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[AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1997]
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WESTERN ATLAS INC.
(Exact name of issuer as specified in its charter)
DELAWARE 95-3899675
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210-4867
(Address of Principal Executive Offices including Zip Code)
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OUTSTANDING STOCK OPTIONS (THE "OPTIONS") ASSUMED BY WESTERN ATLAS INC.
ORIGINALLY GRANTED UNDER THE NORAND CORPORATION 1989 STOCK OPTION PLAN; NORAND
CORPORATION LONG-TERM PERFORMANCE PROGRAM; AND NORAND CORPORATION 1994 STOCK
OPTION PLAN FOR NON-EMPLOYEE DIRECTORS (1)
(Full Title of the Plan)
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NORMAN L. ROBERTS
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
WESTERN ATLAS INC.
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210-4867
(Name and address of agent for service)
(310) 888-2700
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (2) PER SHARE (3) OFFERING PRICE (3) REGISTRATION FEE
<S> <C> <C> <C> <C>
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Common Stock,
$1 par value 500,000 $59.1875 $29,593,750.00 $8,967.81
</TABLE>
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(1) On March 3, 1997, Norand Corporation became a wholly-owned indirect
subsidiary of Registrant, and all stock options originally granted under
the above mentioned option plans were converted into Western Atlas Inc.
stock options.
(2) In addition to this amount, such indeterminate amount of additional shares
as may become issuable pursuant to the anti-dilution provisions applicable
to the Options. The amount to be registered represents the Registrant's
estimate of the maximum number of shares which are or will become available
for issuance under the terms of the Options.
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(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) on the basis of the average of the
high and low prices for the Registrant's Common Stock on the New York Stock
Exchange on April 18, 1997, estimated to be the maximum offering price
under the Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934 (the "Exchange Act") are hereby incorporated by reference in this
Registration Statement:
(1) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 10 filed with the Commission
pursuant to the Exchange Act on October 12, 1993, as amended on December
13, 1993, January 19, 1994, February 9, 1994, and March 2, 1994.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement 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 made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Registrant under such Sections of
the Exchange Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the Commission of
the Registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this Registration
Statement or be a part hereof from and after the filing of such Annual Report on
Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered pursuant to the Registration
Statement has been passed upon for the Registrant by Norman L. Roberts, Senior
Vice President and General Counsel of the Registrant, 360 North Crescent Drive,
Beverly Hills, California 90210. Mr. Roberts owns 151 shares of Common Stock of
the Registrant and holds options to purchase 77,000 of such shares.
The consolidated balance sheet of the Registrant and subsidiaries as of
December 31, 1996, and 1995, and the related consolidated statements of income
and cash flows for each of the years in the three-year period ended December 31,
1996, which have been incorporated in this Registration Statement on Form S-8 by
reference, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report dated February 13, 1997, which is also incorporated
herein, and has been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Article SIXTH, Section 2, of the Restated Certificate
of Incorporation of the Registrant, as amended, and to Section 145 of the
General Corporation Law of the State of Delaware as set forth below.
Article SIXTH, Section 2, of the Restated Certificate of Incorporation of
the Registrant, as amended, provides as follows:
"Section 2 INDEMNIFICATION AND INSURANCE
"(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or
was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Corporation, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said Law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, excise taxes pursuant to the Employee Retirement
Income Security Act of 1974 or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof, the Corporation
shall indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors of
the
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Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by
a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors,
provide indemnification to employees and agents of the Corporation with the
same scope and effect as the foregoing indemnification of directors and
officers.
"(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a)
of this Section is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that
the claimant has not met the standard of conduct which makes it permissible
under the Delaware General Corporation Law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable
standard of conduct.
"(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, provision of this Restated Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
"(d) INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of
the Corporation or any person serving at the request of the Corporation as
a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, against any such expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law."
Section 145 of the General Corporation Law of Delaware provides as follows:
"SECTION 145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS; INSURANCE
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"(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
"(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
"(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such determination shall
be made (1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall
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ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems
appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
"(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
"(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
"(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a corporation's obligation to
advance expenses (including attorneys' fees)."
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The Registrant provides and maintains insurance covering certain
liabilities (within certain limits) of directors and officers and providing for
reimbursement for amounts paid by the Registrant as indemnification to directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
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5 Opinion of the Registrant's General Counsel as to the legality of
securities offered for issuance upon exercise of options
outstanding under certain Plans formerly sponsored by Norand
Corporation.
10 Norand Corporation 1989 Stock Option Plan; Norand Corporation
Long-Term Performance Program; Norand Corporation 1994 Stock
Option Plan For Non-Employee Directors; and resolutions adopted
by the Board of Directors of Norand Corporation with respect
thereto.
23(a) Independent Auditors' Consent, Deloitte & Touche LLP.
23(b) Consent of Counsel (contained in the opinion of the Registrant's
General Counsel, Exhibit 5 hereto).
24(a) Power of Attorney of Directors and Certain Officers.
24(b) Certification of Resolutions authorizing Registrant's signature
by power of attorney.
ITEM 9. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
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aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by, or furnished to the
Commission by, the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement;
(b) that, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(c) 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.
(2) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
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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 Beverly Hills, State of California, on the 21st day
of April, 1997.
WESTERN ATLAS INC.
BY: ALTON J. BRANN*
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ALTON J. BRANN
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
/s/ Virginia S. Young
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*BY VIRGINIA S. YOUNG, ATTORNEY-IN-FACT
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the 21st day of April, 1997.
SIGNATURES: TITLE:
- ----------- ------
PRINCIPAL EXECUTIVE OFFICER
CHAIRMAN OF THE BOARD AND
ALTON J. BRANN* CHIEF EXECUTIVE OFFICER; DIRECTOR
- ------------------------------
ALTON J. BRANN
PRINCIPAL FINANCIAL OFFICER
SENIOR VICE PRESIDENT AND
MICHAEL E. KEANE* CHIEF FINANCIAL OFFICER
- ------------------------------
MICHAEL E. KEANE
PRINCIPAL ACCOUNTING OFFICER
CHARLES A. CUSUMANO* VICE PRESIDENT, FINANCE
- ------------------------------
CHARLES A. CUSUMANO
PAUL BANCROFT, III* DIRECTOR
- ------------------------------
PAUL BANCROFT, III
JOSEPH T. CASEY* DIRECTOR
- ------------------------------
JOSEPH T. CASEY
WILLIAM C. EDWARDS* DIRECTOR
- ------------------------------
WILLIAM C. EDWARDS
CLAIRE W. GARGALLI* DIRECTOR
- ------------------------------
CLAIRE W. GARGALLI
ORION L. HOCH* DIRECTOR
- ------------------------------
ORION L. HOCH
STEVEN B. SAMPLE* DIRECTOR
- ------------------------------
STEVEN B. SAMPLE
/s/ Virginia S. Young
- ------------------------------
*BY VIRGINIA S. YOUNG, ATTORNEY-IN-FACT
11
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EXHIBIT 5
[LETTERHEAD of Norman L. Roberts]
April 16, 1997
Board of Directors
Western Atlas Inc.
360 North Crescent Drive
Beverly Hills, CA 90210
Registration Statement on Form S-8
Dear Sirs and Madam:
As Senior Vice President and General Counsel of Western Atlas Inc., a
Delaware corporation (the "Company"), I have examined the Restated Certificate
of Incorporation, as amended, and By-laws of the Company, its minute books and
other corporate records; the Agreement and Plan of Merger dated January 21,
1997, by and among Norand Corporation ("Norand"), WAI Acquisition Corp., and the
Company (the "Merger Agreement"), whereby, among other things, the Company
agreed to assume certain stock options outstanding under various plans of
Norand; certain proceedings taken by the Company's Board of Directors to
authorize the issuance and sale of shares of the Company's $1 par value Common
Stock ("Common Stock") pursuant to the stock options assumed as aforesaid; and
such laws, rules, regulations, and other matters as I have deemed necessary or
appropriate in connection with the following opinion.
Based on such examination and authorization, I am of the opinion that the
Company has been duly organized and is a validly existing corporation under the
laws of the State of Delaware.
It is my opinion that the issuance and sale of up to 500,000 additional
shares of Common Stock (such number subject to adjustment pursuant to
anti-dilution provisions applicable to the stock options assumed by the Company
under the Merger Agreement), have been duly authorized by all necessary
corporate proceedings; and, when issued in
<PAGE>
connection with the exercise of the assumed options, the aforesaid shares of
Common Stock will be duly and validly issued, fully paid, and nonassessable.
I am familiar with the Registration Statement being filed on Form S-8
pursuant to the Securities Act of 1933, as amended, relating to a maximum of
500,000 shares of Common Stock (subject to adjustment as aforesaid) which may be
issuable under the terms of the options assumed by the Company pursuant to the
Merger Agreement, and hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name, and the statements made
with respect to me, in Item 5 of the Registration Statement under the caption
"Interests of Named Experts and Counsel."
Very truly yours,
/s/ Norman L. Roberts
Norman L. Roberts
NLR:gcf
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EXHIBIT 10
NORAND CORPORATION
1989 STOCK OPTION PLAN
(RESTATED AS OF MARCH 3, 1997)
1. PURPOSE OF THE PLAN.
The purpose of the Norand Corporation 1989 Stock Option Plan (the
"Plan") is (i) to further the growth and success of Norand Corporation, a
Delaware corporation (the "Company") and its Subsidiaries (as hereinafter
defined) by enabling directors and employees of, and independent consultants to,
the Company and any of its Subsidiaries to acquire shares of Common Stock, $.01
par value (the "Common Stock"), of the Company, thereby increasing their
personal interest in such growth and success, and (ii) to provide a means of
rewarding outstanding performance by such persons to the Company and/or its
Subsidiaries. Options granted under the Plan may be either "incentive stock
options" ("ISOs"), intended to qualify as such under the provisions of Section
422A of the Internal Revenue Code of 1986, as amended (the "Code"), or non-
qualified stock options ("NSOs"). For purposes of the Plan, the terms "Parent"
and "Subsidiary" shall mean "Parent Corporation" and "Subsidiary Corporation",
respectively, as such terms are defined in Sections 425(e) and (f) of the Code.
Unless the context otherwise requires, any ISO or NSO shall hereinafter be
referred to as an "Option".
2. ADMINISTRATION OF THE PLAN.
a. COMPENSATION AND STOCK OPTION COMMITTEE.
The Plan shall be administered by a Compensation and Stock Option
Committee (the "Committee") consisting of two persons appointed to such
Committee from time to time by the Board of Directors of the Company (the
"Board"); PROVIDED, HOWEVER, that, so long as it shall be required to comply
with Rule 16b-3 ("Rule 16b-3") promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934 (the "1934
Act") in order to permit officers and directors of the Company to be exempt from
the provisions of Section 16(b) of the 1934 Act with respect to transactions
pursuant to the Plan, each of such persons, at the effective date of his or her
appointment to the Committee, shall be a
<PAGE>
"disinterested person" within the meaning of Rule 16b-3. The members of the
Committee may be removed at any time either with or without cause by the Board.
Any vacancy on the Committee, whether due to action of the Board or any other
cause, shall be filled by the Board.
b. PROCEDURES.
The Board shall from time to time select a Chairman from among the
members of the Committee. The Committee shall adopt such rules and regulations
as it shall deem appropriate concerning the holding of meetings and the
administration of the Plan. A majority of the entire Committee shall constitute
a quorum and the actions of a majority of the members of the Committee present
at a meeting at which a quorum is present, or actions approved in writing by all
of the members of the Committee, shall be the actions of the Committee.
c. INTERPRETATION.
Except as otherwise expressly provided in the Plan, the Committee
shall have all powers with respect to the administration of the Plan, including,
without limitation, full power and authority to interpret the provisions of the
Plan and any Option Agreement (as defined in Section 5.b.), and to resolve all
questions arising under the Plan. All decisions of the Committee shall be
conclusive and binding on all participants in the Plan.
3. SHARES OF STOCK SUBJECT TO THE PLAN.
a. NUMBER OF SHARES.
Subject to the provisions of Section 9 (relating to adjustments upon
changes in capital structure and other corporate transactions), the number of
shares of Common Stock subject at any one time to Options granted under the
Plan, plus the number of shares of Common Stock theretofore issued and delivered
pursuant to the exercise of Options granted under the Plan, shall not exceed
753,850 shares. If and to the extent that Options granted under the Plan
terminate, expire or are cancelled without having been fully exercised, new
Options may be granted under the Plan with respect to the shares of Common Stock
covered by the unexercised portion of such terminated, expired or cancelled
Options.
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b. CHARACTER OF SHARES.
The shares of Common Stock issuable upon exercise of an Option granted
under the Plan shall be (i) authorized but unissued shares of Common Stock, (ii)
shares of Common Stock held in the Company's treasury, (iii) a combination of
the foregoing.
c. RESERVATION OF SHARES.
The number of shares of Common Stock reserved for issuance under the
Plan shall at no time be less than the maximum number of shares which may be
purchased at any time pursuant to outstanding Options.
4. ELIGIBILITY.
a. GENERAL.
Options may be granted under the Plan only to:
(i) persons who are employees of, or independent consultants to, the
Company or any of its Subsidiaries; or
(ii) persons who are directors of the Company or any of its
Subsidiaries.
Options granted to employees of the Company or any of its Subsidiaries
shall be, in the discretion of the Committee, either ISOs or NSOs, and Options
granted to independent consultants to or directors of the Company or any of its
Subsidiaries who are not employees of the Company or any of its Subsidiaries
shall be NSOs. Notwithstanding the foregoing, Options may be conditionally
granted to persons who are prospective employees or directors of, or independent
consultants to, the Company or any of its Subsidiaries; PROVIDED, HOWEVER, that
any such conditional grant of an ISO to a prospective employee shall, by its
terms, become effective no earlier than the date on which such person actually
becomes an employee.
b. EXCEPTIONS.
Notwithstanding anything contained in Section 4.a. to the contrary:
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(i) no ISO may be granted under the Plan to an employee who owns,
directly or indirectly (within the meaning of Sections 422A(b)(6) and
425(d) of the Code), stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of its Parent, if
any, or any of its Subsidiaries, unless (A) the Option Price (as defined in
Section 6.a.) of the shares of Common Stock subject to such ISO is fixed at
not less than 110% of the Fair Market Value on the date of grant (as
determined in accordance with Section 6.b.) of such shares and (B) such ISO
by its terms is not exercisable after the expiration of five years from the
date it is granted; and
(ii) no Option may be granted to a person (A) who has been appointed
pursuant to Section 2.a. to serve on the Committee effective as of a future
date at any time during the period from the date such appointment is made
to the date such appointment is to become effective or (B) who is serving
as a member of the Committee.
5. GRANT OF OPTIONS.
a. GENERAL.
Options may be granted under the Plan at any time and from time to
time on or prior to the tenth anniversary of the Effective Date (as defined in
Section 11). Subject to the provisions of the Plan, the Committee shall have
plenary authority, in its discretion, to determine:
(i) the persons (from among the class of persons eligible to receive
Options under the Plan) to whom Options shall be granted (the "Optionees");
(ii) the time or times at which Options shall be granted;
(iii) the number of shares subject to each Option;
(iv) the Option Price of the shares subject to each Option, which
price, in the case of ISOs, shall be not less than the minimum specified in
Section 4.b.i. or 6.a. (as applicable); and
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(v) the time or times when each Option shall become exercisable and
the duration of the exercise period.
b. OPTION AGREEMENTS.
Each Option granted under the Plan shall be designated as an ISO or an
NSO and shall be subject to the terms and conditions applicable to ISOs and/or
NSOs (as the case may be) set forth in the Plan. In addition, each Option shall
be evidenced by a written agreement (an "Option Agreement"), containing such
terms and conditions and in such form, not inconsistent with the Plan, as the
Committee shall, in its discretion, provide. Each Option Agreement shall be
executed by the Company and the Optionee.
c. NO EVIDENCE OF EMPLOYMENT OR SERVICE.
Nothing contained in the Plan or in any Option Agreement shall confer
upon any Optionee any right with respect to the continuation of his or her
employment by or service with the Company or any of its Subsidiaries or
interfere in any way with the right of the Company or any such Subsidiary
(subject to the terms of any separate agreement to the contrary) at any time to
terminate such employment or service or to increase or decrease the compensation
of the Optionee from the rate in existence at the time of the grant of an
Option.
d. DATE OF GRANT.
The date of grant of an Option under this Plan shall be the date as of
which the Committee approves the grant, PROVIDED, HOWEVER, that in the case of
an ISO, the date of grant shall in no event be earlier than the date as of which
the Optionee becomes an employee of the Company or one of its Subsidiaries.
6. OPTION PRICE.
a. GENERAL.
Subject to Section 9, the price (the "Option Price") at which each
share of Common Stock subject to an Option granted under the Plan may be
purchased shall be determined by the Committee at the time the Option is
granted; PROVIDED, HOWEVER, that in the case of an ISO, such Option Price shall
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in no event be less than 100% of the Fair Market Value on the date of grant (as
determined in accordance with Section 6.b.) of such share of Common Stock.
b. DETERMINATION OF FAIR MARKET VALUE.
Subject to the requirements of Section 422A of the Code, for purposes
of the Plan, the "Fair Market Value" of shares of Common Stock shall be equal
to:
(i) if such shares are publicly traded, (x) the closing price, if
applicable, or the average of the last bid and asked prices on the date of
grant or, if lower, the average of the daily closing prices (or the means
between the last bid and asked prices for days on which no sales took
place) of the 30 business days immediately preceding the date of grant, in
the over-the-counter market as reported by NASDAQ or, (y) if the Common
Stock is then traded on a national securities exchange, the average of the
high and low prices on the date of grant or, if lower, the average of the
daily closing prices (or the means between the last bid and asked prices
for days on which no sales took place) of the 30 business days immediately
preceding the date of grant, on the principal national securities exchange
on which it is so traded; or
(ii) if there is no public trading market for such shares, the fair
value of such shares on the date of grant as determined by the Committee
after taking into consideration all factors which it deems appropriate,
including, without limitation, recent sale and offer prices of the Common
Stock in private transactions negotiated at arms' length.
Notwithstanding anything contained in the Plan to the contrary, all
determinations pursuant to Section 6.b.(ii) shall be made without regard to
any restriction other than a restriction which, by its terms, will never
lapse.
c. REPRICING OF NSOs.
Subsequent to the date of grant of any NSO, the Committee may, at its
discretion and with the consent of the Optionee, establish a new Option Price
for such NSO so as to increase or decrease the Option Price of such NSO.
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7. EXERCISABILITY OF OPTIONS.
a. COMMITTEE DETERMINATION.
Each Option granted under the hall be exercisable at such time or
times, or upon the occurrence of such event or events, and for such number of
shares subject to the Option, as shall be determined by the Committee and set
forth in the Option Agreement evidencing such Option. If an Option is not at
the time of grant immediately exercisable, the Committee may (i) in the Option
Agreement evidencing such Option, provide for the acceleration of the exercise
date or dates of the subject Option upon the occurrence of specified events
and/or (ii) at any time prior to the complete termination of an Option,
accelerate the exercise date or dates of such Option.
b. AUTOMATIC TERMINATION OF OPTION.
The unexercised portion of any Option granted under the Plan shall
automatically terminate and shall become null and void and be of no further
force or effect upon the first to occur of the following:
(i) the tenth anniversary of the date on which such Option is granted
or, in the case of any ISO granted to a person described in Section 4.b.,
the fifth anniversary of the date on which such ISO is granted;
(ii) the expiration of three months from the date that the Optionee
ceases to be an employee or director of, or independent consultant to, the
Company or any of its Subsidiaries (other than as a result of an
Involuntary Termination (as defined in subparagraph (iii) below)) or a
Termination For Cause (as defined in subparagraph (iv) below)); PROVIDED,
HOWEVER that if the Optionee shall die during such three-month period, the
time of termination of the unexercised portion of such Option shall be the
expiration of 12 months from the date that such Optionee ceased to be an
employee or director of, or independent consultant to, the Company or any
of its Subsidiaries;
(iii) the expiration of 12 months from the date that the Optionee
ceases to be an employee or director of, or independent consultant to, the
Company or any of its Sub-
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<PAGE>
sidiaries, if such termination is due to such Optionee's death or permanent
and total disability (within the meaning of Section 22(e)(3) of the Code)
(an "Involuntary Termination");
(iv) immediately if the Optionee ceases to be an employee or director
of, or independent consultant to, the Company or any of its Subsidiaries,
if such termination is for cause or is otherwise attributable to a breach
by the Optionee of an employment, consulting or other similar agreement
with the Company or any such Subsidiary (a "Termination For Cause");
(v) the expiration of such period of time or the occurrence of such
event as the Committee in its discretion may provide in the Option
Agreement;
(vi) on the effective date of a Corporate Transaction (as defined in
Section 9.b.(i)) to which Section 9.b.(ii) (relating to assumptions and
substitutions of Options) does not apply; PROVIDED, HOWEVER, that an
Optionee's right to exercise any Option outstanding prior to such effective
date shall in all events be suspended during the period commencing 10 days
prior to the proposed effective date of such Corporate Transaction and
ending on either the actual effective date of such Corporate Transaction or
upon receipt of notice from the Company that such Corporate Transaction
will not in fact occur; and
(vii) except to the extent permitted by Section 9.b.(ii), the date
on which an Option or any part thereof or right or privilege relating
thereto is transferred (otherwise than by will or the laws of descent and
distribution), assigned, pledged, hypothecated, attached or otherwise
disposed of by the Optionee.
The Board shall have the power to determine what constitutes a
Termination For Cause, and the date upon which such Termination For Cause shall
occur. All such determinations shall be final and conclusive and binding upon
the Optionee.
Notwithstanding anything contained in the Plan to the contrary, unless
otherwise provided in an Option Agreement, no Option granted under the Plan
shall be affected by any change of duties or position of the Optionee (including
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<PAGE>
a transfer to or from the Company or one of its Subsidiaries), so long as such
Optionee continues to be an employee or director of, or independent consultant
to, the Company or one of its Subsidiaries.
c. LIMITATIONS ON EXERCISE.
Notwithstanding anything contained in the Plan to the contrary, an ISO
granted under the Plan to an Optionee shall not be exercisable to the extent
that the aggregate Fair Market Value on the date of grant of such ISO (as
determined in accordance with Section 6.b.) of all stock with respect to which
incentive stock options are exercisable for the first time by such Optionee
during any calendar year (under all plans of the Company and its Subsidiaries)
exceeds $100,000.
8. PROCEDURE FOR EXERCISE.
a. PAYMENT.
At the time an Option is granted under the Plan, the Committee shall,
in its discretion, specify one or more of the following forms of payment which
may be used by an Optionee upon exercise of his Option:
(i) cash or personal or certified check payable to the Company in an
amount equal to the aggregate Option Price of the shares with respect to
which the Option is being exercised;
(ii) stock certificates (in negotiable form) representing shares of
Common Stock having a Fair Market Value on the date of exercise (as
determined in accordance with Section 6.b. as if the date of exercise were
the date of grant) equal to the aggregate Option Price of the shares with
respect to which the Option is being exercised; or
(iii) a combination of the methods set forth in clauses (i) and (ii).
b. NOTICE.
An Optionee (or other person, as provided in Section 10.c.) may
exercise an Option granted under the Plan in whole or in part (but for the
purchase of whole shares only), as provided in the Option Agreement evidencing
his Option, by
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<PAGE>
delivering a written notice (the "Notice") to the Secretary of the Company. The
Notice shall state:
(i) that the Optionee elects to exercise the Option;
(ii) the number of shares with respect to which the Option is being
exercised (the "Optioned Shares");
(iii) the method of payment for the Optioned Shares (which method must
be available to the Optionee under the terms of his or her Option
Agreement);
(iv) the date upon which the Optionee desires to consummate the
purchase of the Optioned Shares (which date must be prior to the
termination of such Option);
(v) a copy of any election filed by the Optionee pursuant to Section
83(b) of the Code; and
(vi) such further provisions consistent with the Plan as the Committee
may from time to time require.
The exercise date of an Option shall be the date on which the Company
receives the Notice from the Optionee.
c. ISSUANCE OF CERTIFICATES.
The Company shall issue a stock certificate in the name of the
Optionee (or such other person exercising the Option in accordance with the
provisions of Section 10.b.) for the Optioned Shares as soon as practicable
after receipt of the Notice and payment of the aggregate Option Price for such
shares. Neither the Optionee nor any person exercising an Option in accordance
with the provisions of Section 10.b. shall have any privileges as a stockholder
of the Company with respect to any shares of stock subject to an Option granted
under the Plan until the date of issuance of a stock certificate pursuant to
this Section 8.c.
9. ADJUSTMENTS.
a. CHANGES IN CAPITAL STRUCTURE.
Subject to Section 9.b., if the Common Stock is changed by reason of a
stock split, reverse stock split, stock
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dividend or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation or reorganization, the
Committee shall make such adjustments in the number and class of shares of stock
with respect to which Options may be granted under the Plan as shall be
equitable and appropriate in order to make such Options, as nearly as may be
practicable, equivalent to such Options immediately prior to such change. A
corresponding adjustment changing the number and class of shares allocated to,
and the Option Price of, each Option or portion thereof outstanding at the time
of such change shall likewise be made. Notwithstanding anything contained in
the Plan to the contrary, in the case of ISOs, no adjustment under this Section
9.a. shall be appropriate if such adjustment (i) would constitute a
modification, extension or renewal of such ISOs within the meaning of Sections
422A and 425 of the Code, and the regulations promulgated by the Treasury
Department thereunder, or (ii) would, under Section 422A of the Code and the
regulations promulgated by the Treasury Department thereunder, be considered as
the adoption of a new plan requiring stockholder approval.
b. CHANGE IN CONTROL.
The following rules shall apply in the event a Change in Control (as
defined below) occurs:
(i) Each holder of an Option outstanding at such time shall be given
(A) written notice of such Change in Control at least 20 days prior to its
proposed effective date (as specified in such notice), and (B) an
opportunity, during the period commencing with delivery of such notice and
ending 10 days prior to such proposed effective date, to exercise the
Option in its entirety (to the extent not previously exercised and without
regard to whether the Stock Option would otherwise then have been fully
exercisable in accordance with its terms). Subject to the provisions of
Section 9.b.(ii) below, all unexercised Options that have been granted
under the Plan shall automatically terminate upon a Change in Control.
(ii) Notwithstanding any other provision of the Plan to the contrary,
Section 9.(b)(i) shall not be applicable if provision shall be made in
connection with such Change in Control for the assumption of outstanding
Options by, or the substitution for such Options of options covering the
stock of, the surviving, successor or purchasing cor-
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<PAGE>
poration, or a parent or subsidiary thereof, with appropriate adjustments
as to the number, kind and option prices of shares subject to such options;
PROVIDED, HOWEVER, that, in the case of an ISO, the Board shall, to the
extent not inconsistent with the best interests of the Company or its
Subsidiaries (such best interests to be determined in good faith by the
Board in its sole discretion), use its best efforts to ensure that any such
assumption or substitution will not constitute a modification, extension or
renewal of the ISO within the meaning of section 424(h) of the Code and
regulations promulgated thereunder. Notwithstanding the preceding
sentence, if an individuals Option is assumed or substituted pursuant to
this Section 9.(b).(ii) and, coincident with or within 2 years following a
Change in Control, the individual's employment with the Company or the
surviving, successor or purchasing corporation, or a parent or subsidiary
thereof, is terminated in a covered termination (as defined below), any
such assumed or substituted option shall become fully exercisable upon such
covered termination and shall continue to thereafter be exercisable in
accordance with its terms.
For purposes of this Plan, an individual's employment with the Company or the
surviving, successor or purchasing corporation, or a parent of subsidiary
thereof, shall be considered to have been terminated in a covered termination
under the following conditions:
(1) the individual's position is eliminated and the employee's
employment is terminated in connection with such elimination;
(2) there is a material adverse change in the individual's level of
duties or level of reporting relationships, without his consent, from those
in effect immediately prior to the change in control (as the same may have
been enhanced from time to time) and the individual's employment is
terminated within 60 days of such change; PROVIDED, HOWEVER, that no change
to an individual's level of reporting relationships that is directly caused
by the cessation of public trading in the Common Stock of the Company
and/or the change of the Company's status into a wholly owned subsidiary of
another company, shall be deemed to constitute an event treated as a
covered termination under this Plan provided that such change does not
materially adversely change
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such an individual's level and scope of duties with respect to the business
of the Company;
(3) there is (i) a reduction in the individual's rate of base salary
or bonus, or (ii) a material adverse change in the medical, dental, life,
disability, pension, profit sharing or stock option benefits or other
material perquisites applicable to the individual, as compared to those
applicable to the individual immediately prior to the change in control (as
the same may have been enhanced from time to time), and the individuals
employment is terminated within 60 days of such change;
(4) the individual is relocated to an office or job location that is
more than thirty miles from his office or job location immediately prior to
the change in control (except for required travel on business to an extent
substantially consistent with his business travel obligations as in effect
immediately prior to the change in control) and the individual's employment
is terminated within 60 days of such change.
For purposes of this Plan, a "Change in Control" shall have occurred if:
(I) any "Person", as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") (other than the
Company, any corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company, and any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or such proportionately owned
corporation), is or becomes the "beneficial owner" (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined voting
power of the Company's then outstanding securities having the right to vote
for the election of directors;
(II) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being
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<PAGE>
converted into voting securities of the surviving entity) more than 60% of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
acquires more than 15% of the Company's then outstanding securities having
the right to vote for the election of directors; or
(III) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets (or any
transaction having a similar effect).
c. SPECIAL RULES.
The following rules shall apply in connection with Section 9.a. and b.
above:
(i) no fractional shares shall be issued as a result of any such
adjustment, and any fractional shares resulting from the computations
pursuant to Section 9.a. or b. shall be eliminated without consideration
from the respective Options;
(ii) no adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional shares of Common Stock
or other securities; and
(iii) any adjustments referred to in Section 9.a. or b. shall be made
by the Board or Committee (as the case may be) in its sole discretion and
shall be conclusive and binding on all persons holding Options granted
under the Plan.
10. RESTRICTIONS ON OPTIONS AND OPTIONED SHARES.
a. COMPLIANCE WITH SECURITIES LAWS.
No Options shall be granted under the Plan, and no shares of Common
Stock shall be issued and delivered upon the exercise of Options granted under
the Plan, unless and until
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the Company and/or the Optionee shall have complied with all applicable Federal
or state registration, listing and/or qualification requirements and all other
requirements of law or of any regulatory agencies having jurisdiction.
The Committee in its discretion may, as a condition to the exercise of
any Option granted under the Plan, require an Optionee (i) to represent in
writing that the shares of Common Stock received upon exercise of an Option are
being acquired for investment and not with a view to distribution and (ii) to
make such other representations and warranties as are deemed appropriate by the
Company. Stock certificates representing shares of Common Stock acquired upon
the exercise of Options that have not been registered under the Securities Act
shall, if required by the Committee, bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT."
b. NONASSIGNABILITY OF OPTION RIGHTS.
No Option granted under this Plan shall be assignable or otherwise
transferrable by the Optionee except by will or by the laws of descent and
distribution. An Option may be exercised during the lifetime of the Optionee
only by the Optionee. If an Optionee dies, his or her Option shall thereafter
be exercisable, during the period specified in Section 7.b(ii) or (iii) (as the
case may be), by his or her executors or administrators to the full extent to
which such Option was exercisable by the Optionee at the time of his or her
death.
c. REPURCHASE OF OPTIONED SHARES BY THE COMPANY.
(i) In the event of an Optionee's Termination for Cause, the Company
shall have the right, exercisable within 90 days after such Termination for
Cause, to purchase from the Optionee and the Optionee shall sell to the
Company upon the exercise of such right, all shares of Common Stock issued
and delivered upon exercise of
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Options granted under the Plan to such Optionee (the "Optioned Shares"), at
the exercise price per share of such Optioned Shares.
(ii) In the event of an Optionee's termination for any reason other
than a Termination for Cause or in the event of an Optionee's voluntary
resignation, the Company shall have the right, exercisable within 90 days
after such Termination or resignation, to purchase from the Optionee and
the Optionee shall sell to the Company upon the exercise of such right, all
Optioned Shares at Fair Market Value (which Value shall be determined as
set forth in Section 6(b) hereof, except that such determination shall be
made as of the date of the notice to repurchase the Optioned Shares rather
than as of the date of the grant of the Option).
(iii) (A) If the Optionee wishes to Sell (as defined below) his
Optioned Shares and the Company has not exercised the right to purchase
pursuant to Section 10(c)(i) or (ii) above, the Optionee shall deliver to
the Company a written notice, which shall be irrevocable for a period of 30
days after delivery thereof, offering (the "Offer") all of the Optioned
Shares which the Optionee desires to Sell to a third party at the purchase
price and on the terms specified in the offer to Sell to such third party,
whereupon the Company shall have the right and option to purchase all of
the Optioned Shares so offered at the purchase price and on the terms
stated in the Offer (such acceptance to be made by the delivery of a
written notice to the Optionee within the 30-day period after delivery of
the aforesaid notice of intention to Sell).
(B) Sales of the Optioned Shares under the terms of Section
10(c)(iii)(A) above shall be made at the offices of the Company on a
mutually satisfactory business day within 15 days after the expiration of
the aforesaid 30-day period. Delivery of certificates or other instruments
evidencing such shares of Optioned Shares duly endorsed for transfer shall
be made on such date against payment of the purchase price therefor by
certified or bank check drawn on a New York Clearinghouse member bank.
(C) If the Company shall not elect to purchase Optioned Shares
offered for sale pursuant to the Offer pursuant to Section 10(c)(iii)(A)
above, then the
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Optionee may sell the Optioned Shares so offered for sale at a price not
less than the price, and on terms not more favorable to the purchaser
thereof than the terms, stated in the Offer, at any time within 90 days
after the expiration of the Offer made pursuant to Section 10(c)(iii)(A)
above. In the event Optioned Shares are not sold by the Optionee during
such 90-day period, the right of the Optionee to sell the Optioned Shares
shall expire and the obligations of this Section 10(c) shall be reinstated.
(D) Anything contained herein to the contrary notwithstanding, as a
condition precedent to any Sale pursuant to this Section 10(c)(iii) to any
third party, such third party shall agree in writing in advance to be bound
by and to comply with all applicable provisions of this Plan.
(E) For purposes of this Section 10(c)(iii) and Section 10(c)(vi)
below, the following terms shall have the following respective meanings:
(1) SELL shall mean to sell, or in any other way directly or
indirectly transfer, assign, distribute, encumber, pledge, hypothecate
or otherwise dispose of, either voluntarily or involuntarily;
PROVIDED, HOWEVER, that the Optionee and any member of the Group of
the Optionee shall not be deemed to Sell the Optioned Shares if such
Optioned Shares are transferred to a member of the Group of the
Optionee and such person agrees to be bound by the terms of this Plan
to the same extent as the Optionee.
(2) GROUP shall mean (i) the Optionee, (ii) the spouse, parents,
siblings and lineal descendants of the Optionee, (iii) a trust for the
benefit of any of the foregoing and (iv) any distributee, legatee or
devisee of the Optionee or anyone described in the preceding clause
(ii), in each case who agrees in writing to be bound by and to comply
with the terms of this Plan to the same extent as the Optionee.
(iv) Notwithstanding the provisions of this Section 10(c), if the
Company is prohibited or limited from repurchasing Optioned Shares during
any period referred
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to in this Section 10(c) as the result of any provision of an agreement
entered into by the Company or an Affiliate thereof (as defined in the
Credit Agreement (the "Credit Agreement") dated October 31, 1988, among the
Company, First Bank National Association and the banks which are a party
thereto) (including, without limitation, the Credit Agreement or any
provision of law), such period shall be tolled until such date as the
Company is permitted to repurchase such Optioned Shares, whereupon the
Company may exercise its right of repurchase within 30 days after such
prohibition or limitation ceases to exist.
(v) The provisions of this Section 10(c) shall terminate upon the
consummation of an underwritten public offering on a firm commitment basis
of shares of Common Stock pursuant to the Securities Act of 1933.
(vi) Notwithstanding the foregoing and subject to Section 10(c)(v)
above, an Optionee may not Sell his Optioned Shares during his employment
by the Company.
d. RESTRICTION ON SALE OF OPTIONED SHARES.
If the Company files a registration statement under the Securities Act
of 1933 (the "Securities Act") for the initial public offering of its
securities, all shares of Common Stock issued pursuant to Options exercised
during the 180-day period immediately following the effective date of such
registration statement shall be subject to the restriction that such shares
shall not be sold or in any other way directly or indirectly transferred,
assigned, encumbered, pledged or otherwise disposed of by the Optionee
until after such 180-day period has expired.
11. EFFECTIVE DATE OF PLAN.
This Plan shall become effective on the date (the "Effective Date") of
its adoption by the Board; PROVIDED, HOWEVER, that no Option shall be
exercisable by an Optionee unless and until the Plan shall have been approved by
the stockholders of the Company in accordance with the provisions of its
Certificate of Incorporation and By-laws, which approval shall be obtained by a
simple majority vote of stockholders, voting either in person or by proxy, at a
duly
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held stockholders' meeting within 12 months before or after the adoption of the
Plan by the Board.
12. EXPIRATION AND TERMINATION OF THE PLAN.
Except with respect to Options then outstanding, the Plan shall expire
on the first to occur of (i) the tenth anniversary of the date on which the Plan
is adopted by the Board, (ii) the tenth anniversary of the date on which the
Plan is approved by the stockholders of the Company and (iii) the date as of
which the Board, in its sole discretion, determines that the Plan shall
terminate (the "Expiration Date"). Any Options outstanding as of the Expiration
Date shall remain in effect until they have been exercised or terminated or have
expired by their respective terms.
13. AMENDMENT OF PLAN.
The Board may at any time prior to the Expiration Date modify and
amend the Plan in any respect; PROVIDED, HOWEVER, that the approval of the
holders of a majority of the votes that may be cast by all of the holders of
shares of Common Stock and preferred stock of the Company, if any, entitled to
vote (voting as a single class) shall be obtained prior to any such amendment
becoming effective if such approval is required by law or is necessary to comply
with regulations promulgated by the SEC under Section 16(b) of the 1934 Act or
with Section 422A of the Code or the regulations promulgated by the Treasury
Department thereunder.
14. CAPTIONS.
The use of captions in this Plan is for convenience. The captions are
not intended to provide substantive rights.
15. DISQUALIFYING DISPOSITIONS.
If Optioned Shares acquired by exercise of an ISO granted under this
Plan are disposed of within two years following the date of grant of the ISO or
one year following the transfer of the Optioned Shares to the Optionee (a
"Disqualifying Disposition"), the holder of the Optioned Shares shall,
immediately prior to such Disqualifying
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Disposition, notify the Company in writing of the date and terms of such
Disqualifying Disposition and provide such other information regarding the
Disqualifying Disposition as the Company may reasonably require.
16. WITHHOLDING TAXES.
Whenever under the Plan shares of Common Stock are to be delivered by
an Optionee upon exercise of an NSO, the Company shall be entitled to require as
a condition of delivery that the Optionee remit or, in appropriate cases, agree
to remit when due, an amount sufficient to satisfy all current or estimated
future Federal, state and local withholding tax and employment tax requirements
relating thereto. At the time of a Disqualifying Disposition, the Optionee
shall remit to the Company in cash the amount of any applicable Federal, state
and local withholding taxes and employment taxes.
17. OTHER PROVISIONS.
Each Option granted under the Plan may contain such other terms and
conditions not inconsistent with the Plan as may be determined by the Committee,
in its sole discretion. Notwithstanding the foregoing, each ISO granted under
the Plan shall include those terms and conditions which are necessary to qualify
the ISO as an "incentive stock option" within the meaning of Section 422A of the
Code and the regulations thereunder and shall not include any terms or
conditions which are inconsistent therewith.
18. NUMBER AND GENDER.
With respect to words used in this Plan, the singular form shall
include the plural form, the masculine gender shall include the feminine gender,
and vice-versa, as the context requires.
19. GOVERNING LAW.
The validity and construction of this Plan and the instruments
evidencing the Options granted hereunder shall be governed by the laws of the
State of Delaware.
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NORAND CORPORATION
LONG-TERM PERFORMANCE PROGRAM
(restated as of March 3, 1997)
1. PURPOSE. The Purpose of this Long-Term Performance Program (the
"Program") is to furnish Norand Corporation (the "Company") with a vehicle
pursuant to which it may use incentive compensation arrangements based on common
stock of the Company, $.01 par value ("Common Stock"), to motivate officers and
all other employees ("eligible employees") of the Company and any parent or
subsidiary corporations, and reward them for contributing to the value of the
Company and promoting its best interests, and to provide a mechanism through
which the Company may encourage eligible employees to join or remain with the
Company or any such corporation.
2. ADMINISTRATION.
(a) BOARD OF DIRECTORS. The Program shall be administered by
the Compensation Committee (the "Committee") of the Board of Directors of
the Company (the "Board"), which shall consist of not less than two members
of the Board. Notwithstanding the preceding provisions of this Section, no
member of the Board may exercise discretion with respect to, or participate
in, the administration of the Program if, at any time within one year prior
to such exercise or participation or while so participating, he or she has
received a grant or an award of an equity security, pursuant to the Program
or any other plan of the Company or an affiliate thereof, except as
described in paragraphs (A) through (D) of Rule 16b-3(c)(2)(i) under the
Securities Exchange Act of 1934.
(b) POWERS. Within the limits of the express provisions of the
Program, the Committee shall determine: (i) the eligible employees to whom
awards hereunder shall be granted, (ii) the time or times at which such
awards
<PAGE>
shall be granted, (iii) the form and amount of the awards, and (iv) the
limitations, restrictions and conditions applicable to any such award. In
making such determinations, the Committee may take into account the nature
of the services rendered by such employees, or classes of employees, their
present and potential contributions to the Company's and such other factors
as the Committee in its discretion success and such other factors as the
Committee in its discretion shall deem relevant. The Committee shall have
the power to delegate its powers under this Section 2(b), in writing, to a
committee consisting of three (3) officers of the Company, to the extent
permitted by law.
(c) INTERPRETATION. Subject to the express provisions of the
Program, the Committee may interpret the Program, prescribe, amend and
rescind rules and regulations relating to it, determine the terms and
provisions of the respective awards and make all other determinations it
deems necessary or advisable for the administration of the Program.
(d) DETERMINATIONS. The determinations of the Committee on all
matters regarding the Program shall be conclusive. A member of the
Committee shall only be liable for any action taken or determination made
in bad faith.
(e) NONUNIFORM DETERMINATIONS. The Committee's determinations
under the Program, including without limitation, determinations as to the
persons to receive awards, the terms and provisions of such awards and the
agreements evidencing the same, need not be uniform and may be made by it
selectively among persons who receive or are eligible to receive awards
under the Program, whether or not such persons are similarly situated.
3. AWARDS UNDER THE PROGRAM.
(a) FORM. Awards under the Program ("Awards") may be granted in
the form of: (i) Stock Options, as described in Sections 4 and 5, or (ii)
Performance Restricted Stock, as described in Section 6.
(b) MAXIMUM LIMITATIONS. The aggregate number of shares of
Common Stock available under the Program is
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1,250,000, subject to adjustment pursuant to Section 8. Shares of Common
Stock issued pursuant to the Program may be either authorized but unissued
shares or shares now or hereafter held in the treasury of the Company. In
the event that, prior to the termination of the Program, any Stock Option
granted under the Program expires unexercised or is terminated, surrendered
or canceled without being exercised, in whole or in part, for any reason,
or the shares of stock subject to a grant or sale of Performance Restricted
Stock that included the dividend payment restriction described in Section
6(e) are forfeited or resold to the Company pursuant to Section 6(f), in
whole or in part, for any reason, the number of shares affected thereby
shall be added to the remaining number of shares of Common Stock available
under the Program. Shares that become available in such manner may be used
for any purpose under the Program including in an Award to the former
holder of the Award that gave rise to such additional shares, upon such
terms and conditions that are consistent with the Program as the Committee
shall determine, which terms may be more or less favorable than those
applicable to such former Award.
4. STOCK OPTIONS.
Stock Options may be granted under the Program. Each Stock Option
shall entitle the holder thereof to purchase shares of Common Stock on the terms
and conditions established by the Committee at the time of grant subject to the
provisions of Section 11, and to the following:
(a) CONDITIONS OF EXERCISE. The restrictions imposed by the
Committee may include, but are not limited to, conditions that the eligible
employee remain employed by the Company or a parent or subsidiary for a
specified period of time, or that the performance of the employee, the
Company or any unit thereof, attain specified levels before the Stock
Option, or a portion thereof, may be exercised. The Committee, in its
discretion, shall have the power to accelerate the date on which any
restrictions or conditions on exercise lapse with respect
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to a Stock Option, provided the Option has been outstanding for at least
one year.
(b) EXERCISE. Stock Options shall be subject to such terms and
conditions, shall be exercisable at such time or times, and shall be
evidenced by such form of written option agreement between the eligible
employee and the Company, as the Committee shall determine; provided that
such determinations are not inconsistent with the other provisions of the
Program.
(c) MANNER OF EXERCISE OF OPTIONS AND PAYMENT FOR COMMON STOCK.
Stock Options may be exercised by an eligible employee by giving written
notice to the Secretary of the Company stating the number of shares of
Common Stock with respect to which the Stock Option is being exercised and
tendering payment therefor. At the time that a Stock Option granted under
the Program, or any part thereof, is exercised, payment for the Common
Stock issuable thereupon shall be made in full, in cash, by certified
check, or in shares of Common Stock of the Company (valued at their fair
market value as of the date they are received in payment). Subject to
Section 12(d), as soon as reasonably possible following such exercise, a
certificate representing shares of Common Stock purchased, registered in
the name of the eligible employee, shall be delivered to the eligible
employee.
5. PROVISIONS APPLICABLE TO INCENTIVE STOCK OPTIONS.
At the time it grants a Stock Option under the Program, the Committee
may designate such Stock Option as an Incentive Stock Option, within the
contemplation of Section 422 of the Internal Revenue Code (an "ISO"). A Stock
Option designated as an ISO shall be subject to the applicable provisions of
Section 422 of the Code, and to the general provisions of the Plan to the extent
not inconsistent with Section 422.
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6. PERFORMANCE RESTRICTED STOCK.
The Committee may from time to time cause the Company to grant, or
sell for such amount of cash, Common Stock or such other consideration as the
Committee deems appropriate (which amount may be less than the fair market value
of the Common Stock on the date of sale), shares of Performance Restricted Stock
under the Program to such eligible employees, and subject to such restrictions
and conditions and other terms as the Committee may determine at the time of
grant or sale, subject to the general provisions of the Program, and the
following specific rules:
(a) GRANT OR SALE. Performance Restricted Stock may be granted
or sold to an eligible employee either separately from, or (in the case of
a Stock Option that is not an ISO (an "NSO")) in tandem with, the grant of
a Stock Option to the eligible employee. In the case of Performance
Restricted Stock granted or sold in tandem with the grant of an NSO: (i)
the exercise of the NSO shall cause the forfeiture (or sale at the purchase
price paid for the Performance Restricted Stock) to the Company of the
Performance Restricted Stock related to the NSO, or portion thereof that is
exercised, and (ii) the lapse of restrictions applicable to such
Performance Restricted Stock shall cause the expiration of the unexercised
NSO, or pro rata portion thereof, related to such Performance Restricted
Stock. Performance Restricted Stock not granted or sold in tandem with the
grant of an NSO shall have no effect on, and shall not be affected by the
exercise of any NSO by the holder of such Performance Restricted Stock.
Performance Restricted Stock cannot be assigned, sold, transferred, pledged
or hypothecated (collectively "transferred") prior to the lapse of the
restrictions described in subsections (b) and (c) below, and may only be
transferred thereafter in accordance with
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the terms of the applicable Performance Restricted Stock Agreement.
(b) PERFORMANCE CONDITIONS. Shares issued pursuant to this
Section 6 may be subject to such restrictions and conditions as are imposed
by the Committee at the time of grant or sale, and shall be granted or sold
subject to the condition that the Company or a unit thereof achieve a
financial or other business related goal on or before a specified deadline
(the period between the date of issuance of the Performance Restricted
Stock and such deadline being referred to as a "performance period"). If
such condition is not fulfilled, the provisions of subsection (f) shall
apply. The Committee may provide at the time of grant or sale for a
partial lapsing of the restrictions described in this subsection upon the
attainment of a specified threshold level of performance.
(c) PERFORMANCE RESTRICTED STOCK AGREEMENTS. Performance
Restricted Stock issued to an eligible employee under the Program shall be
governed by a Performance Restricted Stock Agreement which shall specify
whether the shares of Performance Restricted Stock are granted or sold to
the eligible employee, whether such Performance Restricted Stock is issued
separately from, or in tandem with, the grant of an NSO, the restrictions
and conditions applicable to such Performance Restricted Stock, and such
other provisions as the Committee shall determine.
(d) ISSUANCE OF PERFORMANCE RESTRICTED STOCK. The Company shall
issue, in the name of the eligible employee, stock certificates
representing the total number of shares of Performance Restricted Stock
granted or sold to the eligible employee, as soon as may be reasonably
practicable after such grant or sale, which certificate shall be held by
the Secretary of the Company as provided in subsection (h) hereof.
(e) RIGHTS OF STOCKHOLDERS. Subject to the provisions of this
Section, and the restrictions and conditions set forth in the related
Performance Restricted Stock Agreement, the eligible employee receiving a
grant of or purchasing Performance Restricted Stock shall thereupon be a
stockholder with respect to all of the shares represented by such
certificate or certificates
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and shall have the rights of a stockholder with respect to such shares,
including the right to vote such shares and to receive dividends and other
distributions paid with respect to such shares. Notwithstanding the
foregoing, the, Committee may provide at the time a share of Performance
Restricted Stock is granted or sold to an eligible employee that cash
dividends payable with respect to such share shall be paid to and held by
the Company, subject to the lapse of all risks of forfeiture or resale
pursuant to subsection (f). All Common Stock received by an eligible
employee as a result of any dividend on Performance Restricted Stock, or as
a result of any stock split-up, stock distribution or combination of shares
affecting Performance Restricted Stock, shall be subject to the
restrictions set forth in the related Performance Restricted Stock
Agreement.
(f) RESTRICTIONS; FORFEITURE OR RESALE. Any share of
Performance Restricted Stock granted to an eligible employee pursuant to
the Program shall be forfeited, and any share of Performance Restricted
Stock sold to an eligible employee pursuant to the Program shall, at the
Committee's option, be resold to the Company for an amount equal to the
lesser of the price paid therefor or its fair market value, and, in either
case, such shares shall revert to the Company, if the performance-related
or other condition set forth in the Performance Restricted Stock Agreement
with respect to such share is not satisfied. The Committee may exercise
its right to require a resale of Performance Restricted Stock pursuant to
this subsection (f), by giving notice to the eligible employee (with a copy
to the Secretary of the Company) at any time within the 30-day period
following (i) the date that the applicable performance period ends, or (ii)
the date that any other condition fails to be satisfied, and the Committee
shall give similar notice in connection with a forfeiture of shares
pursuant to this subsection. Upon receipt of such notice, the Secretary of
the Company shall promptly cancel or retain in its treasury shares of
Performance Restricted Stock that are forfeited or resold to the Company,
and the Company shall make payment therefor, if applicable, as soon as
reasonably practicable.
(g) ACCELERATION. If one of the conditions imposed on a share
of Performance Restricted Stock is that the eligible employee must remain
employed by the
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Company or a parent or subsidiary for a specified period of time, the
Committee, in its discretion, shall have the power to accelerate the date
on which such condition (but not the performance-related described in
Subsection (b)) lapses with respect to such share of Performance Restricted
Stock if it has been outstanding for at least one year.
(h) PERFORMANCE RESTRICTED STOCK CERTIFICATES. The Secretary of
the Company shall hold the certificate or certificates representing shares
of Performance Restricted Stock issued under the Program, properly endorsed
for transfer, on behalf of each eligible employee who holds such shares,
whether by grant or sale, until such time as the Performance Restricted
Stock is forfeited or resold to the Company, or its restrictions and
conditions lapse.
(i) TERMS AND CONDITIONS. The Committee may prescribe such
other restrictions and conditions and other terms applicable to the shares
of Performance Restricted Stock issued to an eligible employee under the
Program that are neither inconsistent with nor prohibited by the Program or
any Performance Restricted Stock Agreement.
7. TRANSFERABILITY.
Except as otherwise provided in a Performance Restricted Stock
Agreement, no Award may be transferred, assigned, pledged or hypothecated
(whether by operation of law or otherwise), except as provided by will or the
applicable laws of descent or distribution, and no Award shall be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of an Award, or levy of attachment or
similar process upon the Award not specifically permitted herein shall be null
and void and without effect. During the lifetime of
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an eligible employee, any Stock Option granted to the eligible employee may be
exercised only by him or her. To the extent that a Stock Option remains
exercisable after an eligible employee's death pursuant to Section 11(c), such
Stock Option may be exercised by the eligible employee's estate or the person
who acquires the right to exercise such Stock Option upon the eligible
employee's death by bequest or inheritance.
8. ADJUSTMENT PROVISIONS.
The aggregate number of shares of Common Stock with respect to which
Awards may be granted, the aggregate number of shares of Common Stock subject to
each outstanding Stock Option, and the option price per share of each such Stock
Option, may all be appropriately adjusted as the Committee may determine for any
increase or decrease in the number of shares of issued Common Stock resulting
from a subdivision or consolidation of shares, whether through reorganization,
recapitalization, stock split-up, stock distribution or combination of shares,
or the payment of a share dividend or other increase or decrease in the number
of such shares outstanding effected without receipt of consideration by the
Company. The foregoing adjustments under this Section 8 shall be made according
to the sole discretion of the Committee, and its decisions shall be binding and
conclusive.
9. DISSOLUTION, MERGER AND CONSOLIDATION.
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Upon a merger, consolidation or share exchange, involving the Company,
the Committee shall, to the extent necessary to provide eligible employees with
reasonably equivalent benefits, in its discretion, revise, alter, amend or
modify any option agreement or Performance Restricted Stock Agreement with an
eligible employee and any then outstanding and unexercised Stock Option granted
to an eligible employee, and any share of Performance Restricted Stock granted
or sold to an eligible employee, in any manner that it deems appropriate,
including, but not limited to, any of the following respects:
(a) the Stock Option may be deemed to pertain to and apply to
the securities to which a holder of the number of shares of Common Stock
subject to the unexercised portion of the Stock Option would be entitled if
he or she actually owned such shares immediately prior to the record date
or other time any such event became effective;
(b) subject to the provisions of Section 422 of the Code
applicable to an ISO, the dates upon which outstanding and unexercised
Stock Options may be exercised may be advanced (without regard to
installment exercise limitations, if any);
(c) the dates upon which restrictions and conditions applicable
to outstanding Performance Restricted Stock shall lapse, may be advanced
(without regard to any installment limitations);
(d) the surrender of shares of Performance Restricted Stock in a
merger, consolidation or share exchange involving the Company may be
authorized, notwithstanding any restrictions and conditions applicable to
such shares, provided that the securities and/or other consideration
received in exchange therefor shall be subject to the restrictions and
conditions applicable to the Performance Restricted Stock at the time of
surrender and
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that the Surrendering eligible employee agrees to any reasonable provisions
requested by the Company to assure that any consideration received as a
result of such surrender is subject to the same restrictions and conditions
as those imposed on the Performance Restricted Stock Surrendered and that
the consideration cannot be transferred in violation of any such
restrictions; and
(e) the Committee may provide that each Stock Option granted
hereunder shall expire as of the effective date of the transaction but that
each eligible employee shall have the right to exercise his or her wholly
or partially unexercised Stock Option prior to the effective date of the
transaction.
If the Committee believes that any such event is reasonably likely to
occur, the Committee may so revise, alter, amend or modify as set forth above at
any time before and contingent upon the consummation of such an event. The
Committee may provide, either at the date of grant of sale or later of a share
of a Stock Option or share of Performance Restricted Stock, or the date of sale
or later of a share of Performance Restricted Stock, that upon the consummation
of a merger, consolidation, share exchange or tender offer involving the
Company, such Stock Option or Performance Restricted Stock shall be canceled and
the holder thereof shall receive a cash payment from the Company equal to (i) in
the case of a Stock Option, the number of shares of Common Stock subject to such
Stock Option times the excess of the fair market value of the Common Stock (or,
if larger, the per share value of the consideration received by stockholders of
the Company in such transaction) over the applicable option price; or (ii) in
the case of Performance Restricted Stock,
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the number of shares of such Stock times the greater of the fair market value of
a share of Common Stock or the per share value of such consideration. The
Committee shall have full discretion with respect to the terms imposed on any
Award made subject to the foregoing, including the discretion to define the
kinds of transactions that would trigger a payment.
10. EFFECTIVE DATE AND TERMINATION.
The Program is effective as of March 20, 1992, and shall terminate (if
not terminated by the Committee sooner) as of March 19, 2002. No grant of a
Stock Option, or grant or offer to sell Performance Restricted Stock may be made
after the termination of the Program; provided, however, that the Program and
all Awards under the Program prior to such date shall remain in effect and
subject to adjustment and amendment as herein provided until all Awards have
been satisfied or terminated in accordance with their respective terms and
related agreements.
11. TERMINATION OF EMPLOYMENT.
At the time of grant of a Stock Option, the Committee may establish
the consequences, with respect to the Stock Option, of a termination of the
employment of the eligible employee. In the absence of any such specified
terms, the following shall apply:
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(a) Each Stock Option shall, unless sooner expired pursuant to
Section 11(b) or (c) below, expire on the date set forth in the applicable
agreement.
(b) A Stock Option shall expire on the first to occur of the
applicable date set forth in subsection (a) next above and the date that
the employment of the eligible employee with the Company and all
subsidiaries terminates for any reason other than death or disability.
Notwithstanding the preceding provisions of this subsection, the Committee,
in its sole discretion, may, by written notice given to an ex-employee,
permit the ex-employee to exercise Stock Options (with respect to the
number of shares as to which it was exercisable at the time of his or her
termination) during a period following his or her termination of
employment, which period shall not exceed ninety days. In no event,
however, may the Committee permit an ex-employee to exercise a Stock Option
after the expiration date contained in the agreement evidencing such Stock
Option.
(c) If the employment of an eligible employee with the Company
and all subsidiaries terminates by reason of disability (as determined by
the Committee) or by reason of death, his or her Stock Options, if any,
shall expire on the first to occur of the date set forth in subsection (a)
of this Section 11 and the first anniversary of such termination of
employment. During such period, the Stock Options shall be exercisable to
the same extent as if the eligible employee's employment had continued.
12. MISCELLANEOUS.
(a) LEGAL AND OTHER REQUIREMENTS. The obligation of the Company
to sell and deliver Common Stock under the Program shall be subject to all
applicable laws, regulations, rules and approvals, including, but not by
way of limitation, the effectiveness of a registration statement under the
Securities Act of 1933 if deemed necessary or appropriate by the Company.
Certificates for shares of Common Stock issued hereunder may be legended as
the Committee shall deem appropriate.
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(b) NO OBLIGATION TO EXERCISE STOCK OPTIONS. The granting of a
Stock Option shall impose no obligation to exercise such Stock Option.
(c) TERMINATION AND AMENDMENT OF PROGRAM. The Committee,
without further action on the part of the stockholders of the Company, may,
from time to time alter, amend or suspend the Program or any Stock Option
granted hereunder, or the terms of any Performance Restricted Stock
Agreement, or may at any time terminate the Program, except that, unless
approved by the stockholders, it may not (except to the extent provided in
Section 8 hereof): (i) materially change the total number of shares of
Common Stock available for grant under the Program; (ii) extend the
duration of the Program; (iii) increase the maximum term of Stock Options;
or (iv) materially change the class of employees eligible to be granted
Awards under the Program. No action taken by the Committee under this
subsection may materially and adversely affect any outstanding Award
without the consent of the holder thereof.
(d) WITHHOLDING TAXES. Upon the exercise of any Stock Option,
or the lapse of restrictions on shares of Performance Restricted Stock, the
Company shall have the right to require the eligible employee to remit to
the Company an amount sufficient to satisfy all federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for shares of Common Stock. The Committee may provide (at the
time of grant or sale or subsequently) that an eligible employee may
satisfy the obligations of this subsection by surrendering shares of Common
Stock to the Company or having shares withheld by the Company with an
aggregate fair market value equal to the amount required to be withheld.
(e) RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Program or
any agreement entered into pursuant to the Program shall confer upon any
eligible employee the right to continue in the employment of the Company or
affect any right which the Company or any subsidiary may have to terminate,
the employment of such eligible employee.
(f) RIGHTS AS A STOCKHOLDER. No eligible employee shall have
any right or privileges as a stockholder unless and until certificates for
shares of
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Common Stock are issuable to him under Section 4(c), or 6(c).
(g) LEAVE OF ABSENCE AND DISABILITY. The Committee shall be
entitled to make such rules, regulations and determinations as it deems
appropriate under the Program in respect of any leave of absence taken by
or disability of any eligible employee. Without limiting the generality of
the foregoing, the Committee shall be entitled to determine (i) whether or
not any such leaves of absence shall constitute a termination of employment
within the meaning of the Program, and (ii) the impact, if any, of any such
leave of absence on Awards under the Program theretofore made to any
eligible employee who takes such leave of absence.
(h) FAIR MARKET VALUE. Whenever the fair market value of Common
Stock is to be determined under the Program as of a given date, such fair
market value shall be established by the Committee in its discretion.
(i) NOTICES. Every direction, revocation or notice authorized
or required by the Program shall be deemed received by the Company (a) in
the date it is personally delivered to the Secretary of the Company at its
principal executive offices or (b) three business days after it is sent by
registered or certified mail, postage prepaid, addressed to the Secretary
at such offices; and shall be deemed received by an eligible employee (a)
on the date it is personally delivered to him or her or (b) three business
days after it is sent by registered or certified mail, postage prepaid,
addressed to him or her at the last address shown for him or her on the
records of the Company.
(j) APPLICABLE LAW. All questions pertaining to the validity,
construction and administration of the Program and Awards granted hereunder
shall be determined in conformity with the laws of the State of Iowa.
(k) ELIMINATION OF FRACTIONAL SHARES. If under any provision of
the Program which requires a computation of the number of shares of Common
Stock subject to a Stock Option, the number so computed is not a whole
number of shares of Common Stock, such number of shares of Common Stock
shall be rounded down to the next whole number.
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13. CHANGE IN CONTROL. Notwithstanding any provision in this Program
to the contrary (including the provisions of Section 9) or the normal terms of
vesting under any Stock Option, the following rules shall apply to Stock Options
in the event a Change in Control (as defined below) occurs:
(a) Each holder of a Stock Option outstanding at such time shall
be given (i) written notice of such Change in Control at least 20 days
prior to its proposed effective date (as specified in such notice), and
(ii) an opportunity, during the period commencing with delivery of such
notice and ending 10 days prior to such proposed effective date, to
exercise the Stock Option in its entirety (to the extent not previously
exercised and without regard to whether the Stock Option would otherwise
then have been fully exercisable in accordance with its terms); provided,
however, that, except as provided by the Committee at the time of grant, no
such acceleration of exerciseability shall occur to the extent such
acceleration would (1) result in an imposition of or increase in the amount
of any excise tax under section 4999 of the Code, (2) result in a loss of a
deduction to the Company under section 280G of the Code, or (3) adversely
affect pooling-of-interest accounting method to be applied to any
transaction constituting a change in control. Subject to the provisions of
Section 13(b) below, all unexercised Stock Options that have been granted
under the Program shall automatically terminate upon a Change in Control.
(b) Notwithstanding any other provision of the Program to the
contrary, Section 13(a) shall not be applicable if provision shall be made
in connection with such Change in Control for the assumption of outstanding
Stock Options by, or the substitution for such Stock Options of options
covering the stock of, the surviving, successor or purchasing corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the
number, kind and option prices of shares subject to such options; provided,
however, that, in the case of an ISO, the Committee shall, to the extent
not inconsistent with
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<PAGE>
the best interests of the Company or its subsidiaries (such best interests
to be determined in good faith by the Committee in its sole discretion),
use its best efforts to ensure that any such assumption or substitution
will not constitute a modification, extension or renewal of the ISO within
the meaning of section 424(h) of the Code and regulations promulgated
thereunder. Notwithstanding the preceding sentence, if an individual's
Stock Option is assumed or substituted pursuant to this Section 13(b) and,
coincident with or within 2 years following a Change in Control, the
individual's employment with the Company or the surviving, successor or
purchasing corporation, or a parent or subsidiary thereof, is terminated in
a covered termination (as defined below), any such assumed or substituted
option shall become fully exercisable upon such covered termination and
shall continue to thereafter be exercisable in accordance with its terms.
For purposes of this Program, an individual's employment with the Company or the
surviving, successor or purchasing corporation, or a parent of subsidiary
thereof, shall be considered to have been terminated in a covered termination
under the following conditions:
(1) the individual's position is eliminated and the employee's
employment is terminated in connection with such elimination;
(2) there is a material adverse change in the individual's level
of duties or level of reporting relationships, without his consent, from
those in effect immediately prior to the change in control (as the same may
have been enhanced from time to time) and the individual's employment is
terminated within 60 days of such change; provided, however, that no change
to an individual's level of reporting relationships that is directly caused
by the cessation of public trading in the Common Stock of the Company
and/or the change of the Company's status into a wholly owned subsidiary of
another company, shall be deemed to constitute an event treated as a
covered termination under this Plan provided
-17-
<PAGE>
that such change does not materially adversely change such an individual's
level and scope of duties with respect to the business of the Company;
(3) there is (i) a reduction in the individual's rate of base
salary or bonus, or (ii) a material adverse change in the medical, dental,
life, disability, pension, profit sharing or stock option benefits or other
material perquisites applicable to the individual, as compared to those
applicable to the individual immediately prior to the change in control (as
the same may have been enhanced from time to time), and the individual's
employment is terminated within 60 days of such change;
(4) the individual is relocated to an office or job location
that is more than thirty miles from his office or job location immediately
prior to the change in control (except for required travel on business to
an extent substantially consistent with his business travel obligations as
in effect immediately prior to the change in control) and the individual's
employment is terminated within 60 days of such change.
For purposes of this Program, a "Change in Control" shall have occurred if:
(I) any "Person", as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") (other
than the Company, any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, and any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or such
proportionately owned corporation), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities having
the right to vote for the election of directors;
(II) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a
merger or consolidation
-18-
<PAGE>
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 60% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately after such
merger or consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no Person acquires more than 15% of the Company's then outstanding
securities having the right to vote for the election of directors; or
(III) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets (or any
transaction having a similar effect).
-19-
<PAGE>
NORAND CORPORATION
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(restated as of March 3, 1997)
1. PURPOSE. The purpose of this Plan is to increase stockholder
value and to advance the interests of the Company by strengthening the Company's
ability to attract and retain the services of experienced and knowledgeable
directors and by furthering the identity of interests of non-employee directors
with those of the stockholders through opportunities for increased stock
ownership.
2. DEFINITIONS.
"Board of Directors" or "Board" means the Board of Directors of the
Company.
"Committee" means the Compensation Committee of the Board of
Directors.
"Common Stock" means the Company's common stock, $.01 par value per
share.
"Company" means Norand Corporation, a Delaware corporation.
"Fair Market Value" means, as of any given date, the closing market
price of the Common Stock as reported by NASDAQ on such date, or if no sale of
Common Stock is reported for such date, the next following day for which there
is a reported sale.
"Lead Director" means the Non-Employee Director appointed by the Board
of Directors to act as Lead Director, if any.
"Non-Employee Director" means a member of the Board of Directors of
the Company who is not an employee of the Company or any of its subsidiaries.
"Participant" means any individual who receives an option under the
Plan.
"Plan" means the Norand Corporation Stock Option Plan for Non-Employee
Directors.
<PAGE>
"Rule 16b-3" means Rule 16b-3 promulgated under section 16 of the
Securities Exchange Act of 1934.
3. ADMINISTRATION. The Plan shall be administered by the Board,
provided that the Board may delegate the responsibility and authority to
administer the Plan to the Committee. Subject to the provisions of the Plan,
the Board or, pursuant to such delegation, the Committee shall have the
authority to manage and control the operation of the Plan, interpret the
provisions of the Plan, and prescribe, amend, and rescind rules and regulations
relating to the Plan. The determination of the Board or, if applicable, the
Committee on matters within its authority shall be conclusive and binding on the
Company and all other persons.
4. SHARES SUBJECT TO THE PLAN. Subject to adjustment in accordance
with paragraph 8, the aggregate number of shares of Common Stock of the Company
subject to options awarded under the Plan shall not exceed 60,000. Shares
related to awards that terminate by reason of expiration, forfeiture, surrender,
cancellation or otherwise without the issuance of shares shall again be
available for additional awards under the Plan. Shares of Common Stock which
may be issued upon the exercise of options awarded under the Plan may be either
authorized and unissued shares, treasury shares, or a combination thereof.
5. STOCK OPTION AWARDS. The following awards shall be made under
the Plan:
(a) Each individual who is a Non-Employee Director as of the date
this Plan is adopted by the Board shall automatically be granted
an option to purchase 6,000 shares of Common Stock as of such
date, and each individual who thereafter becomes a Non-employee
Director shall automatically be granted an option to purchase
5,000 shares of Common Stock as of the date of his initial
appointment or election to the Board as a Non-Employee Director
(in each case, the "Initial Grant"). Each Non-Employee Director
who is continuing as a director shall automatically be granted an
option to purchase 2,000 shares of Common Stock as of each
anniversary of his Initial Grant. An individual who is a member
of the Board of Directors while employed by the Company and
-2-
<PAGE>
continues as a member after his termination of employment shall
not be entitled to an option award until the first annual meeting
of stockholders thereafter at which he is reelected as a member
of the Board of Directors, which election shall be deemed his
initial appointment for purposes of this paragraph 5(a).
(b) In addition to the awards set forth in paragraph (a) next above,
the individual who is Lead Director as of January 18, 1996, if
any, shall automatically be granted an option to purchase 5,000
shares of Common Stock as of such date, and each individual who
thereafter becomes the Lead Director shall automatically be
granted an option to purchase 5,000 shares of Common Stock as of
the date of his initial appointment as Lead Director (in each
case, a "Lead Director Initial Grant"). Each Lead Director who
is continuing as Lead Director shall automatically be granted an
option to purchase 2,000 shares of Common Stock as of each
anniversary of his Lead Director Initial Grant (a "Lead Director
Annual Grant").
The options awarded pursuant to this paragraph 5 shall be subject to the terms
set forth in paragraph 6.
6. OPTION TERMS. Each option awarded under the Plan shall be
subject to the following terms and conditions:
(a) The exercise price per share of Common Stock shall be equal to
the greater of par value or the Fair Market Value of a share of
Common Stock on the date the option is granted.
(b) Except as otherwise provided by the provisions of paragraph 12
below:
(i) If an individual is a Non-Employee Director on the date that
this Plan is adopted, options awarded under the Plan to such
Director pursuant to paragraph 5(a) shall become exercisable
with respect to one-twentieth of the total shares as of
-3-
<PAGE>
the last day of each quarter anniversary of the date of the
award.
(ii) The option under an Initial Grant awarded under paragraph
5(a) to each individual who becomes a Non-Employee Director
after the date this Plan is adopted shall become exercisable
with respect to one-fifth of the shares on the first
anniversary of the date of the award, and thereafter as to
one-twentieth of the total shares as of the last day of each
quarter anniversary, and all other options awarded to such
Non-Employee Director shall become exercisable as to
one-twentieth of the total shares on each quarter
anniversary of the grant date.
(iii) The Lead Director Initial Grant and Lead Director Annual
Grant awarded to the Lead Director pursuant to paragraph
5(b), if any, shall become exercisable with respect to the
total shares awarded under such grant on the date which is
six months after the grant date.
(c) If a Participant ceases to be a director by reason of death, any
outstanding options awarded to the Participant under the Plan
shall become immediately exercisable in full.
(d) Any option awarded to a Participant under the Plan shall
terminate on the earliest to occur of the following dates:
(i) The tenth anniversary of the date of the award.
(ii) The 90th day after the date on which the Participant's
service on the Board terminates for any reason other than
death or total and permanent disability; provided, however,
that any option which is not exercisable on the date on
which a Participant's service terminates shall terminate on
the date such service terminates.
-4-
<PAGE>
(iii) The first anniversary of the date on which the
Participant's service on the Board terminates by reason of
death or total and permanent disability; provided, however,
that any option which is not exercisable on the date on
which a Participant's service terminates due to total and
permanent disability shall terminate on the date such
service terminates.
(e) An option may be exercised, in whole or in part, by giving
written notice to the Secretary of the Company on or after the
date on which it becomes exercisable and prior to the date on
which the option terminates. Such notice shall specify the
number of whole shares of Common Stock to be purchased and shall
be accompanied by payment in full of the option price for such
shares and any applicable withholding taxes. Payment of the
option price may be made in cash (including bank draft or money
order), by tender of shares of Common Stock held by the
Participant for at least six months, which stock shall be valued
at Fair Market Value on the date of exercise, or a combination of
both. An option shall not be exercisable with respect to
fractional shares.
(f) Notwithstanding any provision of the Plan to the contrary, in no
event may an option be exercised earlier than six months after
the date of grant.
7. NON-TRANSFERABILITY OF OPTIONS. No option awarded under the Plan
may be transferred, pledged or assigned by the holder thereof (except, in the
event of a Participant's death, by will or the laws of descent and
distribution), and the Company shall not be required to recognize any attempted
assignment of such rights by any person. During a Participant's lifetime,
options may be exercised only by him or by his guardian or legal representative.
8. CHANGES IN CAPITALIZATION AND SIMILAR CHANGES. In the event of
any change in the outstanding shares of Common Stock by reason of any stock
dividend or split, recapitalization, merger, reorganization (including, but not
limited to,
-5-
<PAGE>
any spin-off, extraordinary dividend or other distribution), consolidation,
combination or exchange of shares or other similar corporate charge, the type
and number of shares of Common Stock which are or may be subject to options
under the Plan and the terms of any outstanding options (including the price at
which shares of Common Stock may be issued pursuant to an outstanding option)
shall be equitably adjusted by the Board or, if applicable, the Committee.
9. COMPLIANCE WITH APPLICABLE LAW.
(a) Notwithstanding any other provision of the Plan, the Company
shall have no obligation to issue any shares of Common Stock
under the Plan if such issuance would violate any applicable law
or the applicable regulations or requirements of any securities
exchanges or similar entities.
(b) Prior to the issuance of any shares of Common Stock under the
Plan, the Company may require a written statement that the
recipient is acquiring the shares for investment and not for the
purpose or with the intention of distributing the shares and will
not dispose of them in violation of the registration requirements
of Securities Act of 1933.
(c) The Board or, if applicable, the Committee may, at any time, add
such conditions and limitations to any award that it deems
necessary or desirable to comply with the requirements of Rule
16b-3 with respect to this Plan and any other stock-based plan
maintained by the Company.
(d) If at any time, the Company, in its sole discretion, determines
that the listing, registration or qualification (or any updating
of any such document) of any option award, or the shares of
Common Stock issuable pursuant thereto, is necessary on any
securities exchange or under any federal or state securities or
blue sky law, or that the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or
in connection with, any option award, the
-6-
<PAGE>
issuance of shares of Common Stock pursuant to any award, such
option shall not be awarded and the shares of Common Stock shall
not be issued, as the case may be, in whole or in part, unless
such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not
acceptable to the Company.
10. TREATMENT AS A STOCKHOLDER. Any option award to a Participant
under the Plan shall not create any rights in such Participant as a stockholder
of the Company until shares of Common Stock are registered in the name of the
Participant.
11. CONSTRUCTION. Wherever the context so admits, words in any
gender shall include any other gender, words in the singular shall include the
plural and the plural shall include the singular.
12. EFFECTIVE DATE. The Plan shall be effective as of March 16,
1994, subject to approval by the affirmative vote of a majority of shares
present or represented by proxy at the Annual Meeting of Stockholders next
following such effective date. No option or any portion thereof may be
exercised prior to such approval. The grant date of an option for purposes of
section 16 of the Securities Exchange Act of 1934 shall be deemed to be the
later of the date the option is granted pursuant to paragraph 5 or the date that
the Plan is approved by the Company's stockholders.
13. AMENDMENT AND TERMINATION. The Plan may be amended or terminated
at any time by the Company's Board of Directors; provided, however, that the
provisions of the Plan relating to the timing and amount of options, the option
price and the exercise terms shall not be amended more than once every six
months and, provided further, that no amendment shall be adopted which would
cause the Plan to cease to meet the exemption provided by Rule 16b-3 without
stockholder approval.
-7-
<PAGE>
RESOLUTIONS ADOPTED
BY THE BOARD OF DIRECTORS
OF NORAND CORPORATION
ON APRIL 18, 1997
WHEREAS, Norand Corporation, WAI Acquisition Corp., and Western Atlas Inc.
("Western Atlas") entered into an Agreement and Plan of Merger dated as of
January 21, 1997 (the "Merger Agreement"), pursuant to which this Corporation
became an indirect wholly-owned subsidiary of Western Atlas on March 3, 1997
(the "Merger");
WHEREAS, the Merger Agreement provided that each outstanding option to
purchase shares of the Common Stock of this Corporation pursuant to its 1989
Stock Option Plan, Long-Term Performance Program, or 1994 Stock Option Plan for
Non-Employee Directors (collectively, the "Norand Stock Option Plans") would, by
virtue of the Merger, be assumed by Western Atlas and became exercisable for the
number of whole shares of the Common Stock, par value $1 per share, of Western
Atlas ("Western Atlas Common Stock") and at the option price to be determined in
accordance with the formula set forth in the Merger Agreement;
WHEREAS, although no further options are to be granted under the Norand
Stock Option Plans, the outstanding options thereunder are, in general, to be
governed by the terms of the Norand Stock Options Plans, as in effect on
<PAGE>
the date of the Merger and by the individual agreements between this Corporation
and the optionees entered into thereunder; and
WHEREAS, this Board of Directors deems it desirable that certain matters as
to the terms and conditions of the Norand Stock Option Plans and the rights of
holders of options thereunder be clarified or modified to the extent necessary
and appropriate in view of the occurrence of the Merger;
NOW THEREFORE, BE IT RESOLVED, that the Norand Stock Option Plans, to the
extent they remain in existence with respect to presently outstanding options,
shall be administered by this Board of Directors or by a committee (the
"Committee") to be appointed by this Board of Directors, which Committee need
not consist of members of this Board and which may, if this Board so determines,
be the Compensation Committee or another committee of the Board of Directors of
Western Atlas;
RESOLVED, that the Committee or, if at the time there is no Committee, this
Board of Directors shall have all powers with respect to the administration of
the remaining provisions of the Norand Stock Option Plans, including, without
limitation, full power and authority to interpret the provisions of the Norand
Stock Option Plans, any action of this Board of Directors taken with respect
thereto, and any stock option agreement entered into under any of such plans;
such Committee (or this Board) to have the power to resolve all questions
arising
2
<PAGE>
under such plans and its discretion to be conclusive and binding on all holders
of options granted under the Norand Stock Option Plans;
RESOLVED, that this Board ratifies and confirms the conversion of options
outstanding under the Norand Stock Option Plans in the manner set forth in the
Merger Agreement and affirms that the obligations of this Corporation under such
outstanding options shall be discharged and satisfied in full by the delivery of
the appropriate number of shares of Western Atlas Common Stock upon exercise
thereof;
RESOLVED, that notwithstanding any provision of any of the Norand Stock
Option Plans to the contrary, payment for shares of Western Atlas Common Stock
issued upon exercise of an option thereunder may be made only in cash
equivalents or through any "cashless exercise" program which may be maintained
by Norand and be in effect at the time of the relevant option exercise;
RESOLVED, that this Board or the Committee reserves the right in its sole
discretion to waive the requirement that any optionee comply with any provision,
term, or condition of the Norand Stock Option Plans in any particular
circumstance;
3
<PAGE>
RESOLVED, that this Board or the Committee shall have the power to
accelerate the time or times any option outstanding under the Norand Stock
Option Plans shall become exercisable; and
RESOLVED, that for purposes of interpreting the concept of termination of
employment with this Corporation insofar as such concept relates to the term of
an option, employment with any subsidiary or affiliate of this Corporation,
including without limitation Western Atlas or any subsidiary of Western Atlas,
shall be deemed to constitute employment with this Corporation; and
RESOLVED, that in the event of a merger, reorganization, consolidation,
recapitalization, spin-off, stock dividend, stock split, extraordinary
distribution with respect to Western Atlas Common Stock, or any other similar
event, the Board of Directors of Western Atlas or the Compensation Committee
thereof is hereby authorized and empowered by this Board to make such
adjustments in the aggregate number and kind of shares reserved for issuance to
holders of options under the Norand Stock Option Plans, the number of shares
covered by outstanding options, and the exercise prices specified therein and to
make such other equitable adjustments as may be determined to be appropriate, it
being understood that such adjustments shall be substantially identical to those
made with respect to other plans under which options to purchase Western Atlas
Common Stock are at the time outstanding.
4
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Western Atlas Inc. on Form S-8 of our report dated February 13, 1997,
appearing in the Annual Report on Form 10-K of Western Atlas Inc. for the year
ended December 31, 1996 and to the reference to us under the heading
"Interests of Named Experts and Counsel" in the Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Los Angeles, California
April 21, 1997
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 9th day of March, 1997.
/s/ Paul Bancroft, II
-----------------------------------
Paul Bancroft, III
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of March, 1997.
/s/ Alton S. Brann
-----------------------------------
Alton S. Brann
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 10th day of March, 1997.
/s/ Orion L. Hoch
-----------------------------------
Orion L. Hoch
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of March, 1997.
/s/ Joseph T. Casey
-----------------------------------
Joseph T. Casey
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 11th day of March, 1997.
/s/ Michael E. Keane
-----------------------------------
Michael E. Keane
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of March, 1997.
/s/ Charles A. Cusumano
-----------------------------------
Charles A. Cusumano
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 11th day of March, 1997.
/s/ Steven B. Sample
-----------------------------------
Steven B. Sample
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 11th day of March, 1997.
/s/ William C. Edwards
-----------------------------------
William C. Edwards
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
--------------------------
WESTERN ATLAS INC.
COMMON STOCK ($1.00 PAR VALUE)
--------------------------
The undersigned, a Director and/or Officer of WESTERN ATLAS INC., a
Delaware corporation (the "Company"), hereby constitutes and appoints Michael
E. Keane, Norman L. Roberts, and Virginia S. Young, or any one of them, his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules and regulations and requirements of the Securities and Exchange
Commission in respect thereof, in connection with the registration under the
Securities Act of 1933 of such shares of Western Atlas Inc. Common Stock
($1.00 par value) which may be issued pursuant to the exercise of stock
options granted in substitution for previously outstanding options to
purchase Norand Corporation Common Shares (as such substitution is
implemented under the terms of the Agreement and Plan of Merger among the
Company, WAI Acquisition Corp., and Norand Corporation), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to one or more Registration Statements
to be filed with the Securities and Exchange Commission with respect thereto,
to any and all amendments, including post-effective amendments, to the said
Registration Statements, and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto, hereby ratifying and confirming all that the said
attorneys, or any of them, has done, shall do, or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 11th day of March, 1997.
/s/ Claire W. Gargalli
-----------------------------------
Claire W. Gargalli
<PAGE>
EXHIBIT 24(b)
CERTIFICATION OF RESOLUTIONS
OF THE EXECUTIVE COMMITTEE
OF THE BOARD OF DIRECTORS OF
WESTERN ATLAS INC.
I, the undersigned, LEONIE S. PAN, Assistant Secretary of Western Atlas
Inc., a corporation organized and existing under the laws of the State of
Delaware, DO HEREBY CERTIFY that the following is a true and correct extract of
certain resolutions duly adopted by the Executive Committee of the Board of
Directors of said Corporation on March 5, 1997, in accordance with the laws of
Delaware and the By-laws of this corporation, and that these resolutions are in
full force and effect as of the date hereof:
WHEREAS, this Corporation, WAI Acquisition Corp. ("Acquisition"), a wholly-
owned indirect subsidiary of the Corporation, and Norand Corporation
("Norand") have entered into an Agreement and Plan of Merger dated as of
January 21, 1997 ("Merger Agreement"), pursuant to which Acquisition has
been merged into Norand (the "Merger") with the result that Norand is now a
wholly-owned indirect subsidiary of this Corporation; and
WHEREAS, pursuant to the Merger Agreement, each outstanding option to
purchase shares granted under Norand's various stock option plans shall be
converted into an option to purchase the number of Common Shares of this
Corporation at the exercise price to be determined in accordance with a
formula set forth in the Merger Agreement; and
WHEREAS, as a result of the application of such formula, a maximum of up to
500,000 shares of the Common Stock of this Corporation may be issuable to
employees, consultants, and directors, whether present or former, of
Norand; and it is appropriate that such number of shares be reserved for
issuance, registered with the Securities and Exchange Commission, and
listed on various stock exchanges;
NOW, THEREFORE, BE IT RESOLVED, that the Chairman and Chief Executive
Officer or any Senior Vice President be, and each of them hereby is,
authorized and directed to execute, in the name and on behalf of the
Corporation, a Registration Statement pursuant to the Securities Act of
1933, as amended, covering the issuance of up to 500,000 additional shares
of Common Stock issuable in connection with the stock options assumed
pursuant to the Merger in such form as the officer executing said
<PAGE>
Registration Statement shall determine upon the advice of counsel (the
"Registration Statement"), such execution to be as effective if
accomplished by the duly authorized attorney-in-fact of any such officer,
to procure all other necessary signatures thereto (which may be affixed by
duly appointed attorneys-in-fact), and to file the Registration Statement,
when so executed (together with the appropriate exhibits thereto), with the
Securities and Exchange Commission;
RESOLVED, that the Chairman and Chief Executive Officer or any Senior Vice
President be, and each of them hereby is, authorized from time to time (i)
to execute, in the name and on behalf of the Corporation, (ii) to procure
all necessary signatures to, and (iii) to file with the Securities and
Exchange Commission such amendments to the Registration Statement as they
upon the advice of counsel shall deem necessary or appropriate to effect
the registration of the shares subject thereto under the Securities Act of
1933, as amended;
RESOLVED, that each of the officers of the Corporation and its counsel be,
and each of them hereby is, with full authority to act without the others,
authorized to appear on behalf of the Corporation before the Securities and
Exchange Commission in connection with any matter relating to the
Registration Statement and to any amendments thereto; and
RESOLVED, that Norman L. Roberts, Senior Vice President and General Counsel
of the Corporation, is hereby designated to act on behalf of the
Corporation as the agent for service to be named in the Registration
Statements and authorized to receive notices and communications from the
Securities and Exchange Commission in connection with the Registration
Statement.
STOCK EXCHANGE LISTINGS -
RESOLVED, that each of the proper officers of the Corporation is authorized
and directed, in the name and on behalf of the Corporation, to prepare,
execute, and file or cause to be filed such application or applications and
any amendments and supplements thereto as may be approved by the proper
officers of the Corporation, and take such other action as may be necessary
to list on the New York Stock Exchange, Inc., the Pacific Stock Exchange
Incorporated, and on any other stock exchanges deemed appropriate by such
officers of the Corporation, subject to official notice of issuance, up to
500,000 authorized but unissued shares of Common Stock, and that each of
the proper officers of the Corporation is authorized and directed to appear
before the Securities and Exchange Commission and any such stock exchanges,
and to prepare, execute, file, or deliver all such applications,
statements, certificates, agreements, and
-2-
<PAGE>
other instruments and documents and to pay any fees as may be necessary to
conform with the requirements of the Securities and Exchange Commission and any
such stock exchanges and to effectuate such listing.
TRANSFER AGENT AND REGISTRATION -
RESOLVED, that the authority previously granted to ChaseMellon Shareholder
Services on January 19, 1994, to act as Transfer Agent and Registrar for
the shares of Common Stock of the Corporation, in accordance with general
practice, be and is hereby extended to cover up to 500,000 shares of Common
Stock of the Corporation to be registered under the Registration Statement
and listed on the appropriate securities exchanges as aforesaid.
"BLUE SKY" QUALIFICATIONS -
RESOLVED, that the Board of Directors deems it desirable and in the best
interests of the Corporation that the shares of Common Stock to be so
registered with the Securities and Exchange Commission and listed on the
appropriate stock exchanges, be qualified or registered for sale in various
jurisdictions and that each of the proper officers of the Corporation is
authorized and directed to determine the jurisdictions in which appropriate
action shall be taken to qualify or register for sale all or such part of
such shares of Common Stock as he or she may deem advisable, and that each
of said officers is authorized and directed, in the name and on behalf of
the Corporation, to perform any and all such acts as he or she may deem
necessary or advisable in order to comply with the applicable laws or
regulations of any such jurisdictions, and in connection therewith to
prepare, execute, and file or cause to be filed all requisite papers and
documents, including but not limited to applications, reports, surety
bonds, irrevocable consents, and appointments of attorneys for service of
process, such execution of such papers or documents or the doing by such
officer of any act in connection with the foregoing matters shall
conclusively establish his or her authority therefor and the approval and
ratification by the Corporation of the papers and documents so executed and
the action so taken.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said Corporation at Beverly Hills, California, this 16th day of April, 1997.
/s/ Leonie S. Pan
---------------------------------------
Leonie S. Pan
[SEAL]
-3-
