As filed with the Securities and Exchange Commission on November 26, 1997
Registration No. 333- _____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
BELL MICROPRODUCTS INC.
(Exact name of Registrant as specified in its charter)
---------------------------
California 94-3057566
(State of incorporation) (I.R.S. Employer Identification No.)
1941 Ringwood Avenue
San Jose, CA 95131
(Address, including zip code, of Registrant's principal executive offices)
---------------------------
1988 INCENTIVE STOCK PLAN (As Amended Through May 21, 1997)
(Full title of the plan)
---------------------------
W. Donald Bell
President and Chief Executive Officer
Bell Microproducts Inc.
1941 Ringwood Avenue
San Jose, CA 95131
(408) 451-9400
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Donna M. Petkanics, Esq.
Robert G. O'Connor, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(415) 493-9300
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
====================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Amount Offering Aggregate Amount of
of Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $0.01 par value
To be issued under 1988 Incentive Stock Plan 300,000 shares(1) $8.78125(2) $2,634,375 $798.30
====================================================================================================================================
<FN>
(1) An additional 1,735,336 shares reserved for issuance under the 1988
Incentive Stock Plan were registered under the Registration Statements on
Form S-8 numbered 33-66580, 33-83398, 33-95968 and 333-10837 filed with the
Securities and Exchange Commission (the "Commission") on July 29, 1993,
August 29, 1994, August 17, 1995, and August 26, 1996, respectively.
(2) Computed in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933. Such computation is based on the estimated exercise price of
$8.78125 per share, which represents the average of the high and low sales
prices per share of Bell Microproducts Inc. Common Stock as reported in the
Nasdaq National Market on November 24, 1997.
</FN>
</TABLE>
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A dated
April 14, 1993, filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which
was declared effective by the Commission on June 14, 1993,
including any amendment or report filed for the purpose of
updating such description.
2. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
3. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30,
1997.
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 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 part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law (the "CGCL")
allows for the indemnification of officers, directors, and other corporate
agents in terms sufficiently broad to indemnify such persons under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended (the "Securities Act").
Article IV of the Registrant's Articles of Incorporation and Article VI of the
Registrant's Bylaws provide for indemnification of the Registrant's directors,
officers, employees and other agents to the extent and under the circumstances
permitted by the CGCL. The Registrant has also entered into agreements with its
officers and directors that may require the Registrant, among other things, to
indemnify such officers and directors against certain liabilities that may arise
by reason of their status or service as directors or officers (other than
liabilities arising from any acts or omissions or transactions from which a
director may not be relieved of liability under the CGCL), to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified, and to obtain directors' and officers' insurance if
available on reasonable terms. The Registrant has obtained directors' and
officers' insurance pursuant to said agreements.
II-1
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Document
- ------ --------
4.1 1988 Incentive Stock Plan, as amended through May 21, 1997.
4.2* The forms of Option Agreement used under the 1988 Incentive Stock Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
with respect to the securities being registered.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-4).
- ---------------------
* Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-83398) filed on August 29,
1994.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In
II-2
<PAGE>
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
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 San Jose, State of California, on this 24th day of
November, 1997.
BELL MICROPRODUCTS INC.
By: /s/ W. Donald Bell
-------------------------------------
W. Donald Bell
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints W. Donald Bell and Remo E. Canessa, and
each of them, jointly and severally, his attorney-in-fact, each with full power
of substitution, for him in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on November 24, 1997 by the following
persons in the capacities indicated.
SIGNATURE TITLE
- --------------------------------- -------------------------------------
/s/ W. Donald Bell
- --------------------------------- President and Chief Executive Officer
W. Donald Bell (Principal Executive Officer) and
Director
/s/ Bruce M. Jaffe
- --------------------------------- Senior Vice President of Finance and
Bruce M. Jaffe Operations and Chief Financial
Officer (Principal Financial Officer)
/s/ Remo E. Canessa
- --------------------------------- Vice President of Finance, Corporate
Remo E. Canessa Controller and Secretary (Principal
Accounting Officer)
/s/ Glenn E. Penisten
- --------------------------------- Director
Glenn E. Penisten
/s/ Gordon A. Campbell
- --------------------------------- Director
Gordon A. Campbell
/s/ Jon H. Beedle
- --------------------------------- Director
Jon H. Beedle
/s/ Edward L. Gelbach
- --------------------------------- Director
Edward L. Gelbach
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- ----
4.1 1988 Incentive Stock Plan, as amended through
May 21, 1997.
4.2* The forms of Option Agreement used under the
1988 Incentive Stock Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, with respect to the
securities being registered.
23.1 Consent of Price Waterhouse LLP, Independent
Accountants.
23.2 Consent of Counsel (contained in Exhibit
5.1).
24.1 Power of Attorney (See page II-4).
- ---------------------
* Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-83398) filed on August 29,
1994.
BELL MICROPRODUCTS INC.
1988 INCENTIVE STOCK PLAN
(As amended on May 21, 1997)
1. Purposes of the Plan. The purposes of this Incentive Stock Plan are
to attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock
Options or Nonstatutory Stock Options, at the discretion of the Administrator
and as reflected in the terms of the written option agreement. The Administrator
may also grant Stock Purchase Rights under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees
as shall be administering the Plan, in accordance with Section 4 of the Plan.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Committee" shall mean a Committee appointed by the Board
of Directors in accordance with Section 4 of the Plan.
(e) "Common Stock" shall mean the Common Stock of the Company.
(f) "Company" shall mean Bell Microproducts, Inc., California
corporation.
(g) "Consultant" shall mean any person who is engaged by the
Company or any Parent or Subsidiary to render consulting services and is
compensated for such consulting services; provided that the term Consultant
shall not include directors who are not compensated for their services or are
paid only a director's fee by the Company.
(h) "Continuous Status as an Employee or Consultant" shall
mean the absence of any interruption or termination of
<PAGE>
service as an Employee or Consultant. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of sick leave,
military leave, or any other leave of absence approved by the Board; provided
that such leave is for a period of not more than 90 days or reemployment upon
the expiration of such leave is guaranteed by contract or statute.
(i) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(j) "Incentive Stock Option" shall mean an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(k) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option.
(l) "Option" shall mean a stock option granted pursuant to the
Plan.
(m) "Optioned Stock" shall mean the Common Stock subject to an
Option or Stock Purchase Right.
(n) "Optionee" shall mean an Employee who receives an Option
or Stock Purchase Right.
(o) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(p) "Plan" shall mean this 1988 Incentive Stock Plan.
(q) "Purchaser" shall mean an Employee or Consultant who
exercises a Stock Purchase Right.
(r) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
(s) "Stock Purchase Right" shall mean a right, other than an
Option, to purchase Common Stock pursuant to the Plan.
(t) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
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<PAGE>
3. Stock Subject to the Plan. Subject to the provisions of Section 12
of the Plan, the maximum aggregate number of shares which may be optioned and/or
sold under the Plan is 2,037,670 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan. However, any shares sold under the
Plan and subsequently repurchased by the Company shall not be available for new
issuance pursuant to the Plan.
4. Administration of the Plan.
(a) Composition of Administrator.
(i) Multiple Administrative Bodies. If permitted by
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") or any successor rule thereto, as in effect at the time
that discretion is being exercised with respect to the Plan ("Rule 16b-3") and
by the legal requirements relating to the administration of incentive stock
option plans, if any, of California corporate and securities laws and the Code
(collectively, the "Applicable Laws"), the Plan may (but need not) be
administered by different bodies with respect to Directors, Officers who are not
Directors, and Employees who are neither Directors nor Officers.
(ii) Administration With Respect to Directors and
Officers Subject to Section 16(b). With respect to Option or Stock Purchase
Right grants made to Employees who are also Officers or Directors subject to
Section 16(b) of the Exchange Act, the Plan shall be administered by (A) the
Board, if the Board may administer the Plan in compliance with the rules
governing a plan intended to qualify as a discretionary plan under Rule 16b-3,
or (B) a committee designated by the Board, which committee shall be constituted
to comply with the rules governing a plan intended to qualify as a discretionary
plan under Rule 16b-3. Once appointed, such committee shall continue to serve in
its designated capacity until otherwise directed by the Board. From time to time
the Board may increase the size of the committee and appoint additional members,
remove members (with or without cause) and substitute new members, fill
vacancies (however caused), and remove all members of the committee and
thereafter directly administer the Plan, all to
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<PAGE>
the extent permitted by the rules governing a plan intended to qualify as a
discretionary plan under Rule 16b-3.
(iii) Administration With Respect to Other Persons.
With respect to Option or Stock Purchase Right grants made to Employees or
Consultants who are neither Directors nor Officers of the Company, the Plan
shall be administered by (A) the Board of (B) a committee designated by the
Board, which committee shall be constituted to satisfy Applicable Laws. Once
appointed, such committee shall serve in its designated capacity until otherwise
directed by the Board. The Board may increase the size of the committee and
appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all members
of the committee and thereafter directly administer the Plan, all to the extent
permitted by Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of
the Plan, the Administrator shall have the authority, in its discretion: (i) to
grant Incentive Stock Options, Nonstatutory Stock Options and Stock Purchase
Rights; (ii) to determine, upon review of relevant information and in accordance
with Section 8(b) of the Plan, the fair market value of the Common Stock; (iii)
to determine the exercise price per Share of Options or Stock Purchase Rights to
be granted, which exercise price shall be determined in accordance with Section
8(a) of the Plan; (iv) to determine the Employees or Consultants to whom, and
the time or times at which, Options or Stock Purchase Rights shall be granted
and the number of shares to be represented by each Option or Stock Purchase
Right; (v) to interpret the Plan; (vi) to prescribe, amend and rescind rules and
regulations relating to the Plan; (vii) to determine the terms and provisions of
each Option or Stock Purchase Right granted (which need not be identical) and,
with the consent of the holder thereof, modify or amend each Option or Stock
Purchase Right; (viii) to accelerate or defer (with the consent of the Optionee)
the exercise date of any Option consistent with the provisions of Section 5 of
the Plan; (ix) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option or Stock Purchase Right
previously granted by the Administrator; and (x) to make all other
determinations deemed necessary or advisable for the administration of the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees, Purchasers and any other
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<PAGE>
holders of any Options or Stock Purchase Rights granted under the Plan.
5. Eligibility.
(a) Nonstatutory Stock Options and Stock Purchase Rights may
be granted only to Employees or Consultants. Incentive Stock Options may be
granted only to Employees. An Employee or Consultant who has been granted an
Option or Stock Purchase Right may, if he is otherwise eligible, be granted
additional Options or Stock Purchase Rights, provided that:
(i) No Employee shall be granted, in any fiscal year
of the Company, Options and Stock Purchase Rights to purchase more than 200,000
Shares.
(ii) The limitation set forth in Section 5(a)(i)
shall be adjusted proportionately in connection with any change in the Company's
capitalization as described in Section 12; and
(iii) If an Option or Stock Purchase Right is
cancelled (other than in connection with a transaction described in Section 12),
the cancelled Option or Stock Purchase Right will be counted against the limit
set forth in Section 5(a)(i). For this purpose, if the exercise price of an
Option or Stock Purchase Right is reduced, the transaction will be treated as a
cancellation of the Option or Stock Purchase Right and the grant of a new Option
or Stock Purchase Right.
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designations, to the extent that the aggregate
fair market value of the Shares with respect to which Options designated as
Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Options shall be taken into
account in the order in which they were granted, and the fair market value of
the Shares shall be determined as of the time the Option with respect to such
Shares is granted.
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<PAGE>
(d) The Plan shall not confer upon any Optionee or Purchaser
any right with respect to continuation of employment or consulting relationship
with the Company, nor shall it interfere in any way with his right or the
Company's right to terminate his employment or consulting relationship at any
time, with or without cause.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company as described in Section 18 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 14 of the Plan.
7. Term of Option. The term of each Incentive Stock Option shall be ten
(10) years from the date of grant thereof or such shorter term as may be
provided in the Incentive Stock Option Agreement. However, in the case of an
Incentive Stock Option granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Option shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Incentive Stock Option Agreement. The
term of each Nonstatutory Stock Option shall be determined by the Administrator.
8. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option or Stock Purchase Right shall be such price as
is determined by the Administrator, but shall be subject to the following:
(i) In the case of any Incentive Stock Option
(A) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price shall be no less than
110% of the fair market value per Share on the date of grant.
(B) granted to any Employee, the per Share
exercise price shall be no less than 100% of the fair market value per Share on
the date of grant.
(ii) In the case of any Nonstatutory Stock Option or
Stock Purchase Right granted to any person, the per Share
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<PAGE>
exercise price shall be such price as is determined by the Administrator.
For purposes of this Section 8(a), in the event that an Option is amended to
reduce the exercise price, the date of grant of such Option shall thereafter be
considered to be the date of such amendment.
(b) The fair market value shall be determined by the
Administrator in its discretion; provided, however, that where there is a public
market for the Common Stock, the fair market value per Share shall be the mean
of the bid and asked prices (or the closing price per share if the Common Stock
is listed on the National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System) of the Common Stock for the date of grant, as
reported in The Wall Street Journal (or if not so reported, as otherwise
reported by the NASDAQ System) or, in the event the Common Stock is listed on a
stock exchange, the fair market value per Share shall be the closing price on
such exchange on the day of determination, as reported in The Wall Street
Journal.
(c) The consideration to be paid for the Shares to be issued
upon exercise of an Option or Stock Purchase Right, including the method of
payment, shall be determined by the Administrator and may consist entirely of:
(i) cash, (ii) check, (iii) promissory note, (iv) other shares of Common Stock
which (a) either have been owned by the Optionee or Purchaser for more than six
(6) months on the date of surrender or were not acquired, directly or
indirectly, from the Company, and (b) have a fair market value on the date of
surrender not greater than the aggregate exercise price of the Shares as to
which said Option or Stock Purchase Right shall be exercised, (v) delivery of a
properly executed exercise notice together with such other documentation as the
Administrator and the broker, if applicable, shall require to effect an exercise
of the Option or Stock Purchase Right and delivery to the Company of the sale or
loan proceeds required to pay the exercise price, or (vi) any combination of
such methods of payment, or (vii) such other consideration and method of payment
for the issuance of Shares to the extent permitted under Applicable Laws.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including
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<PAGE>
performance criteria with respect to the Company and/or the Optionee, and as
shall be permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Administrator, consist of
any consideration and method of payment allowable under Section 8(c) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue (or cause to
be issued) such stock certificate promptly upon exercise of the Option. In the
event that the exercise of an Option is treated in part as the exercise of an
Incentive Stock Option and in part as the exercise of a Nonstatutory Stock
Option pursuant to Section 5(b), the Company shall issue a separate stock
certificate evidencing the Shares treated as acquired upon exercise of an
Incentive Stock Option and a separate stock certificate evidencing the Shares
treated as acquired upon exercise of a Nonstatutory Stock Option, and shall
identify each such certificate accordingly in its stock transfer records. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 12 of the Plan.
Except as provided in Section 3 of the Plan, exercise
of an Option in any manner shall result in a decrease in the number of Shares
which thereafter may be available, both for purposes of the Plan and for sale
under the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Status as an Employee or Consultant. In the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant, such Optionee may, but only within thirty (30) days (or such other
period of time, not exceeding three (3) months, as is determined by the
Administrator) after the date of such termination (but in no event later than
the date of expiration of the term of such Option as set forth in the Option
Agreement), exercise his Option to the extent that he was entitled to exercise
it at the date of such termination. To the extent that
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<PAGE>
he was not entitled to exercise the Option at the date of such termination, or
if he does not exercise such Option (which he was entitled to exercise) within
the time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of
Section 9(b) above, in the event of termination of an Optionee's Continuous
Status as an Employee or Consultant as a result of his total and permanent
disability (as defined in Section 22(e)(3) of the Code), he may, but only within
three (3) months (or such other period of time not less than three (3) months
nor more than twelve (12) months as is determined by the Administrator) after
the date of such termination (but in no event later than the date of expiration
of the term of such Option as set forth in the Option Agreement), exercise his
Option to the extent that he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option
(which he was entitled to exercise) within the time specified herein, the Option
shall terminate.
(d) Death of Optionee. Notwithstanding the provisions of
Section 9(b) above, in the event of (i) the death of an Optionee during the term
of his Option, where such Optionee is at the time of his death an Employee or
Consultant of the Company and such Optionee shall at the date of death have been
in Continuous Status as an Employee or Consultant since the date of grant of the
Option, or (ii) the death of an Optionee within thirty (30) days after the
termination of such Optionee's Continuous Status as an Employee or Consultant,
then the Option may be exercised at any time within six (6) months (or such
other period of time not less than six (6) months nor more than twelve (12)
months as determined by the Administrator) following the date of death (but in
no event later than ten years from the date of grant of the Option), by the
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent that the Option was vested as
of the date of termination of employment, and the Optionee was entitled to
exercise it at the date of termination of employment. To the extent that the
Option was not vested or the Optionee was not entitled to exercise the Option,
at the date of such termination of employment, or if the Optionee does not
exercise such Option within the time specified herein, the Option shall
terminate.
10. Stock Purchase Rights.
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<PAGE>
(a) Rights to Purchase. After the Administrator determines
that it will offer an Employee or Consultant the right to purchase Shares under
the Plan, it shall advise the offeree in writing of the terms, conditions and
restrictions relating to the offer, including the number of Shares that such
person shall be entitled to purchase, and the time within which such person must
accept such offer, which shall in no event exceed sixty (60) days from the date
upon which the Administrator made the determination to grant the Stock Purchase
Right. The offer shall be accepted by execution of a Restricted Stock Purchase
Agreement in the form determined by the Administrator.
(b) Issuance of Shares. Forthwith after payment therefore, the
Shares purchased shall be duly issued; provided, however, that the Administrator
may require that the Purchaser make adequate provision for any Federal and State
withholding obligations of the Company as a condition to such purchase.
(c) Repurchase Agreement and Repurchase Option. Unless the
Administrator determines otherwise, and subject to this Plan, a Restricted Stock
Purchase Agreement shall govern the purchase of Shares pursuant to a Stock
Purchase Right and shall grant the Company a repurchase option exercisable upon
the voluntary or involuntary termination of the Purchaser's employment with the
Company for any reason (including death or disability). The purchase price for
Shares repurchased pursuant to the Restricted Stock Purchase Agreement shall be
the original price paid by the Purchaser and may be paid by cancellation of any
indebtedness of the Purchaser to the Company. The repurchase option shall lapse
at such a rate as the Administrator may determine.
(d) Other Provisions. The Restricted Stock Purchase Agreement
shall contain such other terms, provisions and conditions not inconsistent with
the Plan as may be determined by the Administrator.
(e) Rights as a Shareholder. A Stock Purchase Right shall be
deemed to have been exercised when full payment for the Shares to be purchased
thereunder has been received by the Company. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or to receive dividends or any other rights as a shareholder
shall exist with respect to shares, notwithstanding the exercise of a Stock
Purchase Right. No adjustment will be made for a dividend or other right for
which the record date is prior to the
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date the Stock Purchase Right is exercised, except as provided in Section 12 of
the Plan.
(f) Shares Available Under the Plan. Exercise of a Stock
Purchase Right in any manner shall result in a decrease in the number of Shares
that thereafter shall be available, both for purposes of the Plan and for sale
under the Stock Purchase Right provisions, by the number of Shares as to which
the Stock Purchase Right is exercised. Shares repurchased by the Company
pursuant to Section 10(c) hereof shall not be available for reissuance under the
Plan.
11. Non-Transferability of Options and Stock Purchase Rights. Options
and Stock Purchase Rights may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
12. 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 Stock Purchase Right, and
the number of shares of Common Stock which have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have yet been
granted or which have been returned to the Plan pursuant to Section 3, as well
as the price per share of Common Stock covered by each such outstanding Option
or Stock Purchase Right, 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 Administrator, 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 or Stock Purchase Right.
In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the
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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 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 or right shall be substituted by
such successor corporation or a parent or subsidiary of such successor
corporation, unless such successor or corporation does not agree to assume the
Option or to substitute an equivalent option, in which the 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 or
Stock Purchase Right 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. For the purposes of this paragraph, the Option or
Stock Purchase Right shall be considered assumed if, following the merger or
sale of assets, the option confers the right to purchase, for each Share of
Optioned Stock subject to the Option or Stock Purchase Right immediately prior
to the merger or sale of assets, the consideration (whether stock, cash, or
other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets was not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon the exercise of
the Option or Stock Purchase Right, for each Share of Optioned Stock subject to
the Option or Stock Purchase Right, 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 in the merger or sale of
assets.
13. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator
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makes the determination granting such Option. Notice of the determination shall
be given to each Employee or Consultant to whom an Option is so granted within a
reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable;
(b) Shareholder Approval. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Rule 16b-3 of the Exchange Act or with Section 422 of the Code (or any
successor statute or rule or other applicable law, rule or regulation, including
the requirements of any exchange or quotation system on which the Common Stock
is listed or quoted). Such shareholder approval, if required, shall be obtained
in such a manner and to such a degree as is required by the applicable law, rule
or regulation.
(c) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options or Stock Purchase Rights
already granted and such Options and Stock Purchase Rights shall remain in full
force and effect as if this Plan had not been amended or terminated, unless
mutually agreed otherwise between the Board and the Optionee or Purchaser and
the Board, which agreement must be in writing and signed by the Optionee or
Purchaser and the Company.
15. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option or Stock Purchase Right unless the
exercise of such Option or Stock Purchase Right and the issuance and delivery of
such Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, 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 or Stock Purchase
Right, the Company may require the person exercising such Option or Stock
Purchase Right 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
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representation is required by any of the aforementioned relevant provisions of
law.
16. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
17. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Administrator shall approve.
18. Shareholder Approval. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such shareholder approval shall be obtained
in the degree and manner required under applicable state and federal law and the
rules of any stock exchange upon which the Common Stock is listed.
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EXHIBIT 5.1
November 26, 1997
Bell Microproducts Inc.
1941 Ringwood Avenue
San Jose, CA 95131
Re: Bell Microproducts Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement of Form S-8 to be filed by
you with the Securities and Exchange Commission on or about November 26, 1997
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 300,000 shares of your Common Stock
reserved for issuance under the 1988 Incentive Stock Plan (as amended through
May 21, 1997). Such shares of Common Stock are referred to herein as the
"Shares" and such plan is referred to herein as the "Plan." As your legal
counsel, we have examined the proceedings taken and are familiar with the
proceedings taken by you in connection with the issuance of the Shares under the
Plan.
It is our opinion that, when issued in the manner referred to in the
Plan, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, and in any prospectus used in connection with the sale
of the Shares.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 13, 1997 appearing on page
F-1 of Bell Microproducts Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996.
PRICE WATERHOUSE LLP
San Jose, California
November 24, 1997
