As filed with the Securities and Exchange Commission on October 9, 1996
Registration No.
---------
================================================================================
Washington, D.C. 20549
---------------
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
---------------
ORYX TECHNOLOGY CORP.
[Exact name of Registrant as specified in its charter]
Delaware 22-2115843
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
---------------
47341 Bayside Parkway
Fremont, California 94538
(Address of Principal Executive Offices)
Oryx Technology Corp.
Incentive and Nonqualified
Stock Option Plan
1996 Directors Non-Qualified Stock Option Plan
(Full title of Plans)
---------------
Mr. Arvind Patel
Chief Executive Officer
Oryx Technology Corp.
47341 Bayside Parkway
Fremont, California 94538
(510) 249-1144
(Name, address and telephone number of agent for service)
Copies to:
James Schneider, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
Suite 1900
200 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
Direct Line: (954) 766-7858
Approximate date of commencement of proposed sales:
From time to time after the effective date
of the Registration Statement
<TABLE>
<CAPTION>
===============================================================================================================
CALCULATION OF REGISTRATION FEE
--------------------------- -------------------------------------------------- ---------------------------
Title of each class of Proposed Proposed maximum Amount of
securities to be Amount to be maximum offering aggregate registration
registered registered price per share (1) offering price(1) fee (1)
---------------------------------------------------------------------------- -----------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 (2) $ 2.98 $ 1,490,000 $ 514.00
par value $0.001 120,000 (3) $ 2.98 $ 357,600 $ 124.00
---------------------------------------------------------------------------- -----------------------------
(1) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum offering price per share and the
registration fee are based on the reported average of the high and low prices for ORYX Technology
Corp. Common Stock on NASDAQ on October 7, 1996.
(2) Shares reserved for issuance under the Incentive and Nonqualified Stock Option Plan (in addition to
1,125,000 shares previously registered on Form S-8 File No. 33-85556 and Form S-8 File No. 333-07409).
(3) Shares reserved for issuance under the 1996 Directors Stock Option Plan.
==============================================================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS1
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information
---------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by ORYX
Technology Corp. (the "Company") (File No. 1-12680) with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), are incorporated by reference herein and
shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-KSB, as amended, for the
fiscal year ended February 29, 1996.
2. The Company's Current Report on Form 8-K filed with the Commission
on March 26, 1996.
3. The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended May 31, 1996.
4. The description of the Company's Common Stock contained in a
registration statement filed under the Securities Exchange Act of 1934, as
amended, including any amendment or report filed for the purpose of updating
such description.
5. The Company's Proxy Statement for its Annual Meeting dated August
21, 1996.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents");
PROVIDED, HOWEVER, that the documents enumerated above or subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act in
each year during which the offering made by this Registration Statement is in
effect prior to the filing with the Commission of the Company's Annual Report on
Form 10-KSB covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-KSB.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1 This information is not required to be included in, and is not incorporated
by reference in, this Registration Statement.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any director or officer of the corporation against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred in connection with any action, suit
or proceeding brought by reason of the fact that such person is or was a
director or officer of the corporation, if such person acted in good faith and
in a manner that he or she reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, if he or she had no reason to believe his conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually incurred by any director
or officer in connection with the defense or settlement of an action or suit, if
such person has acted in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
court in which the action or suit was brought shall determine upon application
that the defendant is reasonably entitled to indemnity for such expenses despite
such adjudication of liability.
The Company's Certificate of Incorporation provides that, to the
fullest extent permitted by Delaware law, the Company's directors will not be
liable for monetary damages, for breach of the directors' fiduciary duty of care
to the Company and its stockholders. This provision and the Certificate of
Incorporation does not eliminate the duty of care and in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for breach of the directors' duty of
loyalty to the Company for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, for acts or omissions that
the director believes to be contrary to the best interests of the Company or its
stockholders for any transaction from which the director derived an improper
personal benefit for acts or omissions involving a reckless disregard of the
director's duty to the Company or its stockholders where the director was aware
or should have been aware of the risk of serious injury to the Company or its
stockholders for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its stockholders for improper transactions between the director and the
Company and for improper distributions to stockholders and loans to directors
and officers. This provision also does not affect the director's
responsibilities under any other laws such as the federal securities laws or
state or federal environmental laws.
The Company has an insurance policy covering the liability and expenses
which might be incurred in connection with lawful indemnification of directors
and officers of the Company and its majority owned subsidiaries for certain
liabilities and expenses of such directors and officers for acts in those
capacities. Such directors and officers are also insured against certain
liabilities and expense incurred for acts in such capacities and for which they
are not entitled to indemnification by the Company.
The Company's Bylaws provide that the Company has the power to
indemnify its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed in the following Exhibit Index are filed as part of
this Registration Statement.
EXHIBIT NUMBER DESCRIPTION
3.1 Certificate of Incorporation of Registrant
dated July 26, 1993 (filed as Exhibit 3.1
to the Registrant's Form 10-KSB File No.
1-12680 for the fiscal year ended February
<PAGE>
28, 1994 and incorporated herein by
reference), as amended by the Certificate
of Amendment to the Certificate of
Incorporation of Registrant dated March
29, 1994 (filed as Exhibit 3.3 to the
Registrant's Form 10-KSB File No. 1-12680
for the fiscal year ended February 28,
1994 and incorporated herein by
reference), as amended by the Certificate
of Amendment to the Certificate of
Incorporation of Registrant dated January
31, 1996 (filed as Exhibit 3.3A to the
Registrant's Form 10-KSB File No. 1-12680
for the fiscal year ended February 29,
1996 and incorporated herein by reference)
3.2 Bylaws of the Registrant, as adopted by
the Board of Directors and Stockholders on
July 26, 1993 (filed as Exhibit 3.2 to
Registrant's Form 10-KSB File No. 1-12680
for the fiscal year ended February 28,
1994 and incorporated herein by reference)
4.12 ORYX Technology Corp. Amended Incentive
and Nonqualified Stock Option Plan*
4.13 ORYX Technology Corp. 1996 Director's
Stock Option Plan*
5 Opinion of Atlas, Pearlman, Trop &
Borkson, P.A. (including consent to filing
thereof)*
23 Consent of Independent Accountants, Price
Waterhouse LLP*
-----------------------------------------
* filed herewith
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement;
<PAGE>
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(2) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on the 8th day of
October, 1996.
ORYX TECHNOLOGY CORP.
By: /s/Arvind Patel
---------------------------------------
Arvind Patel
Chief Executive Officer and Director
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of ORYX
Technology Corp. whose signature appears below constitutes and appoints Arvind
Patel and Andrew Wilson, and each of them severally her/his true and lawful
attorney-in-fact and agent, with full and several power of substitution, for
her/him and in her/his name, place and stead, in any and all capacities, to sign
any or all amendments, including post-effective amendments and supplements to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
they or she/he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or her/his or their substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated and on the dates set forth opposite their signature.
SIGNATURE TITLE DATE
--------- ----- ----
/s/Arvind Patel President, Principal October 8, 1996
- --------------------------- Executive Officer,
Arvind Patel Principal Financial and
Accounting Officer and
Director
Director October , 1996
- ---------------------------
Nitin Mehta
/s/Andrew Intrater Treasurer, Secretary October 8, 1996
- ---------------------------- and Director
Andrew Intrater
/s/John Abeles Chairman and Director October 8, 1996
- ----------------------------
John Abeles
Director October , 1996
- ----------------------------
Jay M. Haft
/s/Ted D. Morgan Director October 8, 1996
- ----------------------------
Ted D. Morgan
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
ORYX Technology Corp.
(Exact name of issuer as specified in its charter)
================================================================================
<PAGE>
ORYX Technology Corp.
EXHIBIT NUMBER DESCRIPTION SEQUENTIAL
-------------- ----------- PAGE NUMBER
-----------
4.12 ORYX Technology Corp. Amended 10
Incentive and Nonqualified Stock
Option Plan
4.13 ORYX Technology Corp. 1996 18
Directors Stock Option Plan
5 Opinion of Atlas, Pearlman, Trop & 24
Borkson (and consent thereto)
23 Consent of Independent Accountants, 26
Price Waterhouse LLP
ORYX TECHNOLOGY CORP.
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
--------------------------------------------
(As amended and restated effective June 27, 1996)
1. PURPOSE. The purpose of the ORYX Technology Corp. INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN (the "Plan") is to grant to selected employees of
ORYX Technology Corp., a Delaware corporation (the "Company") and its
subsidiaries and affiliates, a favorable opportunity to acquire Common Stock of
the Company, thereby encouraging such persons to accept or continue their
relationships with the Company; increasing the interest of such persons in the
Company's welfare through participation in the growth and value of the Common
Stock; and furnishing such persons with an incentive to improve operations and
increase profits of the Company.
To accomplish the foregoing objectives, this Plan provides a means whereby
employees may receive options to purchase Common Stock. Options granted under
this Plan will be either nonstatutory (nonqualified) stock options or incentive
stock options.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company, or, in the discretion of the Board, by a committee
(the Board and the Committee shall be jointly referred to hereafter as the
"Administrator") of not less than two members of the Board each of whom shall
not at any time within one (1) year prior to his service as an administrator of
the Plan have received a grant or award of equity securities pursuant to the
Plan or any other plan of the Company or any of its affiliates. Subject to the
provisions of the Plan, the Administrator shall have the sole authority, in its
discretion:
(a) to determine to which of the eligible individuals, and the time
or times at which, options to purchase Common Stock of the Company shall be
granted;
(b) to determine the number of shares of Common Stock to be
subject to options granted to each eligible individual;
(c) to determine the price to be paid for the shares of Common
Stock upon the exercise of each option;
(d) to determine the term and the exercise schedule of each
option;
(e) to determine the terms and conditions of each stock option
agreement (which need not be identical) entered into between the Company and any
eligible individual to whom the Administrator has granted an option;
(f) to interpret the Plan;
(g) to modify or amend any such option; and
<PAGE>
(h) to make all determinations deemed necessary or advisable for
the administration of the Plan.
3. ELIGIBILITY. Every individual who at the date of grant is an employee
of the Company or of any parent or subsidiary of the Company (as defined in
subsection 5.1(c) below) is eligible to receive incentive stock options and/or
nonstatutory stock options under this Plan. The term "employee" includes an
officer or director who is an employee of the Company or a parent or subsidiary
of it, as well as a non-officer, non-director employee of the Company or a
parent or subsidiary of it. Every individual who at the date of grant is a
consultant to or non-employee director of the Company or a parent or subsidiary
of it is eligible to receive nonstatutory stock options under this Plan.
4. COMMON STOCK SUBJECT TO PLAN.
(a) There shall be reserved for issue upon the exercise of options
granted under the Plan one million six hundred twenty five thousand (1,625,000)
shares of Common Stock, subject to adjustment as provided in Section 7 hereof.
If an option granted under the Plan shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares subject thereto
shall again be available for the purposes of the Plan.
(b) Notwithstanding any other provisions of this Plan, the aggregate
number of shares of Common Stock subject to outstanding options granted under
this Plan, plus the aggregate number of shares issued upon the exercise of all
options granted under this Plan, shall never be permitted to exceed the number
of shares specified in the first sentence of subsection 4(a) above.
5. TERMS OF OPTIONS. Each option granted under the Plan shall be evidenced
by a stock option agreement between the individual to whom the option is granted
(the "optionee") and the Company. Each such agreement shall designate the option
thereby granted as an incentive stock option, a nonstatutory stock option or in
part an incentive stock option and in part a nonstatutory stock option. Each
such agreement shall be subject to the terms and conditions set forth in
subsection 5.1, and to such other terms and conditions not inconsistent herewith
as the Administrator may deem appropriate in each case. Incentive stock options
shall be subject also to the terms and conditions set forth in subsection 5.2.
5.1 TERMS AND CONDITIONS TO WHICH ALL OPTIONS ARE SUBJECT. All
options granted under this Plan shall be subject to the following terms and
conditions:
(a) TERM OF OPTIONS. The period or periods within which an
option may be exercised shall be determined by the Administrator at the time the
option is granted, but in no event shall such period extend beyond ten (10)
years from the date the option is granted in the case of an incentive stock
option, or ten (10) years and one (1) week from the date the option is granted
in the case of a nonstatutory stock option.
2
<PAGE>
(b) EXERCISE PRICE. The price to be paid for each share of
Common Stock upon the exercise of an option shall be determined by the
Administrator at the time the option is granted, but shall in no event be less
than eighty-five percent (85%) in the case of a nonstatutory stock option, and
one hundred percent (100%) in the case of an incentive stock option, of the fair
market value of a share of Common Stock on the date the option is granted. For
all purposes of this Plan, the fair market value of the Common Stock on any
particular date shall be the closing price on the trading day next preceding
that date on the principal securities exchange on which the Company's Common
Stock is listed, or, if such Common Stock is not then listed on any securities
exchange, then the fair market value of the Common Stock on such date shall be
the mean of the closing bid and asked prices as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
the trading day next preceding such date. In the event that the Company's Common
Stock is neither listed on a securities exchange nor quoted by NASDAQ, then the
Administrator shall determine the fair market value of the Company's Common
Stock on such date.
(c) MORE THAN TEN PERCENT SHAREHOLDERS. No option shall be
granted to any individual who, at the time such option would be granted, owns
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of outstanding capital stock of the Company, or of any parent
corporation or subsidiary corporation of the Company, unless the exercise price
(as provided in subsection 5.1(b) hereof) is not less than one hundred ten
percent (110%) of the fair market value of the Common Stock on the date the
option is granted, and in the case of an incentive stock option the period
within which the option may be exercised (as provided in subsection 5.1(a)
hereof) does not exceed five (5) years from the date the option is granted. As
used in this Plan, the terms "parent corporation" and "subsidiary corporation"
shall have the meanings set forth in Sections 424(e) and (f), respectively, of
the Internal Revenue Code of 1986, as amended (the "Code"). For purposes of this
subsection 5.1(c), in determining stock ownership, an optionee shall be
considered as owning the voting capital stock owned, directly or indirectly, by
or for his brothers and sisters, spouse, ancestors and lineal descendants.
Voting capital stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust shall be considered as being owned proportionately
by or for its shareholders, partners or beneficiaries, as applicable. Common
Stock with respect to which any such optionee holds an option shall not be
counted. Additionally, for purposes of this subsection 5.1(c), outstanding
capital stock shall include all capital stock actually issued and outstanding
immediately after the grant of the option to the optionee. Outstanding capital
stock shall not include capital stock authorized for issue under outstanding
options held by the optionee or by any other person.
(d) METHOD OF PAYMENT FOR COMMON STOCK. Payment for stock
purchased upon any exercise of an option granted under this Plan shall be made
in full in cash concurrently with such exercise, except that, if and to the
extent the instrument evidencing the option so provides and if the Company is
not then prohibited from purchasing or acquiring shares of such stock, such
payment may be made in whole or in part with shares of the same class of stock
as that then subject to the option, delivered in lieu of cash concurrently with
3
<PAGE>
such exercise, the shares so delivered to be valued on the basis of the fair
market value of the stock (determined in a manner specified in the instrument
evidencing the option) on the day preceding the date of exercise.
(e) NONTRANSFERABILITY. All options shall be
nontransferable, except by will or the laws of descent and distribution, and
shall be exercisable during the lifetime of the optionee only by the optionee.
(f) WITHHOLDING AND EMPLOYMENT TAXES. At the time of
exercise of an option, the optionee shall remit to the Company in cash the
amount of any and all applicable federal and state withholding and employment
taxes.
5.2 ADDITIONAL TERMS AND CONDITIONS TO WHICH INCENTIVE STOCK OPTIONS
ARE SUBJECT. Options granted under this Plan which are designated as incentive
stock options shall be subject to the following additional terms and conditions:
(a) ANNUAL LIMITATION. To the extent that the aggregate fair
market value (determined as of the date an incentive stock option is granted) of
the stock with respect to which incentive stock options granted are exercisable
for the first time by an employee during any one (1) calendar year (under this
Plan and under all other incentive stock option plans of the Company and of any
parent or subsidiary corporation) exceeds One Hundred Thousand Dollars
($100,000), such options shall be treated as options which are not incentive
stock options.
(b) DEATH. Upon the death of an employee, any incentive stock
option which such employee holds may be exercised, within such period after the
date of death as the Administrator shall prescribe in the stock option
agreement, by the employee's representative or by the person entitled thereto
under the employee's will or the laws of intestate succession.
(c) DISABILITY. Upon the disability of an employee, any
incentive stock option which the employee holds may be exercised by the employee
within such period after the date of termination of employment resulting from
such disability (not to exceed twelve (12) months) as the Administrator shall
prescribe in the stock option agreement. The option shall terminate upon the
expiration of such prescribed period, unless the employee dies prior thereto, in
which event the provisions of subsection 5.2(b) hereof shall apply.
(d) RETIREMENT. Upon the voluntary retirement of an employee
at or after reaching sixty-five (65) years of age, an incentive stock option may
be exercised by such employee with respect to all or any portion of the balance
of the Common Stock subject thereto within such period after the date of
retirement (not to exceed three (3) months) as the Administrator shall prescribe
in the stock option agreement. The option shall terminate upon the expiration of
such prescribed period, unless the employee dies prior thereto, in which event
the provisions of subsection 5.2(b) hereof shall apply.
4
<PAGE>
(e) TRANSFER TO RELATED CORPORATION. In the event that an
employee leaves the employ of the Company to become an employee of any parent or
subsidiary corporation of the Company, or if the employee leaves the employ of
any such parent or subsidiary corporation to become an employee of the Company
or of another parent or subsidiary corporation, such employee shall be deemed to
continue as an employee of the Company for all purposes of this Plan.
(f) OTHER SEVERANCE. In the event an employee leaves the
employ of the Company for any reason other than as set forth in subsections (b)
through (e), above, any incentive stock option which such employee holds may be
exercised by such employee with respect to all or any portion of the balance of
the Common Stock subject thereto within such period after the date of severance
(not to exceed three (3) months) as the Administrator shall prescribe in the
stock option agreement.
(g) DISQUALIFYING DISPOSITIONS. If Common Stock acquired by
exercise of an incentive stock option granted pursuant to this Plan is disposed
of within two (2) years from the date of grant of the option or within one (1)
year after the transfer of the Common Stock to the optionee, the holder of the
Common Stock immediately prior to the disposition shall promptly notify the
Company in writing of the date and terms of the disposition and shall provide
such other information regarding the disposition as the Company may reasonably
require.
6. STOCK ISSUANCE AND RIGHTS AS SHAREHOLDER. Notwithstanding any other
provisions of the Plan, no optionee shall have any of the rights of a
shareholder (including the right to vote and receive dividends) of the Company,
by reason of the provisions of this Plan or any action taken hereunder, until
the date such optionee shall both have paid the exercise price for the Common
Stock and shall have been issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company) the
stock certificate evidencing such shares.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) Subject to any required action by the Company's shareholders,
the number of shares of Common Stock covered by this Plan as provided in Section
4, the number of shares covered by each outstanding option granted hereunder and
the exercise price thereof shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
subdivision or consolidation of such shares or the payment of a stock dividend
(but only on the Common Stock) or any other increase or decrease in the number
of such outstanding shares of Common Stock effected without the receipt of
consideration by the Company; provided, however, that the conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration."
5
<PAGE>
(b) Subject to any required action by the Company's shareholders, if
the Company shall be the surviving corporation in any merger or consolidation,
each outstanding option shall pertain and apply to the securities to which a
holder of the number of shares subject to the option would have been entitled. A
dissolution or liquidation of the Company or a merger or consolidation in which
the Company is not the surviving corporation shall cause each outstanding option
to terminate, unless the surviving corporation in the case of a merger or
consolidation assumes outstanding options or replaces them with substitute
options having substantially similar terms and conditions.
(c) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
(d) Except as hereinabove expressly provided in this Section 7, no
optionee shall have any rights by reason of any subdivision or consolidation of
shares of the capital stock of any class or the payment of any stock dividend or
any other increase or decrease in the number of shares of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Company of shares of stock
of any class or of securities convertible into shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares subject to any option granted hereunder.
(e) The grant of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
8. SECURITIES LAW REQUIREMENTS.
(a) The Administrator may require an individual as a condition of
the grant and of the exercise of an option, to represent and establish to the
satisfaction of the Administrator that all shares of Common Stock to be acquired
upon the exercise of such option will be acquired for investment and not for
resale. The Administrator shall cause such legends to be placed on certificates
evidencing shares of Common Stock issued upon exercise of an option as, in the
opinion of the Company's counsel, may be required by federal and applicable
state securities laws.
(b) No shares of Common Stock shall be issued upon the exercise of
any option unless and until counsel for the Company determines that: (i) the
Company and the optionee have satisfied all applicable requirements under the
Securities Act of 1933 and the Securities Exchange Act of 1934; (ii) any
applicable listing requirement of any stock exchange on which the Company's
Common Stock is listed has been satisfied; and (iii) all other applicable
provisions of state and federal law have been satisfied.
6
<PAGE>
9. FINANCIAL ASSISTANCE. The Company is vested with authority under this
Plan to assist any employee to whom an option is granted hereunder (including
any consultant to, director or officer of the Company or any of its subsidiaries
who is also an employee) in the payment of the purchase price payable on
exercise of that option, by lending the amount of such purchase price to such
employee on such terms and at such rates of interest and upon such security as
shall have been authorized by or under authority of the Board.
10. AMENDMENT. The Board may terminate the Plan or amend the Plan from
time to time in such respects as the Board may deem advisable, except that,
without the approval of the Company's shareholders in compliance with the
requirements of applicable law, no such revision or amendment shall:
(a) increase the number of shares of Common Stock reserved under
Section 4 hereof for issue under the Plan, except as provided in Section 7
hereof;
(b) change the class of persons eligible to participate in the
Plan under Section 3 hereof;
(c) extend the term of the Plan under Section 10 hereof; or
(d) amend this Section 10 to defeat its purpose.
11. TERMINATION. The Plan shall terminate automatically on March 3,
2003, and may be terminated at any earlier date by the Board. No option shall be
granted hereunder after termination of the Plan, but such termination shall not
affect the validity of any option then outstanding.
12. TIME OF GRANTING OPTIONS. The date of grant of an option
hereunder shall, for all purposes, be the date on which the Administrator makes
the determination granting such option.
13. RESERVATION OF SHARES. The Company, during the term of this
Plan, will at all times reserve and keep available such number of shares of its
Common Stock as shall be sufficient to satisfy the requirements of the Plan.
14. EFFECTIVE DATE. This Plan, as amended, was adopted by the Board
of Directors of the Company on June 27, 1996, and shall be effective on said
date. The Plan, as amended, was approved by the stockholders of the Company on
September 20, 1996.
15. FINANCIAL REPORTS. The Company shall deliver financial and other
information regarding the Company, on an annual or more frequent basis, to each
individual holding an outstanding option under the Plan; provided, however, that
financial statements will not be furnished to key employees whose duties in
connection with the issuer assure them access to equivalent information.
7
ORYX TECHNOLOGY CORP.
1996 DIRECTORS NONQUALIFIED STOCK OPTION PLAN
---------------------------------------------
As Adopted Effective April 1, 1996
by Oryx Technology Corp., a Delaware corporation
1. PURPOSE. The purpose of the Oryx Technology Corp. 1996 Directors
Nonqualified Stock Option Plan (the "Plan") is to grant to non-employee
directors ("Outside Directors") of Oryx Technology Corp., a Delaware corporation
(the "Company"), the opportunity to acquire Common Stock of the Company, thereby
encouraging such persons to accept or continue their relationships with the
Company; to align the interests of such persons with those of the Company's
stockholders through stock ownership; and furnishing such persons with an
incentive to improve operations and increase profits of the Company.
To accomplish the foregoing objectives, this Plan provides a means whereby
Outside Directors may receive options to purchase Common Stock. Options granted
under this Plan will be nonstatutory (nonqualified) stock options.
2. ADMINISTRATION. The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the "Administrator"), which
shall at all times consist of at least two (2) Outside Directors neither of whom
has received option grants under any plan of the Company or its affiliates,
other than formula-based grants under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), within one (1)
year prior to his service as an administrator of the Plan. Subject to the
provisions of the Plan, the Administrator shall have the sole authority, in its
discretion:
(a) to determine the terms and conditions of the stock option
agreements entered into between the Company and any Outside Director;
(b) to interpret the Plan;
(c) to modify or amend any such option; and
(d) to make all determinations deemed necessary or advisable for
the administration of the Plan.
3. ELIGIBILITY; NUMBER. (a) Each Outside Director serving on the Company's
Board of Directors, as of April 1, 1996 shall be granted options to purchase
30,000 shares of the Company's Common Stock or such later date on which such
Outside Director was appointed to the Board of Directors. The exercise price
shall be the closing bid price of the Company's Common Stock on the Nasdaq
SmallCap Market on such date.
(b) Each Outside Director joining the Company's Board of Directors
subsequent to April 1, 1996, will receive options to purchase 30,000 shares of
<PAGE>
the Company's Common Stock, effective as of the date he or she is appointed or
elected to the Company's Board of Directors (the "Grant Date"). The exercise
price of such options shall be the closing bid price of the Company's Common
Stock on the Nasdaq SmallCap Market on the Grant Date.
(c) In the event that the Company's Common Stock is neither listed
on a securities exchange nor quoted by Nasdaq, the Administrator shall determine
the fair market value of the Company's Common Stock on such date and such value
shall be the exercise price.
4. COMMON STOCK SUBJECT TO PLAN.
(a) There shall be reserved for issue upon the exercise of options
granted under the Plan One hundred twenty thousand (120,000) shares of Common
Stock, subject to adjustment as provided in Section 7 hereof. If an option
granted under the Plan shall expire or terminate for any reason without having
been exercised in full, the unpurchased shares subject thereto shall again be
available for the purposes of the Plan.
(b) Notwithstanding any other provisions of this Plan, the aggregate
number of shares of Common Stock subject to outstanding options granted under
this Plan, plus the aggregate number of shares issued upon the exercise of all
options granted under this Plan, shall never be permitted to exceed the number
of shares specified in the first sentence of subsection 4(a) above.
5. TERMS OF OPTIONS. Each option granted under the Plan shall be evidenced
by a nonstatutory stock option agreement between the individual to whom the
option is granted (the "optionee") and the Company. Each such agreement shall
designate the option thereby granted as a nonstatutory stock option. Each such
agreement shall be subject to the terms and conditions set forth in subsection
5.1, and to such other terms and conditions not inconsistent herewith as the
Administrator may deem appropriate in each case. All options granted under this
Plan shall be subject to the following terms and conditions:
(a) TERM OF OPTIONS. The period or periods within which an option
may be exercised shall be determined by the Administrator at the time the option
is granted, but in no event shall such period extend beyond ten (10) years and
one (1) week from the date the option is granted.
(b) MORE THAN TEN PERCENT STOCKHOLDERS. No option shall be granted
to any individual who, at the time such option would be granted, owns stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of outstanding capital stock of the Company, or of any parent
corporation or subsidiary corporation of the Company, unless the exercise price
(as provided in subsection 5.1(b) hereof) is not less than one hundred ten
percent (110%) of the fair market value of the Common Stock on the date the
2
<PAGE>
option is granted. As used in this Plan, the terms "parent corporation" and
"subsidiary corporation" shall have the meanings set forth in Sections 424(e)
and (f), respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). For purposes of this subsection 5.1(b), in determining stock ownership,
an optionee shall be deemed the owner of all voting capital stock owned,
directly or indirectly, by or for his brothers and sisters, spouse, ancestors
and lineal descendants. Voting capital stock owned, directly or indirectly, by
or for a corporation, partnership, estate or trust shall be considered as being
owned proportionately by or for its shareholders, partners or beneficiaries, as
applicable. Common Stock with respect to which any such optionee holds an option
shall not be counted. Additionally, for purposes of this subsection 5.1(b),
outstanding capital stock shall include all capital stock actually issued and
outstanding immediately after the grant of the option to the optionee.
Outstanding capital stock shall not include capital stock authorized for issue
under outstanding options held by the optionee or by any other person.
(c) METHOD OF PAYMENT FOR COMMON STOCK. Payment for stock purchased
upon any exercise of an option granted under this Plan shall be made in full in
cash concurrently with such exercise, except that, if and to the extent the
instrument evidencing the option so provides and if the Company is not then
prohibited from purchasing or acquiring shares of such stock, such payment may
be made in whole or in part with shares of the same class of stock as are
subject to the option, delivered in lieu of cash concurrently with such
exercise, the shares so delivered to be valued on the basis of the fair market
value of the stock (determined in a manner specified in the instrument
evidencing the option) on the day preceding the date of exercise.
(d) VESTING. Ten thousand (10,000) of the option shares granted
under the Plan shall vest on the date of grant and the balance shall vest in
equal annual installments on the first and second anniversaries of the date of
grant, provided that the Outside Director continues to serve on the Company's
Board of Directors as of such dates.
(e) NONTRANSFERABILITY. All options shall be nontransferable, except
by will or the laws of descent and distribution, and shall be exercisable during
the lifetime of the optionee only by the optionee.
(f) DEATH; DISABILITY; RESIGNATION. In the event of an Outside
Director's disability, all options granted will immediately vest. In the event
of an Outside Director's death, all options will vest but expire one year
thereafter. If an Outside Director resigns from the Company's Board of Directors
or declines to stand for reelection, options that are vested through the date of
such resignation or declination may be exercised for a period of three (3)
months thereafter. If an Outside Director is removed from the Board by action of
the Company's Stockholders or Board of Directors, options that are vested
through the date of such removal may be exercised for a period of one (1) week
thereafter.
3
<PAGE>
(g) WITHHOLDING AND EMPLOYMENT TAXES. At the time of exercise of
an option, the optionee shall remit to the Company in cash the amount of an
and all applicable federal and state withholding and employment taxes.
6. STOCK ISSUANCE AND RIGHTS AS STOCKHOLDER. Notwithstanding any other
provisions of the Plan, no optionee shall have any of the rights of a
stockholder (including the right to vote and receive dividends) of the Company,
by reason of the provisions of this Plan or any action taken hereunder, until
the date such optionee shall both have paid the exercise price for the Common
Stock and shall have been issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company) the
stock certificate evidencing such shares.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) Subject to any required action by the Company's stockholders,
the number of shares of Common Stock covered by this Plan as provided in Section
4, the number of shares covered by each outstanding option granted hereunder and
the exercise price thereof shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a split,
reverse split, subdivision or consolidation of such shares or the payment of a
stock dividend (but only on the Common Stock) or any other increase or decrease
in the number of such outstanding shares of Common Stock effected without the
receipt of consideration by the Company; provided, however, that the conversion
of any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration."
(b) Subject to any required action by the Company's stockholders, if
the Company shall be the surviving corporation in any merger or consolidation,
each outstanding option shall pertain and apply to the securities to which a
holder of the number of shares subject to the option would have been entitled. A
dissolution or liquidation of the Company or a merger or consolidation in which
the Company is not the surviving corporation shall cause each outstanding option
to terminate, unless the surviving corporation in the case of a merger or
consolidation assumes outstanding options or replaces them with substitute
options having substantially similar terms and conditions.
(c) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Compensation
Committee of the Board of Directors, whose determination in that respect shall
be final, binding and conclusive.
(d) Except as hereinabove expressly provided in this Section 7, no
optionee shall have any rights by reason of any subdivision or consolidation of
shares of the capital stock of any class or the payment of any stock dividend or
any other increase or decrease in the number of shares of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Company of shares of stock
4
<PAGE>
of any class or of securities convertible into shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares subject to any option granted hereunder.
(e) The grant of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
8. SECURITIES LAW REQUIREMENTS.
(a) The Administrator may require an individual as a condition of
the grant and of the exercise of an option, to represent and establish to the
satisfaction of the Administrator that all shares of Common Stock to be acquired
upon the exercise of such option will be acquired for investment and not for
resale. The Administrator shall cause such legends to be placed on certificates
evidencing shares of Common Stock issued upon exercise of an option as, in the
opinion of the Company's counsel, may be required by federal and applicable
state securities laws.
(b) No shares of Common Stock shall be issued upon the exercise of
any option unless and until counsel for the Company determines that: (i) the
Company and the optionee have satisfied all applicable requirements under the
Securities Act of 1933, as amended and the Exchange Act; (ii) any applicable
listing requirement of any stock exchange on which the Company's Common Stock is
listed has been satisfied; and (iii) all other applicable provisions of state
and federal law have been satisfied.
9. FINANCIAL ASSISTANCE. The Company is vested with authority under this
Plan to assist any Outside Director to whom an option is granted hereunder in
the payment of the purchase price payable on exercise of that option, by lending
the amount of such purchase price to such Outside Director on such terms and at
such rates of interest and upon such security as shall have been authorized by
or under authority of the Board.
10. AMENDMENT. The Board may terminate the Plan or amend the Plan from
time to time in such respects as the Board may deem advisable; provided,
however, that the Plan may no be amended more than once every six (6) months,
other than to comport with changes in the Internal Revenue Code of 1986, as
amended, the Employee Retirement Income Security Act, of the rules thereunder,
and provided further, that, without the approval of the Company's stockholders
in compliance with the requirements of applicable law, no such revision or
amendment shall:
(a) increase the number of shares of Common Stock reserved under
Section 4 hereof for issue under the Plan, except as provided in Section 7
hereof;
5
<PAGE>
(b) change the class of persons eligible to participate in the
Plan under Section 3 hereof;
(c) extend the term of the Plan under Section 10 hereof;
(d) change the number of options granted under this Plan as set
forth in Section 3 hereof; or
(e) amend this Section 10 to defeat its purpose.
11. TERMINATION. The Plan shall terminate automatically on April 1,
2006, and may be terminated at any earlier date by the Board. No option shall be
granted hereunder after termination of the Plan, but such termination shall not
affect the validity of any option then outstanding.
12. TIME OF GRANTING OPTIONS. The date of grant of an option here-
under shall, for all purposes, be the date on which the Administrator makes the
determination granting such option.
13. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of shares of its Common
Stock as shall be sufficient to satisfy the requirements of the Plan.
14. EFFECTIVE DATE. This Plan was adopted by the Board of Directors of
the Company on April 1, 1996, and shall be effective as of said date. The Plan
was approved by the stockholders of the Company on September 20, 1996.
6
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
SUITE 1900
200 EAST LAS OLAS BOULEVARD
FORT LAUDERDALE, FLORIDA 33301
Direct Line: (954) 766-7858
October 8, 1996
Oryx Technology Corp.
47341 Bayside Parkway
Fremont, CA 94538
Re: Registration Statement on Form S-8; Oryx Technology Corp.
(the "Company"); - 620,000 Shares of Common Stock
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission with respect to the registration by the
Company and the resale of an aggregate of 620,000 shares of Common Stock, par
value $.001 per share (the "Common Stock") to be sold by the selling security
holders described in the Registration Statement pursuant to the Company's
Incentive and Nonqualified Stock Option Plan (the "I and N Plan") and the
Company's 1996 Directors Stock Option Plan (the "Plan"). The shares of Common
Stock to be sold consist of (i) 500,000 shares of Common Stock issuable upon
exercise of Common Stock purchase options under the I and N Plan and (ii)
120,000 shares of Common Stock issuable upon exercise of the Company's Common
Stock purchase options pursuant to the Plan (collectively the "Options").
In our capacity as counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the Company's
Certificate of Incorporation, By-Laws, the I and N Plan and the Plan and various
agreements and written options provided to officers, directors and key employees
of the Company, corporate minutes provided to us by the Company and such other
documents and instruments as we deemed necessary. In all such examinations, we
have assumed the genuineness of all signatures on original documents, and the
conformity to originals or certified documents of all copies submitted to us as
conformed, photostat or other copies. In passing upon certain corporate records
and documents of the Company, we have
<PAGE>
Oryx Technology Corp.
October 8, 1996
Page 2
necessarily assumed the correctness and completeness of the statements made or
included therein by the Company, and we express no opinion thereon.
Based upon and in reliance of the foregoing, we are of the opinion that
the Common Stock to be issued upon exercise of the Options, when issued in
accordance with the terms thereof, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement on Form S-8 to be filed with the Commission.
Very truly yours,
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
----------------------------------------
/s/ Atlas, Pearlman, Trop & Borkson, P.A.
JMS/bb
3550.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated May 13, 1996 appearing on
page F-2 of Oryx Technology Corp.'s Annual Report on Form 10-KSB for the year
ended February 29, 1996.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Jose, California
October 8, 1996
