<PAGE> 1
As filed with the Securities and Exchange Commission on December 28, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MOTORVAC TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0522018
(State of Incorporation) (I.R.S. Employer Identification No.)
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1431 S. VILLAGE WAY
SANTA ANA, CALIFORNIA 92705
(Address, including zip code, of Registrant's principal executive offices)
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1998 STOCK COMPENSATION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1996 DIRECTOR STOCK PLAN
1996 STOCK INCENTIVE AWARD PLAN
1994 STOCK INCENTIVE AWARD PLAN
(Full title of the plans)
LEE W. MELODY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
1431 S. VILLAGE WAY
SANTA ANA, CA 92705
(714) 558-4822
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
JEREMY D. GLASER, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(619) 550-6000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
=========================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 933,426 $ .8125 - 5.10 $ 2,402,461.10 $ 667.88
=========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 of the Securities Act of 1933, as
amended (the "Securities Act"). The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to outstanding stock options previously granted under the
Registrant's 1996 Director Stock Plan, 1996 Stock Incentive Award Plan,
as amended, and 1994 Stock Incentive Award Plan, as amended and (b) the
average of the high and low sales prices of Registrant's Common Stock on
December 22, 1998 as reported on the Nasdaq SmallCap Market, for shares
issuable under the Registrant's 1998 Stock Compensation Plan, 1998
Employee Stock Purchase Plan, 1996 Director Stock Plan, as amended, 1996
Stock Incentive Award Plan, as amended, and 1994 Stock Incentive Award
Plan, as amended. The following chart shows the calculation of the
registration fee.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Offering Price
Share
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant 331,492 $ .8125(b) $ 269,337.25
to the 1998 Employee Stock
Purchase Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant 120,000 $ .8125(b) $ 97,500
to the 1998 Stock Compensation
Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant 50,000 $ 2.38 (a) $ 71,975
to outstanding options under
the 1996 Director Stock Plan,
as amended
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant 325,000 $ 4.75 (a) $ 1,418,285.50
to outstanding options under
the 1996 Stock Incentive Award
Plan, as amended
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant 106,934 $ 5.10 (a) $ 545,363.40
to outstanding options under
the 1994 Stock Incentive Award
Plan, as amended
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(a) Weighted average exercise price.
(b) Average of the high and low sales prices of Registrant's Common Stock on
December 22, 1998, as reported on the NASDAQ SmallCap Market.
================================================================================
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by MotorVac Technologies, Inc. (the
"Registrant" or "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are incorporated by reference into this Registration Statement
except as superseded or modified herein:
The Company's Annual Report on Form 10-KSB for the year ended December
31, 1997, the Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1998, the Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1998, the Company's Quarterly Report on Form 10-QSB for the
quarter ended September 30, 1998 and the description of the Company's Common
Stock contained in its Registration Statement on Form 8-A dated April 1, 1996,
including any amendment or reports filed for the purpose of updating such
description. All reports and other documents subsequently filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part of this
Registration Statement from the date of the filing of such reports and
documents. Any statement contained in a document incorporated by reference
herein 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 document which also is or is deemed to be incorporated
by reference herein 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
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Company's Certificate of Incorporation includes provisions to
eliminate the personal liability of its directors for monetary damages from
breaches or alleged breaches of their fiduciary duty as directors to the extent
permitted under Delaware law. The Company's Bylaws require the Company to
indemnify its directors and officers, or individuals serving at the request of a
director, officer, employee or other agent, under certain circumstances,
including circumstances in which indemnification would otherwise be
discretionary, and the Company is required to advance expenses to its officers
and directors as incurred in connection with proceedings against them for which
they may be indemnified, upon an undertaking by the indemnified party to repay
such advances if it is ultimately determined that such party is not entitled to
indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law. The indemnification agreements require the Company,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers to the
1
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fullest extent permitted by Delaware law and to advance their expenses incurred
as a result of any proceedings against them as to which they could be
indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Form of Certificate Evidencing Shares of Registrant's Common
Stock.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on page 4.
99.1 Registrant's 1998 Stock Compensation Plan.
99.2 Registrant's 1998 Employee Stock Purchase Plan and related
offering document.
99.3 1996 Stock Incentive Award Plan of Registrant.(2)
99.4 First Amendment to Registrant's 1996 Stock Incentive Award Plan.
99.5 Form of 1996 Director Non-Qualified Stock Option Agreement.(2)
99.6 First Amendment to Registrant's Form of 1996 Director
Non-Qualified Stock Option Agreement.
99.7 Form of 1996 Employee Non-Qualified Stock Option Agreement.(2)
99.8 First Amendment to Registrant's Form of 1996 Employee
Non-Qualified Stock Option Agreement.
99.9 1996 Director Stock Plan of Registrant.(2)
99.10 1994 Stock Incentive Award Plan of Registrant.(2)
99.11 First Amendment to Registrant's 1994 Stock Incentive Award Plan.
99.12 Form of 1994 Director Non-Qualified Stock Option Agreement.(2)
99.13 First Amendment to Registrant's Form of 1994 Director
Non-Qualified Stock Option Agreement.
99.14 Form of 1994 Employee Non-Qualified Stock Option Agreement.(2)
99.15 First Amendment to Registrant's Form of 1994 Employee
Non-Qualified Stock Option Agreement.
</TABLE>
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2
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(1) Filed as an exhibit to the Registrant's Registration Statement on Form 8-A,
as amended (No. 333-1866-LA) filed with the Commission on April 1, 1996, and
incorporated herein by this reference.
(2) Filed as an exhibit to the Registrant's Registration Statement on Form SB-2
(No. 333-1866-LA) filed with the Commission February 29, 1996, and incorporated
herein by this reference.
ITEM 9. UNDERTAKINGS
The undersigned registrant will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) include any additional or changed material information on
the plan of distribution;
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering; and
Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Santa Ana, State of California, on December 28, 1998.
MOTORVAC TECHNOLOGIES, INC.
By /s/ Lee W. Melody
--------------------------
Lee W. Melody,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lee W. Melody and David P. Nelson, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
4
<PAGE> 7
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ Lee W. Melody President, Chief Executive December 28, 1998
- ------------------------------------ Officer and Director
Lee W. Melody (Principal Executive Officer)
/s/ David P. Nelson Chief Financial Officer, December 28, 1998
- ------------------------------------ Treasurer and Secretary
David P. Nelson (Principal Financial and
Accounting Officer)
/s/ Ronald J. Monark Director December 28, 1998
- ------------------------------------
Ronald J. Monark
/s/ Grant Ferrier Director December 28, 1998
- ------------------------------------
Grant Ferrier
/s/ Stephen L. Greaves Director December 28, 1998
- -------------------------------------
Stephen L. Greaves
/s/ Gerald C. Quinn Director December 28, 1998
- ------------------------------------
Gerald C. Quinn
/s/ Daniel P. Whelan Director December 28, 1998
- ------------------------------------
Daniel P. Whelan
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION SEQUENTIAL PAGE NUMBER
---------- ----------- ----------------------
<S> <C>
4.1 Form of Certificate Evidencing Shares of Registrant's Common
Stock.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1998 Stock Compensation Plan.
99.2 1998 Employee Stock Purchase Plan and related offering document.
99.3 1996 Stock Incentive Award Plan of Registrant.(2)
99.4 First Amendment to Registrant's 1996 Stock Incentive Award Plan.
99.5 Form of 1996 Director Non-Qualified Stock Option Agreement.(2)
99.6 First Amendment to Registrant's Form of 1996 Director
Non-Qualified Stock Option Agreement.
99.7 Form of 1996 Employee Non-Qualified Stock Option Agreement.(2)
99.8 First Amendment to Registrant's Form of 1996 Employee
Non-Qualified Stock Option Agreement.
99.9 1996 Director Stock Plan of Registrant.(2)
99.10 1994 Stock Incentive Award Plan of Registrant.(2)
99.11 First Amendment to Registrant's 1994 Stock Incentive Award Plan.
99.12 Form of 1994 Director Non-Qualified Stock Option Agreement.(2)
99.13 First Amendment to Registrant's Form of 1994 Director
Non-Qualified Stock Option Agreement.
99.14 Form of 1994 Employee Non-Qualified Stock Option Agreement.(2)
99.15 First Amendment to Registrant's Form of 1994 Employee
Non-Qualified Stock Option Agreement.
</TABLE>
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(1) Filed as an exhibit to the Registrant's Registration Statement on Form 8-A,
as amended (No. 333-1866-LA) filed with the Commission on April 1, 1996,
and incorporated herein by this reference.
(2) Filed as an exhibit to the Registrant's Registration Statement on Form SB-2
(No. 333-1866-LA) filed with the Commission February 29, 1996, and
incorporated herein by this reference.
6
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
December 28, 1998
MOTORVAC TECHNOLOGIES, INC.
1431 S. Village Way
Santa Ana, CA 92705
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by MOTORVAC TECHNOLOGIES, INC. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of an aggregate of 933,426 shares
of the Company's Common Stock, $.01 par value (the "Shares"), including 120,000
shares for issuance pursuant to the Company's 1998 Stock Compensation Plan and
331,492 shares for issuance pursuant to the Company's 1998 Employee Stock
Purchase Plan, 50,000 shares for issuance pursuant to the Company's 1996
Director Stock Plan, 325,000 shares for issuance pursuant to the Company's 1996
Stock Incentive Award Plan, and 106,934 shares for issuance pursuant to the
Company's 1994 Stock Incentive Award Plan (collectively, the "Plans").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related prospectuses, the Plans, the Company's
Certificate of Incorporation and Bylaws, as amended, and the originals or copies
certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the applicable Plan,
the Registration Statement and the related prospectus, will be validly issued,
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
Jeremy D. Glaser
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
MotorVac Technologies, Inc. on Form S-8 of our report dated March 7, 1998,
appearing in the Annual Report on Form 10-KSB of MotorVac Technologies, Inc.
for the fiscal year ended December 31, 1997.
Costa Mesa, California
December 28, 1998
<PAGE> 1
EXHIBIT 99.1
MOTORVAC TECHNOLOGIES, INC.
1998 STOCK COMPENSATION PLAN
ADOPTED SEPTEMBER 24, 1998
APPROVED BY STOCKHOLDERS ______________, 1999
1. PURPOSE
(a) The purpose of this Plan is to provide a means by which Directors of
the Company will be given the opportunity to elect to receive all of their
annual Compensation in the form of Shares of Common Stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are now Directors, to secure and retain the services of new
Directors and to provide incentives for such persons to exert maximum efforts
for the success of the Company.
2. DEFINITIONS
Unless otherwise defined herein or the context otherwise requires, the
capitalized terms used herein shall have the following meanings:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean, unless otherwise specifically provided,
the common stock of the Company, par value $.01 per share, and any class of
common stock into which such common stock may hereafter be converted or for
which such common stock may be exchanged or become exchangeable for.
(c) "Company" shall mean MotorVac Technologies, Inc., a Delaware
corporation.
(d) "Compensation" shall mean Directors' annual retainer and meeting
attendance fees paid by the Company.
(e) "Director" shall mean a person who is a member of the Board and who
is not otherwise an employee of or consultant to the Company.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as it
may be amended from time to time.
(g) "Fair Market Value" shall mean the value of one (1) Share of Common
Stock determined as follows: (i) if the Common Stock is traded on a national
stock exchange or traded on the Nasdaq National Market (NMS), the closing sales
price per Share of Common Stock; (ii) if the Common Stock is regularly traded on
any over-the-counter market other than the NMS, the average of the bid and asked
prices per Share of the Common Stock; and (iii) if the Common Stock is not
traded as described in (i) or (ii) above, the fair market value of a Share of
Common Stock as determined in good faith by the Board on such basis as the Board
in its sole discretion shall choose. The date of determination of Fair Market
Value with respect to (i), (ii) and (iii)
<PAGE> 2
shall be the date specified in the Plan or, if no trading in the Common Stock
takes place on such date, on the next preceding trading day on which there has
been such trading.
(h) "Plan" shall mean this MotorVac Technologies, Inc. 1998 Stock
Compensation Plan, as it may be amended from time to time.
(i) "Securities Act" shall mean the Securities Act of 1933, as it may be
amended from time to time.
(j) "Share" shall mean one (1) share of Common Stock of the Company,
adjusted in accordance with Section 7 of the Plan (if applicable).
3. ADMINISTRATION
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a committee, as provided in Section 3(c).
(b) The Board shall have the power, subject to and within the
limitations of, the express provisions of the Plan:
(1) To construe and interpret the Plan and to establish, amend
and revoke rules and regulations for its administration. The Board, in exercise
of this power, may correct any defect, omission or inconsistency in the Plan, in
a manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(2) To amend the Plan as provided in Section 10, below.
(3) Generally, to exercise such powers and perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board
administration of the Plan.
4. STOCK SUBJECT TO PLAN
The stock subject to issuance under the Plan shall be Shares of the
Company's authorized but unissued or reacquired Common Stock. The Company has
instituted a repurchase program whereby reacquired Common Stock will be made
available for issuance under the Plan, subject to the limitations established by
this Section 4. The number of Shares which may be issued under the Plan shall
not exceed one hundred twenty thousand (120,000) Shares in the aggregate. The
number of Shares subject to issuance at any time shall not exceed the number of
Shares remaining available for issuance under the Plan. All Shares of Common
Stock issued under the Plan shall reduce on a share-for-share basis the number
of Shares of Common Stock available for
2
<PAGE> 3
subsequent issuance under the Plan. The limitations established by this Section
4 shall be subject to adjustment in the manner provided in Section 7 hereof upon
the occurrence of an event specified therein.
5. ELIGIBILITY
All Directors shall be eligible to participate in the Plan.
6. PAYMENT OF COMPENSATION IN COMMON STOCK
(a) Stock in Lieu of Compensation. Eligible Directors may elect to
receive Shares of Common Stock in lieu of all of their cash Compensation.
(b) Manner and Timing of Election. Directors may elect to exchange one
hundred (100) percent of Compensation for Shares of Common Stock. Elections
shall be made in writing in a manner prescribed by the Board, in its discretion.
An initial election to participate in the Plan may be made by
participating Directors upon adoption of the Plan by the Board and thereafter
from time to time upon such terms and conditions as the Board may establish for
administrative convenience. The initial election shall become effective
immediately upon the Company's receipt of a properly completed election form, or
with respect to elections made following the initial elections made upon
adoption of the Plan, at such time as the Board shall determine and shall
continue until revoked. Subsequent elections to increase, decrease or revoke an
election currently in effect shall be made not later than ten days prior to the
end of each month and shall become effective on the first day of the immediately
succeeding month following the Company's receipt of a properly completed
election form. An election made for any period shall continue to be effective in
subsequent periods unless revoked in accordance with the Plan. Changes in
elections shall only be effective from and after the date of receipt by the
Company of a properly completed election form.
(c) Number of Shares. The number of Shares received shall be determined
by dividing the cash value of the Compensation elected to be exchanged by the
Fair Market Value of the Shares on the date the Compensation otherwise would
have been paid in cash. Compensation shall not be exchanged for a fractional
share.
(d) Issuance of Shares. If a Director has elected to receive cash
Compensation in the form of Common Stock, then a certificate for the number of
Shares of Common Stock to which the Director is entitled shall be issued on a
quarterly basis as soon as reasonably practical following the date which the
Director would have received cash Compensation. Notwithstanding the foregoing,
in the event that a sufficient number of Shares are not available under Section
4 of the Plan to satisfy all elections, Directors shall have their elections
reduced on a pro rata basis, as determined by the Board, in its discretion.
(e) Restrictions. The Shares issued pursuant to the election shall be
fully vested and transferable as of the date of issuance, subject to the
provisions of Section 8, below.
(f) Termination of Election. Directors may terminate an election for
future periods at any time upon thirty (30) days written notice to the Company.
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<PAGE> 4
(g) Certain Elections Subject to Board Approval. All elections made by
Directors under this Plan are subject to approval by the Board or the Committee.
7. RECAPITALIZATIONS
If the outstanding Shares of Common Stock of the Company are increased,
decreased, changed into or exchanged for a different number or kind of shares of
the Company through reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, combination of shares or other
transaction not involving the receipt of consideration by the Company, upon
authorization by the Board (or a committee of the Board, if applicable) an
appropriate and proportionate adjustment shall be made in the maximum number of
Shares of Common Stock issuable under the Plan. The conversion of any
convertible securities of the Company shall not be treated as a "transaction not
involving the receipt of consideration by the Company." Such adjustments shall
be made by the Board, whose determination shall be final, binding and
conclusive.
8. SECURITIES LAW REQUIREMENTS
(a) Securities Act Requirements. As a condition to the issuance of any
Shares under this Plan, the Company may require either (i) the Director to
furnish a written representation that he or she is acquiring the underlying
Shares for investment and not with a view to distribution to the public and such
other representations as the Company (or its counsel) shall determine to be
necessary or desirable to comply with any applicable federal or state securities
laws or (ii) that a registration statement registering the Shares issuable under
this Plan be effective. Such representations shall be required in cases where,
in the opinion of the Company (or its counsel), such representations are
necessary to enable the Company to comply with the provisions of the Securities
Act and/or any applicable state securities laws, and any stockholder who gives
such representations shall be released from such representations at such a time
as the Shares to which such representations apply are registered pursuant to the
Securities Act and qualified (or exempt) under applicable state securities laws.
Any Shares issued under the Plan shall be endorsed with all legends, if
any, required by applicable federal and state securities laws to be placed on
the Shares. The determination of which legends, if any, shall be placed upon the
Shares, shall be made by the Board (or a committee of the Board, if applicable)
in its sole discretion, and such decision shall be final and binding.
(b) Listing and Regulatory Requirements. Each issuance of Shares under
the Plan shall be subject to the further requirements that, if at any time the
Company shall determine in its discretion that the listing or qualification of
the Shares under any securities exchange requirements or under any applicable
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the issuance of
Shares, such Shares may not be issued unless and until such listing,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Company.
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<PAGE> 5
(c) Section 16. Transactions under this Plan are intended to comply with
all applicable conditions of Rule 16b-3 or its successors under the Exchange
Act. To the extent any provision of the Plan fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Company.
9. APPROVAL OF STOCKHOLDERS
The issuance of Shares under this Plan is conditioned on approval of
this Plan within twelve (12) months of the initial adoption of this Plan by the
Board either (i) by a majority of the votes cast at a duly held stockholders'
meeting at which a quorum representing a majority of all of the outstanding
voting stock of the Company is, either in person or by proxy, present and voting
or (ii) by the written consent of the holders of a majority of the outstanding
shares of the Company's voting stock. In the event such approval is not obtained
within such twelve (12) month period, any election made hereunder shall be
canceled and become null and void; any Compensation not exchanged for shares and
not previously paid in cash shall be paid to the Director who earned it with
interest at a reasonable rate, to be determined by the Board, in its discretion,
and any shares issued under the Plan shall be returned to the Company in
exchange for cash equal to the fair market value of the shares on the date of
return.
10. AMENDMENT AND TERMINATION
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 7 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company to the extent stockholder approval is necessary for the Plan to
satisfy the requirements of Rule 16b-3 under the Exchange Act or any Nasdaq or
securities exchange listing requirements.
(b) Unless required by applicable law, rule or regulation, the Board
shall not amend the Plan in the following respects without approval of the
stockholders in the manner specified in Section 9 hereof:
(i) to increase the maximum number of Shares subject to issuance
under the Plan (except pursuant to the provisions of Section 7 of the Plan); or
(ii) to change the persons who may receive Shares pursuant to the
Plan.
(c ) The Board in its discretion, may suspend or terminate the Plan at
any time. No elections shall be in effect under the Plan while the Plan is
suspended or after it is terminated.
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<PAGE> 6
IN WITNESS WHEREOF, pursuant to the due authorization of this Plan by
the Board, the Company has caused this Plan to be duly executed by its duly
authorized officer.
MOTORVAC TECHNOLOGIES, INC.
By:
---------------------------------
Lee W. Melody, President
6
<PAGE> 1
EXHIBIT 99.2
MOTORVAC TECHNOLOGIES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
APPROVED BY THE BOARD OF DIRECTORS NOVEMBER 5, 1998
APPROVED BY STOCKHOLDERS __________ __, 1999
DATE OF TERMINATION NOVEMBER 4, 2008
1. PURPOSE.
(a) The purpose of this Employee Stock Purchase Plan (the "Plan") is to provide
a means by which employees of MotorVac Technologies, Inc. (the "Company"), and
its Affiliates, as defined in subparagraph 1(b), which are designated as
provided in subparagraph 2(b), may be given an opportunity to purchase common
stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent corporation or
subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
(the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of its
employees, to secure and retain the services of new employees, and to provide
incentives for such persons to exert maximum efforts for the success of the
Company.
(d) The Company intends that the rights to purchase stock of the Company granted
under the Plan be considered options issued under an "employee stock purchase
plan" as that term is defined in Section 423(b) of the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors (the "Board") of
the Company unless and until the Board delegates administration to a Committee,
as provided in subparagraph 2(c). Whether or not the Board has delegated
administration, the Board shall have the final power to determine all questions
of policy and expediency that may arise in the administration of the Plan.
(b) The Board shall have the power, subject to, and within the limitations of,
the express provisions of the Plan:
(i) To determine when and how rights to purchase stock of the
Company shall be granted and the provisions of each offering of such rights
(which need not be identical).
(ii) To designate from time to time which Affiliates of the
Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the
1.
<PAGE> 2
exercise of this power, may correct any defect, omission or inconsistency in the
Plan, in a manner and to the extent it shall deem necessary or expedient to make
the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform such acts
as the Board deems necessary or expedient to promote the best interests of the
Company and its Affiliates and to carry out the intent that the Plan be treated
as an "employee stock purchase plan" within the meaning of Section 423 of the
Code.
(c) The Board may delegate administration of the Plan to a Committee composed of
not fewer than two (2) members of the Board (the "Committee"). If administration
is delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board,
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The Board may
abolish the Committee at any time and revest in the Board the administration of
the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 12 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to rights granted under
the Plan shall not exceed in the aggregate three hundred thirty-one thousand
four hundred ninety-two (331,492) shares of the Company's common stock (the
"Common Stock"). If any right granted under the Plan shall for any reason
terminate without having been exercised, the Common Stock not purchased under
such right shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired shares,
bought on the market or otherwise.
4. GRANT OF RIGHTS; OFFERING.
The Board or the Committee may from time to time grant or provide for
the grant of rights to purchase Common Stock of the Company under the Plan to
eligible employees (an "Offering") on a date or dates (the "Offering Date(s)")
selected by the Board or the Committee. Each Offering shall be in such form and
shall contain such terms and conditions as the Board or the Committee shall deem
appropriate, which shall comply with the requirements of Section 423(b)(5) of
the Code that all employees granted rights to purchase stock under the Plan
shall have the same rights and privileges. The terms and conditions of an
Offering shall be incorporated by reference into the Plan and treated as part of
the Plan. The provisions of separate Offerings need not be identical, but each
Offering shall include (through incorporation of the provisions of this Plan by
reference in the document comprising the Offering or otherwise) the period
during which the Offering shall be effective, which period shall not exceed
twenty-seven (27) months beginning with the Offering Date, and the substance of
the provisions contained in paragraphs 5 through 8, inclusive.
2.
<PAGE> 3
5. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company or, as the Board or
the Committee may designate as provided in subparagraph 2(b), to employees of
any Affiliate of the Company. Except as provided in subparagraph 5(b), an
employee of the Company or any Affiliate shall not be eligible to be granted
rights under the Plan unless, on the Offering Date, such employee has been in
the employ of the Company or any Affiliate for such continuous period preceding
such grant as the Board or the Committee may require, but in no event shall the
required period of continuous employment be greater than two (2) years. In
addition, unless otherwise determined by the Board or the Committee and set
forth in the terms of the applicable Offering, no employee of the Company or any
Affiliate shall be eligible to be granted rights under the Plan, unless, on the
Offering Date, such employee's customary employment with the Company or such
Affiliate is for at least twenty (20) hours per week and at least five (5)
months per calendar year.
(b) The Board or the Committee may provide that each person who, during the
course of an Offering, first becomes an eligible employee of the Company or
designated Affiliate will, on a date or dates specified in the Offering which
coincides with the day on which such person becomes an eligible employee or
occurs thereafter, receive a right under that Offering, which right shall
thereafter be deemed to be a part of that Offering. Such right shall have the
same characteristics as any rights originally granted under that Offering, as
described herein, except that:
(i) the date on which such right is granted shall be the
"Offering Date" of such right for all purposes, including determination of the
exercise price of such right;
(ii) the period of the Offering with respect to such right shall
begin on its Offering Date and end coincident with the end of such Offering; and
(iii) the Board or the Committee may provide that if such person
first becomes an eligible employee within a specified period of time before the
end of the Offering, he or she will not receive any right under that Offering.
(c) No employee shall be eligible for the grant of any rights under the Plan if,
immediately after any such rights are granted, such employee owns stock
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of the Company or of any Affiliate. For purposes of this
subparagraph 5(c), the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of any employee, and stock which such employee
may purchase under all outstanding rights and options shall be treated as stock
owned by such employee.
(d) An eligible employee may be granted rights under the Plan only if such
rights, together with any other rights granted under "employee stock purchase
plans" of the Company and any Affiliates, as specified by Section 423(b)(8) of
the Code, do not permit such employee's rights to purchase stock of the Company
or any Affiliate to accrue at a rate which exceeds twenty-five
3.
<PAGE> 4
thousand dollars ($25,000) of fair market value of such stock (determined at the
time such rights are granted) for each calendar year in which such rights are
outstanding at any time.
(e) Officers of the Company and any designated Affiliate shall be eligible to
participate in Offerings under the Plan; provided, however, that the Board may
provide in an Offering that certain employees who are highly compensated
employees within the meaning of Section 423(b)(4)(D) of the Code shall not be
eligible to participate.
6. RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each eligible employee, pursuant to an Offering made
under the Plan, shall be granted the right to purchase up to the number of
shares of Common Stock of the Company purchasable with a percentage designated
by the Board or the Committee not exceeding fifteen percent (15%) of such
employee's Earnings (as defined in subparagraph 7(a)) during the period which
begins on the Offering Date (or such later date as the Board or the Committee
determines for a particular Offering) and ends on the date stated in the
Offering, which date shall be no later than the end of the Offering. The Board
or the Committee shall establish one or more dates during an Offering (the
"Purchase Date(s)") on which rights granted under the Plan shall be exercised
and purchases of Common Stock carried out in accordance with such Offering.
(b) In connection with each Offering made under the Plan, the Board or the
Committee may specify a maximum number of shares that may be purchased by any
employee as well as a maximum aggregate number of shares that may be purchased
by all eligible employees pursuant to such Offering. In addition, in connection
with each Offering that contains more than one Purchase Date, the Board or the
Committee may specify a maximum aggregate number of shares which may be
purchased by all eligible employees on any given Purchase Date under the
Offering. If the aggregate purchase of shares upon exercise of rights granted
under the Offering would exceed any such maximum aggregate number, the Board or
the Committee shall make a pro rata allocation of the shares available in as
nearly a uniform manner as shall be practicable and as it shall deem to be
equitable.
(c) The purchase price of stock acquired pursuant to rights granted under the
Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of the fair
market value of the stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of the fair
market value of the stock on the Purchase Date.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in the Plan pursuant to an
Offering by delivering a participation agreement to the Company within the time
specified in the Offering, in such form as the Company provides. Each such
agreement shall authorize payroll deductions of
4.
<PAGE> 5
up to the maximum percentage specified by the Board or the Committee of such
employee's Earnings during the Offering. "Earnings" is defined as an employee's
wages (including amounts thereof elected to be deferred by the employee, that
would otherwise have been paid, under any arrangement established by the Company
that is intended to comply with Section 125, Section 401(k), Section 402(h) or
Section 403(b) of the Code or that provides non-qualified deferred
compensation), which shall exclude overtime pay, bonuses and commissions,
incentive pay, profit sharing, other remuneration paid directly to the employee,
the cost of employee benefits paid for by the Company or an Affiliate, education
or tuition reimbursements, imputed income arising under any group insurance or
benefit program, traveling expenses, business and moving expense reimbursements,
income received in connection with stock options, contributions made by the
Company or an Affiliate under any employee benefit plan, and similar items of
compensation, as determined by the Board or the Committee. The payroll
deductions made for each participant shall be credited to an account for such
participant under the Plan and shall be deposited with the general funds of the
Company. A participant may reduce (including to zero) or increase such payroll
deductions, and an eligible employee may begin such payroll deductions, after
the beginning of any Offering only as provided for in the Offering. A
participant may make additional payments into his or her account only if
specifically provided for in the Offering and only if the participant has not
had the maximum amount withheld during the Offering.
(b) At any time during an Offering, a participant may terminate his or her
payroll deductions under the Plan and withdraw from the Offering by delivering
to the Company a notice of withdrawal in such form as the Company provides. Such
withdrawal may be elected at any time prior to the end of the Offering except as
provided by the Board or the Committee in the Offering. Upon such withdrawal
from the Offering by a participant, the Company shall distribute to such
participant all of his or her accumulated payroll deductions (reduced to the
extent, if any, such deductions have been used to acquire stock for the
participant) under the Offering, without interest, and such participant's
interest in that Offering shall be automatically terminated. A participant's
withdrawal from an Offering will have no effect upon such participant's
eligibility to participate in any other Offerings under the Plan but such
participant will be required to deliver a new participation agreement in order
to participate in subsequent Offerings under the Plan.
(c) Rights granted pursuant to any Offering under the Plan shall terminate
immediately upon cessation of any participating employee's employment with the
Company and any designated Affiliate, for any reason, and the Company shall
distribute to such terminated employee all of his or her accumulated payroll
deductions (reduced to the extent, if any, such deductions have been used to
acquire stock for the terminated employee), under the Offering, without
interest.
(d) Rights granted under the Plan shall not be transferable by a participant
otherwise than by will or the laws of descent and distribution, or by a
beneficiary designation as provided in paragraph 14 and, otherwise during his or
her lifetime, shall be exercisable only by the person to whom such rights are
granted.
5.
<PAGE> 6
8. EXERCISE.
(a) On each Purchase Date specified therefor in the relevant Offering, each
participant's accumulated payroll deductions and other additional payments
specifically provided for in the Offering (without any increase for interest)
will be applied to the purchase of whole shares of common stock of the Company,
up to the maximum number of shares permitted pursuant to the terms of the Plan
and the applicable Offering, at the purchase price specified in the Offering. No
fractional shares shall be issued upon the exercise of rights granted under the
Plan. The amount, if any, of accumulated payroll deductions remaining in each
participant's account after the purchase of shares which is less than the amount
required to purchase one share of stock on the final Purchase Date of an
Offering shall be held in each such participant's account for the purchase of
shares under the next Offering under the Plan, unless such participant withdraws
from such next Offering, as provided in subparagraph 7(b), or is no longer
eligible to be granted rights under the Plan, as provided in paragraph 5, in
which case such amount shall be distributed to the participant after such final
Purchase Date, without interest. The amount, if any, of accumulated payroll
deductions remaining in any participant's account after the purchase of shares
which is equal to the amount required to purchase whole shares of common stock
on the final Purchase Date of an Offering shall be distributed in full to the
participant after such Purchase Date, without interest.
(b) No rights granted under the Plan may be exercised to any extent unless the
shares to be issued upon such exercise under the Plan (including rights granted
thereunder) are covered by an effective registration statement pursuant to the
Securities Act of 1933, as amended (the "Securities Act") and the Plan is in
material compliance with all applicable state, foreign and other securities and
other laws applicable to the Plan. If on a Purchase Date in any Offering
hereunder the Plan is not so registered or in such compliance, no rights granted
under the Plan or any Offering shall be exercised on such Purchase Date, and the
Purchase Date shall be delayed until the Plan is subject to such an effective
registration statement and such compliance, except that the Purchase Date shall
not be delayed more than twelve (12) months and the Purchase Date shall in no
event be more than twenty-seven (27) months from the Offering Date. If on the
Purchase Date of any Offering hereunder, as delayed to the maximum extent
permissible, the Plan is not registered and in such compliance, no rights
granted under the Plan or any Offering shall be exercised and all payroll
deductions accumulated during the Offering (reduced to the extent, if any, such
deductions have been used to acquire stock) shall be distributed to the
participants, without interest.
9. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan, the Company shall
keep available at all times the number of shares of common stock required to
satisfy such rights.
(b) The Company shall seek to obtain from each federal, state, foreign or other
regulatory commission or agency having jurisdiction over the Plan such authority
as may be required to issue and sell shares of stock upon exercise of the rights
granted under the Plan. If, after reasonable efforts, the Company is unable to
obtain from any such regulatory commission or
6.
<PAGE> 7
agency the authority which counsel for the Company deems necessary for the
lawful issuance and sale of stock under the Plan, the Company shall be relieved
from any liability for failure to issue and sell stock upon exercise of such
rights unless and until such authority is obtained.
10. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted under the
Plan shall constitute general funds of the Company.
11. RIGHTS AS A STOCKHOLDER.
A participant shall not be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to rights granted
under the Plan unless and until the participant's shareholdings acquired upon
exercise of rights under the Plan are recorded in the books of the Company.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to any
rights granted under the Plan (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company), the Plan and outstanding rights will be
appropriately adjusted in the class(es) and maximum number of shares subject to
the Plan and the class(es) and number of shares and price per share of stock
subject to outstanding rights. Such adjustments shall be made by the Board or
the Committee, the determination of which shall be final, binding and
conclusive. (The conversion of any convertible securities of the Company shall
not be treated as a "transaction not involving the receipt of consideration by
the Company.")
(b) In the event of: (1) a dissolution or liquidation of the Company; (2) a sale
of all or substantially all of the assets of the Company; (3) a merger or
consolidation in which the Company is not the surviving corporation; (4) a
reverse merger in which the Company is the surviving corporation but the shares
of common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise; (5) an acquisition by any person, entity or group within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any comparable successor provisions (excluding
any employee benefit plan, or related trust, sponsored or maintained by the
Company or a Subsidiary) of the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act, or comparable successor rule) of
securities of the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of Directors; or (6) the
individuals who, as of the date of the adoption of this Plan, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least fifty
percent (50%) of the Board (if the election, or nomination for election, by the
Company's stockholders of any new director was approved by a vote of at least
fifty percent (50%) of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board), then, as determined by the Board
in its
7.
<PAGE> 8
sole discretion, (i) any surviving corporation may assume outstanding rights or
substitute similar rights for those under the Plan, (ii) such rights may
continue in full force and effect, or (iii) participants' accumulated payroll
deductions may be used to purchase common stock immediately prior to the
transaction described above and the participants' rights under the ongoing
Offering terminated.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan. However,
except as provided in paragraph 12 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for rights under the
Plan;
(ii) Modify the provisions as to eligibility for participation in
the Plan (to the extent such modification requires stockholder approval in order
for the Plan to obtain employee stock purchase plan treatment under Section 423
of the Code or to comply with the requirements of Rule 16b-3 promulgated under
the Exchange Act ("Rule 16b-3")); or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to obtain employee stock
purchase plan treatment under Section 423 of the Code or to comply with the
requirements of Rule 16b-3.
It is expressly contemplated that the Board may amend the Plan in any respect
the Board deems necessary or advisable to provide eligible employees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee stock purchase plans
and/or to bring the Plan and/or rights granted under it into compliance
therewith.
(b) Rights and obligations under any rights granted before amendment of the Plan
shall not be impaired by any amendment of the Plan, except with the consent of
the person to whom such rights were granted, or except as necessary to comply
with any laws or governmental regulations, or except as necessary to ensure that
the Plan and/or rights granted under the Plan comply with the requirements of
Section 423 of the Code.
14. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who is to
receive any shares and cash, if any, from the participant's account under the
Plan in the event of such participant's death subsequent to the end of an
Offering but prior to delivery to the participant of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death during an Offering.
8.
<PAGE> 9
(b) Such designation of beneficiary may be changed by the participant at any
time by written notice. In the event of the death of a participant and in the
absence of a beneficiary validly designated under the Plan who is living at the
time of such participant's death, the Company shall deliver such shares and/or
cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its sole discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
15. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board in its discretion, may suspend or terminate the Plan at any time.
No rights may be granted under the Plan while the Plan is suspended or after it
is terminated.
(b) Rights and obligations under any rights granted while the Plan is in effect
shall not be altered or impaired by suspension or termination of the Plan,
except as expressly provided in the Plan or with the consent of the person to
whom such rights were granted, or except as necessary to comply with any laws or
governmental regulation, or except as necessary to ensure that the Plan and/or
rights granted under the Plan comply with the requirements of Section 423 of the
Code.
(c) Notwithstanding the foregoing, the Plan shall terminate and no rights may be
granted under the Plan after November 4, 2008.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective on December 1, 1998, but no rights
granted under the Plan shall be exercised unless and until the Plan has been
approved by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted by the Board or the Committee, which date may
be prior to the Effective Date.
9.
<PAGE> 10
MOTORVAC TECHNOLOGIES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN OFFERING
ADOPTED NOVEMBER 5, 1998
1. GRANT; OFFERING DATE.
(a) The Board of Directors of MotorVac Technologies, Inc. (the "Company"),
pursuant to the Company's 1998 Employee Stock Purchase Plan (the "Plan"), hereby
authorizes the grant of rights to purchase shares of the common stock of the
Company ("Common Stock") to all Eligible Employees (an "Offering"). The first
Offering shall commence on December 1, 1998 and end on March 31, 1999 (the
"Initial Offering"). Thereafter, Offerings shall begin on the first day of every
calendar quarter (January 1, April 1, July 1 and October 1), beginning April 1,
1999, and shall end on the last day of such calendar quarter (March 31, June 30,
September 30, and December 31). The first day of an Offering is that Offering's
"Offering Date." If an Offering Date does not fall on a day during which the
Common Stock is actively traded, then the Offering Date shall be the next
succeeding day during which the Common Stock is actively traded.
(b) Prior to the commencement of any Offering, the Board of Directors (or
the Committee described in subparagraph 13(b) of the Plan, if any) may change
any or all terms of such Offering and any subsequent Offerings. The granting of
rights pursuant to each Offering hereunder shall occur on each respective
Offering Date unless, prior to such date (a) the Board of Directors (or such
Committee) determines that such Offering shall not occur, or (b) no shares
remain available for issuance under the Plan in connection with the Offering.
2. ELIGIBLE EMPLOYEES.
All employees of the Company and each of its Affiliates (as defined in the
Plan) incorporated in the United States, and of any other Affiliate as the Board
may designate from time to time, shall be granted rights to purchase Common
Stock under each Offering on the Offering Date of such Offering, provided that
each such employee otherwise meets the employment requirements of subparagraph
5(a) of the Plan, except that employees of the Company or any Affiliate shall be
granted rights under the Plan, on the Offering Date, even if such employee's
customary employment with the Company or such Affiliate is for less than twenty
(20) hours per week or less than five (5) months per calendar year (an "Eligible
Employee"). Notwithstanding the foregoing, 5% stockholders (including ownership
through unexercised options) described in subparagraph 5(b) of the Plan shall
not be eligible to participate.
3. RIGHTS.
(a) Subject to the limitations contained herein and in the Plan, on each
Offering Date each Eligible Employee shall be granted the right to purchase the
number of shares of Common
<PAGE> 11
Stock purchasable with up to ten percent (10%) of such Participant's Earnings
(as defined in the Plan) paid during the period of such Offering.
(b) Notwithstanding the foregoing, no employee shall be granted an option
under the Plan which permits such employee's right to purchase stock under this
Plan and all other employee stock purchase plans (described in Section 423 of
the Code) of the Company to accrue at a rate which exceeds twenty five thousand
dollars ($25,000) of fair market value of such stock (determined at the time
such option is granted) for each calendar year in which such option is
outstanding at any time.
(c) The maximum number of shares that may be purchased by an eligible
employee on a Purchase Date shall not exceed ten percent (10%) of the initial
share reserve established pursuant to subparagraph 3(a) of the Plan. The maximum
aggregate number of shares available to be purchased by all Eligible Employees
under an Offering shall be the number of shares remaining available under the
Plan on the Offering Date. If the aggregate purchase of shares of Common Stock
upon exercise of rights granted under the Offering would exceed the maximum
aggregate number of shares available, the Board shall make a pro rata allocation
of the shares available in a uniform and equitable manner.
4. PURCHASE PRICE.
The purchase price of the Common Stock under the Offering shall be the
lesser of eighty-five percent (85%) of the fair market value of the Common Stock
on the Offering Date (or eighty-five percent (85%) of the fair market value of
the Common Stock on the first day on which the Company's Common Stock is
actively traded that immediately follows the Offering Date if an Offering Date
does not fall on a day during which the Company's Common Stock is actively
traded) or eighty-five percent (85%) of the fair market value of the Common
Stock on the Purchase Date (or eighty-five percent (85%) of the fair market
value of the Common Stock on the first day on which the Company's Common Stock
is actively traded that immediately precedes the Purchase Date if an Purchase
Date does not fall on a day during which the Company's Common Stock is actively
traded).
5. PARTICIPATION.
(a) An Eligible Employee may elect to participate in an Offering at the
beginning of the Offering. An Eligible Employee shall become a participant in
the Plan by delivering an agreement authorizing payroll deductions. Such
deductions shall be made each pay period and must be in whole percentages not to
exceed ten percent (10%) of Earnings. A participant may not make additional
payments into his or her account. The agreement shall be made on such enrollment
form as the Company or a designated Affiliate provides, and must be delivered to
the Company or designated Affiliate before the Offering Date to be effective for
such Offering, unless a later time for filing the enrollment form is set by the
Company for all Eligible Employees with respect to a given Offering Date. As to
the Initial Offering, the time for filing an enrollment form and commencing
participation for individuals who are Eligible Employees on the Offering Date
for the Initial Offering shall be determined by the Company and communicated to
such Eligible Employees.
2
<PAGE> 12
(b) A participant may withdraw from an Offering and receive his or her
accumulated payroll deductions from the Offering (reduced to the extent, if any,
such deductions have been used to acquire Common Stock for the Participant on
any prior Purchase Dates), without interest, at any time prior to the end of the
Offering, excluding the fifteen (15) day period immediately preceding the
Purchase Date, by delivering a withdrawal notice to the Company or designated
Affiliate in such form as the Company of designated Affiliate provides. A
participant who has withdrawn from an Offering shall not again participate in
such Offering, but may participate in subsequent Offerings under the Plan by
submitting a new participation agreement in accordance with the terms thereof.
6. PURCHASES.
Subject to the limitations contained herein, on each Purchase Date, each
participant's accumulated payroll deductions (without any increase for interest)
shall be applied to the purchase of whole shares of Common Stock, up to the
maximum number of shares permitted under the Plan and the Offering. "Purchase
Date" shall be defined as the last day of each calendar quarter (March 31, June
30, September 30 and December 31). If a Purchase Date does not fall on a day
during which the Common Stock is actively traded then the Purchase Date shall be
the nearest prior day on which the Common Stock is actively traded.
7. NOTICES.
Any notices or agreements provided for in the Offering or the Plan shall be
given in writing, in a form provided by the Company, and unless specifically
provided for in the Plan or this Offering shall be deemed effectively given upon
receipt or, in the case of notices and agreements delivered by the Company, five
(5) days after deposit in the United States mail, postage prepaid.
8. EXERCISE CONTINGENT ON STOCKHOLDER APPROVAL.
The rights granted under an Offering are subject to the approval of the
Plan by the stockholders of the Company as required for the Plan to obtain
employee stock purchase plan treatment under Section 423 of the Code or to
comply with the requirements of Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended.
9. OFFERING SUBJECT TO PLAN.
Each Offering is subject to all the provisions of the Plan, and its
provisions are hereby made a part of the Offering, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan. In the event of any conflict
between the provisions of an Offering and those of the Plan (including
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan), the provisions of the Plan
shall control.
3
<PAGE> 1
EXHIBIT 99.4
FIRST AMENDMENT TO MOTORVAC TECHNOLOGIES, INC.
1996 STOCK INCENTIVE AWARD PLAN
THIS FIRST AMENDMENT TO MOTORVAC TECHNOLOGIES, INC. 1996 STOCK INCENTIVE
AWARD PLAN (the "First Amendment") is hereby adopted by Motorvac Technologies,
Inc., a Delaware corporation (the "Company"), effective as of August 15, 1996.
R E C I T A L S
A. The Motorvac Technologies, Inc. 1996 Stock Incentive Award Plan (the
"Plan") was adopted by the Board of Directors of the Company (the "Board") and
approved by the written consent of the stockholders of the Company in February
1996.
B. Article XIII of the Plan provides that the Board may amend the Plan
at any time, subject to the approval of the stockholders of the Company in
certain circumstances, none of which apply to the amendments being effected
hereby.
C. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Plan in order to (i)
provide that Incentive Awards (as defined in the Plan) shall become exercisable
in full upon the occurrence of a Terminating Transaction (as defined in the
Plan) and (ii) conform the provisions of the Plan to the recently adopted
amendments to Rule 16b-3 ("Rule 16b-3"), promulgated under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act").
AMENDMENT
1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the same
meanings given to such terms in the Plan.
2. AMENDMENTS.
The Plan is hereby amended as follows:
(a) The definition of "Disinterested Person" in Article II of the Plan
is hereby deleted and is replaced with the following definition: "NON-EMPLOYEE
DIRECTOR. The term "Non-Employee Director" shall mean a Non-Employee Director as
that term is defined in Rule 16b-3." Each reference to the term "Disinterested
Person" in the Plan shall hereafter be amended to refer to a "Non-Employee
Director."
(b) The definition of "Eligible Person" in Article II of the Plan is
hereby amended and restated to read in its entirety as follows: "ELIGIBLE
PERSON. The term
1.
<PAGE> 2
"Eligible Person" shall mean any employee, consultant, officer or director of
any Participating Company, including officers who are directors."
(c) Section 6.03(a) of the Plan is hereby amended to read in its
entirety as follows: "(a) VESTING. The Board (or the Committee, if applicable)
shall determine when a Right shall vest or become exercisable, provided that
from and after such time as the Common Stock is registered under the Exchange
Act and, to the extent necessary to comply with the provisions of Rule 16b-3, no
Right granted under this Plan shall be exercisable until six months and one day
after the Right Grant Date."
(d) Section 6.03(b) is hereby amended and restated to read in its
entirety as follows: "(b) RULE 16b-3 LIMITATIONS. The Board (or the Committee,
if applicable) may, at the time a Right is granted, impose such conditions on
the exercise of a Right as may be required to comply with Rule 16b-3 (or any
successor provision) to the extent such provision is applicable."
(e) Section 7.01(c) is hereby amended so that the second sentence of
such section is deleted in its entirety.
(f) Section 7.01(e) is hereby deleted in its entirety.
(g) Section 8.01(c) is hereby amended so that the second sentence of
such section is deleted in its entirety.
(h) Section 8.01(f) is hereby deleted in its entirety.
(i) Article IX(b)(v) is hereby deleted in its entirety and the phrase
")other than those imposed under subparagraph (b)(v))" in Article IX(c) is
hereby deleted.
(j) Article X is hereby amended so that the last sentence of such
article is deleted in its entirety.
(k) Article XI is hereby amended so that the last sentence of such
article is deleted in its entirety.
(l) Section 14.01(b) is hereby amended to read in its entirety as
follows: "The Right Termination Date or Option Termination Date, as applicable."
(m) Section 14.06 is hereby amended and restated in its entirety to read
as follows:
"14.06 INCENTIVE STOCK OPTIONS NOT TRANSFERABLE. Incentive Stock Options
granted under this Plan may not be sold, pledged, hypothecated, assigned,
encumbered, transferred by gift or otherwise transferred or alienated in any
manner, either voluntarily or involuntarily, or by operation of law, other than
by will or the laws of
2.
<PAGE> 3
descent and distribution, and may be exercised during the lifetime of a
Participant only by such Participant. Upon any attempt to transfer Incentive
Stock Options other than by will or the laws of descent and distribution, or to
assign, pledge, hypothecate or otherwise dispose of Incentive Stock Options, or
upon the levy of any execution, attachment or similar process thereon, such
Incentive Stock Options shall become null and void and any subsequent attempted
exercise of the Incentive Stock Options shall be ineffective against the
Company. Any other Incentive Award (other than an Incentive Stock Option or a
Right granted in tandem with an Incentive Stock Option ) may be assigned in
whole or in part in accordance with the terms of the applicable Option
Agreement. The terms of the Incentive Awards shall be binding upon the
executors, administrators, heirs, devisees, legatees, legal representatives,
successors and assigns of the Participants."
(n) Section 14.09 is hereby amended and restated in its entirety to read
as follows:
"14.09 ACCELERATION UPON A TERMINATING TRANSACTION. Upon the occurrence
of a Terminating Transaction and for a period of ten (10) days thereafter,
Participants holding outstanding Incentive Awards shall have the right to
exercise his or her Incentive Awards to the full extent not theretofore
exercised, including any Incentive Awards which have not yet become Vested
Incentive Awards (subject, however, to the provisions of Sections 6.03(a) and
8.01(d) above). For purposes of determining the cash payment pursuant to Section
6.04(a) hereof upon an exercise of a Right: the Fair Market Value of a share of
Common Stock on the Exercise Date shall equal the highest reported sales price
of a share of Common Stock within the sixty (60) day period immediately
preceding the date of the Terminating Transaction, as reported on any securities
exchange or quotation reporting system upon which the shares of Common Stock are
traded or included."
3. MISCELLANEOUS.
Except to the extent set forth herein, the Plan shall remain unchanged
and in full force and effect. This First Amendment shall be governed by and
construed in accordance with the laws of the State of California and may only be
amended by a written instrument executed on behalf of the Company. In the event
of any inconsistency between the terms of this First Amendment and the terms of
the Plan, the terms of this First Amendment shall control.
I hereby certify that the foregoing First Amendment was duly adopted by
the Board of Directors of the Company on August 15, 1996.
Executed as of this 15th day of August, 1996.
--------------------------------------
Allan T. Maguire, Secretary
3.
<PAGE> 1
EXHIBIT 99.6
FIRST AMENDMENT TO 1996 DIRECTOR NON-QUALIFIED
STOCK OPTION AGREEMENT OF MOTORVAC TECHNOLOGIES, INC.
THIS FIRST AMENDMENT TO 1996 DIRECTOR NON-QUALIFIED STOCK OPTION
AGREEMENT OF MOTORVAC TECHNOLOGIES, INC. (the "Amendment") is made by and
between Motorvac Technologies, Inc., a Delaware corporation (the "Company"), and
_________________, a director of the Company (the "Optionee"), effective as of
August 15, 1996.
WHEREAS the Company and Optionee have previously entered into a Director
Non-Qualified Stock Option Agreement (the "Stock Option Agreement");
WHEREAS, the Board of Directors of the Company has adopted amendments to
the Motorvac Technologies, Inc. 1996 Stock Incentive Award Plan (the "Plan") to
provide for the immediate exercisability of all outstanding options under the
Plan upon the occurrence of a Terminating Transaction (as defined in the Plan);
and
WHEREAS, the Company and Optionee desire to enter into this Amendment in
order to amend the Stock Option Agreement to provide that all outstanding
options evidenced by the Stock Option Agreement shall become immediately
exercisable upon the occurrence of a Terminating Transaction.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. AMENDMENT.
(a) Section 3.3(f) of the Stock Option Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) The expiration of ten (10) days from the effective date of a
Terminating Transaction, unless in connection with such Terminating Transaction,
the Optionee suffers a Termination of Directorship, in which case the provisions
of Sections 3.3(d)-(e) hereof, as applicable, shall be controlling with respect
to the expiration of the Option. At least ten (10) days prior to the effective
date of any Terminating Transaction, the Committee shall give the Optionee
notice of such event if the Option has then neither been fully exercised nor
become unexercisable under this Section 3.3."
(b) Section 3.4 of the Stock Option Agreement is hereby amended and
restated to read in its entirety as follows:
1.
<PAGE> 2
"SECTION 3.4 - ACCELERATION OF EXERCISABILITY. Upon the occurrence of a
Terminating Transaction and for a period of ten (10) days thereafter, this
Option shall be exercisable as to all of the shares covered hereby,
notwithstanding that this Option shall not yet have become fully exercisable
under Section 3.1(a); PROVIDED, HOWEVER, that this acceleration of
exercisability shall not take place if:
(a) This Option becomes unexercisable under Section 3.3 prior to
the effective date of the Terminating Transaction; or
(b) In connection with such Terminating Transaction, provision is
made for an assumption of this Option or a substitution therefor of a new option
by a successor corporation or a Parent Corporation or Subsidiary Corporation of
such corporation.
The Committee may make such determinations and adopt such rules and conditions
as it, in its absolute discretion, deems appropriate in connection with such
acceleration of exercisability, including, but not limited to, provisions to
ensure that any such acceleration and resulting exercise shall be conditioned
upon the consummation of the contemplated Terminating Transaction and
determinations regarding whether provisions for assumption or substitution have
been made in accordance with subsection (b) above."
2. MISCELLANEOUS. Except as amended hereby, the Stock Option Agreement remains
in full force and effect. This Amendment shall be governed by and construed in
accordance with the laws of the State of California and may be amended only by a
written instrument executed by each of the parties hereto. In the event of any
inconsistency between the Stock Option Agreement and this Amendment, this
Amendment shall control.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by
the parties hereto as of the date first above written.
MOTORVAC TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
BY:
--------------------------------
ALLAN T. MAGUIRE
VICE PRESIDENT OF FINANCE
OPTIONEE
-----------------------------------
PRINT NAME:
------------------------
2.
<PAGE> 1
EXHIBIT 99.8
FIRST AMENDMENT TO 1996 EMPLOYEE NON-QUALIFIED
STOCK OPTION AGREEMENT OF MOTORVAC TECHNOLOGIES, INC.
THIS FIRST AMENDMENT TO 1996 EMPLOYEE NON-QUALIFIED STOCK OPTION
AGREEMENT OF MOTORVAC TECHNOLOGIES, INC. (the "Amendment") is made by and
between Motorvac Technologies, Inc., a Delaware corporation (the "Company"), and
_________________, an employee of the Company (the "Optionee"), effective as of
August 15, 1996.
WHEREAS the Company and Optionee have previously entered into an
Employee Non-Qualified Stock Option Agreement (the "Stock Option Agreement");
WHEREAS, the Board of Directors of the Company has adopted amendments to
the Motorvac Technologies, Inc. 1996 Stock Incentive Award Plan (the "Plan") to
provide for the immediate exercisability of all outstanding options under the
Plan upon the occurrence of a Terminating Transaction (as defined in the Plan);
and
WHEREAS, the Company and Optionee desire to enter into this Amendment in
order to amend the Stock Option Agreement to provide that all outstanding
options evidenced by the Stock Option Agreement shall become immediately
exercisable upon the occurrence of a Terminating Transaction.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. AMENDMENT.
(a) Section 3.3(f) of the Stock Option Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) The expiration of ten (10) days from the effective date of a
Terminating Transaction, unless in connection with such Terminating Transaction,
the Optionee suffers a Termination of Employment, in which case the provisions
of Sections 3.3(d)-(e) hereof, as applicable, shall be controlling with respect
to the expiration of the Option. At least ten (10) days prior to the effective
date of any Terminating Transaction, the Committee shall give the Optionee
notice of such event if the Option has then neither been fully exercised nor
become unexercisable under this Section 3.3."
(b) Section 3.4 of the Stock Option Agreement is hereby amended and
restated to read in its entirety as follows:
1.
<PAGE> 2
"SECTION 3.4 - ACCELERATION OF EXERCISABILITY. Upon the occurrence of a
Terminating Transaction and for a period of ten (10) days thereafter, this
Option shall be exercisable as to all of the shares covered hereby,
notwithstanding that this Option shall not yet have become fully exercisable
under Section 3.1(a); PROVIDED, HOWEVER, that this acceleration of
exercisability shall not take place if:
(a) This Option becomes unexercisable under Section 3.3 prior to
the effective date of the Terminating Transaction; or
(b) In connection with such Terminating Transaction, provision is
made for an assumption of this Option or a substitution therefor of a new option
by a successor corporation or a Parent Corporation or Subsidiary Corporation of
such corporation.
The Committee may make such determinations and adopt such rules and conditions
as it, in its absolute discretion, deems appropriate in connection with such
acceleration of exercisability, including, but not limited to, provisions to
ensure that any such acceleration and resulting exercise shall be conditioned
upon the consummation of the contemplated Terminating Transaction and
determinations regarding whether provisions for assumption or substitution have
been made in accordance with subsection (b) above."
2. MISCELLANEOUS. Except as amended hereby, the Stock Option Agreement remains
in full force and effect. This Amendment shall be governed by and construed in
accordance with the laws of the State of California and may be amended only by a
written instrument executed by each of the parties hereto. In the event of any
inconsistency between the Stock Option Agreement and this Amendment, this
Amendment shall control.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by
the parties hereto as of the date first above written.
MOTORVAC TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
BY:
-----------------------------
ALLAN T. MAGUIRE
VICE PRESIDENT OF FINANCE
OPTIONEE
--------------------------------
PRINT NAME:
---------------------
2.
<PAGE> 1
EXHIBIT 99.11
FIRST AMENDMENT TO MOTORVAC TECHNOLOGIES, INC.
1994 STOCK INCENTIVE AWARD PLAN
THIS FIRST AMENDMENT TO MOTORVAC TECHNOLOGIES, INC. 1994 STOCK INCENTIVE
AWARD PLAN (the "First Amendment") is hereby adopted by Motorvac Technologies,
Inc., a Delaware corporation (the "Company"), effective as of August 15, 1994.
R E C I T A L S
A. The Motorvac Technologies, Inc. 1994 Stock Incentive Award Plan (the
"Plan") was adopted by the Board of Directors of the Company (the "Board") and
approved by the written consent of the stockholders of the Company in February
1994.
B. Article XIII of the Plan provides that the Board may amend the Plan
at any time, subject to the approval of the stockholders of the Company in
certain circumstances, none of which apply to the amendments being effected
hereby.
C. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Plan in order to (i)
provide that Incentive Awards (as defined in the Plan) shall become exercisable
in full upon the occurrence of a Terminating Transaction (as defined in the
Plan) and (ii) conform the provisions of the Plan to the recently adopted
amendments to Rule 16b-3 ("Rule 16b-3"), promulgated under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act").
AMENDMENT
1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the same
meanings given to such terms in the Plan.
2. AMENDMENTS.
The Plan is hereby amended as follows:
(a) The definition of "Disinterested Person" in Article II of the Plan
is hereby deleted and is replaced with the following definition: "NON-EMPLOYEE
DIRECTOR. The term "Non-Employee Director" shall mean a Non-Employee Director as
that term is defined in Rule 16b-3." Each reference to the term "Disinterested
Person" in the Plan shall hereafter be amended to refer to a "Non-Employee
Director."
(b) The definition of "Eligible Person" in Article II of the Plan is
hereby amended and restated to read in its entirety as follows: "ELIGIBLE
PERSON. The term
1.
<PAGE> 2
"Eligible Person" shall mean any employee, consultant, officer or director of
any Participating Company, including officers who are directors."
(c) Section 6.03(a) of the Plan is hereby amended to read in its
entirety as follows: "(a) VESTING. The Board (or the Committee, if applicable)
shall determine when a Right shall vest or become exercisable, provided that
from and after such time as the Common Stock is registered under the Exchange
Act and, to the extent necessary to comply with the provisions of Rule 16b-3, no
Right granted under this Plan shall be exercisable until six months and one day
after the Right Grant Date."
(d) Section 6.03(b) is hereby amended and restated to read in its
entirety as follows: "(b) RULE 16b-3 LIMITATIONS. The Board (or the Committee,
if applicable) may, at the time a Right is granted, impose such conditions on
the exercise of a Right as may be required to comply with Rule 16b-3 (or any
successor provision) to the extent such provision is applicable."
(e) Section 7.01(c) is hereby amended so that the second sentence of
such section is deleted in its entirety.
(f) Section 7.01(e) is hereby deleted in its entirety.
(g) Section 8.01(c) is hereby amended so that the second sentence of
such section is deleted in its entirety:
(h) Section 8.01(f) is hereby deleted in its entirety.
(i) Article IX(b)(v) is hereby deleted in its entirety and the phrase
"(other than those imposed under subparagraph(b)(v))" in Article IX(c) is
hereby deleted.
(j) Article X is hereby amended so that the last sentence of such
article is deleted in its entirety.
(k) Article XI is hereby amended so that the last sentence of such
article is deleted in its entirety.
(l) Section 14.01(b) is hereby amended to read in its entirety as
follows: "The Right Termination Date or Option Termination Date, as applicable."
(m) Section 14.06 is hereby amended and restated in its entirety to read
as follows:
"14.06 INCENTIVE STOCK OPTIONS NOT TRANSFERABLE. Incentive Stock Options
granted under this Plan may not be sold, pledged, hypothecated, assigned,
encumbered, transferred by gift or otherwise transferred or alienated in any
manner, either voluntarily or involuntarily, or by operation of law, other than
by will or the laws of
2.
<PAGE> 3
descent and distribution, and may be exercised during the lifetime of a
Participant only by such Participant. Upon any attempt to transfer Incentive
Stock Options other than by will or the laws of descent and distribution, or to
assign, pledge, hypothecate or otherwise dispose of Incentive Stock Options, or
upon the levy of any execution, attachment or similar process thereon, such
Incentive Stock Options shall become null and void and any subsequent attempted
exercise of the Incentive Stock Options shall be ineffective against the
Company. Any other Incentive Award (other than an Incentive Stock Option or a
Right granted in tandem with an Incentive Stock Option ) may be assigned in
whole or in part in accordance with the terms of the applicable Option
Agreement. The terms of the Incentive Awards shall be binding upon the
executors, administrators, heirs, devisees, legatees, legal representatives,
successors and assigns of the Participants."
(n) Section 14.09 is hereby amended and restated in its entirety to read
as follows:
"14.09 ACCELERATION UPON A TERMINATING TRANSACTION. Upon the occurrence
of a Terminating Transaction and for a period of ten (10) days thereafter,
Participants holding outstanding Incentive Awards shall have the right to
exercise his or her Incentive Awards to the full extent not theretofore
exercised, including any Incentive Awards which have not yet become Vested
Incentive Awards (subject, however, to the provisions of Sections 6.03(a) and
8.01(d) above). For purposes of determining the cash payment pursuant to Section
6.04(a) hereof upon an exercise of a Right: the Fair Market Value of a share of
Common Stock on the Exercise Date shall equal the highest reported sales price
of a share of Common Stock within the sixty (60) day period immediately
preceding the date of the Terminating Transaction, as reported on any securities
exchange or quotation reporting system upon which the shares of Common Stock are
traded or included."
3. MISCELLANEOUS.
Except to the extent set forth herein, the Plan shall remain unchanged
and in full force and effect. This First Amendment shall be governed by and
construed in accordance with the laws of the State of California and may only be
amended by a written instrument executed on behalf of the Company. In the event
of any inconsistency between the terms of this First Amendment and the terms of
the Plan, the terms of this First Amendment shall control.
I hereby certify that the foregoing First Amendment was duly adopted by
the Board of Directors of the Company on August 15, 1996.
Executed as of this 15th day of August, 1996.
-----------------------------------
Allan T. Maguire, Secretary
3.
<PAGE> 1
EXHIBIT 99.13
FIRST AMENDMENT TO 1994 DIRECTOR NON-QUALIFIED
STOCK OPTION AGREEMENT OF MOTORVAC TECHNOLOGIES, INC.
THIS FIRST AMENDMENT TO 1994 DIRECTOR NON-QUALIFIED STOCK OPTION
AGREEMENT OF MOTORVAC TECHNOLOGIES, INC. (the "Amendment") is made by and
between Motorvac Technologies, Inc., a Delaware corporation (the "Company"), and
_________________, a director of the Company (the "Optionee"), effective as of
August 15, 1996.
WHEREAS the Company and Optionee have previously entered into a Director
Non-Qualified Stock Option Agreement (the "Stock Option Agreement");
WHEREAS, the Board of Directors of the Company has adopted amendments to
the Motorvac Technologies, Inc. 1994 Stock Incentive Award Plan (the "Plan") to
provide for the immediate exercisability of all outstanding options under the
Plan upon the occurrence of a Terminating Transaction (as defined in the Plan);
and
WHEREAS, the Company and Optionee desire to enter into this Amendment in
order to amend the Stock Option Agreement to provide that all outstanding
options evidenced by the Stock Option Agreement shall become immediately
exercisable upon the occurrence of a Terminating Transaction.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. AMENDMENT.
(a) Section 3.3(f) of the Stock Option Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) The expiration of ten (10) days from the effective date of a
Terminating Transaction, unless in connection with such Terminating Transaction,
the Optionee suffers a Termination of Directorship, in which case the provisions
of Sections 3.3(d)-(e) hereof, as applicable, shall be controlling with respect
to the expiration of the Option. At least ten (10) days prior to the effective
date of any Terminating Transaction, the Committee shall give the Optionee
notice of such event if the Option has then neither been fully exercised nor
become unexercisable under this Section 3.3."
(b) Section 3.4 of the Stock Option Agreement is hereby amended and
restated to read in its entirety as follows:
1.
<PAGE> 2
"SECTION 3.4 - ACCELERATION OF EXERCISABILITY. Upon the occurrence of a
Terminating Transaction and for a period of ten (10) days thereafter, this
Option shall be exercisable as to all of the shares covered hereby,
notwithstanding that this Option shall not yet have become fully exercisable
under Section 3.1(a); PROVIDED, HOWEVER, that this acceleration of
exercisability shall not take place if:
(a) This Option becomes unexercisable under Section 3.3 prior to
the effective date of the Terminating Transaction; or
(b) In connection with such Terminating Transaction, provision is
made for an assumption of this Option or a substitution therefor of a new option
by a successor corporation or a Parent Corporation or Subsidiary Corporation of
such corporation.
The Committee may make such determinations and adopt such rules and conditions
as it, in its absolute discretion, deems appropriate in connection with such
acceleration of exercisability, including, but not limited to, provisions to
ensure that any such acceleration and resulting exercise shall be conditioned
upon the consummation of the contemplated Terminating Transaction and
determinations regarding whether provisions for assumption or substitution have
been made in accordance with subsection (b) above."
2. MISCELLANEOUS. Except as amended hereby, the Stock Option Agreement remains
in full force and effect. This Amendment shall be governed by and construed in
accordance with the laws of the State of California and may be amended only by a
written instrument executed by each of the parties hereto. In the event of any
inconsistency between the Stock Option Agreement and this Amendment, this
Amendment shall control.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by
the parties hereto as of the date first above written.
MOTORVAC TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
BY:
-------------------------------
ALLAN T. MAGUIRE
VICE PRESIDENT OF FINANCE
OPTIONEE
----------------------------------
PRINT NAME:
-----------------------
2.
<PAGE> 1
EXHIBIT 99.15
FIRST AMENDMENT TO 1994 EMPLOYEE NON-QUALIFIED
STOCK OPTION AGREEMENT OF MOTORVAC TECHNOLOGIES, INC.
THIS FIRST AMENDMENT TO 1994 EMPLOYEE NON-QUALIFIED STOCK OPTION
AGREEMENT OF MOTORVAC TECHNOLOGIES, INC. (the "Amendment") is made by and
between Motorvac Technologies, Inc., a Delaware corporation (the "Company"), and
_________________, an employee of the Company (the "Optionee"), effective as of
August 15, 1996.
WHEREAS the Company and Optionee have previously entered into an
Employee Non-Qualified Stock Option Agreement (the "Stock Option Agreement");
WHEREAS, the Board of Directors of the Company has adopted amendments to
the Motorvac Technologies, Inc. 1994 Stock Incentive Award Plan (the "Plan") to
provide for the immediate exercisability of all outstanding options under the
Plan upon the occurrence of a Terminating Transaction (as defined in the Plan);
and
WHEREAS, the Company and Optionee desire to enter into this Amendment in
order to amend the Stock Option Agreement to provide that all outstanding
options evidenced by the Stock Option Agreement shall become immediately
exercisable upon the occurrence of a Terminating Transaction.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. AMENDMENT.
(a) Section 3.3(f) of the Stock Option Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) The expiration of ten (10) days from the effective date of a
Terminating Transaction, unless in connection with such Terminating Transaction,
the Optionee suffers a Termination of Employment, in which case the provisions
of Sections 3.3(d)-(e) hereof, as applicable, shall be controlling with respect
to the expiration of the Option. At least ten (10) days prior to the effective
date of any Terminating Transaction, the Committee shall give the Optionee
notice of such event if the Option has then neither been fully exercised nor
become unexercisable under this Section 3.3."
(b) Section 3.4 of the Stock Option Agreement is hereby amended and
restated to read in its entirety as follows:
1.
<PAGE> 2
"SECTION 3.4 - ACCELERATION OF EXERCISABILITY. Upon the occurrence of a
Terminating Transaction and for a period of ten (10) days thereafter, this
Option shall be exercisable as to all of the shares covered hereby,
notwithstanding that this Option shall not yet have become fully exercisable
under Section 3.1(a); PROVIDED, HOWEVER, that this acceleration of
exercisability shall not take place if:
(a) This Option becomes unexercisable under Section 3.3 prior to
the effective date of the Terminating Transaction; or
(b) In connection with such Terminating Transaction, provision is
made for an assumption of this Option or a substitution therefor of a new option
by a successor corporation or a Parent Corporation or Subsidiary Corporation of
such corporation.
The Committee may make such determinations and adopt such rules and conditions
as it, in its absolute discretion, deems appropriate in connection with such
acceleration of exercisability, including, but not limited to, provisions to
ensure that any such acceleration and resulting exercise shall be conditioned
upon the consummation of the contemplated Terminating Transaction and
determinations regarding whether provisions for assumption or substitution have
been made in accordance with subsection (b) above."
2. MISCELLANEOUS. Except as amended hereby, the Stock Option Agreement remains
in full force and effect. This Amendment shall be governed by and construed in
accordance with the laws of the State of California and may be amended only by a
written instrument executed by each of the parties hereto. In the event of any
inconsistency between the Stock Option Agreement and this Amendment, this
Amendment shall control.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by
the parties hereto as of the date first above written.
MOTORVAC TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
BY:
-----------------------------
ALLAN T. MAGUIRE
VICE PRESIDENT OF FINANCE
OPTIONEE
---------------------------------
PRINT NAME:
----------------------
2.
