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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NEW WEST EYEWORKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1589514
(State of incorporation) (I.R.S. Employer Identification No.)
2104 WEST SOUTHERN AVENUE, TEMPE, ARIZONA 85282
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED NEW WEST EYEWORKS, INC. STOCK OPTION PLAN
(Full Title of the Plan)
Barry Feld, President Copy to:
and Chief Executive Officer Byron S. Krantz, Esq.
New West Eyeworks, Inc. Kohrman Jackson & Krantz P.L.L.
2104 West Southern Avenue One Cleveland Center, 20th Floor
Tempe, Arizona 85282 Cleveland, Ohio 44114
(602) 438-1330 (216) 696-8700
(Name, address, telephone number,
including area code of agent for service)
Calculation of Registration Fee
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Title of Amount to be Proposed maximum Proposed maximum Amount
securities registered offering price aggregate of
to be per share* offering registration
registered price* fee*
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Common Stock,
$0.01 par 200,000 Shares $5.625 $1,125,000 $387.93
value
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* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
market price of the Common Stock on July 22, 1996.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
NEW WEST EYEWORKS, INC.
400,000 SHARES OF COMMON STOCK
NEW WEST EYEWORKS, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
This Prospectus covers the shares of common stock, $0.01 par value per
share (the "Common Stock"), of New West Eyeworks, Inc., a Delaware corporation
(the "Company"), that are issuable upon the exercise of stock options granted
or to be granted under the Amended and Restated New West Eyeworks, Inc. Stock
Option Plan (the "Plan") pursuant to stock option agreements entered into by the
Company and certain eligible individuals (the "Option Agreements").
No person has been authorized to give any information or to make any
representations, other than as contained in this Prospectus and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company.
Neither the delivery of this Prospectus nor any offer, solicitation or sale
made hereunder shall, under any circumstances, create an implication that the
information herein is correct as of any time subsequent to the date hereof or
that there has been no change in the affairs of the Company since such date.
Statements contained in this Prospectus as to the provisions of the Plan and the
Option Agreements are not necessarily complete, and in each instance reference
is made to the individual Option Agreements and to a copy of the Plan appended
to the Registration Statement on Form S-8, which the Company filed with the
Securities and Exchange Commission on July 26, 1996. Each such statement in
this Prospectus is qualified in all respects by such reference. This Prospectus
does not constitute an offer or solicitation to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation is unlawful.
The date of this Prospectus is July 26, 1996.
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IMPORTANT INFORMATION
THIS PROSPECTUS MAY NOT BE USED FOR REOFFERS OR RESALE OF COMMON STOCK ACQUIRED
HEREUNDER. PURCHASERS OF SHARES OF COMMON STOCK PURSUANT TO THE PLAN, OTHER
THAN "AFFILIATES" OF THE COMPANY, MAY RESELL THE SHARES IN SUCH MARKET AT SUCH
PRICES AS MAY PREVAIL THEREON AT THE TIME OF SUCH SALES. "AFFILIATES" OF THE
COMPANY MAY RESELL SUCH SHARES ONLY (1) BY COMPLYING WITH RULE 144 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
COVERING SUCH RESALE, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, COVERING SUCH RESALE.
ANY OFFICER, DIRECTOR OR BENEFICIAL OWNER OF MORE THAN 10% OF THE COMMON STOCK
OF THE COMPANY HOLDING AN OPTION GRANTED UNDER THE PLAN SHOULD CONSIDER THE
APPLICABILITY OF SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
IN CONNECTION WITH THE EXERCISE OF ANY SUCH OPTION AND THE DISPOSITION OF ANY
COMMON STOCK OF THE COMPANY SO ACQUIRED.
IT IS ADVISABLE FOR ANY PERSON HOLDING AN OPTION UNDER THE PLAN TO CONSULT WITH
LEGAL COUNSEL CONCERNING THE SECURITIES AND TAX LAW IMPLICATIONS OF ACQUIRING OR
DISPOSING OF COMMON STOCK OF THE COMPANY.
[This space intentionally left blank.]
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TABLE OF CONTENTS
GENERAL PLAN INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECURITIES SUBJECT TO THE PLAN . . . . . . . . . . . . . . . . . . . . . . .1
ELIGIBILITY TO PARTICIPATE . . . . . . . . . . . . . . . . . . . . . . . . .2
TERMS OF THE OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Exercise Price and Payment . . . . . . . . . . . . . . . . . . . . . . .3
Vesting and Termination. . . . . . . . . . . . . . . . . . . . . . . . .3
Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
NON-TRANSFERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
AMENDMENT AND TERMINATION OF THE PLAN. . . . . . . . . . . . . . . . . . . .5
FEDERAL INCOME TAX CONSIDERATIONS. . . . . . . . . . . . . . . . . . . . . .5
Nonqualified Stock Options . . . . . . . . . . . . . . . . . . . . . . .5
Incentive Stock Options. . . . . . . . . . . . . . . . . . . . . . . . .6
ADDITIONAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . .6
DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
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GENERAL PLAN INFORMATION
This Prospectus covers the shares of common stock, $0.01 par value per
share (the "Common Stock"), of New West Eyeworks, Inc., a Delaware corporation
(the "Company"), that are issuable upon the exercise of stock options
("Options") granted or to be granted under the Amended and Restated New West
Eyeworks, Inc. Stock Option Plan (the "Plan") pursuant to stock option
agreements entered into by the Company and certain eligible individuals (the
"Option Agreements"). Capitalized terms not otherwise defined herein are
defined under the Plan.
The purpose of the Plan is to advance the interests of the Company by
providing additional incentive enabling the Company to attract and retain
qualified and competent persons who are key to the Company, including key
employees, officers and directors, and upon whose efforts and judgment the
success of the Company is largely dependent. The Plan also provides such
employees, officers and directors of the Company with a direct financial
incentive to enhance stockholder values, thereby aligning the interests of the
employees, officers and directors with the long-term interests of the Company's
stockholders.
The Plan is not subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended.
The Plan is administered by the Compensation Committee (the "Committee")
appointed by the Board of Directors of the Company. The Committee presently
consists of four directors. The Board may remove Committee members at any time
and fill any vacancy occurring in the membership of the Committee by
appointment. Subject to the express provisions of the Plan, the Committee has
sole discretion and authority to choose eligible individuals to receive Options,
the time or times at which Options may be granted, and the number of shares of
Common Stock to be subject to each Option. Subject to the express provisions of
the Plan, the Committee also has complete authority to interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to it, to determine
the details and provisions of each Option Agreement, and to make all other
determinations necessary or advisable in the administration of the Plan. Any
and all decisions or determinations of the Committee are made either by a
majority vote of the members of the Committee at a meeting at which a quorum is
present or without a meeting by the unanimous written consent of the members of
the Committee.
The Committee may from time to time amend the Plan subject to the approval
of the stockholders of the Company if the Committee desires to effect certain
material changes. See "Amendment and Termination of the Plan."
SECURITIES SUBJECT TO THE PLAN
The maximum number of shares of Common Stock with respect to which Options
may be granted under the Plan is 400,000 shares, and as of the date of this
Prospectus, the Company has outstanding Options to purchase an aggregate of
167,500 shares of Common Stock pursuant to the Plan. The shares of Common Stock
covered by the Plan may be authorized and unissued or shares held in treasury or
a combination of both.
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ELIGIBILITY TO PARTICIPATE
The Committee may grant Options under the Plan to officers, including
officers who are also directors of the Company, other key employees or
consultants of the Company. In addition, each Non-Employee Director elected by
the holders of the Company's Common Stock after the Effective Date shall
receive, on the date of his or her initial election as a director, options
pursuant to the formula set forth in the Plan. In granting Options to
employees, the Committee takes into consideration the contribution the person
has made to the success of the Company and such other factors as the Committee
determines. The Committee also has the authority to consult with and receive
recommendations from officers and other personnel of the Company with regard to
these matters. The Committee may from time to time in granting Options to
employees of the Company under the Plan prescribe such other terms and
conditions concerning such Options as it deems appropriate, including without
limitation, relating an Option to the continued employment of the Optionee for a
specified period of time, provided that such terms and conditions are not more
favorable to an Optionee than those expressly permitted in the Plan.
TERMS OF THE OPTIONS
The Plan provides for the granting of "incentive stock options" ("Incentive
Stock Options") within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code") and "nonqualified stock options," which are not
intended to qualify under any provision of the Code. Each Option will be
evidenced by a written Option Agreement that may contain any term deemed
necessary or desirable by the Committee, provided such terms are not
inconsistent with the Plan or applicable law. The Option Agreements will
specify when each Option becomes exercisable. Unless otherwise provided in the
Option Agreement, each Option will become immediately fully exercisable:
(1) if there occurs any transaction (which shall include a series of
transactions occurring within 60 days or occurring pursuant to a plan),
that has the result that stockholders of the Company immediately before
such transaction cease to own at least 51% of the voting stock of the
Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form
of corporate transaction;
(2) if the stockholders of the Company approve a plan of merger,
consolidation, reorganization, liquidation or dissolution in which the
Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(3) if the stockholders of the Company approve a plan for the sale,
lease, exchange, transfer, assignment or other disposition of all or
substantially all the property and assets of the Company (unless such plan
is subsequently abandoned).
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EXERCISE PRICE AND PAYMENT
The option price per share of Common Stock of any Option will be any price
determined by the Committee but cannot be less than the par value per share;
provided, however, that, in no event can the option price per share of any
Incentive Stock Option or Option granted to a Non-Employee Director be less than
the Fair Market Value of the Shares underlying such Option on the date such
Option is granted.
An Option will be deemed exercised when (1) the Company has received
written notice of such exercise in accordance with the terms of the Option, (2)
full payment of the aggregate option price of the shares as to which the Option
is exercised has been made, and (3) arrangements that are satisfactory to the
Committee in its sole discretion have been made for the Optionee's payment to
the Company of an amount that is sufficient to satisfy all applicable Federal or
state tax withholding requirements relating to exercise of the Option.
Unless further limited by the Committee in any Option, the option price of
any Shares purchased will be paid in cash, by certified or official bank check,
by money order, with Shares or by a combination of the above; provided further,
however, that the Committee in its sole discretion may accept a personal check
in full or partial payment of any Shares. If the exercise price is paid in
whole or in part with Shares, the value of the Shares surrendered will be their
Fair Market Value on the date the Option is exercised. The Company in its sole
discretion may, on an individual basis or pursuant to a general program
established in connection with the Plan, lend money to an Optionee, guarantee a
loan to an Optionee, or otherwise assist an Optionee to obtain the cash
necessary to exercise all or a portion of an Option granted under the Plan or to
pay any tax liability of the Optionee attributable to such exercise. If the
exercise price is paid in whole or in part with Optionee's promissory note, such
note will (1) provide for full recourse to the maker, (2) be collateralized by
the pledge of the Shares that the Optionee purchases upon exercise of such
Option, (3) bear interest at the base lending rate of the Company's principal
lender, and (4) contain such other terms as the Committee in its sole discretion
reasonably requires. No Optionee will be deemed to be a holder of any Shares
subject to an Option unless and until a stock certificate or certificates for
such Shares are issued to such person(s) under the terms of the Plan. No
adjustment will be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued, except as
expressly provided in the Plan. See "Adjustments."
VESTING AND TERMINATION
The Plan authorizes the Committee to establish vesting provisions with
respect to each Option grant. The expiration date of an Option will be
determined by the Committee at the time of grant, but in no event will an Option
be exercisable after the expiration of 10 years from the date of grant of the
Option.
The unexercised portion of any Option, other than an Option granted to a
Non-Employee Director, will automatically and without notice terminate and
become null and void at the time of the earliest to occur of the following:
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(1) three months after the date on which the Optionee's employment is
terminated for any reason other than by reason of (A) Cause, which, solely
for purposes of the Plan, means the termination of the Optionee's
employment by reason of the Optionee's willful misconduct or negligence,
(B) a mental or physical disability as determined by a medical doctor
satisfactory to the Committee, or (C) death;
(2) immediately upon the termination of the Optionee's employment for
Cause;
(3) one year after the date on which the Optionee's employment is
terminated by reason of a mental or physical disability (within the meaning
of Code Section 22(e)) as determined by a medical doctor satisfactory to
the Committee; or
(4) (A) one year after the date of termination of the Optionee's
employment by reason of death of the employee, or (B) three months after
the date on which the Optionee shall die if Optionee dies during the one
year period specified in section (3) above.
The Committee in its sole discretion may by giving written notice cancel,
effective upon the date of the consummation of (1) any merger, consolidation,
reorganization, liquidation or dissolution in which the Company does not
survive, or (2) the sale, lease, exchange, transfer, assignment or other
disposition of all or substantially all of the property and assets of the
Company, any Option that remains unexercised on such date. This cancellation
notice will be given a reasonable period of time prior to the proposed date of
such cancellation and may be given either before or after approval of such
corporate transaction.
The unexercised portion of any Option granted to a Non-Employee Director
will become null and void three months after the date on which such Non-Employee
Director ceases to be a Director for any reason.
ADJUSTMENTS
The Plan includes provisions authorizing the Committee to adjust the number
of shares of Common Stock covered by the Plan and outstanding Options, and the
purchase price per share of Common Stock payable upon the exercise of an
outstanding Option, in the event of (1) a merger, consolidation, reorganization,
liquidation or dissolution in which the Company does not survive, or (2) the
sale, lease exchange, transfer, assignment or other disposition of all or
substantially all the property and assets of the Company.
NON-TRANSFERABILITY
Options granted under the Plan may not be transferred except to a grantor
trust, by will or the laws of descent and distribution, and may not be exercised
during an Optionee's lifetime except by the Optionee.
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AMENDMENT AND TERMINATION OF THE PLAN
The Plan terminates on May 16, 2006, ten years from the date on which the
stockholders of the Company approved the Plan. Either the Board or the
Committee may from time to time amend the Plan or any Option; provided, however,
that, except to the extent provided in the Plan for adjustments, no such
amendment may, without approval by the stockholders of the Company, (1)
materially increase the benefits accruing to participants under the Plan, (2)
materially increase the number of securities which may be issued under the Plan,
or (3) materially modify the requirements as to eligibility for participation in
the Plan. Additionally, except to the extent provided in the Plan, no amendment
or suspension of the Plan or any Option issued thereunder shall substantially
impair any Option previously granted to any Optionee without the consent of such
Optionee.
The provisions of the Plan that govern the grant of Options to Non-Employee
Directors cannot be amended more than once every six months (even with
stockholder approval), other than to conform to changes required by law.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a brief summary of certain of the federal income tax
consequences of certain transactions under the Plan based on federal income tax
laws in effect as of the date of this Prospectus. The following is not intended
to be complete and does not describe any state or local tax consequences.
NONQUALIFIED STOCK OPTIONS
GENERALLY. An Optionee generally will not recognize income upon the grant
of a nonqualified stock option. If an Optionee receives unrestricted shares of
Common Stock upon the exercise of a nonqualified stock option, he will normally
recognize ordinary income at the time of exercise equal to the excess of the
fair market value, at the time of exercise, of the optioned Common Stock
received over the exercise price. When the Optionee disposes of the shares,
capital gain will be recognized, either long or short term depending on the
holding period beginning on the date the shares are acquired.
SPECIAL RULES APPLICABLE TO OPTIONEES SUBJECT TO SECTION 16(b) OF THE
EXCHANGE ACT. The tax consequences to Optionees who are Company insiders
subject to Section 16(b) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), may differ from the tax consequences described above. In
the case of such an Optionee, ordinary income will generally be recognized upon
exercise only if six months have elapsed since the date of the grant.
TAX CONSEQUENCES TO THE COMPANY. To the extent that an Optionee recognizes
ordinary income, the Company or subsidiary for which the Optionee performs
services will generally be entitled to a corresponding deduction. The deduction
is allowed in the tax year in which the Optionee is required to include the
amount in income.
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INCENTIVE STOCK OPTIONS
GENERALLY. An Optionee will not recognize income upon the grant of an
Incentive Stock Option. In addition, an Optionee will not recognize income upon
the exercise of an Incentive Stock Option if he or she satisfies certain
employment and holding period requirements. To satisfy the employment
requirement, an Optionee generally must exercise the Option not later than three
months after he ceases to be an employee of the Company or its parent or
subsidiary (one year if he ceases to be an employee due to disability). To
satisfy the holding period requirement, an Optionee must hold the optioned
Common Stock for more than two years from the grant of the Option and more than
one year after the Common Stock is transferred to him. If these requirements
are satisfied, upon the sale of the Common Stock, the Optionee will be taxed at
long-term capital gains rates on any gain, measured by the difference between
his or her basis in the Common Stock and the net proceeds of the sale.
DISQUALIFYING DISPOSITION. If shares of Common Stock acquired upon the
timely exercise of an Incentive Stock Option are sold, exchanged or otherwise
disposed of without satisfying the holding period requirement (a "Disqualifying
Disposition"), the Optionee will usually recognize ordinary income at the time
of disposition equal to the amount of the excess of the fair market value of the
optioned Common Stock on the date of the exercise of the Incentive Stock Option
over the exercise price.
ALTERNATIVE MINIMUM TAX. An Optionee generally must include in alternative
minimum taxable income the amount by which the amount paid for the Option is
exceeded by the Option's fair market value at the time the rights to the stock
are freely transferable or not subject to a substantial risk of forfeiture.
TAX CONSEQUENCES TO THE COMPANY. The granting of an Incentive Stock
Option, or the exercise thereof, will generally not result in a deduction for
the Company. However, to the extent that an Optionee recognizes ordinary income
as the result of a Disqualifying Disposition, the Company will generally be
entitled to a corresponding deduction.
ADDITIONAL INFORMATION
This Prospectus omits certain information contained in the Registration
Statement on Form S-8 filed by the Company with the Securities and Exchange
Commission with respect to the shares of Common Stock offered hereby (the
"Registration Statement"). Such information is contained in the following
documents, which are incorporated herein by reference:
(1) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(2) All other reports filed by the Company pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in paragraph (1) above;
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(3) The descriptions of the Company's Common Stock as set forth under
the captions "Description of Capital Stock" and "Dividend Policy" in the
Company's Registration Statement on Form S-1 (File No. 33-71330), filed
under the Securities Act of 1933 (the "Securities Act"), including any
amendments to such description in such Registration Statement; and
(4) All reports and documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold.
Upon written or oral request of an Optionee, the Company will provide
without charge (1) additional information concerning the Plan or the Committee,
(2) a copy of any of the documents that are incorporated herein by reference
(not including exhibits unless they are specifically incorporated by reference
into the document), (3) a copy of the Company's annual report to stockholders
conforming to Rule 14a-3(b) under the Exchange Act for its latest fiscal year,
and/or (4) any other documents required to be delivered to Optionees by Rule
428(b) under the Securities Act. A request to obtain such information should be
directed to:
Investor Relations Department
New West Eyeworks, Inc.
2104 West Southern Avenue
Tempe, Arizona 85282
DISCLAIMER
The discussion of certain provisions of the Plan contained in this
Prospectus is not intended to be all-inclusive and is not complete. Optionees
should refer to the text of the Plan for complete details. Optionees should
consult with their personal tax advisors for information as to the income tax
consequences of the granting and exercising of Options under the Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents listed under Items 1 and 2 below and the documents
incorporated by reference under Item 3 below, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933, as amended ("Securities Act"), and are incorporated herein by reference.
ITEM 1. PLAN INFORMATION
1. Prospectus for the Amended and Restated New West Eyeworks, Inc. Stock
Option Plan.
2. Amended and Restated New West Eyeworks, Inc. Stock Option Plan.
3. Form of Stock Option Agreement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants pursuant to
this Item 2 is set forth in the Prospectus referred to in Item 1 above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by New West Eyeworks, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 30, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 30, 1996.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), since the end of
the latest fiscal year covered by the Annual Report referred to in (a)
above; and
(d) The Company's Prospectus, dated December 23, 1993, filed pursuant to
Rule 424(b) under the Securities Act of 1933 and Registration
Statement on Form S-1 (File No. 33-71330).
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All documents hereafter filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment hereto that indicates that all securities offered have been sold or
that deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the common stock, par value $0.01 per
share, of the Company (the "Common Stock") available for issuance to those
persons who exercise options in accordance with the Amended and Restated Stock
Option Plan of the Company (the "Plan") will be passed upon for the Company by
Kohrman Jackson & Krantz P.L.L., Cleveland, Ohio. Byron S. Krantz, a partner in
Kohrman Jackson & Krantz P.L.L., owns beneficially 27,181 shares of Common Stock
and 132 shares of the Company's Series A Convertible Preferred Stock, $1,000 par
value per share, and is the Secretary and a Director of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Certain provisions of the Delaware General Corporation Law and Article VIII
of the Company's Restated Certificate of Incorporation provides in certain
cases, for indemnification by the Company of officers and directors of the
Company against certain costs, expenses and liabilities which an officer or
director may incur in his capacity as such. Accordingly, the liability of such
persons may be affected as a result thereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated New West Eyeworks, Inc. Stock Option Plan.
4.2* Company's Restated Certificate of Incorporation.
4.3** Company's Amended and Restated By-laws.
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* Incorporated by reference to Exhibit 3.1 from the Company's S-1
Registration Statement as filed with the Securities and Exchange Commission
(File No. 33-71330).
** Incorporated by reference to Exhibit 3.2 from the Company's S-1
Registration Statement as filed with the Securities and Exchange Commission
(File No. 33-71330).
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5.1 Opinion of Kohrman Jackson & Krantz P.L.L.
23.1 Consent of Price Waterhouse, LLP.
23.2 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion
filed as Exhibit 5.1).
24.1*** Power of Attorney.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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; 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 (a)(1)(i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in
this registration statement.
(2) That for the purpose of determining liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
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*** Located on signature page.
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(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The Company hereby undertakes to deliver or cause to be delivered with
the prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Cleveland, State of Ohio, on July 26, 1996.
NEW WEST EYEWORKS, INC.
By: /s/ Ronald E. Weinberg
--------------------------------------------
Ronald E. Weinberg, Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Ronald E. Weinberg and Byron S. Krantz his
true and lawful attorneys-in-fact, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this registration statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
- -------------------------- --------------------- ------------------
/s/ Ronald E. Weinberg Chairman of the Board, July 26, 1996
- -------------------------- and Treasurer
Ronald E. Weinberg
/s/ Barry J. Feld CEO, President, and July 26, 1996
- -------------------------- Director
Barry J. Feld
/s/ Robert W. Regas Vice President--Finance July 26, 1996
- -------------------------- & Administration
Robert W. Regas
/s/ Byron S. Krantz Secretary and Director July 26, 1996
- --------------------------
Byron S. Krantz
/s/ Donald M. Gleklen Director July 26, 1996
- --------------------------
Donald M. Gleklen
/s/ Norman C. Harbert Director July 26, 1996
- --------------------------
Norman C. Harbert
/s/ Larry I. Pollack Director July 26, 1996
- --------------------------
Larry I. Pollack
/s/ William P. Sutter, Jr. Director July 26, 1996
- --------------------------
William P. Sutter, Jr.
II-5
<PAGE>
EXHIBIT INDEX
4.1 Amended and Restated New West Eyeworks, Inc. Stock Option Plan.
4.2* Company's Restated Certificate of Incorporation.
4.3** Company's Amended and Restated By-laws.
5.1 Opinion of Kohrman Jackson & Krantz P.L.L.
23.1 Consent of Price Waterhouse, LLP.
23.2 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion
filed as Exhibit 5.1).
24.1*** Power of Attorney.
- ---------------------------------------
* Incorporated by reference to Exhibit 3.1 from the Company's S-1
Registration Statement as filed with the Securities and Exchange Commission
(File No. 33-71330).
** Incorporated by reference to Exhibit 3.2 from the Company's S-1
Registration Statement as filed with the Securities and Exchange Commission
(File No. 33-71330).
*** Located on signature page.
II-6
<PAGE>
- --------------------------------------------------------------------------------
AMENDED AND RESTATED NEW WEST EYEWORKS, INC.
STOCK OPTION PLAN
(FEBRUARY 16, 1996)
- --------------------------------------------------------------------------------
1. PURPOSE. The purpose of this Plan is to advance the interests of NEW
WEST EYEWORKS, INC., a Delaware corporation (the "Company"), and its
Subsidiaries by providing additional incentive to attract and retain qualified
and competent persons who are key to the Company or its Subsidiaries, including
key employees, Officers and Directors, and upon whose efforts and judgment the
success of the Company and its Subsidiaries is largely dependent, by encouraging
such persons to own stock in the Company.
2. DEFINITIONS. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the compensation committee appointed by
the Board pursuant to Section 13 hereof or, if not appointed, the Board.
(d) "Common Stock" shall mean the Company's Common Stock, par value
$0.01 per share.
(e) "Director" shall mean a member of the Board.
(f) "Disinterested Person" shall mean a Director who is not, during
the one year prior to his or her service as an administrator of this Plan, or
during such service, granted or awarded equity securities pursuant to this Plan
or any other plan of the Company or any of its affiliates, except that:
(i) participation in a formula plan meeting the conditions in
paragraph (c)(2)(ii) of Rule 16b-3 promulgated under the Securities Exchange Act
shall not disqualify a Director from being a Disinterested Person;
(ii) participation in an ongoing securities acquisition plan
meeting the conditions in paragraph (d)(2)(i) of Rule 16b-3 promulgated under
the Securities Exchange Act shall not disqualify a Director from being a
Disinterested Person; and
(iii) an election to receive an annual retainer fee in either
cash or an equivalent amount of securities, or partly in cash and partly in
securities, shall not disqualify a Director from being a Disinterested Person.
<PAGE>
(g) "Effective Date" shall mean the date hereof.
(h) "Employee Director" shall mean a member of the Board who is also
an employee of the Company or a Subsidiary.
(i) "Fair Market Value" of a Share on any date of reference shall be
the "Closing Price" (as defined below) of the Common Stock on the business day
immediately preceding such date, unless the Committee in its sole discretion
shall determine otherwise in a fair and consistent manner. For the purpose of
determining Fair Market Value, the "Closing Price" of the Common Stock on any
business day shall be (i) if the Common Stock is listed or admitted for trading
on any United States national securities exchange, or if actual transactions are
otherwise reported on a consolidated transaction reporting system, the last
reported sale price of Common Stock on such exchange or reporting system, as
reported in any newspaper of general circulation, (ii) if the Common Stock is
quoted on the National Association of Securities Dealers Automated Quotations
System ("NASDAQ"), or any similar system of automated dissemination of
quotations of securities prices in common use, the mean between the closing high
bid and low asked quotations for such day of Common Stock on such system, or
(iii) if neither clause (i) or (ii) is applicable, the mean between the high bid
and low asked quotations for the Common Stock as reported by the National
Quotation Bureau, Incorporated if at least two securities dealers have inserted
both bid and asked quotations for Common Stock on at least five of the ten
preceding days.
(j) "Incentive Stock Option" shall mean an incentive stock option as
defined in Section 422 of the Code.
(k) "Non-Employee Director" shall mean a member of the Board who is
not an employee of the Company or a Subsidiary.
(l) "Non-Statutory Stock Option" shall mean an Option which is not an
Incentive Stock Option.
(m) "Officer" shall mean the Company's president, principal financial
officer, principal accounting officer (or, if there is no such accounting
officer, the controller), any vice president of the Company in charge of a
principal business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy-making function, or any other
person who performs similar policy-making functions for the Company. Officers
of Subsidiaries shall be deemed Officers of the Company if they perform such
policy-making functions for the Company. As used in this paragraph, the phrase
"policy-making function" does not include policy-making functions that are not
significant. Unless specified otherwise in a resolution by the Board, an
"executive officer" pursuant to Item 401(b) of Regulation S-K (17 C.F.R. Section
229.401(b)) shall be only such person designated as an "Officer" pursuant to the
foregoing provisions of this paragraph.
(n) "Option" (when capitalized) shall mean any option granted under
this Plan.
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<PAGE>
(o) "Optionee" shall mean a person to whom a stock option is granted
under this Plan or any person who succeeds to the rights of such person under
this Plan by reason of the death of such person.
(p) "Plan" shall mean this Stock Option Plan for the Company.
(q) "Securities Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(r) "Share(s)" shall mean a share or shares of the Common Stock.
(s) "Subsidiary" shall mean a "subsidiary corporation" as defined in
Section 425(f) of the Code.
3. SHARES AND OPTIONS. The Company may grant to Optionees from time to
time Options to purchase an aggregate of up to 400,000 Shares from Shares held
in the Company's treasury or from authorized and unissued Shares. If any Option
granted under the Plan shall terminate, expire, or be canceled or surrendered as
to any Shares, new Options may thereafter be granted covering such Shares.
Subject to the provisions of Section 14 hereof, an Option granted hereunder
shall be either an Incentive Stock Option or a Non-Statutory Stock Option as
determined by the Committee at the time of grant of such Option and shall
clearly state whether it is an Incentive Stock Option or Non-Statutory Stock
Option. All Incentive Stock Options shall be granted within 10 years from the
Effective Date of this Plan.
4. DOLLAR LIMITATION. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate Fair Market Value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Code Section 422(b) are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and any Subsidiary),
exceeds $100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by a written agreement that may
contain any term deemed necessary or desirable by the Committee, provided such
terms are not inconsistent with this Plan or any applicable law. In addition to
Non-Employee Directors (who shall receive Options only pursuant to Section 15 of
this Plan), Optionees shall be those persons selected by the Committee from the
class of all regular employees of the Company or its Subsidiaries, including
Employee Directors and Officers who are regular employees of the Company. Any
person who files with the Committee, in a form satisfactory to the Committee, a
written waiver of eligibility to receive any Option under this Plan shall not be
eligible to receive any Option under this Plan for the duration of such waiver.
(b) In granting Options to employees of the Company or its
Subsidiaries, the Committee shall take into consideration the contribution the
person has made to the success of the
-3-
<PAGE>
Company or its Subsidiaries and such other factors as the Committee shall
determine. The Committee shall also have the authority to consult with and
receive recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may from time to time
in granting Options to employees of the Company or its Subsidiaries under the
Plan prescribe such other terms and conditions concerning such Options as it
deems appropriate, including without limitation, (i) prescribing the date or
dates on which the Option becomes exercisable, (ii) providing that the Option
rights accrue or become exercisable in installments over a period of years, or
upon the attainment of stated goals or both, or (iii) relating an Option to the
continued employment of the Optionee for a specified period of time, provided
that such terms and conditions are not more favorable to an Optionee than those
expressly permitted herein.
(c) The Options granted to employees under this Plan shall be in
addition to regular salaries, pension, life insurance or other benefits related
to their employment with the Company or its Subsidiaries. Neither the Plan nor
any Option granted under the Plan shall confer upon any person any right to
employment or continuance of employment by the Company or its Subsidiaries.
(d) Notwithstanding any other provision of this Plan, and in addition
to any other requirements of this Plan, Options may not be granted to (i) an
Officer or Employee Director unless the grant of such Options is authorized by,
and all of the terms of such Options are determined by, a Committee that is
appointed in accordance with Section 13 of this Plan and all of whose members
are Disinterested Persons, or (ii) a Non-Employee Director unless the grant of
such Options is made in accordance with Section 15 of this Plan.
6. OPTION PRICE. The option price per Share of any Option shall be any
price determined by the Committee but shall not be less than the par value per
Share; provided, however, that in no event shall the option price per Share of
any Incentive Stock Option or Option granted pursuant to Section 15 of this Plan
be less than the Fair Market Value of the Shares underlying such Option on the
date such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee in its sole discretion have been made for
the Optionee's payment to the Company of an amount that is sufficient to satisfy
all applicable Federal or state tax withholding requirements relating to
exercise of the Option. Unless further limited by the Committee in any Option,
the option price of any Shares purchased shall be paid in cash, by certified or
official bank check, by money order, with Shares or by a combination of the
above; provided further, however, that the Committee in its sole discretion may
accept a personal check in full or partial payment of any Shares. If the
exercise price is paid in whole or in part with Shares, the value of the Shares
surrendered shall be their Fair Market Value on the date the Option is
exercised. The Company in its sole discretion may, on an individual basis or
pursuant to a general program established in connection with this Plan, lend
money to an Optionee, guarantee a loan to an Optionee, or otherwise assist an
Optionee to obtain the cash necessary to exercise all or a portion
-4-
<PAGE>
of an Option granted hereunder or to pay any tax liability of the Optionee
attributable to such exercise. If the exercise price is paid in whole or in
part with Optionee's promissory note, such note shall (i) provide for full
recourse to the maker, (ii) be collateralized by the pledge of the Shares that
the Optionee purchases upon exercise of such Option, (iii) bear interest at the
base lending rate of the Company's principal lender, and (iv) contain such other
terms as the Committee in its sole discretion shall reasonably require. No
Optionee shall be deemed to be a holder of any Shares subject to an Option
unless and until a stock certificate or certificates for such Shares are issued
to such person(s) under the terms of this Plan. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee shall
provide in such Option, except as otherwise provided in this Section 8.
(a) The expiration date of an Option shall be determined by the
Committee at the time of grant, but in no event shall an Option be exercisable
after the expiration of 10 years from the date of grant of the Option.
(b) Unless otherwise provided in any Option, each outstanding Option
shall become immediately fully exercisable:
(i) if there occurs any transaction (which shall include a
series of transactions occurring within 60 days or occurring pursuant to a
plan), that has the result that stockholders of the Company immediately before
such transaction cease to own at least 51% of the voting stock of the Company or
of any entity that results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) if the stockholders of the Company approve a plan of merger,
consolidation, reorganization, liquidation or dissolution in which the Company
does not survive (unless the approved merger, consolidation, reorganization,
liquidation or dissolution is subsequently abandoned); or
(iii) if the stockholders of the Company approve a plan for
the sale, lease, exchange, transfer, assignment or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
(c) Except with respect to an Option granted pursuant to Section 15
of this Plan, the Committee may in its sole discretion accelerate the date on
which any Option may be exercised and may accelerate the vesting of any Shares
subject to any Option or previously acquired by the exercise of any Option.
-5-
<PAGE>
9. TERMINATION OF OPTION PERIOD.
(a) The unexercised portion of any Option, other than an Option
granted pursuant to Section 15 hereof, shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of the
following:
(i) three months after the date on which the Optionee's
employment is terminated for any reason other than by reason of (A) Cause,
which, solely for purposes of this Plan, shall mean the termination of the
Optionee's employment by reason of the Optionee's willful misconduct or
negligence, (B) a mental or physical disability as determined by a medical
doctor satisfactory to the Committee, or (C) death;
(ii) immediately upon the termination of the Optionee's
employment for Cause;
(iii) one year after the date on which the Optionee's
employment is terminated by reason of a mental or physical disability (within
the meaning of Code Section 22(e)) as determined by a medical doctor
satisfactory to the Committee; or
(iv) (A) one year after the date of termination of the Optionee's
employment by reason of death of the employee, or (B) three months after the
date on which the Optionee shall die if Optionee dies during the one year period
specified in Subsection 9(a)(iii) hereof.
(b) The Committee in its sole discretion may by giving written notice
("cancellation notice") cancel, effective upon the date of the consummation of
any corporate transaction described in Subsections 8(b)(ii) or (iii) hereof, any
Option that remains unexercised on such date. Such cancellation notice shall be
given a reasonable period of time prior to the proposed date of such
cancellation and may be given either before or after approval of such corporate
transaction.
10. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised Options
are outstanding, there shall be any increase or decrease in the number of issued
and outstanding Shares through the declaration of a stock dividend or through
any recapitalization resulting in a stock split-up, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number
of Shares available for grant under the Plan, so that the same percentage of the
Company's issued and outstanding Shares shall continue to be subject to being so
optioned; and
(ii) appropriate adjustment shall be made in the number of Shares
and the exercise price per Share thereof then subject to any outstanding Option,
so that the same percentage
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<PAGE>
of the Company's issued and outstanding Shares shall remain subject to purchase
at the same aggregate exercise price.
(b) Subject to the specific terms of any Option, the Committee may
change the terms of Options outstanding under this Plan, with respect to the
option price or the number of Shares subject to the Options, or both, when, in
the Committee's sole discretion, such adjustments become appropriate by reason
of a corporate transaction described in Subsections 8(b)(ii) or (iii) hereof.
(c) Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
direct sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to the number of or exercise price of Shares
then subject to outstanding Options granted under the Plan.
(d) Without limiting the generality of the foregoing, the existence
of outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
lease, exchange, transfer, assignment or other disposition of all or any part of
the assets or business of the Company; or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
11. TRANSFERABILITY OF OPTIONS. No Option shall be transferable by the
Optionee other than by will, the laws of descent and distribution, or to a
"grantor trust" as defined in Sections 671-79 of Subpart E of Subchapter J of
the Code, and each Option shall be exercisable during the Optionee's lifetime
only by the Optionee.
12. ISSUANCE OF SHARES. As a condition of any sale or issuance of Shares
upon exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not limited to, the
following:
(i) a representation and warranty by the Optionee to the
Company, at the time any Option is exercised, that he is acquiring the Shares to
be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Committee, necessary or appropriate
to comply with the provisions of
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<PAGE>
any securities law deemed by the Committee to be applicable to the issuance of
the Shares and are endorsed upon the Share certificates.
13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Committee, which shall
consist of not less than two Directors, each of whom shall be Disinterested
Persons to the extent required by Section 5(d) hereof, provided that the
Committee shall not have any discretion with respect to the grant of Options to
Non-Employee Directors pursuant to Section 15 of this Plan. The Committee shall
have all of the powers of the Board with respect to the Plan. The Board may
change the membership of the Committee at any time and fill any vacancy
occurring in the membership of the Committee by appointment.
(b) The Committee, from time to time, may adopt rules and regulations
for carrying out the purposes of the Plan. The Committee's determinations and
its interpretation and construction of any provision of the Plan shall be final
and conclusive.
(c) Any and all decisions or determinations of the Committee shall be
made either (i) by a majority vote of the members of the Committee at a meeting
or (ii) without a meeting by the unanimous written consent of the members of the
Committee.
14. INCENTIVE OPTIONS FOR 10% STOCKHOLDERS. Notwithstanding any other
provisions of the Plan to the contrary, an Incentive Stock Option shall not be
granted to any person owning directly or indirectly (through attribution under
Section 424(d) of the Code) at the date of grant, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or of
its subsidiary as defined in Section 424 of the Code at the date of grant)
unless the option price of such Option is at least 110% of the Fair Market Value
of the Shares subject to such Option on the date the Option is granted, and such
Option by its terms is not exercisable after the expiration of five years from
the date such Option is granted.
15. FORMULA GRANTS TO NON-EMPLOYEE DIRECTORS. Each Non-Employee Director
elected by the holders of the Company's Common Stock who is not a director on
the Effective Date will receive, on the date of his or her initial election as a
Director, an Option to purchase 10,000 shares of Common Stock, which Option will
become exercisable as follows: 3,300 shares on the first anniversary of the
Option's grant; 3,300 shares on the second anniversary of the Option's grant;
and 3,400 shares on the third anniversary of the Option's grant; provided he or
she remains a Non-Employee Director on each such anniversary. No person shall
receive an Option pursuant to this Section 15 more than once. The per share
exercise price of all Options granted a Non-Employee Director pursuant to this
Section 15 will be equal to the Fair Market Value of the Shares underlying such
Option on the date such Option is granted. The unexercised portion of any
Option granted pursuant to this Section 15 shall become null and void three
months after the date on which such Non-Employee Director ceases to be a
Director for any reason.
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<PAGE>
16. INTERPRETATION.
(a) The Plan shall be administered and interpreted so that all
Incentive Stock Options granted under the Plan will qualify as Incentive Stock
Options under Section 422 of the Code. If any provision of the Plan should be
held invalid for the granting of Incentive Stock Options or illegal for any
reason, such determination shall not affect the remaining provisions hereof, but
instead the Plan shall be construed and enforced as if such provision had never
been included in the Plan.
(b) This Plan shall be governed by the laws of the State of Delaware.
(c) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine, or neuter gender shall
be a reference to such other gender as is appropriate.
17. AMENDMENT AND DISCONTINUATION OF THE PLAN.
(a) Either the Board or the Committee may from time to time amend the
Plan or any Option; provided, however, that, except to the extent provided in
Section 10, no such amendment may, without approval by the stockholders of the
Company, (i) materially increase the benefits accruing to participants under the
Plan, (ii) materially increase the number of securities which may be issued
under the Plan, or (iii) materially modify the requirements as to eligibility
for participation in the Plan; and provided further, that, except to the extent
provided in Section 9, no amendment or suspension of the Plan or any Option
issued hereunder shall substantially impair any Option previously granted to any
Optionee without the consent of such Optionee.
(b) Notwithstanding anything herein to the contrary, the provisions
of this Plan which govern the number of Options to be awarded to Non-Employee
Directors, the exercise price per share under each such Option, when and under
what circumstances such Option will be granted and the period within which each
such Option may be exercised, shall not be amended more than once every six
months (even with shareholder approval), other than to conform to changes to the
Code, or the rules promulgated thereunder, and under the Employee Retirement
Income Security Act of 1974, as amended, or the rules promulgated thereunder, or
with rules promulgated by the Securities and Exchange Commission.
18. EFFECTIVE DATE AND TERMINATION DATE. The Plan shall be effective upon
the Effective Date and shall terminate on the tenth anniversary of the Effective
Date.
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<PAGE>
[KOHRMAN JACKSON & KRANTZ P.L.L. LETTERHEAD]
July 26, 1996
New West Eyeworks, Inc.
2104 West Southern Avenue
Tempe, AZ 85282
Re: REGISTRATION STATEMENT ON FORM S-8 OF NEW WEST EYEWORKS, INC.
Ladies and Gentlemen:
New West Eyeworks, Inc., a Delaware corporation (the "Company"), is filing
with the Securities and Exchange Commission a registration statement on Form S-8
(the "Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement relates to the offering and sale by the
Company of up to 200,000 shares of the Company's common stock, par value $0.01
per share (the "Shares"), pursuant to stock options ("Options") granted or to be
granted under the Amended and Restated New West Eyeworks, Inc. Stock Option Plan
(the "Plan"). We have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection with this opinion letter, we have examined and relied upon
the original or a copy, certified to our satisfaction, of (i) the Restated
Certificate of Incorporation and the Amended and Restated Bylaws of the Company;
(ii) resolutions of the Board of Directors of the Company authorizing the Plan
and related matters; (iii) minutes of the meeting at which the Plan was approved
by the stockholders of the Company; (iv) the Plan; and (v) such other documents
and instruments as we have deemed necessary for providing this opinion letter.
We have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as certified or photostatic copies. We have
made such investigations of law as we deem appropriate as a basis for rendering
the opinions expressed below, and as to various questions of fact material to
the opinions, we have relied, to the extent we deem appropriate, upon
representations or
<PAGE>
[KOHRMAN JACKSON & KRANTZ P.L.L. LETTERHEAD]
New West Eyeworks, Inc.
Page 2
July 26, 1996
certificates of officers or directors of the Company and upon documents, records
and instruments furnished to us by the Company, without independently verifying
the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that (i) the
Company presently has at least 200,000 authorized and unissued shares of Common
Stock from which the 200,000 Shares proposed to be sold pursuant to the exercise
of Options granted under the Plan may be issued, and (ii) assuming (a) the
Company maintains an adequate number of authorized but unissued Shares and
treasury Shares available for issuance to those persons who exercise Options
granted in accordance with the Plan and (b) the Shares are duly delivered
against payment therefor in accordance with the terms of the Plan, the Shares
issued pursuant to the exercise of Options granted in accordance with the Plan
will be validly issued, fully paid and non-assessable.
We express no opinion other than as to the Federal law of the United States
and the General Corporation Law of the State of Delaware.
We bring to your attention that Byron S. Krantz, a partner of this firm, is
a stockholder, a director and the Secretary of the Company, and Marc C. Krantz,
a partner of this firm, is a stockholder of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
KOHRMAN JACKSON & KRANTZ P.L.L.
/S/ KOHRMAN JACKSON & KRANTZ P.L.L.
---------------------------------------
By: Marc C. Krantz, a partner
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of New West Eyeworks, Inc. of our report dated March 8,
1996, which appears on page 34 of the Annual Report on Form 10-K for the year
ended December 30, 1995.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Phoenix, Arizona
July 11, 1996
