<PAGE> 1
As filed with the Securities and Exchange Commission on August 8, 1996
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------
CONSEP, INC.
(Exact name of registrant as specified in charter)
OREGON 93-0874480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
--------------------
213 S. W. COLUMBIA STREET, BEND, OREGON 97702
(503) 388-3688
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
----------------------
CONSEP, INC. 1993 STOCK INCENTIVE PLAN
----------------------
VOLKER G. OAKEY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONSEP, INC.
213 S. W. COLUMBIA STREET, BEND, OREGON 97702
(503) 388-3688
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
with copies to:
MICHAEL W. SHACKELFORD, ESQ.
ATER WYNNE HEWITT DODSON & SKERRITT, LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
be Registered Registered Price per Share (1) Offering Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 100,000 shares $3.125 $312,500 $107.76
============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement is filed in accordance with the provisions of
General Instruction E to Form S-8 for the purpose of registering additional
shares of common stock for offer and sale under the Consep, Inc. 1993 Stock
Incentive Plan, for which two registration statements on Form S-8 (File Nos.
33-86636 and 33-95128) are already effective. Except to the extent that
exhibits are filed herewith, the contents of Consep, Inc.'s registration
statements on Form S-8 (File Nos. 33-86636 and 33-95128) are hereby incorporated
by reference.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
4.1 Registration Rights Agreement, as amended (incorporated by reference from the Company's Registration Statement on Form S-1
(File No. 33-71846))
4.2 Fifth Amendment to Registration Rights Agreement (incorporated by reference from the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, filed with the SEC on March 30, 1994)
4.3 Sixth Amendment to Registration Rights Agreement (incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 33-96002)
5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in legal opinion filed as Exhibit 5.0)
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature page in Part II of the Registration Statement)
99.0 Consep, Inc. 1993 Stock Incentive Plan, as amended
</TABLE>
- 2 -
<PAGE> 3
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 Bend, State of Oregon, on the 7th day of
August, 1996.
CONSEP, INC.
By: /s/VOLKER G. OAKEY
______________________________
Volker G. Oakey
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Volker G. Oakey and Larry Katz, and each
of them singly, as true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities to sign the registration statement filed herewith and
any or all amendments to said registration statement (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorneys-in-fact and agents and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Witness our hands on the date set forth below.
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.
[SIGNATURES ON FOLLOWING PAGE]
- 3 -
<PAGE> 4
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Volker G. Oakey Chairman of the Board, 08/07/96
- --------------------------- President and Chief
Volker G. Oakey Executive Officer
(Principal Executive
Officer)
/s/ Larry Katz Vice President, Finance 08/07/96
- ---------------------------- and Chief Financial Officer,
Larry Katz (Principal Financial and
Accounting Officer)
Director 08/ /96
- ---------------------------- --
Gerard H. Langeler
/s/ Philip E. Barak Director 08/07/96
- ----------------------------
Philip E. Barak
/s/ Walter C. Babcock Director 08/07/96
- ----------------------------
Walter C. Babcock
/s/ Peter H. Gleason Director 08/07/96
- ----------------------------
Peter H. Gleason
</TABLE>
- 4 -
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number Exhibit No.
------- ------- ----
<S> <C> <C>
4.1 Registration Rights Agreement, as amended (incorporated by reference from the Company's Registration
Statement on Form S-1 (File No. 33-71846))
4.2 Fifth Amendment to Registration Rights Agreement (incorporated by reference from the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993, filed with the SEC on March 30, 1994)
4.3 Sixth Amendment to Registration Rights Agreement (incorporated by reference from the Company's Registration
Statement on Form S-1 (File No. 33-96002)
5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in legal opinion filed as Exhibit 5.0)
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature page in Part II of the Registration Statement)
99.0 Consep, Inc. 1993 Stock Incentive Plan, as amended
</TABLE>
- 5 -
<PAGE> 1
EXHIBIT 5.0
August 7, 1996
Board of Directors
Consep, Inc.
213 S. W. Columbia Street
Bend, Oregon 97702
Gentlemen:
In connection with the registration of 100,000 shares of common stock,
par value $.01 per share (the "Common Stock"), of Consep, Inc., an Oregon
corporation (the "Company"), under the Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission on August 8, 1996, and the
proposed offer and sale of the Common Stock pursuant to the terms of the
Company's 1993 Stock Incentive Plan (the "1993 Plan"), we have examined such
corporate records, certificates of public officials and officers of the Company
and other documents as we have considered necessary or proper for the purpose
of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the 1993 Plan, when such shares have been delivered against payment
therefor as contemplated by the 1993 Plan, will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
Ater Wynne Hewitt Dodson & Skerritt, LLP
<PAGE> 1
Exhibit 23.2
Consent of Independent Accountants
The Board of Directors and Shareholders
Consep, Inc. and Subsidiaries;
We consent to incorporation by reference in the Registration Statement on Form
S-8 for the 1993 Stock Incentive Plan dated August 8, 1996 of Consep, Inc.
and Subsidiaries of our reports dated February 2, 1996, relating to the
consolidated balance sheets of Consep, Inc. and Subsidiaries of December 31,
1995 and 1994, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1995, which report appears in the December 31, 1995
annual report on Form 10-K of Consep, Inc. and Subsidiaries.
KPMG PEAT MARWICK LLP
August 7, 1996
<PAGE> 1
EXHIBIT 99.0
CONSEP, INC.
1993 STOCK INCENTIVE PLAN
1. Purposes of the Plan. The purposes of this Stock Incentive
Plan are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees
and Consultants of the Company and to promote the success of the Company's
business.
Options granted hereunder may be either "incentive stock options," as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, or
"nonqualified stock options," at the discretion of the Board and as reflected
in the terms of the written option agreement. In addition, shares of the
Company's Common Stock may be Sold hereunder independent of any Option grant.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" shall mean the Board or any of its
Committees as shall be administering the Plan, in accordance with Section 4.(a)
of the Plan.
(b) "Board" shall mean the Board of Directors of the
Company.
(c) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(d) "Committee" shall mean a committee appointed by the
Board in accordance with Section 4.(a) of the Plan.
(e) "Common Stock" shall mean the Common Stock of the
Company.
(f) "Company" shall mean Consep, Inc, an Oregon
corporation.
(g) "Consultant" shall mean any person who is engaged by
the Company or any Subsidiary to render consulting services and is compensated
for such consulting services, provided that the term "Consultant" shall not
include Directors who are only paid a director's fee or who are not compensated
by the Company for their services as Directors.
(h) "Continuous Status as an Employee or Consultant"
shall mean the absence of any interruption or termination of service as an
Employee or Consultant. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of: (i) any sick leave, military
leave, or any other leave of absence approved by the Board; provided, however,
that for purposes of Incentive Stock Options, any such leave is for a period of
not more than ninety days or reemployment upon the expiration of such leave is
guaranteed by contract or statute; or (ii) transfers between locations of the
Company or between the Company, its Parent, its Subsidiaries or its successor.
1 - 1993 STOCK INCENTIVE PLAN
<PAGE> 2
(i) "Director" shall mean a member of the Board.
(j) "Disability" shall mean total and permanent
disability as defined in Section 22(e)(3) of the Code.
(k) "Employee" shall mean any person, including Officers
and Directors, employed by the Company or any Parent or Subsidiary of the
Company. Neither the payment of a director's fee by the Company nor service as
a Director shall be sufficient to constitute "employment" by the Company.
(l) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(m) "Incentive Stock Option" shall mean an Option
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(n) "Maximum Annual Employee Grant" shall have the
meaning set forth in Section 5.(e).
(o) "Nonqualified Stock Option" shall mean an Option not
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(p) "Notice of Grant" shall mean a written notice
evidencing certain terms and conditions of an individual Option grant. The
Notice of Grant is part of the Option Agreement.
(q) "Officer" shall mean a person who is an officer of
the Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(r) "Option" shall mean a stock option granted pursuant
to the Plan.
(s) "Option Agreement" shall mean a written agreement
between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(t) "Optioned Stock" shall mean the Common Stock subject
to an Option.
(u) "Optionee" shall mean an Employee or Consultant who
receives an Option.
(v) "Parent" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 424 of the Code.
(w) "Plan" shall mean this 1993 Stock Incentive Plan.
2 - 1993 STOCK INCENTIVE PLAN
<PAGE> 3
(x) "Rule 16b-3" shall mean Rule 16b-3 of the Exchange
Act or any successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
(y) "Sale" or "Sold" shall include, with respect to the
sale of Shares under the Plan, the sale of Shares for consideration in the form
of cash or notes, as well as a grant of Shares for consideration in the form of
past or future services.
(z) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(aa) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424 of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of Shares which may be
optioned and/or Sold under the Plan is 370,000 shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future Option grants and/or Sales under the Plan; provided,
however, that Shares that have actually been issued under the Plan shall not be
returned to the Plan and shall not become available for future distribution
under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. If permitted by
Rule 16b-3, the Plan may be administered by different bodies with respect to
Directors, Officers who are not Directors, and Employees who are neither
Directors nor Officers.
(ii) Administration With Respect to Directors and
Officers Subject to Section 16(b). With respect to Option grants made to
Employees who are also Officers or Directors subject to Section 16(b) of the
Exchange Act, the Plan shall be administered by (A) the Board, if the Board may
administer the Plan in compliance with the rules governing a plan intended to
qualify as a discretionary plan under Rule 16b-3, or (B) a Committee designated
by the Board to administer the Plan, which Committee shall be constituted to
comply with the rules governing a plan intended to qualify as a discretionary
plan under Rule 16b-3. Once appointed, such Committee shall continue to serve
in its designated capacity until otherwise directed by the Board. From time to
time the Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and substitute new members,
fill vacancies (however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by the
3 - 1993 STOCK INCENTIVE PLAN
<PAGE> 4
rules governing a plan intended to qualify as a discretionary plan under Rule
16b-3. With respect to persons subject to Section 16 of the Exchange Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3. To the extent any provision of the Plan or action by
the Administrator fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Administrator.
(iii) Administration With Respect to Other Persons.
With respect to Option grants made to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A)
the Board or (B) a Committee designated by the Board, which Committee shall be
constituted to satisfy the legal requirements relating to the administration of
stock option plans under applicable corporate and securities laws and the Code.
Once appointed, such Committee shall serve in its designated capacity until
otherwise directed by the Board. The Board may increase the size of the
Committee and appoint additional members, remove members (with or without
cause) and substitute new members, fill vacancies (however caused), and remove
all members of the Committee and thereafter directly administer the Plan, all
to the extent permitted by the legal requirements relating to the
administration of stock option plans under state corporate and securities laws
and the Code.
(b) Powers of the Administrator. Subject to the
provisions of the Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator shall have
the authority, in its discretion:
(i) to grant Incentive Stock Options in accordance
with Section 422 of the Code, or Nonqualified Stock Options;
(ii) to authorize Sales of Shares of Common Stock
hereunder;
(iii) to determine, upon review of relevant
information and in accordance with Section 8.(b) of the Plan, the fair market
value of the Common Stock;
(iv) to determine the exercise/purchase price per
Share of Options to be granted or Shares to be Sold, which exercise/purchase
price shall be determined in accordance with Section 8.(a) of the Plan;
(v) to determine the Employees or Consultants to
whom, and the time or times at which, Options shall be granted and the number
of Shares to be represented by each Option;
(vi) to determine the Employees or Consultants to
whom, and the time or times at which, Shares shall be Sold and the number of
Shares to be Sold;
(vii) to interpret the Plan;
(viii) to prescribe, amend and rescind rules and
regulations relating to the Plan;
4 - 1993 STOCK INCENTIVE PLAN
<PAGE> 5
(ix) to determine the terms and provisions of each
Option granted (which need not be identical) and, with the consent of the
holder thereof, modify or amend each Option;
(x) to determine the terms and provisions of each
Sale of Shares (which need not be identical) and, with the consent of the
purchaser thereof, modify or amend each Sale;
(xi) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option;
(xii) to accelerate or defer (with the consent of the
Optionee or purchaser of Shares) the vesting restrictions applicable to Shares
Sold under the Plan or pursuant to Options granted under the Plan;
(xiii) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option or
Sale of Shares previously granted or authorized by the Board;
(xiv) to determine the restrictions on transfer,
vesting restrictions, repurchase rights, or other restrictions applicable to
Shares issued under the Plan;
(xv) to effect, at any time and from time to time,
with the consent of the affected Optionees, the cancellation of any or all
outstanding Options under the Plan and to grant in substitution therefor new
Options under the Plan covering the same or different numbers of Shares, but
having an Option price per Share consistent with the provisions of Section 8 of
this Plan as of the date of the new Option grant;
(xvi) to establish, on a case-by-case basis,
different terms and conditions pertaining to exercise or vesting rights upon
termination of employment, whether at the time of an Option grant or Sale of
Shares, or thereafter;
(xvii) to approve forms of agreement for use under
the Plan;
(xviii) to reduce the exercise price of any Option to
the then current fair market value if the fair market value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted; and
(xix) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options granted under the
Plan or Shares Sold under the Plan.
5 - 1993 STOCK INCENTIVE PLAN
<PAGE> 6
5. Eligibility.
(a) Persons Eligible. Options may be granted and/or
Shares Sold only to Employees and Consultants. Incentive Stock Options may be
granted only to Employees. An Employee or Consultant who has been granted an
Option or Sold Shares may, if he or she is otherwise eligible, be granted an
additional Option or Options or Sold additional Shares.
(b) ISO Limitation. To the extent that the aggregate
fair market value: (i) of Shares subject to an Optionee's Incentive Stock
Options granted by the Company, any Parent or Subsidiary, which (ii) become
exercisable for the first time during any calendar year (under all plans of the
Company or any Parent or Subsidiary) exceeds $100,000, such excess Options
shall be treated as Nonqualified Stock Options. For purposes of this Section
5(b), Incentive Stock Options shall be taken into account in the order in which
they were granted, and the fair market value of the Shares shall be determined
as of the time of grant.
(c) Section 5.(b) Limitations. Section 5.(b) of the Plan
shall apply only to an Incentive Stock Option evidenced by an Option Agreement
which sets forth the intention of the Company and the Optionee that such Option
shall qualify as an Incentive Stock Option. Section 5.(b) of the Plan shall
not apply to any Option evidenced by a Option Agreement which sets forth the
intention of the Company and the Optionee that such Option shall be a
Nonqualified Stock Option.
(d) No Right to Continued Employment. The Plan shall not
confer upon any Optionee any right with respect to continuation of employment
or consulting relationship with the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his employment or
consulting relationship at any time.
(e) Maximum Option Grant. The maximum number of Shares
with respect to which an Option or Options may be granted to any Empoyee in any
one calendar year of the Company shall not exceed 75,000 shares (the "Maximum
Annual Employee Grant").
6. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years, unless sooner terminated under
Section 13 of the Plan.
7. Term of Option. The term of each Option shall be stated in
the Notice of Grant; provided, however, that in the case of an Incentive Stock
Option, the term shall be ten (10) years from the date of grant or such shorter
term as may be provided in the Notice of Grant. However, in the case of an
Incentive Stock Option granted to an Optionee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Incentive Stock Option shall be five (5) years from
the date of grant thereof or such shorter term as may be provided in the Notice
of Grant.
6 - 1993 STOCK INCENTIVE PLAN
<PAGE> 7
8. Exercise/Purchase Price and Consideration.
(a) Exercise/Purchase Price. The per-Share
exercise/purchase price for the Shares to be issued pursuant to exercise of an
Option or a Sale shall be such price as is determined by the Administrator, but
shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the
time of the grant of such Incentive Stock Option, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no
less than one hundred ten percent (110%) of the fair market value per Share on
the date of the grant.
(B) granted to any other Employee, the
per Share exercise price shall be no less than one hundred percent (100%) of
the fair market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option
or Sale
(A) granted or Sold to a person who, at
the time of the grant of such Option or authorization of such Sale, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the per Share
exercise/purchase price shall be no less than one hundred ten percent (110%) of
the fair market value per Share on the date of the grant or authorization of
Sale, unless otherwise expressly determined by the Administrator.
(B) granted or Sold to any other person,
the per Share exercise/purchase price shall be no less than eighty-five percent
(85%) of the fair market value per Share on the date of grant or authorization
of Sale, unless otherwise expressly determined by the Administrator.
(C) Any determination to sell stock at
less than fair market value on the date of the grant or authorization of Sale
shall be accompanied by an express finding by the Administrator specifying that
the sale is in the best interest of the Company, and specifying both the fair
market value and the grant or sale price of the stock.
(iii) In the case of an Option granted or Sale
authorized on or after the effective date of registration of any class of
equity security of the Company pursuant to Section 12 of the Exchange Act and
prior to six (6) months after the termination of such registration, the per
Share exercise/purchase price shall be no less than one hundred percent (100%)
of the fair market value per Share on the date of grant or authorization of
Sale.
(b) Fair Market Value. The fair market value per Share
shall be determined by the Administrator in its discretion; provided, however,
that where there is a public market for the Common Stock, the fair market value
per Share shall be the closing
7 - 1993 STOCK INCENTIVE PLAN
<PAGE> 8
price of the Common Stock (or the closing bid if no sales were reported) for
the last market trading day prior to the date of grant of the Option or
authorization of Sale or other determination, as reported in The Wall Street
Journal (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation (NASDAQ) System) or, in
the event the Common Stock is listed on a stock exchange, the fair market value
per Share shall be the closing price on such exchange for the last market
trading day prior to the date of grant of the Option or authorization of Sale
or other determination, as reported in The Wall Street Journal.
(c) Consideration. The consideration to be paid for the
Shares to be issued upon exercise of an Option or pursuant to a Sale, including
the method of payment, shall be determined by the Administrator. In the case
of an Incentive Stock Option, the Administrator shall determine the acceptable
form of consideration at the time of grant. Such consideration may consist of:
(i) cash;
(ii) check;
(iii) transfer to the Company of Shares which
(A) in the case of Shares acquired upon
exercise of an Option, have been owned by the Optionee for more than six months
on the date of surrender, and
(B) having a fair market value on the date
of surrender equal to the aggregate exercise price of the Shares as to which
said Option shall be exercised;
(iv) delivery of instructions to the Company to
withhold from the Shares that would otherwise be issued on the exercise that
number of Shares having a fair market value at the time of such exercise equal
to the Option exercise price;
(v) such other consideration and method of
payment for the issuance of Shares to the extent permitted by legal
requirements relating to the administration of stock option plans under
applicable corporate and securities laws and the Code; or
(vi) any combination of the foregoing methods of
payment.
If the fair market value of the number of whole Shares transferred or
the number of whole Shares surrendered is less than the total exercise price of
the Option, the shortfall must be made up in cash or by check. Notwithstanding
the foregoing provisions of this Section 8.(c), the consideration for Shares to
be issued pursuant to a Sale may not include, in whole or in part, the
consideration set forth in subsections (iii) and (iv) above.
8 - 1993 STOCK INCENTIVE PLAN
<PAGE> 9
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Stockholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including performance criteria
with respect to the Company and/or the Optionee, and as shall be permissible
under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Administrator, consist of
any consideration and method of payment allowable under the Option Agreement
and Section 8.(c) of the Plan. Each Optionee who exercises an Option shall,
upon notification of the amount due (if any) and prior to or concurrent with
delivery of the certificate representing the Shares, pay to the Company amounts
necessary to satisfy applicable federal, state and local tax withholding
requirements. An Optionee must also provide a duly executed copy of any stock
transfer agreement then in effect and determined to be applicable by the
Administrator. Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the Company)
of the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to the
Optioned Stock represented by such stock certificate, notwithstanding the
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Employment or Consulting Relationship.
In the event that an Optionee's Continuous Status as an Employee or Consultant
terminates (other than upon the Optionee's death or Disability), the Optionee
may exercise his or her Option, but only within such period of time as is
determined by the Administrator, and only to the extent that the Optionee was
entitled to exercise it at the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Notice of Grant).
In the case of an Incentive Stock Option, the Administrator shall determine
such period of time (in no event to exceed ninety (90) days from the date of
termination) when the Option is granted. If, at the date of termination, the
Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option with
the time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
9 - 1993 STOCK INCENTIVE PLAN
<PAGE> 10
(c) Disability of Optionee. In the event that an
Optionee's Continuous Status as an Employee or Consultant terminates as a
result of the Optionee's Disability, the Optionee may exercise his or her
Option at any time within twelve (12) months from the date of such termination,
but only to the extent that the Optionee was entitled to exercise it at the
date of such termination (but in no event later than the expiration of the term
of such Option as set forth in the Notice of Grant). If, at the date of
termination, the Optionee is not entitled to exercise his or her entire Option,
the Shares covered by the unexercisable portion of the Option shall revert to
the Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an
Optionee, the Option may be exercised at any time within twelve (12) months
following the date of death (but in the no event later than the expiration of
the term of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent that the Optionee was entitled to
exercise the Option at the date of death. If, at the time of death, the
Optionee was not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan.
If, after death, the Optionee's estate or a person who acquired the right to
exercise the Option by bequest or inheritance does not exercise the Option
within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
10. Nontransferability of Options. An Option may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will, or by the laws of descent and distribution, and may be exercised
during the lifetime of the Optionee only by the Optionee or, if incapacitated,
by his or her legal guardian or legal representative.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization: Subject to any required action
by the stockholders of the Company, the number of shares of Common Stock
covered by each outstanding Option and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as to which no
Options have yet been granted or Sales made or which have been returned to the
Plan upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall
be made by the Administrator, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and
10 - 1993 STOCK INCENTIVE PLAN
<PAGE> 11
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, each outstanding Option will
terminate immediately prior to the consummation of such proposed action, unless
otherwise provided by the Administrator. The Administrator may, in the
exercise of its sole discretion in such instances, declare that any Option
shall terminate as of a date fixed by the Board and give each Optionee the
right to exercise his or her Option as to all or any part of the Optioned
Stock, including Shares as to which the Option would not otherwise be
exercisable.
(c) Merger or Asset Sale. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a Parent or Subsidiary of such successor corporation, unless the
Administrator determines, in the exercise of its sole discretion and in lieu of
such assumption or substitution, that the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable. If the Administrator
makes an Option fully exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Administrator shall notify the
Optionee that the Option shall be fully exercisable for a period of thirty (30)
days from the date of such notice or such shorter period as the Administrator
may specify in the notice, and the Option will terminate upon the expiration of
such period. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the Option
confers the right to purchase, for each Share of Optioned Stock subject to the
Option immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger
or sale of assets by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the merger or sale of assets was not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the
successor corporation and the Optionee, provide for the consideration to be
received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation
or its Parent equal in fair market value to the per share consideration
received by holders of Common Stock in the merger or sale of assets.
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Administrator makes the
determination granting such Option. Notice of the determination shall be given
to each Optionee within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable; provided,
11 - 1993 STOCK INCENTIVE PLAN
<PAGE> 12
however, that if required to qualify the Plan under Rule 16b-3 promulgated
under Section 16 of the Exchange Act, no amendment shall be made more than once
every six (6) months that would change the amount, price or timing of the
option grants, other than to comport with changes in the Code or the rules and
regulations promulgated thereunder; and provided, further, that, if required to
qualify the Plan under Rule 16b-3, no amendment shall be made without the
approval of the stockholders of the Company in the manner described in Section
17 of the Plan if the amendment would:
(i) increase the number of Shares subject to the
Plan, other than in connection with an adjustment under Section 11 of the Plan;
(ii) make a change in the designation of the class
of Employees or Consultants eligible to be granted Options; or
(iii) if the Company has a class of equity security
registered under Section 12 of the Exchange Act at the time of such revision or
amendment, cause any material increase in the benefits accruing to participants
under the Plan.
(b) Stockholder Approval. The Company shall obtain
stockholder approval of any Plan amendment to the extent necessary and
desirable to comply with Rule 16b-3 or with Section 422 of the Code (or any
successor rule or statute or other applicable law, rule or regulation,
including the requirements of any exchange or quotation system on which the
Common Stock is listed or quoted). Such stockholder approval, if required,
shall be obtained in such a manner and to such a degree as is required by the
applicable law, rule or regulation.
(c) Effect of Amendment or Termination. Any such amendment
or termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option or a Sale unless the exercise of
such Option or consummation of the Sale and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended,
applicable state securities laws, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange (including
NASDAQ) upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
15. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
12 - 1993 STOCK INCENTIVE PLAN
<PAGE> 13
16. Liability of Company.
(a) Inability to Obtain Authority. Inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
As a condition to the exercise of an Option or a Sale, the
Company may require the person exercising such Option or to whom Shares are
being Sold to represent and warrant at the time of any such exercise or Sale
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
(b) Grants Exceeding Allotted Shares. If the Optioned Stock
covered by an Option exceeds, as of the date of grant, the number of Shares
which may be issued under the Plan without additional stockholder approval,
such Option shall be void with respect to such excess Optioned Stock, unless
stockholder approval of an amendment sufficiently increasing the number of
Shares subject to the Plan is timely obtained in accordance with Section 13 of
the Plan.
17. Stockholder Approval. Continuance of the Plan shall be
subject to approval by the stockholders of the Company within twelve (12)
months before or after the date the Plan is adopted. Such stockholder approval
shall be obtained in the manner and to the degree required under applicable
federal and state law.
18. Six Month Holding Period for Affiliates. If the Company
registers any class of any equity security pursuant to Section 12 of the
Exchange Act, then from the effective date of such registration until six (6)
months after the termination of such registration (the Public Period), these
limits will apply to each Officer, Director and beneficial owner of ten percent
(10%) or more of any class of equity securities of the Company (Affiliates.)
During the Public Period, any Affiliate shall hold Shares Sold hereunder at
least six (6) months from the date of Sale. During the Public Period, at least
six (6) months must elapse from the date of grant of an Option to an Affiliate
to the date the Affiliate disposes of the Shares acquired upon exercise of the
Option, or (if the Option is disposed of other than by exercise) to the date of
disposition of the Option itself.
* * * * *
* As amended by the Board of Directors on December 15, 1994 and March 1,
1996, and ratified by the shareholders on May 25, 1995 and May 23,
1996, respectively
13 - 1993 STOCK INCENTIVE PLAN
