<PAGE>
As filed with the Securities and Exchange Commission on December 11, 1998
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 22-2115841
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
1100 Auburn Street
Fremont, California 94538
(Address of Principal Executive Offices)
ORYX TECHNOLOGY CORP. INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN
ORYX TECHNOLOGY CORP. 1996
DIRECTORS NONQUALIFIED STOCK OPTION PLAN
(Full title of Plans)
MR. PHILIP J. MICCICHE
Chief Executive Officer
Oryx Technology Corp.
1100 Auburn Street
Fremont, California 94538
(510) 492-2080
(Name, address and telephone number of agent for service)
Copies to:
JERROLD F. PETRUZZELLI, ESQ.
3030 Hansen Way, Suite 100
Palo Alto, California 94304
(650) 856-1200
Approximate date of commencement of proposed sales:
From time to time after the effective date
of the Registration Statement
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Title of each class Proposed Proposed maximum Amount of
of securities to be Amount to be registered maximum offering price aggregate offering registration
registered per share (1) price (1) fee (1)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001, to be
issued upon exercise of options granted
under the Incentive and Nonqualified
Stock Option Plan 1,000,000(2)(4) $1.2343 $1,234,300 $344
Common Stock, par value $0.001, to be
issued under the 1996 Directors
Nonqualified Stock Option Plan 130,000(3)(4) $1.2343 $ 160,459 $ 45
- --------------------------------------------------------------------------------------------------------------------------------
TOTAL: 1,130,000 $1,394,759 $389
</TABLE>
(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 bid and asked prices for Oryx
Technology Corp. Common Stock on the NASDAQ Small Cap Market
quotation system of $1.2343 on December 10, 1998.
(2) Pursuant to Rule 429, includes 1,000,000 shares reserved for
issuance under the Incentive and Nonqualified Stock Option
Plan (in addition to 2,625,000 shares previously registered on
Form S-8 File No. 33-85556, Form S-8 File No. 333-07409, Form
S-8 File No. 333-13887 and Form S-8 File No. 333-62767).
(3) Pursuant to Rule 429, includes 130,000 shares reserved for
issuance under the 1996 Directors Nonqualified Stock Option
Plan (in addition to 120,000 shares previously registered on
Form S-8 File No. 333-13887).
(4) Pursuant to Rule 416, this Registration Statement shall also
cover any additional shares of the Registrant's Common Stock
that becomes issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected
without the receipt of consideration that increases the number
of the Registrant's outstanding shares of Common Stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
All information required by Part I to be contained in the
prospectus to be delivered to directors, officers, employees and consultants
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 (the "Securities Act") and the Note to Part I of
Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
All information required in Part I to be contained in the
prospectus to be delivered to directors, officers, employees and consultants
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
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
by Forms 10-KSB/A1, 10-KSB/A2 and 10-KSB/A3 for the fiscal year ended
February 28, 1998.
2. The Company's Current Reports on Form 8-K filed with
the Commission on March 16, 1998, March 23, 1998 and December 8, 1998.
3. The Company's Quarterly Reports on Form 10-QSB for the
quarterly periods ended May 31, 1998 and August 31, 1998, as amended by Form
10-QSB/A1.
4. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A filed with the Commission
on December 13, 1993, as amended, including any amendment or report filed for
the purpose of updating such description.
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.
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
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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.
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, 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'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.
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Pursuant to the authority provided for in the Company's Certificate of
Incorporation, the Company has entered into indemnification agreements with
each of its officers and directors, indemnifying them against certain
potential liabilities that may arise as a result of their service to the
Company.
The Company also maintains 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.
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.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
4.1 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 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)
4.2 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)
4.3 Oryx Technology Corp. Incentive and Nonqualified
Stock Option Plan*
5
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<S> <C>
4.4 Oryx Technology Corp. 1996 Directors Nonqualified
Stock Option Plan*
5.1 Opinion of Wise & Shepard LLP (including consent
to filing thereof)*
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Auditors*
23.2 Consent of Counsel (included in Exhibit 5.1.)*
24.1 Power of Attorney (included on the signature page
of this Registration Statement).*
*filed herewith
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(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
6
<PAGE>
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;
(2) 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
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 11th day of December, 1998.
ORYX TECHNOLOGY CORP.
By: /s/ Philip J. Micciche
----------------------
Philip J. Micciche
President, 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
Philip J. Micciche and Mitchel Underseth, 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.
8
<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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Philip J. Micciche President, Chief December 11, 1998
- ---------------------- Executive Officer and Director
Philip J. Micciche (principal executive officer)
/s/ Mitchel Underseth Chief Financial Officer December 11, 1998
- --------------------- and Director (principal financial
Mitchel Underseth and accounting officer)
/s/ Andrew Intrater Secretary and Director December 11, 1998
- -------------------
Andrew Intrater
/s/ John Abeles Director December 11, 1998
- ---------------
John Abeles
/s/ Richard Hubbard Director December 11, 1998
- -------------------
Richard Hubbard
/s/ Jay M. Haft Director December 11, 1998
- ---------------
Jay M. Haft
/s/ Doug McBurnie Director December 11, 1998
- -----------------
Doug McBurnie
/s/ Ted D. Morgan Director December 11, 1998
- -----------------
Ted D. Morgan
</TABLE>
9
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
filed with
Registration Statement on Form S-8
The Securities Act of 1933
ORYX TECHNOLOGY CORP.
(Exact name of issuer as specified in its charter)
December 11, 1998
10
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ORYX TECHNOLOGY, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.3 Oryx Technology Corp. Incentive
and Nonqualified Stock Option Plan
4.4 Oryx Technology Corp. 1996 Directors
Nonqualified Stock Option Plan
5.1 Opinion of Wise & Shepard LLP
(including consent to filing thereof)
23.1 Consent of PricewaterhouseCoopers LLP,
Independent Auditors. (including consent to
filing thereof)
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
</TABLE>
11
<PAGE>
EXHIBIT 4.3
ORYX TECHNOLOGY CORP.
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
(As amended on August 27, 1998)
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;
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(f) to interpret the Plan;
(g) to modify or amend any such option; and
(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 Three Million Six Hundred Twenty Five Thousand
(3,625,000) 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
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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.
(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
3
<PAGE>
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 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."
(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
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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.
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
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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 August 27, 1998, and shall be effective on said
date, subject to approval by the Company's stockholders.
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.
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EXHIBIT 4.4
ORYX TECHNOLOGY CORP.
1996 DIRECTORS NONQUALIFIED STOCK OPTION PLAN
(As amended on August 27, 1998)
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 the Company's Common
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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 Two Hundred Fifty Thousand (250,000) 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 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,
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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.
(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 any 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
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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 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.
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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;
(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.
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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 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 August 27, 1998, and shall be effective as of
said date, subject to approval by the Company's stockholders.
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EXHIBIT 5.1
December 11, 1998
Oryx Technology Corp.
1100 Auburn Street
Fremont, CA 94538
Re: Registration Statement on Form S-8; Oryx Technology Corp.
(the "Company"); 1,130,000 Shares of Common Stock
Gentlemen:
We are acting as counsel to Oryx Technology Corp. (the "Company") in
connection with the Registration Statement on Form S-8 to be filed on
December __, 1998 (the "Registration Statement"), under the Securities Act of
1933, as amended (the "Act"), covering 1,130,000 shares of the Company's
Common Stock, par value $0.001, consisting of 1,000,000 shares to be issued
under the Company's Incentive and Nonqualified Stock Option Plan, as amended
and 130,000 shares to be issued under the Company's 1996 Directors
Nonqualified Stock Option Plan, as amended (collectively, the "Shares").
We have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as we have
deemed relevant or necessary as the basis for the opinion hereinafter
expressed. In all such examinations, we have assumed the genuineness of all
signatures on original or certified copies and the conformity to original or
certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to such opinion, we have
relied upon, and assumed the accuracy of, certificates and oral or written
statements and other information of or from public officials, officers or
representatives of the Company, and others.
Based upon the foregoing, we are of the opinion that the Shares, when
issued, delivered and paid for in accordance with the terms of the Incentive
and Nonqualified Stock Option Plan, as amended, will be validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any subsequent Amendment thereto.
Very truly yours,
/s/ Wise & Shepard LLP
----------------------
WISE & SHEPARD LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 22, 1998, appearing on page F-2
of Oryx Technology Corp.'s Annual Report on Form 10-KSB/A2 for the year ended
February 28, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
- --------------------------------
PRICEWATERHOUSECOOPERS LLP
San Jose, California
December 10, 1998
2
