
shares used to exercise the ISO will be the same as the basis and holding
period of the previously acquired shares used to exercise the ISO. The
Optionee's basis in any remaining shares of ISO stock will be zero and his
holding period for those shares will begin on the date he acquires those
remaining shares.
(4) An Optionee will not recognize taxable income at the time a NSO
is granted, but taxable income will be recognized, and the Company will be
entitled to a deduction (provided it satisfies certain withholding
requirements) at the time of exercise of the NSO. The amount of income (and
the Company's deduction) will be equal to the difference between the NSO
exercise price and the fair market value of the shares on the date of
exercise. The income recognized will be taxed at ordinary income tax rates
for federal income tax purposes. On subsequent disposition of the shares
acquired upon exercise of a NSO, capital gain or loss, as determined under the
normal capital asset holding period rules, will be recognized in the amount of
the difference between the proceeds of sale and the fair market value of the
shares on the date of exercise.
(5) Where the NSO exercise price is paid in previously acquired
stock, the exercise is treated as a tax-free exchange of the shares of
previously acquired stock (without recognizing any taxable gain with respect
thereto) for a like number of new shares (with such new shares having the same
basis and holding period as the old). The Optionee's basis in any remaining
shares will equal the amount of compensation income recognized upon exercise
of the NSO and the holding period for such shares will begin on the day the
Optionee acquires them. This mode of payment does not affect the ordinary
income tax liability incurred upon exercise of the NSO described above.
(6) If statutory option stock (stock acquired through the
exercise of an ISO and Options issued under an employee stock purchase plan)
is transferred to acquire shares offered under an Option, and if the
applicable holding periods for such statutory option stock have not been met
before such transfer, the transfer is considered a disqualifying disposition
and will result in ordinary income with respect to the stock disposed of, but
will not affect the tax treatment, as described above, for the stock received.
(7) In the case of officers and directors of the Company subject to
the short-swing profit provisions of Section 16(b) under the Securities
Exchange Act of 1934, the tax consequences of exercise of either an ISO or NSO
granted under the ISOP will be deferred until at least six months after
exercise, unless such persons otherwise elect at the time of exercise.
However, the income when recognized will include any appreciation in value of
the acquired shares during the period of deferral, and the capital gain
holding period will not begin to run until the end of the period of deferral.
The foregoing summary description is based upon the presently
applicable provisions of the Code, and is subject to change in the event of a
change in either the Code or interpretations thereof. Each Optionee is urged
to consult his personal legal and tax advisor as to the legal and tax effects
of his individual situation and his participation in the ISOP.
Outstanding Options
-------------------
As of September 30, 1997, Options had been granted pursuant to the
ISOP exercisable to purchase an aggregate of 223,000 shares of which options
exercisable to purchase 173,000 shares are fully vested and exercisable, and
options exercisable to purchase 50,000 shares are subject to future vesting;
and all 223,000 Options were outstanding and unexercised. On that date, 7,000
additional shares authorized to be issued under the ISOP were available for
future Option grant and purchase.
B. THE 1995 EMPLOYEE STOCK PURCHASE PLAN.
-------------------------------------
The Plan: Adoption
-------------------
The Board of Directors adopted the 1995 Employee Stock Purchase Plan
(hereinafter referred to as the "ESPP"). The ESPP was ratified and approved
by the Company's shareholders at the annual meeting of shareholders held June
12, 1995.
The ESPP was created pursuant to Section 423 of the Internal Revenue
Code of 1986, as amended, and authorizes the Company to offer its employees up
to 20,000 shares per year over a three-year term, or a total of 60,000 shares.
The ESPP is not subject to any provisions of the Employee Retirement
Income Security Act of 1974; and the ESPP is not subject to the qualification
requirements under Section 401(a) of the Code.
Purpose
-------
The general purpose of the ESPP is to promote the growth and
development of the Company by providing increased incentives for employees of
the Company and its Designated Subsidiaries. Pursuant to the ESPP, employees
will be given an opportunity to purchase Common Stock of the Company through
accumulated payroll deductions. The ESPP is a qualified "Employee Stock
Purchase Plan" pursuant to Section 423 of the Internal Revenue Code of 1986,
as amended. The provisions of the ESPP shall, accordingly, be construed so as
to extend and limit participation in a manner consistent with the requirements
of that section of the Code.
Duration and Modifications
--------------------------
Options may be granted under the ESPP at any time up to June 12,
1998, when the Plan will expire except as to any Options outstanding, which
Options will remain in effect until they have been exercised or have expired.
The Company's Board of Directors (the "Board"), or a committee of
the Board may at any time, without the approval of the shareholders of the
Company, alter, amend, modify, suspend or discontinue the ESPP, provided that:
(1) Members of the Board who are eligible to participate in the
ESPP may not vote on any matter affecting the administration of the ESPP or
the grant of any Option pursuant to the ESPP.
(2) If a committee is established to administer the ESPP, no member
of the Board who is eligible to participate in the ESPP may be a member of the
committee.
However the Board or its committee may not, without the consent of
the holder of an Option, make any alteration which would adversely affect an
Option previously granted under the ESPP or, without the approval of the
shareholders of the Company, make any alteration which would (a) increase the
aggregate number of shares available for Options under the ESPP, except as
described herein, (b) reduce the exercise price of shares purchased under the
ESPP below the price as figured pursuant to paragraph 7 of the ESPP, or (c)
materially increase the benefits accruing to participants under the ESPP.
Class and Amount of Securities Subject to the Plan
--------------------------------------------------
Subject to adjustment as described below, an aggregate of up to
60,000 shares of the Company's Common Stock, $.002 par value, are authorized
to be issued upon exercise of Options granted under the ESPP.
Under the terms of the ESPP, shares subject to and not issued under
an Option which expires or terminates or is cancelled for any reason during
the term of the ESPP are again available for the granting of Options under the
ESPP.
Administration
--------------
The ESPP shall be administered by the Board of the Company or a
committee of members of the Board appointed by the Board. Committee members
may be removed and replaced by a vote of the majority of the Board.
The Board or its committee shall have full and exclusive
discretionary authority, pursuant to the ESPP, to construe, interpret and
apply the terms of the ESPP, to determine eligibility and to adjudicate all
disputed claims filed under the ESPP. Every finding, decision and
determination made by the Board or its committee shall, to the full extent
permitted by law, be final and binding upon all parties.
<PAGE>
Adjustment for Changes in Securities
------------------------------------
The ESPP requires the Board to make appropriate adjustments in the
number and kind of shares available under the ESPP and in the number, price
and kind of shares covered by Options granted or to be granted under the ESPP,
in the event of a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of the Company's Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration". The foregoing
notwithstanding, no issuance by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made, with respect to the number or
price of shares of Common Stock subject to an Option.
The ESPP also provides that, upon the dissolution or liquidation of
the Company, the Offering Period will terminate immediately prior to the
consummation of such action, unless otherwise provided by the Board. In the
event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Option shall be assumed or an equivalent Option shall be substituted by such
successor corporation or a Parent or Subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, to shorten the Offering Period then
in progress by setting a new Exercise Date (the "New Exercise Date"). If the
Board shortens the Offering Period then in progress in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall
notify each participant in writing, at least ten (10) days prior to the New
Exercise Date, that the Exercise Date for his Option has been changed to the
New Exercise Date and that his Option will be exercised automatically on the
New Exercise Date, unless prior to such date he has withdrawn from the
Offering Period, as provided herein. For purposes of this paragraph, an
Option granted under the ESPP shall be deemed to be assumed if, following the
sale of assets or merger, the Option confers the right to purchase, for each
share of Option stock subject to the Option immediately prior to the sale of
assets or merger, the consideration (whether stock, cash or other securities
or property) received in the sale or assets or merger by holders of Common
Stock for each share of Common Stock held on the effective date of the
transaction (and if such holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if such consideration
received in the sale of assets or merger was not solely common stock of the
successor corporation or its Parent (as defined in Section 425(e) of the
Code), the Board may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon exercise of the
Option to be solely Common Stock of the successor corporation or its Parent
equal in fair market value to the per share consideration received by holders
of Common Stock and the sale of assets or merger.
The Board may, if it so determines, in the exercise of its sole
discretion, also make provision for adjusting the Reserve, as well as the
price per share of Common Stock covered by each outstanding Option, in the
event the Company effects one or more reorganizations, recapitalizations,
rights of offerings or other increases or reductions of shares of its
outstanding Common Stock, and in the event of the Company being consolidated
with or merged into any other corporation.
Eligibility
-----------
As provided in the ESPP, any individual who is an employee of the
Company for purposes of tax withholding under the Code whose customary
employment with the Company or any Designated Subsidiary is at least (20)
hours per week and more than five (5) months in any calendar year. For
purposes of the ESPP, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds ninety
(90) days and the individual's right to reemployment is not guaranteed either
by statute or by contract, the employment relationship will be deemed to have
terminated on the 91st day of such leave.
Any provisions of the ESPP to the contrary notwithstanding, no
Employee shall be granted an Option under the ESPP (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed
to such Employee pursuant to Section 425(d) of the Code) would own stock
and/or hold outstanding Options to purchase stock possessing five percent (5%)
of more of the total combined voting power or value of all classes of stock of
the Company or of any Subsidiary of the Company, or (ii) which permits his or
her rights to purchase stock under all employee stock purchase plans of the
Company and its Subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) worth of stock (determined at the fair market value
of the shares at the time such Option is granted) for each calendar year in
which such Option is outstanding at any time.
Granting of Options
-------------------
The ESPP provides that on the Enrollment Date of each Offering
Period, each eligible Employee participating in such Offering Period shall be
granted an Option to purchase on each Exercise Date during such Offering
Period (at the per share option price) up to a number of shares of the
Company's Common Stock determined by dividing such Employee's payroll
deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date. Provided, however, that in no
event shall an Employee be permitted to purchase during each Offering Period
more than a number of shares calculated herein of the Company's Common Stock
on the Enrollment Date, and provided further that such purchase shall be
subject to the various limitations set forth in these Sections describing the
ESPP.
Exercise of Options
-------------------
Unless a participant withdraws from the ESPP as provided below, his
or her Option for the purchase of shares will be exercised automatically on
the Exercise Date, and the maximum number of full shares subject to Option
shall be purchased for such participant at the applicable Option price with
the accumulated payroll deductions in his or her account. No fractional
shares will be purchased and any payroll deductions accumulated in a
participant's account which are not used to purchase shares shall be refunded
to the participant or retained in the participant's account for the subsequent
Offering Period, as the Board or its committee shall determine, subject to an
earlier withdrawal be the participant as provided below. During a
participant's lifetime, a participant's Option to purchase shares hereunder is
exercisable only by him or her.
Exercise Price
--------------
The Option price per share pf the shares offered in a given Offering
Period shall be the lower of: (i) 85% of the fair market value of a share of
the Common Stock of the Company on the Enrollment date; or (ii) 85% of the
fair market value of a share of the Common Stock of the Company on the
Exercise Date. For the purposes of the ESPP, the "fair market value" of the
Company's Common Stock on a given date shall be (i) the closing sale price for
the Common Stock on the primary exchange upon which the shares are listed and
traded on the date; or (ii) if the shares are not traded on any national
exchange, the closing sale price for the Common Stock on the NASDAQ National
Market on the date; or (iii) if the shares are neither traded on a national
exchange nor listed on the NASDAQ National Market, then the average of the bid
and ask prices for the Common Stock in the Over-The-Counter-Market as quoted
on the NASDAQ Small-Cap Market or (iv) if the shares of Common Stock are
neither traded on a national exchange nor the NASDAQ National Market nor
quoted on the NASDAQ Small-Cap Market, the average of the bid and ask prices
for the Common Stock as quoted by any recognized securities quotation service
such as the National Quotation Bureau, Inc. or the OTC Electronic Bulletin
Board on the date. In the event the Enrollment Date or the Exercise Date
occurs on a weekend or legal holiday, the fair market value shall be
determined on the next Trading Date.
Death and Designation of Beneficiary
------------------------------------
If a participant dies while in the employ of the Company or a
Subsidiary, such participant's Options shall automatically terminate.
A participant may file a written designation of a beneficiary who is
to receive any shares and cash from the participant's account under the ESPP
in the event of such participant's death subsequent to an Exercise Date on
which the Option is exercised but prior to delivery to such participant of
such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's
account under the ESPP in the event of such participant's death prior to
exercise of the Option.
Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the ESPP who is living
at the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the knowledge
of the Company), the Company, in its discretion, may deliver such shares
and/or cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
Withdrawal: Termination of Employment
-------------------------------------
A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her Option under the ESPP at any time by giving written notice to the Company
in the form of a "notice of withdrawal." All of the participant's payroll
deductions credited to his or her account will be paid to such participant
without interest, less payroll tax deductions customarily withheld by the
Company, promptly after receipt of notice of withdrawal and such participant's
Option for the Offering Period will be automatically terminated, and no
further payroll deductions for the purchase of shares will be made during the
Offering Period. If a participant withdraws from an Offering Period, payroll
deductions will not resume at the beginning of the succeeding Offering Period
unless the participant delivers to the Company a new subscription agreement.
Upon a participant's ceasing to be an Employee for any reason or
upon termination of a participant's employment relationship, the payroll
deductions credited to such participant's account during the offering Period
but not yet used to exercise the Option will be returned to such persons
entitled thereto, and such participant's Option will be automatically
terminated.
In the event an Employee fails to remain an Employee of the Company
for at least twenty (20) hours per week during an Offering Period in which the
Employee is a participant, he or she will be deemed to have elected to
withdraw from the ESPP and the payroll deductions credited to his or her
account will be returned to such participant and such participant's Option
terminated.
A participant's withdrawal from an Offering Period will not have any
effect upon his or her eligibility to participate in any similar plan which
hereafter may be adopted by the Company or in succeeding Offering Periods
which commence after the termination of the Offering Period from which the
participant withdraws.
Transferability of Options
--------------------------
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an Option or to receive shares under
the ESPP may be assigned, transferred, pledged or otherwise disposed of in any
way (other than by will, the laws of descent and distribution or designation
of beneficiary as provided above.) Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the Company
may treat such act as an election to withdraw funds from an Offering Period in
accordance with the provisions regarding withdrawal.
Resale of Shares Acquired Upon Exercise of Options
--------------------------------------------------
Generally, Optionees who are not "affiliates" (controlling persons)
of the Company at the time of a proposed resale may sell shares acquired after
the date of this Prospectus upon exercise of Options granted under the ESPP
without regard to securities law registration restrictions, since such shares
have been registered under the Securities Act of 1933 and will not be
"restricted securities." An "affiliate" is a person having sole power or
sharing the power to direct or cause the direction of the management and
policies of the Company. Unless a separate resale prospectus is prepared and
filed with the Securities and Exchange Commission ("SEC") by the Company,
affiliates must make resales of such shares in compliance with SEC Rule 144
(except that the holding period requirement of Rule 144 is not applicable to
the resale of such shares), or another available exemption from registration
under the Securities Act of 1933. Thus, affiliates are subject generally to
the same restrictions with regard to the resale of shares acquired under the
ESPP as they are with respect to the resale of otherwise-acquired shares of
the Company's Common Stock, including the restrictions resulting from the
provisions of Section 16(b) of the Securities Exchange Act of 1934.
Section 16(b) of the Securities Exchange Act of 1934 provides for recapture by
the Company of "profit" realized by an officer, director or more than 10%
shareholder of the Company from any purchase (including the exercise of an
Option) and sale, or any sale and purchase, of any equity security of the
Company within any period of less than six months.
Tax Consequences
----------------
The Company has been advised that under the present provisions of
the Code, and subject to all regulations promulgated under Section 423
thereof, the federal income tax consequences with respect to Options which may
be granted under the ESPP can be summarized as follows:
(1) In order for an employee to qualify for favorable tax treatment
under Section 423, he must hold stock purchased under the ESPP for either a
period of two (2) years after the option is granted or one (1) year after
purchase of the stock.
(2) The employee recognizes ordinary income in the amount of the
lesser of: (a) the difference between the fair market value of the shares when
sold or the fair market value of the shares at the employee's death while
owning the shares, and the Option price for the shares or (b) the difference
between the option price and the fair market value of the shares when the
option was granted. The balance of any gain is treated as capital gain. The
Company shall have no deduction at any time for the stock purchased under the
ESPP.
Outstanding Options
-------------------
As of September 30, 1997, no Options had been granted under the
ESPP.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
------------------------------------------------------------
Premier Concepts, Inc. will provide without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any document referred to
herein in Item 3. under the caption "Incorporation of Certain Documents by
Reference," which documents are incorporated by reference in Premier Concepts,
Inc.'s Section 10(a) prospectus, together with a copy of the Plan, and/or a
copy of Premier Concepts, Inc.'s latest annual report to shareholders. Such a
request should be directed to Premier Concepts, Inc., 3033 South Parker Road,
Suite 120, Aurora, Colorado, 80014, Attention: Corporate Secretary;
Telephone: (303) 338-1800.
Premier Concepts, Inc. is subject to the informational reporting
requirements of the Securities Exchange Act of 1934 and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy and
information statements and other information filed by Premier Concepts, Inc.
can be inspected and copied at the public reference facilities maintained by
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 10549.
Copies of such material can be obtained from the Public Reference Section of
the Commission, Washington, D.C. 20549, at prescribed rates and are publicly
available through the Commission's website at http://www.sec.gov. Additional
updating information with respect to the securities covered herein may be
provided in the future to Plan participants by means of appendices to this
Prospectus.<PAGE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- --------------------------------------------------
The Registrant hereby states that (i) the documents listed in (a)
through (c) below are incorporated by reference in this Registration Statement
and (ii) all documents subsequently filed by the Registrant 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
hereunder have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
A. The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended January 26, 1997, as filed with the Commission on April 15, 1997;
B. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant
document referred to in (a) above, including:
(1) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended April 27, 1997, as filed with the Commission on June 11, 1997;
(2) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended July 27, 1997, as filed with the Commission on September 9,
1997;
(3) The Notice of Annual Meeting of Shareholders, Proxy Statement
and form of Proxy filed with the Securities and Exchange Commission
("Commission") on April 30, 1996, in connection with the Registrant's Annual
Meeting of Shareholders on May 31, 1996;
(4) The description of the Registrant's Common Stock, $.002 par
value, contained in the Registrant's Registration Statement on Form 8-A,
declared effective on April 21, 1997, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, including any amendment or report filed for
the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
- ------------------------------------
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- -------------------------------------------------
Clifford L. Neuman, a partner in the law firm of Neuman & Drennen, LLC
is the beneficial owner of 24,300 shares of Common Stock of the Registrant.
Nathan L. Stone, an associate in the law firm of Neuman & Drennen,LLC is the
beneficial owner of 300 shares of the Registrants Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
- ----------------------------------------------------
The only statute, charter provision, bylaw, contract, or other
arrangements under which any controlling person, director or officers of the
Registrant is insured or indemnified in any manner against any liability which
he may incur in his capacity as such, are as follows:
(a) Sections 7-109-101 through 7-109-110 of the Colorado
Corporation Code provide as follows:
7-109-101. Definitions. As used in this article:
(1) "Corporation" includes any domestic or foreign entity that is a
predecessor of a corporation by reason of a merger or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee, fiduciary, or agent of another domestic or foreign corporation or
other person or of an employee benefit plan. A director is considered to be
serving an employee benefit plan at the corporation's request if his or her
duties to the corporation also impose duties on, or otherwise involve services
by, the director to the plan or to participants in or beneficiaries of the
plan. "Director" includes, unless the context requires otherwise, the estate
or personal representative of a director.
(3) "Expenses" includes counsel fees.
(4) "Liability" means the obligation incurred with respect to a
proceeding to pay a judgment, settlement, penalty, fine, including an excise
tax assessed with respect to an employee benefit plan, or reasonable expenses.
(5) "Official capacity" means, when used with respect to a
director, the office of director in a corporation and, when used with respect
to a person other than a director as contemplated in section 7-109-107, the
office in a corporation held by the officer or the employment, fiduciary, or
agency relationship undertaken by the employee, fiduciary, or agent on behalf
of the corporation. "Official capacity" does not include service for any
other domestic or foreign corporation or other person or employee benefit
plan.
(6) "Party" includes a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
7-109-102. Authority to indemnify directors.
(1) Except as provided in subsection (4) of this section, a
corporation may indemnify a person made a party to a proceeding because the
person is or was a director against liability incurred in the proceeding if:
(a) The person conducted himself or herself in good faith; and
(b) The person reasonable believed:
(I) In the case of conduct in an official capacity with the
corporation, that his or her conduct was in the corporation's best interests;
and
(II) In all other cases, that his or her conduct was at least
not opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(2) A director's conduct with respect to an employee benefit plan
for a purpose the director reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (II) of paragraph (b) of subsection (1) of this
section. A director's conduct with respect to an employee benefit plan for a
purpose that the director did not reasonably believe to be in the interests of
the participants in or beneficiaries of the plan shall be deemed not to
satisfy the requirements of paragraph (a) of subsection (1) of this section.
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(4) A corporation may not indemnify a director under this section:
(a) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation; or
(b) In connection with any other proceeding charging that the
director derived an improper personal benefit, whether or not involving action
in an official capacity, in which proceeding the director was adjudged liable
on the basis that he or she derived an improper personal benefit.
(5) Indemnification permitted under this section in connection with
a proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
7-109-103. Mandatory indemnification of directors. Unless limited by
its articles of incorporation, a corporation shall indemnify a person who was
wholly successful, on the merits or otherwise, in the defense of any
proceeding to which the person was a party because the person is or was a
director, against reasonable expenses incurred by him or her in connection
with the proceeding.
7-109-104. Advance of expenses to directors.
(1) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(a) The director furnishes to the corporation a written affirmation
of the director's good faith belief that he or she has met the standard of
conduct described in section 7-109-102;
(b) The director furnishes to the corporation a written
undertaking, executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that he or she did not meet the
standard of conduct; and
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this
article.
(2) The undertaking required by paragraph (b) of subsection (1) of
this section shall be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to financial ability to
make repayment.
(3) Determinations and authorizations of payments under this
section shall be made in the manner specified in section 7-109-106.
7-109-105. Court-ordered indemnification of directors.
(1) Unless otherwise provided in the articles of incorporation, a
director who is or was a party to a proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court, after giving any
notice the court considers necessary, may order indemnification in the
following manner:
(a) If it determines that the director is entitled to mandatory
indemnification under section 7-109-103, the court shall order
indemnification, in which case the court shall also order the corporation to
pay the director's reasonable expenses incurred to obtain court-ordered
indemnification.
(b) If it determines that the director is fairly and reasonable
entitled to indemnification in view of all the relevant circumstances, whether
or not the director met the standard of conduct set forth in section 7-109-102
(1) or was adjudged liable in the circumstances described in section 7-109-102
(4), the court may order such indemnification as the court deems proper;
except that the indemnification with respect to any proceeding in which
liability shall have been adjudged in the circumstances described in section
7-109-102 (4) is limited to reasonable expenses incurred in connection with
the proceeding and reasonable expenses incurred to obtain court-ordered
indemnification.
7-109-106. Determination and authorization of indemnification of
directors.
(1) A corporation may not indemnify a director under section 7-109-
102 unless authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in section 7-
109-102. A corporation shall not advance expenses to a director under section
7-109-104 unless authorized in the specific case after the written affirmation
and undertaking required by section 7-109-104 (1) (a) and (1) (b) are received
and the determination required by section 7-109-104 (1) (c) has been made.
(2) The determinations required by subsection (1) of this section
shall be made:
(a) By the board of directors by a majority vote of those present
at a meeting at which a quorum is present, and only those directors not
parties to the proceeding shall be counted in satisfying the quorum; or
(b) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board of directors,
which committee shall consist of two or more directors not parties to the
proceeding; except that directors who are parties to the proceeding may
participate in the designation of directors for the committee.
(3) If a quorum cannot be obtained as contemplated in paragraph (a)
of subsection (2) of this section, and a committee cannot be established under
paragraph (b) of subsection (2) of this section, or, even if a quorum is
obtained or a committee is designated, if a majority of the directors
constituting such quorum or such committee so directs, the determination
required to be made by subsection (1) of this section shall be made:
(a) By independent legal counsel selected by a vote of the board of
directors or the committee in the manner specified in paragraph (a) or (b) of
subsection (2) of this section or, if a quorum of the full board cannot be
obtained and a committee cannot be established, by independent legal counsel
selected by a majority vote of the full board of directors; or
(b) By the shareholders.
(4) Authorization of indemnification and advance of expenses shall
be made in the same manner as the determination that indemnification or
advance of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is permissible is made by independent
legal counsel, authorization of indemnification and advance of expenses shall
be made by the body that selected such counsel.
7-109-107. Indemnification of officers, employees, fiduciaries, and
agents.
(1) Unless otherwise provided in the articles of incorporation:
(a) An officer is entitled to mandatory indemnification under
section 7-109-103, and is entitled to apply for court-ordered indemnification
under section 7-109-105, in each case to the same extent as a director;
(b) A corporation may indemnify and advance expenses to an officer,
employee, fiduciary, or agent of the corporation to the same extent as to a
director; and
(c) A corporation may also indemnify and advance expenses to an
officer, employee, fiduciary, or agent who is not a director to a greater
extent, if not inconsistent with public policy, and if provided for by its
bylaws, general or specific action of its board of directors or shareholders,
or contract.
7-109-108. Insurance. A corporation may purchase and maintain
insurance on behalf of a person who is or was a director, officer, employee,
fiduciary, or agent of the corporation, or who, while a director, officer,
employee, fiduciary, or agent of the corporation, is or was serving at the
request of the corporation as a director, officer, partner, trustee, employee,
fiduciary, or agent of another domestic or foreign corporation or other person
or of an employee benefit plan, against liability asserted against or incurred
by the person in that capacity or arising from his or her status as a
director, officer, employee, fiduciary, or agent, whether or not the
corporation would have power to indemnify the person against the same
liability under section 7-109-102, 7-109-103, or 7-109-107. Any such
insurance may be procured from any insurance company designated by the board
of directors, whether such insurance company is formed under the laws of this
state or any other jurisdiction of the United States or elsewhere, including
any insurance company in which the corporation has an equity or any other
interest through stock ownership or otherwise.
7-109-109. Limitation of indemnification of directors.
(1) A provision treating a corporation's indemnification of, or
advance of expenses to, directors that is contained in its articles of
incorporation or bylaws, in a resolution of its shareholders or board of
directors, or in a contract, except an insurance policy, or otherwise, is
valid only to the extent the provision is not inconsistent with sections 7-
109-101 to 7-109-108. If the article of incorporation limit indemnification
or advance of expenses, indemnification and advance of expenses are valid only
to the extent not inconsistent with the articles of incorporation.
(2) Sections 7-109-101 to 7-109-108 do not limit a corporation's
power to pay or reimburse expenses incurred by a director in connection with
an appearance as a witness in a proceeding at a time when he or she has not
been made a named defendant or respondent in the proceeding.
7-109-110. Notice to shareholder of indemnification of director. If a
corporation indemnifies or advances expenses to a director under this article
in connection with a proceeding by or in the right of the corporation, the
corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of
the board of directors, such notice shall be given to the shareholders at or
before the time the first shareholder signs a writing consenting to such
action.
* * *
(b) Article XI of the Amended and Restated Articles of
Incorporation of the Registrant provides, in pertinent part:
a. A director of this Corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that such an exemption from liability
or limitation thereof is not permitted under the General Corporation Laws of
the State of Colorado as the same exists or may hereafter be amended.
b. Any repeal or modification of the foregoing paragraph a. by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
(c) Article VIII of the Amended and Restated Articles of
Incorporation of the Registrant provides:
The Corporation may and shall indemnify each Director, Officer and
any employee or agent of the Corporation, his heirs, executors and
administrators, against any and all expenses and liability reasonably incurred
by him in connection with any action, suit or proceeding to which he may be a
party by reason of his being or having been a director, officer, employee or
agent of the Corporation to the full extent required or permitted by the
Colorado Corporation Code, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ----------------------------------------------
Not applicable. No Restricted Securities are to be reoffered or resold
pursuant to this Registration Statement.
ITEM 8. EXHIBITS.
- -------------------
Exhibit Description
- ------- -----------
4.1 Premier Concepts, Inc. 1993 Incentive Stock Option Plan
4.2 Premier Concepts, Inc. 1995 Employee Stock Purchase Plan
4.3 Form of Incentive Stock Option
5.0 Opinion of Neuman & Drennen, LLC
23.1 Consent of Neuman & Drennen, LLC
23.2 Consent of Hein + Associates, LLP, Certified Public Accountants
ITEM 9. UNDERTAKINGS.
2. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement; and
(iii) Include any additional or changed material information
on the plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial
bona fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 ("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 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 Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
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 Aurora, State of Colorado, on
October 14, 1997.
PREMIER CONCEPTS, INC.
By: /s/ Sissle Greenberg
------------------------------
Sissel Greenberg, President
POWER OF ATTORNEY
Each of the directors of the Registrant and each other person whose
signature appears below, by his execution hereof, authorizes Sissel Greenberg
to act as his attorney in fact to sign, on his behalf individually and in each
capacity stated below, and file all amendments and post-effective amendments
to, the Registration Statement, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission and such
other applicable governmental/regulatory agencies, hereby ratifying and
confirming all that Sissel Greenberg or his substitute or substitutes, may do
or cause to be done by virtue hereof, and the Registrant hereby confers like
authority to sign and file on its behalf.
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 dated indicated.
Signature Position Date
--------- -------- ----
/s/ Sissel Greenberg Chief Executive Officer 10/14/97
- ------------------------- Director
Sissel Greenberg
/s/ William Nandor Director 10/14/97
- -------------------------
William Nandor
/s/ Jack Brandon Director 10/14/97
- -------------------------
Jack Brandon
/s/ Simona Katz Yuffa Director 10/14/97
- -------------------------
Simona Katz Yuffa
/s/ Todd Huss Chief Financial Officer 10/14/97
- ------------------------- Principal Accounting
Todd Huss Officer
<PAGE>
The securities in the form of Incentive Stock Options of Premier
Concepts, Inc. have not been registered under the Securities Act of 1933, as
amended, or under any state securities laws. Such securities cannot be sold,
transferred, assigned or otherwise disposed of except in accordance with the
Securities Act of 1933, as amended, and applicable state securities laws.
PREMIER CONCEPTS, INC.
INCENTIVE STOCK OPTION
THIS AGREEMENT is made effective as of this ________ day of
_____________, 199___, by PREMIER CONCEPTS, INC., a Colorado corporation, 3033
S. Parker Road, Suite 120, Denver, Colorado 80014 (the "Company") and
____________________________________________
(Employee's Name)
____________________________________________
(Employee's Address)
Employee is an employee of the Company. The Company considers it in its
best interests for the employee be given an inducement to acquire an ownership
interest in the Company and an added incentive to advance the interests of the
Company by possessing an option to purchase shares of the Company's $.0004 par
value common stock in accordance with the Incentive Stock Option Plan adopted
by the Board of Directors of the Company on November 9, 1992, and approved by
the shareholders of the Company on March 30, 1993.
IN CONSIDERATION of these premises and the foregoing mutual promises and
covenants, the parties agree as follows:
1. GRANT OF OPTION.
---------------
The Company hereby grants to Employee the option to purchase
____________ shares of its $0.002 par value common stock at the purchase price
of $_________ per share, which is the fair market value of the stock as
determined in good faith by the Board of Directors, or, for employees owning
more than ten percent (10%) of said stock, is 110% of said fair market value,
in the manner and subject to the conditions provided in this Agreement.
2. TIME OF EXERCISE OF OPTION.
--------------------------
This option may be exercised at any time and from time to time until
the termination of this option as provided in paragraph 6 below; except that
this option granted to Employee shall in no event be exercised while there is
outstanding any option previously granted to the same employee to purchase
stock in the Company; and provided that any such previously granted option not
having been exercised in full shall be deemed to remain outstanding until the
expiration of the period during which under its initial terms it could have
been exercised.
3. METHOD OF EXERCISE.
------------------
The option shall be exercised by written notice by Employee to the
Board of Directors of the Company at the Company's principal place of business
accompanied by delivering to the Company an executed Notice of Exercise of
Incentive Stock Option in the form attached hereto as Exhibit A, and
Employee's check in payment of the option price for the number of shares for
which the option is exercised, or in the form of delivery of other shares of
common stock of the Company having a fair market value equal to the option
price. The Company shall then issue a certificate or certificates for such
shares; provided that if any law or regulation of any government agency, stock
exchange or stock quotation service requires the Company to take any action
with the respect to the shares specified in such notice before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to take such action. In the event the shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Employee shall, concurrently with the exercise of all or any portion of this
Option, deliver to the Company her Investment Representation Statement in the
form attached hereto as Exhibit B.
4. MANNER OF PAYMENT.
-----------------
The exercise price of each option shall be paid, to the extent
permitted by applicable statutes and regulations, either (i) in cash at the
time the option is exercised, (ii) by delivery to the Company of other Common
Stock of the Company valued at its then established fair market value, (iii)
by delivery to the Company of either options or warrants of the Company,
including, without limitation, this option, valued at the difference between
their exercise price and the then established fair market value of the
Company's Common Stock, (iv) according to a deferred payment or other
arrangement (which may include, without limiting the generality of the
foregoing, the use of other Common Stock of the Company) with the holder
hereof, or (v) any other form of legal consideration that may be acceptable to
the Board of Directors, in their discretion. For the purposes of this
paragraph 6, the fair market value of the Company's Common Stock shall be (i)
the closing sale price for the Common Stock on the primary exchange upon which
the shares are listed and traded on the date the option is exercised, or (ii)
if the shares are not traded on any national exchange, the closing sale price
for the Common Stock on the NASDAQ National Market on the date the option is
exercised, or (iii) if the shares or neither traded on a national exchange nor
listed on the NASDAQ National Market, then the average of the bid and ask
prices for the Common Stock in the Over-The-Counter Market as quoted on the
NASDAQ Small-Cap Market or (iv) if the shares of Common Stock are neither
traded on a national exchange or the NASDAQ National Market nor quoted on the
NASDAQ Small-Cap Market, the average of the bid and ask prices for the Common
Stock as quoted by any recognized securities quotation service such as the
National Quotation Bureau, Inc. or the OTC Electronic Bulletin Board on the
date the option is exercised. In the case of any deferred payment
arrangement, any interest shall be payable at least annually and shall be
charged at the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Internal Revenue Code, of any
amounts other than amounts stated to be interest under the deferred payment
arrangement.
5. TERMINATION OF OPTION.
---------------------
This option shall terminate on the first to occur of the following
dates:
a. The expiration of three (3) months after the date on which
Employee's employment by the Company is terminated;
b. The expiration of twelve (12) months after the date on which
Employee's employment is terminated if by reason of Employee's permanent and
total disability.
c. In the event of Employee's death while employed by the Company,
her executors and administrators may exercise the option within two (2) years
following the date of her death, as to any of the shares not previously
exercised during the Employee's lifetime.
d. Notwithstanding the provisions of paragraph 6.a, 6.b and 6.c of
this paragraph:
(1) In the event Employee's employment with the Company is
terminated by the Company without cause prior to the vesting of the options
described in paragraph 3.b above, then and in such event the options shall be
deemed automatically vested and exercisable by Employee within the period set
forth in paragraph 6.a above.
(2) In the event Employee's employment with the Company is
terminated voluntarily by the Employee without cause after vesting but prior
to the exercise of the options, then and in such event options exercisable to
purchase 100,000 shares of the Company's Common Stock described in paragraph
3.b above shall automatically be deemed terminated and of no further legal
force or effect; and Employee agrees to surrender to the Company for
cancellation the certificates representing the options so terminated.
(3) The options described in paragraphs 3.a and 3.b above
shall terminate and be of no further legal force or effect if, after they have
vested but prior to their exercise, Employee's employment with the Company is
terminated by the Company with cause.
e. Seven years after the grant of this option.
<PAGE>
6. RECLASSIFICATION, CONSOLIDATION AND MERGER.
------------------------------------------
If and to the extent that the number of shares of the Company's par
common stock shall be increased or reduced by change of par value, split up,
reclassification, distribution of a dividend payable in stock, or the like,
the number of shares subject to option and the option price per share shall be
proportionately adjusted. Notwithstanding any provision of paragraph 1 to the
contrary, this option shall be exercisable by Employee immediately prior to
any merger, consolidation, or sale of substantially all of the assets of the
Company.
7. RIGHT OF EXERCISE OF OPTION.
---------------------------
This option is nontransferable by Employee except in the event of her
death as provided in paragraph 6.c above and during Employee's lifetime is
exercisable only by Employee. Employee shall have no rights as a shareholder
with respect to shares subject to this option until payment of the option
price and issuance of share certificates for such shares as provided in this
Agreement.
8. EARLY DISPOSITION OF STOCK.
--------------------------
Employee understands that if she disposes of any shares received
under this Option within two (2) years after the date of this Agreement or
within one (1) year after purchase of such shares upon exercise of this
Option, she will be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount generally
measured by the difference between the price paid for the shares and the LOWER
OF (i) the fair market value of the shares at the date of the exercise or
(ii) the fair market value of the shares at the date of disposition. The
amount of such ordinary income may be measured differently if Employee is an
officer, director or 10% shareholder of the Company, or if the shares were
subject to a substantial risk of forfeiture at the time they were transferred
to Employee. EMPLOYEE HEREBY AGREES TO NOTIFY THE COMPANY IN WRITING WITHIN
THIRTY (30) DAYS AFTER THE DATE OF ANY SUCH DISPOSITION. Employee understands
that if she disposes of such shares at any time after the expiration of such
two-year and one-year holding periods, any gain on such sale will be taxed as
long-term capital gain.
9. RESTRICTION ON TRANSFER.
-----------------------
All shares acquired by Employee pursuant to this Incentive Stock
Option Agreement shall be subject to the restrictions on transfer or
encumbrance contained in this Agreement, and in addition, to the restrictions
on transfer or securities not registered under federal or applicable state
securities laws. No transfer in violation of this Agreement shall be
recognizable in the records of the Company. Employee agrees that restrictive
legends will be placed on any certificates for shares of the Company issued in
the name of Employee to provide notice of these restrictions, for as long as
they apply.
10. NOTICES.
-------
Whenever notice is called for by this Agreement, notice shall be in
writing, and shall be effective when deposited in the United States mails,
first class postage prepaid, addressed to the other party at the address first
set forth above. Either party may change her address by notice to the other
party as provided herein.
11. MISCELLANEOUS.
-------------
This Agreement contains a complete expression of its terms and shall
not be subject to modification by any prior or contemporaneous evidence.
Employee may not assign any of her rights pursuant to this Agreement without
the written consent of the Company. This Agreement shall not be modified
except in a writing signed by both parties.
IN WITNESS WHEREOF, the parties executed this Agreement as of the first
above written.
PREMIER CONCEPTS, INC.
By: ____________________________
Corporate Officer
<PAGE>
<PAGE>
EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING EMPLOYMENT AT THE WILL OF THE
COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT
NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S STOCK OPTION PLAN WHICH IS
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON EMPLOYEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY, NOR SHALL IT INTERFERE
IN ANY WAY WITH HER RIGHT OR THE COMPANY'S RIGHT TO TERMINATE HER EMPLOYMENT
AT ANY TIME, WITH OR WITHOUT CAUSE.
Employee acknowledges receipt of a copy of the Plan and certain
information related thereto and represents that he is familiar with the terms
and provisions thereof, and hereby accepts this Option subject to all of the
terms and provisions thereof. Employee has reviewed the Plan and this Option
in their entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Option and fully understands all provisions of the
Option. Employee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions arising under the
Plan. Employee further agrees to notify the Company upon any change in the
residence address indicated below.
Dated: ______________________
EMPLOYEE
______________________________
Residence Address:
______________________________
______________________________
<PAGE>
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF
INCENTIVE STOCK OPTION
Premier Concepts, Inc.
3033 S. Parker Road, Suite 120
Denver, Colorado 80014
Date of Exercise:_____________
Re: Incentive Stock Option Grant Dated _________________
This constitutes notice under my Incentive Stock Option Agreement that I
elect to purchase the following number of shares of Common Stock of PREMIER
CONCEPTS, INC.:
Stock Option dated: _______________________
Number of shares exercised: _______________________
Total exercise price: _______________________
Cash payment delivered herewith: ____________________
I represent that I have signed, and am delivering to you herewith, the
Investment Representation Statement attached as Exhibit B to my Incentive
Stock Option Agreement.
My address of record is:
________________________________
________________________________
and my Social Security Number is: _______________________
_____________________________________
Name as should appear on certificate
Very truly yours,
_________________________________
<PAGE>
<PAGE>
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
SELLER :
COMPANY : PREMIER CONCEPTS, INC.
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Seller and to the Company the following:
(a) I am aware of the Company's business affairs and financial condition,
and have acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only
and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Securities Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that,
in the view of the Securities and Exchange Commission (the "SEC"), the
statutory basis for such exemption may be unavailable if my representation was
predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under tax statutes, for a deferred
sale, for or until an increase or decrease in the market price of the
Securities, or for a period of one year or any other fixed period in the
future.
(c) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. Moreover, I understand that the
Company is under no obligation to register the Securities. In addition, I
understand that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
(d) I am familiar with the provisions of Rule 701 and Rule 144, each
promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly,
from the issuer thereof, in a non-public offering subject to the satisfaction
of certain conditions. Rule 701 provides that if the issuer qualifies under
Rule 701 at the time of issuance of the Securities, such issuance will be
exempt from registration under the Securities Act. In the event the Company
later becomes subject to the reporting requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, ninety (90) days thereafter the
securities exempt under Rule 701 may be resold, subject to the satisfaction of
certain of the conditions specified by Rule 144, including among other things:
(1) the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange act of 1934); and, in the case of an
affiliate, (2) the availability of certain public information about the
Company, and the amount of securities being sold during any three month period
not exceeding the limitations specified in Rule 144(e), if applicable.
Notwithstanding this paragraph (d), I acknowledge and agree to the
restrictions set forth in paragraph (e) hereof.
In the event that the Company does not qualify under Rule 701 at the
time of issuance of the Securities, then the Securities may be resold in
certain limited circumstances subject to the provisions of Rule 144, which
requires among other things: (1) the availability of certain public
information about the Company, (2) the resale occurring not less than two
years after the party has purchased, and made full payment for, within the
meaning of Rule 144, the securities to be sold; and, in the case of an
affiliate, or of a non-affiliate who has held the securities less than three
years, (3) the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange act of 1934) and the amount of
securities being sold during any three month period not exceeding the
specified limitations stated therein, if applicable.
(e) I agree, in connection with the Company's initial underwritten public
offering of the Company's securities, (1) not to sell, make short sale of,
loan, grant any options for the purchase of, or otherwise dispose of any
shares of Common Stock of the Company held by me (other than those shares
included in the registration) without the prior written consent of the Company
or the underwriters managing such initial underwritten public offering of the
Company's securities for one hundred eight (180) days from the effective date
of such registration, and (2) I further agree to execute any agreement
reflecting (1) above as may be requested by the underwriters at the time of
the public offering; PROVIDED HOWEVER that the officers and directors of the
Company who own the stock of the Company also agree to such restrictions.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 or Rule 701 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144
and Rule 701 are not exclusive, the Staff of the SEC has expressed its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise pursuant to Rule 144 or Rule 701 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their
own risk.
Signature of Purchaser:
______________________________
Date: _________________, 19___
<PAGE>
PREMIER CONCEPTS, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
The following constitutes the provisions of the 1995 Stock Purchase Plan
of PREMIER CONCEPTS, INC.
1. PURPOSE.
-------
The purpose of the Plan is to provide employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Stock of
the Company through accumulated payroll deductions. It is the intention of
the Company to have the Plan qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that
section of the Code.
2. DEFINITIONS.
-----------
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean PREMIER CONCEPTS, INC., a Colorado
corporation.
(e) "COMPENSATION" shall mean all base straight time gross earnings
plus commissions, but exclusive of payments for overtime, fringe benefits
(including disability benefits), incentive compensation, incentive payments,
bonuses or other compensation.
(f) "DESIGNATED SUBSIDIARIES" shall mean the Subsidiaries which
have been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "EMPLOYEE" shall mean any individual who is an employee of the
Company for purposes of tax withholding under the Code whose customary
employment with the Company or any Designated Subsidiary is at least
twenty (20) hours per week and more than five (5) months in any calendar year.
For purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds
ninety (90) days and the individual's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship will be deemed
to have terminated on the 91st day of such leave.
(h) "ENROLLMENT DATE" shall mean the first day of each Offering
Period.
(i) "EXERCISE DATE" shall mean the last day of each Offering
Period.
(j) "OFFERING PERIOD" shall mean a period of approximately six (6)
months, commencing on the first Trading Day of January and terminating on the
last Trading Day of the following June, or commencing on the first Trading Day
of July and terminating on the last Trading Day of the following December,
during which an option granted pursuant to the Plan may be exercised.
(k) "PLAN" shall mean this Employee Stock Purchase Plan.
(l) "RESERVES" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and
the number of shares of Common Stock which have been authorized for issuance
under the Plan but not yet placed under option.
(m) "SUBSIDIARY" shall mean a corporation, domestic or foreign, of
which not less than fifty percent (50%) of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary.
(n) "TRADING DAY" shall mean a day on which national stock
exchanges and the National Association of Securities Dealers Automated
Quotation (NASDAQ) System are open for trading.
3. ELIGIBILITY.
-----------
(a) Any Employee as defined in paragraph 2 who shall be employed by
the Company on a given Enrollment Date shall be eligible to participate in the
Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed
to such Employee pursuant to Section 425(d) of the Code) would own stock
and/or hold outstanding options to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all classes of stock of
the Company or of any subsidiary of the Company, or (ii) which permits his or
her rights to purchase stock under all employee stock purchase plans of the
Company and its subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) worth of stock (determined at the fair market value
of the shares at the time such option is granted) for each calendar year in
which such option is outstanding at any time.
4. OFFERING PERIODS.
----------------
The Plan shall be implemented by consecutive Offering Periods with a
new Offering Period commencing on the first Trading Day of January and July of
each year, or on such other date as the Board shall determine, and continuing
thereafter until terminated in accordance with paragraph 19 hereof. The Board
shall have the power to change the duration of Offering Periods with respect
to future offerings without shareholder approval if such change is announced
at least fifteen (15) days prior to the scheduled beginning of the first
Offering Period to be affected.
5. PARTICIPATION.
-------------
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the Company's payroll office
prior to the close of business on the applicable Enrollment Date, unless a
later time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given Offering Period.
(b) Payroll deductions for a participant shall commence on the
first payroll following the Enrollment Date and shall end on the last payroll
in the Offering Period to which such authorization is applicable, unless
sooner terminated by the participant as provided in paragraph 10.
6. PAYROLL DEDUCTIONS.
------------------
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each
payday during the Offering Period in an amount not exceeding ten percent (10%)
of the Compensation which he or she receives on each payday during the
Offering Period, and the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the participant's
Compensation during said Offering Period.
(b) All payroll deductions made for a participant shall be credited
to his or her account under the Plan and will be withheld in whole percentages
only. The aggregate amount of a participating Employee's payroll deduction
under the Plan shall constitute an indebtedness of the Company to such
Employee until applied to the purchase of shares or until payment to Employee
upon exercise of any election to withdraw from the Plan or upon termination of
Employee's participation in the Plan as provided for herein. Such payroll
deductions shall be held by the Company for the benefit of Employee under the
Plan and shall not accrue interest for the period so held. A participant may
not make any additional payments into such account.
(c) A participant may discontinue his or her participation in the
Plan as provided in paragraph 10, or may decrease, but not increase, the rate
of his or her payroll deductions during the Offering Period (within the
limitations of Section 6(a)) by completing or filing with the Company a new
subscription agreement authorizing a change in payroll deduction rate. The
Board shall be authorized to limit the number of participation rate changes
during any Offering Period. The change in rate shall be effective with the
first full payroll period following ten (10) business days after the Company's
receipt of the new subscription agreement unless the Company elects to process
a given change in participation more quickly. A participant's subscription
agreement shall remain in effect for successive Offering Periods unless
revised as provided herein or terminated as provided in paragraph 10.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and paragraph 3(b) herein, a
participant's payroll deductions may be decreased to 0% at such time during
any Offering Period which is scheduled to end during the current calendar year
(the "Current Offering Period") that the aggregate of all payroll deductions
which were previously used to purchase stock under the Plan in a prior
Offering Period which ended during that calendar year plus all payroll
deductions accumulated with respect to the Current Offering Period equal
$25,000. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in paragraph 10.
(e) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any
time, the Company may, but will not be obligated to, withhold from the
participant's compensation the amount necessary for the Company to meet
applicable withholding obligations, including any withholding required to make
available to the Company any tax deductions or benefit attributable to sale or
early disposition of Common Stock purchased by the Employee under this Plan.
7. GRANT OF OPTION.
---------------
(a) On the Enrollment Date of each Offering Period, each eligible
Employee participating in such offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the per share
option price) up to a number of shares of the Company's Common Stock
determined by dividing such Employee's payroll deductions accumulated prior to
such Exercise Date and retained in the Participant's account as of the
Exercise Date by the lower of (i) eight-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Enrollment Date or
(ii) eight-five percent (85%) of the fair market value of a share of the
Company's common Stock on the Exercise Date; provided that in no event shall
an Employee be permitted to purchase during each Offering Period more than a
number of shares of the Company's Common Stock on the Enrollment Date, and
provided further that such purchase shall be subject to the limitations set
forth in Section 3(b) and 12 hereof. Exercise of the option shall occur as
provided in Section 8, unless the participant has withdrawn pursuant to
Section 10, and shall expire on the last day of the Offering Period. Fair
market value of a share of the Company's Common Stock shall be determined as
provided in Section 7 herein.
<PAGE>
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair market value of a
share of the Common Stock of the Company on the Enrollment Date; or (ii) 85%
of the fair market value of a share of the Common Stock of the Company on the
Exercise Date. For the purposes of the Plan, the "fair market value" of the
Company's Common Stock on a given date shall be (i) the closing sale price for
the Common Stock on the primary exchange upon which the shares are listed and
traded on the date, or (ii) if the shares are not traded on any national
exchange, the closing sale price for the Common Stock on the NASDAQ National
Market on the date, or (iii) if the shares or neither traded on a national
exchange nor listed on the NASDAQ National Market, then the average of the bid
and ask prices for the Common Stock in the Over-The-Counter Market as quoted
on the NASDAQ Small-Cap Market or (iv) if the shares of Common Stock are
neither traded on a national exchange or the NASDAQ National Market nor quoted
on the NASDAQ Small-Cap Market, the average of the bid and ask prices for the
Common Stock as quoted by any recognized securities quotation service such as
the National Quotation Bureau, Inc. or the OTC Electronic Bulletin Board on
the date. In the event the Enrollment Date or the Exercise Date occurs on a
weekend or legal holiday, the fair market value shall be determined on the
next Trading Date.
8. EXERCISE OF OPTION.
------------------
Unless a participant withdraws from the Plan as provided in
paragraph 10 below, his or her option for the purchase of shares will be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to option shall be purchased for such participant at the
applicable option price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased and any payroll deductions
accumulated in a participant's account which are not used to purchase shares
shall be refunded to the participant or retained in the participant's account
for the subsequent Offering Period, as the Board or its committee shall
determine, subject to an earlier withdrawal by the participant as provided in
paragraph 10. During a participant's lifetime, a participant's option to
purchase shares hereunder is exercisable only by him or her.
9. DELIVERY.
--------
As promptly as practicable after each Exercise Date on which a
purchase of shares occurs, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
-------------------------------------
(a) A participant may withdraw all but not less than all the
payroll deductions credited to his or her account and not yet used to exercise
his or her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the participant's
payroll deductions credited to his or her account will be paid to such
participant without interest, less payroll tax deductions customarily withheld
by the Company, promptly after receipt of notice of withdrawal and such
participant's option for the Offering Period will be automatically terminated,
and no further payroll deductions for the purchase of shares will be made
during the Offering Period. If a participant withdraws from an Offering
Period, payroll deductions will not resume at the beginning of the succeeding
Offering Period unless the participant delivers to the Company a new
subscription agreement.
(b) Upon a participant's ceasing to be an Employee for any reason
or upon termination of a participant's employment relationship (as described
in Section 2(g)), the payroll deductions credited to such participant's
account during the Offering Period but not yet used to exercise the option
will be returned to such persons entitled thereto under paragraph 14, and such
participant's option will be automatically terminated.
(c) In the event an Employee fails to remain an Employee of the
Company for at least twenty (20) hours per week during an Offering Period in
which the Employee is a participant, he or she will be deemed to have elected
to withdraw from the Plan and the payroll deductions credited to his or her
account will be returned to such participant and such participant's option
terminated.
(d) A participant's withdrawal from an Offering Period will not
have any effect upon his or her eligibility to participate in any similar plan
which hereafter be adopted by the Company or in succeeding Offering Periods
which commence after the termination of the Offering Period from which the
participant withdraws.
11. INTEREST.
--------
No interest shall accrue on the payroll deductions of a participant
in the Plan.
12. STOCK.
-----
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be 50,000 shares
per Offering Period, with a maximum of 300,000 shares under the Plan, subject
to adjustment upon changes in capitalization of the Company as provided in
paragraph 18. If on a given Exercise Date the number of shares with respect
to which options are to be exercised exceeds the number of shares then
available under the Plan, the Company shall make a pro rata allocation of the
shares remaining available for purchase in as uniform a manner as shall be
practicable and as it shall determine to be equitable.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant
and his or her spouse.
13. ADMINISTRATION.
--------------
The Plan shall be administered by the Board of the Company or a
committee of members of the Board appointed by the Board. The Board or its
committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision
and determination made by the Board or its committee shall, to the full extent
permitted by laws, be final and binding upon all parties. Members of the
Board who are eligible Employees are permitted to participate in the Plan,
provided that:
(a) Members of the Board who are eligible to participate in the
Plan may not vote on any matter affecting the administration of the Plan or
the grant of any option pursuant to the Plan.
(b) If a Committee is established to administer the Plan, no member
of the Board who is eligible to participate in the Plan may be a member of the
Committee.
14. DESIGNATION OF BENEFICIARY.
--------------------------
(a) A participant may file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to an
Exercise Date on which the option is exercised but prior to delivery to such
participant of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's death
prior to exercise of the option.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the participant, or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.
15. TRANSFERABILITY.
---------------
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an option or to receive shares under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any
way (other than by will, the laws of descent and distribution or as provided
in paragraph 14 hereof) by the participant. Any such attempt at assignment,
transfer, pledge or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds from an Offering
Period in accordance with paragraph 10.
16. USE OF FUNDS.
------------
All payroll deductions received or held by the Company under the
Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
17. REPORTS.
-------
Individual accounts will be maintained for each participant in the
Plan. Statements of account will be given to participating Employees at least
semi-annually, which statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and
the remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
------------------------------------------
Subject to any required action by the shareholders of the Company,
the Reserves as well as the price per share of Common Stock covered by each
option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock slit, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
option.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board.
In the event a proposed sale of all or substantially all of the assets of the
Company, or the merger of the company with or into another corporation, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, to shorten the
Offering Period then in progress by setting a new Exercise Date (the "New
Exercise Date"). If the Board shortens the Offering Period then in progress
in lieu of assumption or substitution in the event of a merger or sale of
assets, the Board shall notify each participant in writing, at least ten (10)
days prior to the New Exercise Date, that the Exercise Date for his option has
been changed to the New Exercise Date and that his option will be exercised
automatically on the New Exercise Date, unless prior to such date he has
withdrawn from the Offering Period, as provided in paragraph 10. For purposes
of this paragraph, an option granted under the Plan shall be deemed to be
assumed if, following the sale of assets or merger, the option confers the
right to purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the consideration (whether
stock, cash or other securities or property) received in the sale or assets or
merger by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a choice
of consideration, the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock); provided, however, that
if such consideration received in the sale of assets or merger was not solely
common stock of the successor corporation or its parent (as defined in
Section 425(e) of the Code), the Board may, with the consent of the successor
corporation and the participant, provide for the consideration to be received
upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock and the sale of assets or
merger.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserve, as well as the
price per share of Common Stock covered by each outstanding option, in the
event the Company effects one or more reorganizations, recapitalizations,
rights of offerings or other increases or reductions of shares of its
outstanding Common Stock, and in the event of the Company being consolidated
with or merged into any other corporation.
19. AMENDMENT OR TERMINATION.
------------------------
(a) The Board of Directors of the Company may at any time and for
any reason terminate or amend the Plan. Except as provided in paragraph 18,
no such termination can affect options previously granted, provided that an
Offering Period may be terminated by the Board of Directors on any Exercise
Date if the Board determines that the termination of the Plan is in the best
interests of the Company and its shareholders. Except as provided in
paragraph 18, no amendment may make any change in any option theretofore
granted which adversely affects the rights of any participant. To the extent
necessary to comply with Rule 16b-3, Section 423 of the Code (or any successor
rule or provision or any other applicable law or regulation), the Company
shall obtain shareholder approval in such a manner and to such a degree as
required.
(b) Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld
in a currency other than U.S. dollars, permit payroll withholding in excess of
the amount designated by a participant in order to adjust for delays or
mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each participant properly correspond with amounts
withheld from the participant's Compensation, and establish such other
limitations or procedures as the Board (or its committee) determines in its
sole discretion advisable which are consistent with the Plan.
20. NOTICES.
-------
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES.
----------------------------------
Shares shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any
of the aforementioned applicable provisions of law.
22. TERM OF PLAN.
------------
The Plan shall become effective upon its approval by the
shareholders of the Company and the declaration of effectiveness of the
Company's Registration Statement filed with the S.E.C. under the Securities
Act of 1933, as amended, covering the ESPP and the shares issuable pursuant to
the ESPP. It shall continue in effect for a term of three (3) years unless
sooner terminated under paragraph 19.
PREMIER CONCEPTS, INC.
By: --------------------------------
Corporate Officer
<PAGE>
EXHIBIT A
PREMIER CONCEPTS, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_______ Original Application Enrollment Date: ____________
_______ Decrease in Payroll Deduction Rate
_______ Change of Beneficiary(ies)
1. ________________________________ hereby elects to participate in the
PREMIER CONCEPTS, INC. 1995 EMPLOYEE STOCK PURCHASE PLAN (the "ESPP") and
subscribes to purchase shares of the Company's Common Stock in accordance
with this Subscription Agreement and the ESPP.
2. I hereby authorize payroll deductions from each paycheck in the amount of
____________% of my Compensation on each payday (not to exceed 10%)
during the Offering Period in accordance with the ESPP. (Please note
that no fractional percentages are permitted.)
3. I understand that said payroll deduction shall be accumulated without
interest for the purchase of shares of Common Stock at the applicable
purchase price determined in accordance with the ESPP. I understand that
if I do not withdraw from an Offering Period, any accumulated payroll
deductions will be used to automatically exercise my option. I further
understand that if I do withdraw from an Offering Period, accumulated
payroll deductions will be paid to me, without interest, less deductions
for any applicable withholding obligation of the Company.
4. I have received a copy of the complete "Premier Concepts, Inc.
1995 Employee Stock Purchase Plan." I understand that my participation
in the ESPP is in all respects subject to the terms of the Plan. I
understand that the grant of the option by the Company under this
Subscription Agreement is subject to obtaining shareholder approval of
the ESPP.
5. Shares purchased for me under the ESPP should be issued in the name(s)
of:
--------------------------------------------------------------------
----
--------------------------------------------------------------------
----
6. I understand that if I dispose of any shares received by me pursuant to
the ESPP within two (2) years after the Enrollment Date (the first day of
the Offering Period during which I purchased such shares), I will be
treated for federal income tax purposes as having received ordinary
income at the time of such disposition in an amount equal to the excess
of the fair market value of the shares at the time such shares were
delivered to me over the price which I paid for the shares. I HEREBY
AGREE TO NOTIFY THE COMPANY IN WRITING WITHIN THIRTY (30) DAYS AFTER THE
DATE OF ANY SUCH DISPOSITION AND I WILL MAKE ADEQUATE PROVISION FOR
FEDERAL, STATE OR OTHER TAX WITHHOLDING OBLIGATIONS, IF ANY, WHICH ARISE
UPON THE DISPOSITION OF THE COMMON STOCK. The Company may, but will not
be obligated to, withhold from my compensation the amount necessary to
meet any applicable withholding obligation including any withholding
necessary to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by me. If I
dispose of such shares at any time after the expiration of the two-year
holding period, I understand that I will be treated for federal income
tax purposes as having received income only at the time of such
disposition, and that such income will be taxed as ordinary income only
to the extent of an amount equal to the lesser of (1) the excess of the
fair market value of the shares at the time of such disposition over the
purchase price which I paid for the shares, or (2) 15% of the fair market
value of the shares on the first day of the Offering Period. The
remainder of the gain, if any, recognized on such disposition will be
taxed as capital gain.
7. I hereby agree to be bound by the terms of the ESPP. The effectiveness
of this Subscription Agreement is dependent upon my eligibility to
participate in the ESPP.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
ESPP:
NAME (Please print):
__________________________________________________________
(First) (Middle) (Last)
_____________________________ ___________________________________________
____
Relationship
_______________________________________________
(Address)
NAME (Please print):
__________________________________________________________
(First) (Middle) (Last)
_____________________________
________________________________________________
Relationship ___________________________________________
_____
(Address)
Employee's Social Security
Number:______________________________________________
Employee's Address:
________________________________________________
________________________________________________
________________________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT
THROUGHOUT SUCCESSIVE PERIODS UNLESS TERMINATED BY ME.
Dated: _______________________ _______________________________________
______<PAGE>
EXHIBIT B
PREMIER CONCEPTS, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the PREMIER
CONCEPTS, INC. 1995 EMPLOYEE STOCK PURCHASE PLAN which began on
________________________, 19____ (the "Enrollment Date") hereby notifies the
company that he or she hereby withdraws from the Offering Period. He or she
hereby directs the Company to pay to the undersigned as promptly as
practicable all the payroll deductions credited to his or her account with
respect to such Offering Period. The undersigned understands and agrees that
his or her option for such Offering Period will be automatically terminated.
The undersigned understands further that no further payroll deductions will be
made for the purchase or shares in the current Offering Period and the
undersigned shall be eligible to participate in succeeding Offering Periods
only by delivering to the Company a new Subscription Agreement.
Name and address of Participant
_____________________________________________________
_____________________________________________________
_____________________________________________________
Signature
_____________________________________________________
Date:
_______________________________________________
<PAGE>
PREMIER CONCEPTS, INC.,
f/k/a SILVER STATE HOLDING, INC.
INCENTIVE STOCK OPTION PLAN
(amended)
I. PURPOSE.
--------
A. This Incentive Stock Option Plan (the Plan) is adopted by the
Board of Directors of Premier Concepts, Inc., f/k/a Silver State Holding,
Inc., a Colorado corporation (the Company), on November 9, 1992, to enable
the Company to afford certain of its directors, executive officers and key
employees and the directors, executive officers and key employees of any
subsidiary corporation or parent corporation of the Company who are
responsible for the continued growth of the Company, an opportunity to acquire
a proprietary interest in the Company and thus to create in such directors,
executive officers and key employees and increased interest in, and a greater
concern for, the welfare of the Company.
B. The stock options (Options) offered pursuant to the Plan are
a matter of separate inducement and are not in lieu of any salary or other
compensation for the services of such directors, executive officers or key
employees.
C. The Options granted under the Plan are intended to be either
incentive stock options (Incentive Options) within the meaning of Section
422A of the Internal Revenue Code of 1986, as amended (the Code) or Options
that do not meet the requirements for Incentive Options (Non-Qualified
Options), but the Company makes no warranty as to the qualification of any
Option as an Incentive Option.
II. ADMINISTRATION OF THE PLAN.
--------------------------
A. Procedure.
The Plan shall be administered by a Committee of the Board of
Directors of the Company.
1. Subject to subparagrah (2), the Board of Directors shall
appoint a Committee consisting of not less than two members of the Board of
Directors to administer the Plan on behalf of the Board of Directors, subject
to such terms and conditions as the Board of Directors may prescribe. Once
appointed, the Committee shall continue to serve until otherwise directed by
the Board of Directors. All members of the Committee shall be disinterested
persons within the meaning of Rule 16b-3(c)(2)(i) (or any successor rule or
regulation) promulgated under the Securities Exchange Act of 1934, as amended
(the Exchange Act). A majority of the members of the Committee shall
constitute a quorum, and the act of a majority of the members of the Committee
shall be the act of the Committee. Any member of the Committee may be removed
at any time, either with or without cause, by resolution adopted by the Board
of Directors, and any vacancy on the Committee may at any time be filled by
resolution adopted by the Board of Directors.
2. Any or all powers and functions of the Committee may at
any time, and from time to time, be exercised by the Board of Directors;
provided, however, that with respect to the participation in the Plan by
members of the Board of Directors, such powers and functions of the Committee
may be exercised by the Board of Directors only if, at the time of such
exercise, a majority of the members of the Board of Directors, as the case may
be, and a majority of the directors acting in a particular matter, are
"disinterested persons" within the meaning of Rule 16b-3(c)(2)(i) (or any
successor rule or regulation) promulgated under the Exchange Act. Any
reference in the Plan to the Committee shall be deemed also to refer to the
Board of Directors, to the extent that the Board of Directors is exercising
any of the powers and functions of the Committee.
3. Subject to the foregoing subparagraphs (1) and (2), from
time to time the Board of Directors may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause) and
appoint new members in substitution therefor, fill vacancies however caused,
or remove all members of the Committee and thereafter directly administer the
Plan.
B. Powers of the Committee.
-----------------------
Subject to the provisions of the Plan, the Committee shall have the
authority, in its discretion:
1. to determine the directors, executive officers and key
employees to whom Options shall be granted, the time when such Options shall
be granted, the number of shares which shall be subject to each Option, the
purchase price or exercise price of each share which shall be subject to each
Option, the periods during which such Options shall be exercisable (whether in
whole or in part) and the other terms and provisions with respect to the
Options (which need not be identical);
2. to determine, upon review of relevant information and in
accordance with Article IX hereof, the fair market value of the Common Stock
underlying the Options;
3. to construe the Plan and Options granted thereunder;
4. to accelerate or defer (with the consent of the Optionee)
the exercise of any Option, consistent with the provisions of the Plan;
5. to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an option;
6. to prescribe, amend and rescind rules and regulations
relating to the Plan;
7. to make all other determinations deemed necessary or
advisable for the administration of the Plan.
C. Agreements With Optionee.
Without limiting the foregoing, the Committee shall also have the
authority to require, in its discretion, as a condition to the granting of any
Option, that the Participant agree not to sell or otherwise dispose of shares
acquired pursuant to the Option for a prescribed period following the date of
acquisition of such shares and that in the event of termination of a
directorship or employment of such Participant, other than as a result of
dismissal without cause, the Participant will not, for a period to be fixed at
the time of the grant of the Option, enter into any employment or participate
directly or indirectly in any business or enterprise which is competitive with
the business of the Company or any subsidiary corporation or parent
corporation of the Company, or enter into any employment in which such
employee or director will be called upon to utilize special knowledge obtained
through his or her directorship or employment with the Company or any
subsidiary corporation or parent corporation thereof.
D. Effect of Committee's Decision.
All decisions, determinations and interpretations of the Committee
shall be final and binding on all Optionees and any other holders of any
Options granted under the Plan.
III. ELIGIBILITY.
-----------
A. Non-Qualified Options may be granted only to directors,
officers and other salaried key employees of the Company, or any subsidiary
corporation or parent corporation of the Company now existing or hereafter
formed or acquired, except as hereafter provided. Any person who shall have
retired from active employment by the Company, although such person shall have
entered into a consulting contract with the Company, shall not be eligible to
receive an Option.
B. An Incentive Option may be granted only to salaried key
employees of the Company or any subsidiary corporation or parent corporation
of the Company now existing or hereafter formed or acquired, and not to any
director or officer who is not also an employee.
IV. AMOUNT OF STOCK.
---------------
A. The total number of shares of Common Stock of the Company which
may be purchased pursuant to the exercise of Options granted under the Plan
shall not exceed, in the aggregate, 150,000 shares of the authorized Common
Stock, $.0001 par value per share, of the Company (the "Shares"). Shares
which are subject to Options shall be counted only once in determining whether
the maximum number of shares which may be purchased or acquired under the Plan
has been exceeded.
B. Shares which may be acquired under the Plan may either be
authorized but unissued Shares, Shares of issued stock held in the Company's
treasury, or both, at the discretion of the Company. If and to the extent
that Options granted under the Plan expire or terminate without having been
exercised, new Options may be granted with respect to the Shares covered by
such expired or terminated Options, provided that the grant and the terms of
such new Options shall in all respects comply with the provisions of the Plan.
<PAGE>
V. EFFECTIVE DATE AND TERM OF THE PLAN.
-----------------------------------
A. The Plan shall become effective on the date (the "Effective
Date") on which it is adopted by the Board of Directors of the Company;
provided, however, that if the Plan is not approved by a vote of the
Shareholders of the Company within twelve (12) months before or after the
Effective Date, the Plan and any Options granted thereunder shall terminate.
B. The Company may, from time to time during the period beginning
on the Effective Date and ending on December 31, 1995 (the "Termination Date")
grant to persons eligible to participate in the Plan, Options under the terms
of the Plan. Options granted prior to the Termination Date may extend beyond
that date, in accordance with the terms thereof. In no event shall the
Termination Date be later than ten (10) years following the Effective Date.
C. As used in the Plan, the terms "subsidiary corporation" and
"parent corporation" shall have the meanings ascribed to such terms,
respectively, in Sections 425(f) and 425(e) of the Code.
D. An employee, executive officer or director to whom Options are
granted hereunder may be referred to herein as a "Participant".
VI. LIMITATION ON INCENTIVE OPTIONS.
-------------------------------
The amount of aggregate fair market value of the stock determined at the
time of the grant of the Incentive Option for which any employee may be
granted Incentive Options under this Plan in any calendar year shall not
exceed the sum of (i) $100,000 plus (ii) an unused limit carryover amount for
any year after the date of this Plan but prior to the calendar year under
consideration. The unused limit carryover amount shall be determined as one-
half of the amount by which $100,000 exceeds the aggregate fair market value
at the time of grant of an Incentive Option under this Plan for which
Incentive Options were granted in any prior year, but carried over for not
more than three (3) years. For this purpose, Incentive Options granted in any
year shall be deemed to first use up the $100,000.00 current year limitation
and then the unused limit carryover amount from the earliest available year.
VII. TERMS OF OPTIONS.
----------------
Stock Options granted pursuant to this Plan shall be evidenced by written
agreements which shall comply with the following terms and conditions:
A. Time of Exercise.
----------------
Any Option may be exercised by the Participant holding such Option
for such period or periods as the Committee shall determine at the date of
grant of such Option. In no event shall any Incentive Option granted to a
Participant owning more than ten percent (10%) of the voting power of all
classes of the Company's stock, or the stock of any subsidiary corporation or
parent corporation, be exercisable by its terms after the expiration of
five (5) years from the date it is granted, nor shall any other Incentive
Option granted under this Plan be exercisable by its terms after ten (10)
years from the date it is granted. The Committee shall have the right to
accelerate, in whole or in part, the expiration date of any Option; and to the
extent that an Option is not exercised within the period of exercisability
specified therein, it shall expire as to the then unexercised portion.
B. Transferability.
---------------
Any Option granted under this Plan shall not be transferrable by the
director, executive officer or key employee holding same and may be exercised
by the director, executive officer or key employee only during his lifetime,
except that the Option may be exercisable after the death of such director,
executive officer or key employee in accordance with the laws of descent and
distribution.
C. Option Price.
------------
1. The purchase price for each Share purchasable under any
Non-Qualified Option granted hereunder shall be such amount as the Committee
shall deem appropriate.
2. The purchase price for shares of stock subject to any
Incentive Option under this Plan, shall not be less than the fair market value
of the stock on the date of the grant of the Incentive Option, which fair
market value shall be determined in good faith at the time of the grant of the
Incentive Option by the Committee administering this Plan. In the event that
any Incentive Option is granted to an employee owning more than ten percent
(10%) of the voting power of all classes of the Company's stock, the purchase
price per share of the stock subject to such an Incentive Option shall not be
less than 110% of the fair market value of the stock on the date of the grant
of such Incentive Option determined in good faith by the Committee.
D. Consideration for Shares.
------------------------
The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Committee and may consist entirely of cash, check, other shares of common
stock of the Company which have a fair market value on the date of surrender
equal to the aggregate exercise price of the shares as to which said Option
shall be exercised, or any combination of such methods of payment, or such
other consideration and method of payment for issuance of shares to the extent
permitted under applicable provisions of the Colorado Corporation Code and the
Company's Articles of Incorporation and Bylaws.
E. Vesting.
-------
Any Options granted pursuant to this Plan may be made subject to
vesting by the Committee in its discretion.
VIII. SHAREHOLDER APPROVAL.
--------------------
This Plan shall not be valid unless it shall be approved by the
shareholders of the Company at a regular or special meeting of shareholders
which shall be held within the period of twelve (12) months following the
effective date of this Plan set forth above.
IX. METHOD OF DETERMINATION OF FAIR MARKET VALUE.
--------------------------------------------
A. If the Shares are listed on a national securities exchange in
the United States on any date on which the fair market value per Share is to
be determined, the fair market value per Share shall be deemed to be the
average of the high and low quotations at which such Shares are sold on such
national securities exchange on such date. If the Shares are listed on a
national securities exchange in the United States on such date but the Shares
are not traded on such date, or such national securities exchange is not open
for business on such date, the fair market value per Share shall be determined
as of the closest preceding date on which such exchange shall have been open
for business and the Shares were traded. If the Shares are listed on more
than one national securities exchange in the United States on the date any
such Option is granted, the Committee shall determine which national
securities exchange shall be used for the purpose of determining the fair
market value per Share.
B. If a public market exists for the Shares on any date on which
the fair market value per Share is to be determined but the Shares are not
listed on a national securities exchange in the United States, the fair market
value per Share shall be deemed to be the mean between the closing bid and
asked quotations in the over-the-counter market for the Shares on such date.
If there are no bid and asked quotations for the Shares on such date, the fair
market value per Share shall be deemed to be the mean between the closing bid
and asked quotations in the over-the-counter market for the Shares on the
closest date preceding such date for which such quotations are available.
C. If no public market exists for the Shares on any date on which
the fair market value per Share is to be determined, the Committee shall, in
its sole discretion and best judgment, determine the fair market value of a
Share.
For purposes of this Plan, the determination by the Committee of the fair
market value of a Share shall be conclusive.
X. TERMINATION OF DIRECTORSHIP OR EMPLOYMENT.
-----------------------------------------
A. Upon termination of the directorship or employment of any
Participant with the Company and all subsidiary corporations and parent
corporations of the Company, any Option previously granted to the Participant,
unless otherwise specified by the Committee in the Option, shall, to the
extent not theretofore exercised, terminate and become null and void, provided
that:
1. if the Participant shall die while serving as a director
or while in the employ of such corporation or during either the three (3) or
one (1) year period, whichever is applicable, specified in clause A.2 below
and at a time when such Participant was entitled to exercise an Option as
herein provided, the legal representative of such Participant, or such person
who acquired such Option by bequest or inheritance or by reason of the death
of the Participant, may, not later than one (1) year from the date of death,
exercise such Option, to the extent not theretofore exercised, in respect of
any or all of such number of Shares as specified by the Committee in such
Option; and
2. if the directorship or employment of any Participant to
whom such Option shall have been granted shall terminate by reason of the
Participant's retirement (at such age or upon such conditions as shall be
specified by the Committee), disability (as described in Section 22(e)(3) of
the Code) or dismissal by the employer other than for cause (as defined
below), and while such Participant is entitled to exercise such Option as
herein provided, such Participant shall have the right to exercise such
Option, to the extent not theretofore exercised, in respect of any or all of
such number of Shares as specified by the Committee in such Option, at any
time up to and including (i) three (3) months after the date of such
termination of directorship or employment in the case of termination by reason
of retirement or dismissal other than for cause, and (ii) one (1) year after
the date of termination of directorship or employment in the case of
termination by reason of disability.
In no event, however, shall any person be entitled to exercise
any Option after the expiration of the period of exercisability of such Option
as specified therein.
B. If a Participant voluntarily terminates his directorship or
employment, or is discharged for cause, any Option granted hereunder shall,
unless otherwise specified by the Committee in the Option, forthwith terminate
with respect to any unexercised portion thereof.
C. If an Option shall be exercised by the legal representative of
a deceased Participant, or by a person who acquired an Option or by bequest or
inheritance or by reason of the death of any Participant, written notice of
such exercise shall be accompanied by a certified copy of letter testamentary
or equivalent proof of the right of such legal representative or other person
to exercise such Option.
D. For the purposes of the Plan, the term "for cause" shall mean:
1. with respect to an employee who is a party to a written
agreement with, or, alternatively, participates in a compensation or benefit
plan of the Company or a subsidiary corporation or parent corporation of the
Company, which agreement or plan contains a definition of "for cause" or
"cause" (or words of like import) for purposes of termination of employment
thereunder by the Company or such subsidiary corporation or parent corporation
of the Company, "for cause" or "cause" as defined in the most recent of such
agreements or plans; or
2. in all other cases, as determined by the Board of
Directors, in its sole discretion, (i) the willful commission by an employee
of a criminal or other act that causes or probably will cause substantial
economic damage to the Company or a subsidiary corporation or parent
corporation of the Company or substantial injury to the business reputation of
the Company or a subsidiary corporation or parent corporation of the Company;
(ii) the commission by an employee of an act of fraud in the performance of
such employee's duties on behalf of the Company or a subsidiary corporation or
parent corporation of the Company; (iii) the continuing willful failure of an
employee to perform the duties of such employee to the Company or a subsidiary
corporation or parent corporation of the Company (other than such failure
resulting from the employee's incapacity due to physical or mental illness)
after written notice thereof (specifying the particulars thereof in reasonable
detail) and a reasonable opportunity to be heard and cure such failure are
given to the employee by the Board of Directors; or (iv) the order of a court
of competent jurisdiction requiring the termination of the employee's
employment. For purposes of the Plan, no act, or failure to act, or the
employee's part shall be considered "willful" unless done or omitted to be
done by the employee not in good faith and without reasonable belief that the
employee's action or omission was in the best interest of the Company or a
subsidiary corporation or parent corporation of the Company.
E. For the purposes of the Plan, an employment relationship shall
be deemed to exist between an individual and a corporation if, at the time of
the determination, the individual was an "employee" of such corporation for
purposes of Section 422(a) of the Code. If an individual is on maternity,
military, or sick leave or other bona fide leave of absence, such individual
shall be considered an "employee" for purposes of the exercise of an Option
and shall be entitled to exercise such Option during such leave if the period
of such leave does not exceed ninety (90) days, or if longer, so long as the
individual's right to reemployment with his employer is guaranteed either by
statute or by contract. If the period of leave exceeds ninety (90) days, the
employment relationship shall be deemed to have terminated on the ninety-first
(91) day of such leave, unless the individual's right to reemployment is
guaranteed by statute or contract.
F. A termination of employment shall not be deemed to occur by
reason of (i) the transfer of a Participant from employment by the Company to
employment by a subsidiary corporation or a parent corporation of the Company,
or (ii) the transfer of a Participant from employment by a subsidiary
corporation or a parent corporation of the Company to employment by the
Company or by another subsidiary corporation or parent corporation of the
Company.
XI. RIGHT TO TERMINATE EMPLOYMENT.
-----------------------------
The Plan shall not impose any obligation on the Company or on any
subsidiary corporation or parent corporation thereof to continue the
employment of any Participant; and it shall not impose any obligation on the
part of any Participant to remain in the employ of the Company or of any
subsidiary corporation or parent corporation thereof.
XII. PURCHASE FOR INVESTMENT.
-----------------------
Except as hereafter provided, a Participant shall, upon any exercise of
an Option or Right, execute and deliver to the Company a written statement, in
form satisfactory to the Company, in which such Participant represents and
warrants that such Participant is purchasing or acquiring the Shares acquired
thereunder for such Participant's own account, for investment only and not
with a view to the resale or distribution thereof, and agrees that any
subsequent offer for sale or sale or distribution of any of such Shares shall
be made only pursuant to either (a) a Registration Statement on an appropriate
form under the Securities Act of 1933, as amended (the "Securities Act"),
which Registration Statement has become effective and is current with regard
to the Shares being offered or sold; or (b) a specific exemption from the
registration requirements of the Securities Act, but in claiming such
exemption the holder shall, if so requested by the Company, prior to any offer
for sale or sale of such Shares, obtain a prior favorable written opinion, in
form and substance satisfactory to the Company, from counsel for or approved
by the Company, as to the applicability of such exemption thereto. The
foregoing restriction shall not apply to (i) issuances by the Company so long
as the Shares being issued are registered under the Securities Act and a
prospectus in respect thereof is current, or (ii) reofferings of Shares by
affiliates of the Company (as defined in Rule 405 or any successor rule or
regulation promulgated under the Securities Act) if the Shares being reoffered
are registered under the Securities Act and a prospectus in respect thereof is
current.
XIII. EXCHANGE, S.E.C. OR OTHER GOVERNMENTAL REQUIREMENTS.
-------------------------------------------------
If any law or regulation of the Securities and Exchange Commission, any
stock exchange, NASDAQ, or any governmental body having jurisdiction shall
require any action to be take in connection with the issuance of shares
pursuant to an Option under this Plan before shares can be delivered to an
Optionee, then the date for issuance of these shares shall be postponed until
such action can be taken.
XIV. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
----------------------------------------------------
Subject to any required action by the shareholders of the Company, the
number of shares of Common Stock covered by each outstanding Option, and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the price per share of Common Stock covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number
of issued shares of Common Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock, or
any other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration". Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company,
the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in
the exercise of its sole discretion in such instances, declare that any Option
shall terminate as of a date fixed by the Board and give each Optionee the
right to exercise his Option as to all or any part of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable.
In the event of a proposed sale of all or substantially all of the assets of
the Company, or the merger of the Company with or into another corporation,
the Option shall be assumed or an equivalent option shall be substituted by
such successor corporation or a parent or subsidiary of such successor
corporation, unless such successor corporation does not agree to assume the
Option or to substitute an equivalent option, in which case the Board shall,
in lieu of such assumption or substitution provide for the Optionee to have
the right to exercise the Option as to all of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. If the
Board makes an Option fully exercisable in lieu of assumption or substitution
in the event of a merger or sale of assets, the Board shall notify the
Optionee that the Option shall be fully exercisable for a period of
fifteen (15) days from the date of such notice, and the Option will terminate
upon the expiration of such period.
If, as a result of accelerating the time period during which all Options
are exercisable in full in the event of a merger or asset transaction, any
Optionee would incur liability under Section 16(b) of the Securities Exchange
Act of 1934 as a result of the exercise of an accelerated Option, such
Optionee may request the Company to, and the Company shall be obligated to
repurchase such Option for cash equal to the excess of the fair market value
on the advanced termination date of the shares subject to the Option over the
Option exercise price.
XV. ORDER OF EXERCISE OF OPTIONS.
----------------------------
No Option issued pursuant to this Plan shall be exercisable so long as
there is any outstanding Option issued at an earlier date with respect to such
Employee; Options must be exercised in the order in which they are granted.
Notwithstanding anything in this Plan to the contrary in connection with any
corporate transaction to which Section 425(a) of the Code is applicable, there
may be a substitution of a new Option for an old Option granted under this
Plan, or an assumption of an old Option granted under this Plan. Any Optionee
who has a new Option submitted for an old Option granted under this Plan
shall, in connection with the corporate transaction, lose his rights under the
old Option. Nothing in the terms of the assumed or substituted Option shall
confer upon the Optionee more favorable benefits than he had under the old
Option.
XVI. CHANGE IN CONTROL.
-----------------
A. For purposes of the Plan, a "change in control" of the Company
occurs if (i) any "person" (defined as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act, as amended) is or becomes the beneficial owner,
directly or indirectly) of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's
outstanding securities than entitled to vote for the election of directors; or
(ii) during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board of Directors cease for any
reason to constitute at least a majority thereof; or (iii) the Board of
Directors shall approve the sale of all or substantially all of the assets of
the Company or any merger, consolidation, issuance of securities or purchase
of assets, the result of which would be the occurrence of any event described
in clause (i) or (ii) above.
B. In the event of a change in control of the Company (defined
above), the Committee, in its discretion, may determine that, upon the
occurrence of a transaction described in the preceding paragraph, each Option
outstanding hereunder shall terminate within a specified number of days after
notice to the holder, and such holder shall receive, with respect to each
Share subject to such Option, an amount of cash equal to the excess of the
fair market value of such Share immediately prior to the occurrence of such
transaction over the exercise price per Share of such Option. The provisions
contained in the preceding sentence shall be inapplicable to an Option granted
within six (6) months before the occurrence of a transaction described above
if the holder of such Option is a director or officer of the Company or a
beneficial owner of the Company who is described in Section 16(a) of the
Exchange Act, unless such holder dies or becomes disabled (within the meaning
of Section 22(e)(3) of the Code) prior to the expiration of such six-month
period.)
C. Alternatively, the Committee may determine, in its discretion,
that all then outstanding Options shall immediately become exercisable upon a
change of control of the Company.
XVII. WITHHOLDING TAXES.
-----------------
The Company may require an employee exercising a Non-Qualified Option
granted hereunder, or disposing of Shares acquired pursuant to the exercise of
an Incentive Option in a disqualifying disposition (within the meaning of
Section 421(b) of the Code), to reimburse the corporation that employs such
employee for any taxes required by any government to be withheld or otherwise
deducted and paid by such corporation in respect of the issuance or
disposition of such Shares. In lieu thereof, the employer corporation shall
have the right to withhold the amount of such taxes from any other sums due or
to become due from such corporation to the employee upon such terms and
conditions as the Committee shall prescribe. The employer corporation may, in
its discretion, hold the stock certificate to which such employee is entitled
upon the exercise of an Option as security for the payment of such withholding
tax liability, until cash sufficient to pay that liability has been
accumulated.
XVIII. AMENDMENT OF THE PLAN.
---------------------
The Board of Directors or the Committee may, from time to time, amend the
Plan, provided that, notwithstanding anything to the contrary herein, no
amendment shall be made, without the approval of the shareholders of the
Company, that will (i) increase the total number of Shares reserved for
Options under the Plan (other than an increase resulting from an adjustment
provided for in Article X, Termination of Directorship or Employment), (ii)
reduce the exercise price of any Incentive Option granted hereunder below the
price required by Article IX, Method of Determination of Fair Market Value;
(ii) modify the provisions of the Plan relating to eligibility, or (iv)
materially increase the benefits accruing to participants under the Plan. The
Board of Directors or the Committee shall be authorized to amend the Plan and
the Options granted thereunder to permit the Incentive Options granted
thereunder to qualify as "incentive stock options" within the meaning of
Section 422A of the Code. The rights and obligations under any Option granted
before amendment of the Plan or any unexercised portion of such Option shall
not be adversely affected by amendment of the Plan or the Option without the
consent of the holder of the Option.
XIX. TERMINATION OR SUSPENSION OF THE PLAN.
-------------------------------------
The Board of Directors or the Committee may at any time and for any or no
reason suspend or terminate the Plan. The Plan, unless sooner terminated
under Article V, Effective Date and Term of the Plan, or by action of the
Board of Directors, shall terminate at the close of business on the
Termination Date. An Option may not be granted while the Plan is suspended or
after it is terminated. Options granted while the Plan is in effect shall not
be altered or impaired by suspension or termination of the Plan, except upon
the consent of the person to whom the Option was granted. The power of the
Committee under Article II to construe and administer any Options granted
prior to the termination or suspension of the Plan shall continue after such
termination or during such suspension.
XX. GOVERNING LAW.
-------------
The Plan, such Options as may be granted thereunder, and all related
matters shall be governed by, and construed and enforced in accordance with,
the laws of the State of Colorado from time to time obtaining.
XXI. PARTIAL INVALIDITY.
------------------
The invalidity or illegality of any provision herein shall not be deemed
to affect the validity of any other provision.
XXII. The foregoing Incentive Stock Option Plan of Silver State Holding,
Inc. was approved by a majority of the Board of Directors of the Company at a
special meeting of the Board of Directors on November 9, 1992.
SILVER STATE HOLDING, INC.
By: __________________________
Corporate Officer
The foregoing Incentive Stock Option Plan of Silver State Holding, Inc.
was approved by a majority of the shareholders of the Company at a Special
Meeting of Shareholders on November 23, 1992.
By: __________________________
Corporate Officer
<PAGE>
October 6, 1997
Premier Concepts, Inc.
3033 South Parker Road, Suite 120
Aurora, Colorado 80014
Re: S.E.C. Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Premier Concepts, Inc. (the "Company") in
connection with a Registration Statement to be filed with the United Stated
Securities and Exchange Commission, Washington, D.C., pursuant to the
Securities Act of 1933, as amended, covering the registration of an
aggregate of 290,000 shares of the Company's $0.002 par value common stock
(the "Common Stock") pursuant to the exercise of certain Options. In
connection with such representation of the Company, we have examined such
corporate records, and have made such inquiry of government officials and
Company officials and have made such examination of the law as we deemed
appropriate in connection with delivering this opinion.
Based upon the foregoing, we are of the opinion as follows:
1. The Company has been duly incorporated and organized under the
laws of the State of Colorado and is validly existing as a corporation in
good standing under the laws of that state.
2. The Company's authorized capital consists of eight hundred fifty
million (850,000,000) shares of Common Stock having a par value of $0.002
each, and 20,000,000 shares of Preferred Stock, $.10 par value.
3. The 290,000 shares of Common Stock being registered for sale and
offered by the Company will, upon the valid exercise of the Option and
payment of the Option exercise price, be lawfully and validly issued, fully
paid and non-assessable shares of the Company's Common Stock.
Sincerely,
/s/ Clifford L. Neuman
CLN:wdf
<PAGE>
October 6, 1997
Premier Concepts, Inc.
3033 South Parker Road, Suite 120
Aurora, Colorado 80014
Re: S.E.C. Registration Statement on Form S-8
Ladies and Gentlemen:
We hereby consent to the inclusion of our opinion regarding the
legality of the securities being registered by the Form S-8 Registration
Statement to be filed with the United Stated Securities and Exchange
Commission, Washington, D.C., pursuant to the Securities Act of 1933, as
amended, by Premier Concepts, Inc., a Colorado corporation (the "Company"),
in connection with the offering by the Company and certain Selling
Securityholders described therein of up to 290,000 shares of Common Stock,
$.002 par value, as proposed and more fully described in such Registration
Statement.
We further consent to the reference in such Registration Statement to
our having given such opinions.
Sincerely,
Clifford L. Neuman
CLN:wdf
<PAGE>
INDEPENDENT AUDITORS CONSENT
_____________________________________
We consent to the incorporation by reference of our report dated April 2,
1997 accompanying the financial statements of Premier Concepts, Inc. in the
form S-8 Registration States of Premier Concepts, Inc.
HEIN + ASSOCIATES LLP
Denver, Colorado
October 1, 1997
