<PAGE>
As filed with the Securities and Exchange Commission on February 12, 1997.
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
VALENCE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
----------------------
DELAWARE 77-0214673
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------
301 CONESTOGA WAY
HENDERSON, NEVADA 89015
(702) 558-1000
(Address and telephone number of principal executive offices)
----------------------
1990 STOCK OPTION PLAN
(Full title of the plan)
BRADLEY A. PERKINS
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
VALENCE TECHNOLOGY, INC.
301 CONESTOGA WAY
HENDERSON, NEVADA 89015
(702) 558-1000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
----------------------
COPIES TO:
ANDREI M. MANOLIU, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306
(415) 843-5000
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $.001) 750,000 $6.29 $4,717,500 $1,430
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rule 457(h)(1). The price per share and
aggregate offering price are based upon the average of the high and low
sales price of Registrant's Common Stock on February 6, 1997 as reported on
the NASDAQ National Market System.
<PAGE>
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 333-____________
This Registration Statement on Form S-8 is being filed for the purpose of
registering 750,000 additional shares of Common Stock of Valence Technology,
Inc. to be issued pursuant to the 1990 Stock Option Plan, as amended (the
"Plan"). The contents of the Registration Statements on Form S-8 previously
filed with the Securities and Exchange Commission (the "Commission") relating to
the Plan (File Nos. 33-94522 and 33-48982, filed with the Commission on July 12,
1995 and June 30, 1992, respectively) are incorporated by reference herein.
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1 1990 Stock Option Plan, as amended on January 31, 1997.
1.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Henderson, State of Nevada, on February 12, 1997.
VALENCE TECHNOLOGY, INC.
By: /s/ Calvin L. Reed
--------------------------------------
Calvin L. Reed
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Calvin L. Reed and Bradley A. Perkins,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
2.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Calvin L. Reed President, Chief Executive Officer February 6, 1997
- ----------------------------- and Chairman of the Board
Calvin L. Reed (Principal Executive Officer)
/s/ David Archibald Vice President, Finance, February 6, 1997
- ----------------------------- and Chief Financial Officer
David Archibald (Principal Financial and Accounting Officer)
/s/ Carl E. Berg Director February 12, 1997
- -----------------------------
Carl E. Berg
/s/ Alan F. Shugart Director February 7, 1997
- -----------------------------
Alan F. Shugart
</TABLE>
3.
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 1990 Stock Option Plan, as amended on January 31, 1997.
4.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
February 12, 1997
Valence Technology, Inc.
301 Conestoga Way
Henderson, Nevada 89015
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Valence Technology, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 750,000 shares of the
Company's Common Stock, $.001 par value, (the "Shares") pursuant to its 1990
Stock Option Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Andrei M. Manoliu
---------------------------------
Andrei M. Manoliu
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements
of Valence Technology, Inc. and subsidiaries on Form S-8 of our report dated
June 6, 1996, on our audits of the consolidated financial statements as of
March 31, 1996 and March 26, 1995 and for the period from March 3, 1989 (date
of inception) to March 31, 1996 and for each of the three years in the period
ended March 31, 1996, which report is included in the 1996 Annual Report on
Form 10-K.
/s/ Coopers & Lybrand LLP
San Jose, California
February 12, 1997
<PAGE>
EXHIBIT 99.1
1990 STOCK OPTION PLAN
1. PURPOSE
a. The purpose of the Plan is to provide a means by which selected key
employees and directors (if declared eligible under paragraph 4) of and
consultants to Valence Technology, Inc., a Delaware corporation (the "Company"),
and its Affiliates, as defined in subparagraph 1(b), may be given an opportunity
to purchase stock of the Company.
b. The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
from time to time (the "Code").
c. The Company, by means of the Plan, seeks to retain the services of
persons now employed by or serving as consultants or directors to the Company,
to secure and retain the services of new employees/persons capable of filling
such positions, and to provide incentives for such persons to exert maximum
efforts for the success of the Company.
d. The Company intends that the options issued under the Plan shall, in
the discretion of the Board of Directors of the Company (the "Board") or any
committee to which responsibility for administration of the Plan has been
delegated pursuant to subparagraph 2(c), be either incentive stock options as
that term is used in Section 422 of the Code ("Incentive Stock Options"), or
options which do not qualify as incentive stock options ("Supplemental Stock
Options"). All options shall be separately designated Incentive Stock Options or
Supplemental Stock Options at the time of grant, and in such form as issued
pursuant to paragraph 5, and a separate certificate or certificates shall be
issued for shares purchased on exercise of each type of option. An option
designated as a Supplemental Stock Option shall not be treated as an incentive
stock option.
2. ADMINISTRATION
a. The Plan shall be administered by the Board unless and until the Board
delegates administration to a committee, as provided in subparagraph 2(c).
Whether or not the Board has delegated administration, the Board shall have the
final power to determine all questions of policy and expediency that may arise
in the administration of the Plan.
b. The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted options; when and how the option shall
be granted; whether the option will be an Incentive Stock Option or a
Supplemental Stock Option; the provisions of each option granted
(which need not be identical), including the time or times during the
term of each option within which all or portions of such option may be
exercised; and the number of shares for which an option shall be
granted to each such person.
(2) To construe and interpret the Plan options granted under it, and
to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct
any defect, omission or inconsistency in the Plan or in any option
agreement, in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 10.
1.
<PAGE>
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests
of the Company.
c. The Board may delegate administration of the Plan to a committee or
committees ("Committee") of one or more members of the Board. In the discretion
of the Board, a Committee may consist solely of two (2) or more Outside
Directors, in accordance with Code Section 162(m), or solely of two (2) or more
Non-Employee Directors, in accordance with Rule 16b-3. If administration is
delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board (and
references in this Plan to the Board shall thereafter be to the Committee),
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The Board may
abolish the Committee at any time and revest in the Board the administration of
the Plan.
d. "Non-Employee Director" means a director who either (i) is not a
current employee or officer of the Company or its parent or subsidiary, does not
receive compensation (directly or indirectly) from the Company or its parent or
subsidiary for services rendered as a consultant or in any capacity other than
as a director (except for an amount as to which disclosure would not be required
under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act
of 1933 ("Regulation S-K"), does not possess an interest in any other
transaction as to which disclosure would be required under Item 404(a) of
Regulation S-K, and is not engaged in a business relationship as to which
disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is
otherwise considered a "non-employee director" for purposes of Rule 16b-3.
e. "Outside Director" means a director who either (ii) is not a current
employee of the Company or an "affiliated corporation" (within the meaning of
Treasury regulations promulgated under Section 162(m) of the Code), is not a
former employee of the Company or an "affiliated corporation" receiving
compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Company or an "affiliated corporation"
at any time, and is not currently receiving direct or indirect remuneration from
the Company or an "affiliated corporation" for services in any capacity other
than as a director, or (ii) is otherwise considered an "outside director" for
purposes of Section 162(m) of the Code.
3. SHARES SUBJECT TO THE PLAN
a. Subject to the provisions of paragraph 9 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to options granted under
the Plan shall not exceed in the aggregate Three Million Five Hundred Thousand
(3,500,000) shares of the Company's common stock. If any option granted under
the Plan shall for any reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option shall again become
available for the Plan.
b. The stock subject to the Plan may be unissued reacquired shares,
bought on the market or otherwise.
c. An Incentive Stock Option may be granted to an eligible person under
the Plan only if the aggregate fair market value (determined at the time the
option is granted) of the stock with respect to which incentive stock options
(as defined in the Code) granted after 1986 are exercisable for the first time
by such optionee during any calendar year under all incentive stock option plans
of the Company and its Affiliates does not exceed one hundred thousand dollars
($100,000). Should it be determined that an option granted under the Plan
exceeds such maximum for any reason other than the failure of a good faith
attempt to value the stock subject to the option, such option shall be
considered a Supplemental Stock Option to the extent, but only to the extent, of
such excess; provided, however, that should it be determined that an entire
option or any portion thereof does not qualify for treatment as an incentive
stock option by reason of exceeding such maximum, such option or the applicable
portion shall be considered a Supplemental Stock Option.
4. ELIGIBILITY
2.
<PAGE>
a. Incentive Stock Options may be granted only to employees (including
officers) of the Company or its Affiliates. A director of the Company shall not
be eligible to receive Incentive Stock Options unless such director is also an
employee (including an officer) of the Company or any Affiliate. Supplemental
Stock Options may be granted only to key employees (including officers) of,
directors of or consultants to the Company or its Affiliates.
b. Subject to the provisions of Section 9 relating to adjustments upon
changes in stock, no person shall be eligible to be granted options covering
more than seven hundred thousand (700,000) shares of the Company's common stock
in any fiscal year.
c. No person shall be eligible for the grant of an option under the Plan
if, at the time of grant, such person owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or of any of
its Affiliates unless the exercise price of such option is at least one hundred
ten percent (110%) of the fair market value of such stock at the date of grant
and the term of the option does not exceed five (5) years from the date of
grant.
5. OPTION PROVISIONS
Each option shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate. The provisions
of separate options need not be identical, but each option shall include
(through incorporation of provisions hereof by reference in the option or
otherwise) the substance of each of the following provisions:
a. The term of any option shall not be greater than ten (10) years from
the date it was granted.
b. The exercise price of each Incentive Stock Option shall be not less
than one hundred percent (100%) of the fair market value of the stock subject to
the option on the date the option is granted. The exercise price of each
Supplemental Stock Option shall be not less than eighty-five percent (85%) of
the fair market value of the stock subject to the option on the date the option
is granted.
c. The purchase price of stock acquired pursuant to an option shall be
paid, to the extent permitted by applicable statutes and regulations, either:
(i) in cash at the time the option is exercised, or
(ii) at the discretion of the Board or the Committee, either at the
time of the grant or exercise of the option,
(A) by delivery to the Company of other common stock of the
Company,
(B) 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 person to
whom the option is granted or to whom the option is transferred
pursuant to subparagraph 5(d), or
(C) in any other form of legal consideration that may be
acceptable to the Board or the Committee.
In the case of any deferred payment arrangement, 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 Code, of
any amounts other than amounts stated to be interest under the deferred payment
arrangement.
d. An Incentive Stock Option shall not be transferable except by will or
by the laws of descent and distribution, and shall be exercisable during the
lifetime of the person to whom the Incentive Stock Option is granted
3.
<PAGE>
only by such person. A Supplemental Stock Option may be transferred to the
extent provided in the option agreement; provided that if the option
agreement does not expressly permit the transfer of a Supplemental Stock
Option, the Supplemental Stock Option shall not be transferable except by
will, by the laws of descent and distribution or pursuant to a domestic
relations order satisfying the requirements of Rule 16b-3, and shall be
exercisable during the lifetime of the person to whom the option is granted
only by such person or any transferee pursuant to a domestic relations order.
Notwithstanding the foregoing, the person to whom the option is granted may,
be delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the
optionee, shall thereafter be entitled to exercise the option.
e. The total number of shares of stock subject to an option may, but need
not, be allotted in periodic installments (which may, but need not, be equal).
From time to time during each of such installment periods, the option may become
exercisable ("vest") with respect to some or all of the shares allotted to that
period, and may be exercised with respect to some or all of the shares allotted
to such period and/or any prior period as to which the option was not fully
exercised. During the remainder of the term of the option (if its term extends
beyond the end of the installment periods), the option may be exercised from
time to time with respect to any shares then remaining subject to the option.
The provisions of this subparagraph 5(e) are subject to any option provisions
governing the minimum number of shares as to which an option may be exercised.
f. The Company may require any optionee, or any person to whom an option
is transferred under subparagraph 5(d), as a condition of exercising any such
option,
(1) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and
business matters, and that he or she is capable of evaluating, alone
or together with the purchaser representative, the merits and risks of
exercising the option; and
(2) to give written assurances satisfactory to the Company stating
that such person is acquiring the stock subject to the option for such
person's own account and not with any present intention of selling or
otherwise distributing the stock. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative
if
(i) the issuance of the shares upon the exercise of the option
has been registered under a then currently effective registration
statement under the Securities Act of 1933, as amended (the
"Securities Act"), or
(ii) as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in
the circumstances under the then applicable securities laws.
g. An option shall terminate three (3) months after termination of the
optionee's employment or relationship as a consultant or director with the
Company or an Affiliate, unless
(i) such termination is due to such person's permanent and total
disability, within the meaning of Section 422 (c)(7) of the Code, in
which case the option may, but need not, provide that it may be
exercised at any time within one (1) year following such termination
of employment or relationship as a consultant or director; or
(ii) the optionee dies while in the employ of or while serving as a
consultant or director to the Company or an Affiliate, or within not
more than three (3) months after termination of such relationship, in
which case the option may, but need not, provide that it may be
exercised at any time within eighteen (18) months following the death
of the optionee by the person or persons to
4.
<PAGE>
whom the optionee's rights under such option pass by will or by the
laws of descent and distribution; or
(iii) the option by its terms specifies either
(a) that it shall terminate sooner than three (3) months after
termination of the optionee's employment or relationship as a
consultant or director, or
(b) that it may be exercised more than three (3) months after
termination of such relationship with the Company or an
Affiliate.
This subparagraph 5(g) shall not be construed to extend the term of any option
or to permit anyone to exercise the option after expiration of its term, nor
shall it be construed to increase the number of shares as to which any option is
exercisable from the amount exercisable on the date of termination of the
optionee's employment or relationship as a consultant or director.
h. The option may, but need not, include a provision whereby the optionee
may elect at any time during the term of his or her employment or relationship
as a consultant or director with the Company or any Affiliate to exercise the
option as to any part or all of the shares subject to the option prior to the
stated vesting date of the option or of any installment or installments
specified in the option. Any shares so purchased from any unvested installment
or option may be subject to a repurchase right in favor of the Company or to any
other restriction the Board or the Committee determines to be appropriate.
i. To the extent provided by the terms of an option, the optionee may
satisfy any federal, state or local tax withholding obligation relating to the
exercise of such option by any of the following means or by a combination of
such means:
(1) tendering a cash payment;
(2) authorizing the Company to withhold from the shares of the common
stock otherwise issuable to the participant as a result of the
exercise of the stock option a number of shares having a fair market
value less than or equal to the amount of the withholding tax
obligation; or
(3) delivering to the Company owned and unencumbered shares of the
common stock having a fair market value less than or equal to the
amount of the withholding tax obligation.
6. COVENANTS OF THE COMPANY
a. During the terms of the options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such options.
b. The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan or any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such options unless and until such authority is obtained.
7. USE OF PROCEEDS FROM STOCK
5.
<PAGE>
Proceeds from the sale of stock pursuant to options granted under the Plan
shall constitute general funds of the Company.
8. MISCELLANEOUS
a. Neither an optionee nor any person to whom an option is transferred
under subparagraph 5(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option unless
and until such person has satisfied all requirements for exercise of the option
pursuant to its terms.
b. Throughout the term of any option granted pursuant to the Plan, the
Company shall make available to the holder of such option, not later than one
hundred twenty (120) days after the close of each of the Company's fiscal years
during the option term, upon request, such financial and other information
regarding the Company as comprises the annual report to the stockholders of the
Company provided for in the bylaws of the Company.
c. Nothing in the Plan or any instrument executed or option granted
pursuant thereto shall confer upon any eligible employee or optionee any right
to continue in the employ of the Company or any Affiliate (or to continue acting
as a consultant or director) or shall affect the right of the Company or any
Affiliate to terminate the employment or consulting relationship or directorship
of any eligible employee or optionee with or without cause. In the event that an
optionee is permitted or otherwise entitled to take a leave of absence, the
Company shall have the unilateral right to
(i) determine whether such leave of absence will be treated as a
termination of employment for purposes of paragraph 5(g) hereof and
corresponding provisions of any outstanding options, and
(ii) suspend or otherwise delay the time or times at which the shares
subject to the option would otherwise vest.
9. ADJUSTMENTS UPON CHANGES IN STOCK
a. If any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), then the Plan and
outstanding options shall be appropriately adjusted:
(1) in the class(es) and maximum number of shares subject to the
Plan; and
(2) in the class(es) and number of shares and price per share of
stock subject to outstanding options.
b. In the event of:
(1) a merger or consolidation in which the Company is not the
surviving corporation; or
(2) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger
into other property, whether in the form of securities, cash or
otherwise;
then to the extent permitted by applicable law:
(i) any surviving corporation shall assume any Options outstanding
under the Plan or shall substitute similar Options for those
outstanding under the Plan, or
6.
<PAGE>
(ii) such Options shall continue in full force and effect. In the
event any surviving corporation refuses to assume such Options,
refuses to continue such Options in full force and effect, or refuses
to substitute similar options for those outstanding under the Plan,
then all such vested Options shall be terminated if not exercised
prior to such event, and all such unvested Options shall terminate
upon such event. In the event of a dissolution or liquidation of the
Company, all vested Options outstanding under the Plan shall terminate
if not exercised prior to such event, and all unvested Options
outstanding under the Plan shall terminate upon such event.
10. AMENDMENT OF THE PLAN
a. The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 9 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of
the Company to the extent stockholder approval is necessary for the Plan to
satisfy the requirements of Rule 16b-3 under the Exchange Act or any Nasdaq or
securities exchange listing requirements.
b. It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide optionees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee incentive stock
options and/or to bring the Plan and/or incentive stock options granted under it
into compliance therewith.
c. Rights and obligations under any option granted before amendment of
the Plan shall not be altered or impaired by any amendment of the Plan unless
(i) the Company requests the consent of the person to whom the option
was granted and
(ii) such person consents in writing.
11. TERMINATION OR SUSPENSION OF THE PLAN
a. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate ten (10) years from the date the Plan is
adopted by the Board or approved by the shareholders of the Company, whichever
is earlier. No options may be granted under the Plan while the Plan is suspended
or after it is terminated.
b. Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted.
12. EFFECTIVE DATE OF PLAN
The Plan shall become effective as determined by the Board, but no options
granted under the Plan shall be exercised unless and until the Plan has been
approved by the stockholders of the Company, and, if required, an appropriate
permit has been issued by the Commissioner of Corporations of the State of
California.
ADOPTED BY THE BOARD OF DIRECTORS ON JULY 17, 1990
APPROVED BY THE STOCKHOLDERS ON JULY 23, 1990
AMENDED BY THE BOARD OF DIRECTORS ON OCTOBER 3, 1990
AMENDED BY THE BOARD OF DIRECTORS ON MARCH 14, 1992
APPROVED BY THE STOCKHOLDERS ON MARCH 23, 1992
AMENDED BY THE BOARD OF DIRECTORS ON JUNE 18, 1992
AMENDED BY THE STOCKHOLDERS ON SEPTEMBER 2, 1993
AMENDED BY THE BOARD OF DIRECTORS ON DECEMBER 18, 1996
AMENDED BY THE STOCKHOLDERS ON JANUARY 31, 1997
7.
