As filed with the Securities and Exchange Commission on July 23, 1996
Registration No. 33-88666
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VARI-L COMPANY, INC.
(Exact name of registrant as specified in its charter)
Colorado 06-0678347
(State of incorporation) (I.R.S. Employer ID No.)
11101 East 51st Avenue, Denver, Colorado 80239
(Address of Principal Executive Offices) (Zip Code)
VARI-L COMPANY, INC.
AMENDED AND RESTATED TANDEM STOCK OPTION
AND STOCK APPRECIATION RIGHTS PLAN
(Full title of the plans)
Joseph H. Kiser
Vari-L Company, Inc.
11101 East 51st Avenue
Denver, CO 80239
(Name and address of agent for service)
(303) 371-1560
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to to be offering aggregate registration
be registered registered price per share(1) offering price(1) fee(1)
Common Stock
$0.01 Par
Value(1) 1,518,750 $7.625 $11,580,468 $3,993.29
(1) The price of $7.625 per share, which is the last price reported to
the National Association of Securities Dealers Automated Quotation
System on July 16, 1996, is set forth solely for purposes of
calculating the filing fee.
<PAGE>
REGISTRATION OF ADDITIONAL SHARES
The Registrant incorporates by reference the contents of the earlier
Registration Statement, No. 33-88666, for the registration 1,518,750
additional shares for the Registrant's Amended and Restated Tandem Stock
Option and Stock Appreciation Rights Plan which additional shares were
approved by the shareholders of the Registrant on June 26, 1996.
Item 8. Exhibits
4.1 Restated Articles of Incorporation, as Amended.
4.2 Bylaws (incorporated by reference from Exhibit 3.2 of the
Registrant's Registration Statement on Form SB-2, SEC No. 33-
74704-D).
4.3 Amended and Restated Tandem Stock Option and Stock Appreciation
Rights Plan effective as of June 26, 1996.
5.1 Opinion of Gorsuch Kirgis L.L.C. regarding legality of shares
being issued.
23.1 Consent of Haugen, Springer & Co.
23.2 Consent of Gorsuch Kirgis L.L.C. (contained in its opinion at
Exhibit 5.1).
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado, on
this 26th day of June, 1996.
VARI-L COMPANY, INC.
By: /s/ David G. Sherman
David G. Sherman, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
President,
/s/ David G. Sherman Chief Executive Officer, 6-26-96
David G. Sherman Treasurer and Director
(Principal Financial Officer)
(Principal Accounting Officer)
Chairman of the Board,
/s/ Joseph H. Kiser Chief Scientific Officer, 6-26-96
Joseph H. Kiser Secretary and Director
Executive Vice President,
/s/ Alwin E. Branson Chief Operating Officer 6-26-96
Alwin E. Branson and Director
/s/ William P. O'Connor Jr. Director 6-26-96
William P. O'Connor Jr.
/s/ Sarah L. Booher Director 6-26-96
Sarah L. Booher
/s/ David A. Lisowski Director 6-26-96
David A. Lisowski
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT METHOD OF FILING
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<S> <C> <C>
4.1 Restated Articles of
Incorporation, as Amended. Filed herewith electronically
4.2 Bylaws (incorporated by reference
from Exhibit 3.2 of the Registrant's
Registration Statement on Form SB-2,
SEC No. 33-74704-D).
4.3 Amended and Restated Tandem Stock
Option and Stock Appreciation
Rights Plan effective as of June 26,
1996. Filed herewith electronically
5.1 Opinion of Gorsuch, Kirgis L.L.C.
regarding legality of shares being
issued. Filed herewith electronically
23.1 Consent of Haugen, Springer & Co. Filed herewith electronically
23.2 Consent of Gorsuch, Kirgis L.L.C.
(contained in its opinion at
Exhibit 5.1).
</TABLE>
Exhibit 4.1
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
VARI-L COMPANY, INC.
Pursuant to the provisions of the Colorado Business Corporation
Act, the undersigned Corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
FIRST: The name of the Corporation is Vari-L Company, Inc.
SECOND: The following amendment to the Articles of
Incorporation was adopted on June 26, 1996 by a vote of the shareholders
sufficient for approval as prescribed by the Colorado Business Corporation
Act:
Article IV of the Articles of Incorporation is hereby amended in
its entirety to read as follows:
ARTICLE IV
The total authorized capital of the Corporation shall consist of
50,000,000 shares of Common Stock, which shares shall have a par value of
$.01. Any and all of such shares may be issued for such consideration
expressed in dollars, not less than the par value thereof, as shall be
fixed from time to time by the Board of Directors. The consideration
shall be paid, in whole or in part, in money, in other property, tangible
or intangible, or in labor or services actually performed for the
Corporation. The promise of future services shall not constitute payment
or part payment for such shares. Neither the promissory note of a
subscriber or direct purchaser of shares from the Corporation nor the
unsecured or nonnegotiable promissory note of any other person shall
constitute payment or part payment for such shares.
Upon receipt of the consideration in an amount not less than par
value, such shares shall be issued and deemed fully paid and
nonassessable.
THIRD: This Amendment does not effect any exchange,
reclassification, or cancellation of issued shares.
VARI-L COMPANY, INC.
By: /s/ David G. Sherman
David G. Sherman, President
<PAGE>
APPENDIX
RESTATED ARTICLES OF INCORPORATION
WITH AMENDMENTS
OF
VARI-L COMPANY, INC.
Vari-L Company, Inc., a Colorado corporation (the
"Corporation"), does hereby adopt, pursuant to Sections 7-2-107 and 7-2-
112 of the Colorado Revised Statutes the following restatement with
amendments of its Articles of Incorporation, which were originally filed
June 27, 1985 with the Secretary of State, and amended November 27, 1985,
December 9, 1986 and July 16, 1987. Pursuant to Sections 7-2-107 and 7-2-
112 of the Colorado Revised Statutes, the Articles of Incorporation are
hereby further amended in their entirety and added to as set forth herein.
The shareholders approved the restatement with the amendments of the
Articles of Incorporation contained herein on December 30, 1993. These
Restated Articles of Incorporation with Amendments correctly set forth the
provisions of the Articles of Incorporation, as amended, and they
supersede the original Articles of Incorporation and all amendments
thereto.
Pursuant to the foregoing, the undersigned President and
Secretary, respectively, of the Corporation do hereby amend and restate
the Articles of Incorporation of this Corporation as follows:
ARTICLE I
The name of this Corporation is Vari-L Company, Inc.
ARTICLE II
This Corporation shall have perpetual existence.
ARTICLE III
The nature of the business of this Corporation and the objects
and purposes thereof proposed to be transacted, promoted or carried on are
as follows:
1. To design, develop, manufacture, buy, sell, lease or
otherwise deal in all types of electronic components and to engage in
experimental work of all types.
To design, develop, manufacture, buy, sell, lease or
otherwise deal in all types of electrical equipment, manufacture of
variable inductors and all other types of electrical engineering work.
To employ and supply the services of engineers, scientists,
technicians and designers, and other experts in consulting with and
advising corporations, firms and individuals.
To engage in research in connection with all types of
mechanical and electrical apparatus for the development of electrical
components but not restricted thereto.
To purchase, own, hold, occupy, lease, exchange, sell,
mortgage, convey, develop, build upon, improve and use in any way not
inconsistent with the statutes of the State of Colorado, any and all real
estate in the State of Colorado and elsewhere.
To acquire and pay for in any manner permitted by statute
the goodwill, rights, assets and property and undertake or assume the
obligations of any person, firm, association or corporation engaged in the
same general character as that for which this Corporation is organized.
To acquire, apply for, obtain, register, lease, hold, use,
sell, grant licenses in respect of, mortgage or otherwise dispose of
letters patent of the United States or any foreign country, patent rights,
licenses and privileges, inventions, improvements and processes,
copyrights, trademarks and trade names, relating to or useful in
connection with any business of this Corporation.
To purchase, acquire, hold and dispose of stock, bonds and
other securities of any other corporation, and to process and exercise in
respect thereto all the rights, powers and privileges of ownership.
To enter into, make and perform contracts of every kind and
description with any person, firm, corporation, body politic or government
or colony or dependency thereof.
To borrow or raise monies for any of the purposes of the
Corporation and, from time to time, without limit as to the amount, to
draw, make, accept, endorse, execute and issue promissory notes, drafts,
bills of exchange, warrants, bonds, debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to secure
the payment of any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any part of the
property of the Corporation, and to sell, pledge or otherwise dispose of
such bonds or other obligations of the Corporation for its corporate
purposes.
2. To carry on any other business whether or not related to
the foregoing, including the transaction of all lawful business for which
corporations may be organized pursuant to the Colorado Corporation Code,
to have and exercise all powers, privileges and immunities now or
hereafter conferred upon or permitted to corporations by the laws of the
State of Colorado, and to do any and all of the things hereinbefore set
forth to the same extent as natural persons could do insofar as permitted
by the laws of the State of Colorado, these Articles of Incorporation, or
the Bylaws of this Corporation.
The nature of the business, purposes, objects, and powers
specified by the foregoing clauses shall not, except as otherwise
expressed in this Article III, be limited or restricted by reference to or
inference from the terms of any other clause in these Articles of
Incorporation. Each purpose, object or power stated in the foregoing
clauses shall be regarded as an independent purpose, object or power.
ARTICLE IV
The total authorized capital of the Corporation shall consist of
10,000,000 shares of Common Stock, which shares shall have a par value of
$.01. Any and all of such shares may be issued for such consideration
expressed in dollars, not less than the par value thereof, as shall be
fixed from time to time by the Board of Directors. The consideration
shall be paid, in whole or in part, in money, in other property, tangible
or intangible, or in labor or services actually performed for the
Corporation. The promise of future services shall not constitute payment
or part payment for such shares. Neither the promissory note of a
subscriber or direct purchaser of shares from the Corporation nor the
unsecured or nonnegotiable promissory note of any other person shall
constitute payment or part payment for such shares.
Upon receipt of the consideration in an amount not less than par
value, such shares shall be issued and deemed fully paid and
nonassessable.
ARTICLE V
Cumulative voting shall not be allowed in the election of
directors.
ARTICLE VI
Shareholders shall not have a pre-emptive right to acquire
unissued or treasury shares or securities convertible into such shares or
carrying a right to subscribe to or acquire shares.
ARTICLE VII
The Board of Directors shall have authority to impose reasonable
restrictions on the transfer of the Corporation's shares, provided such
restrictions are noted conspicuously on the stock certificate representing
the shares. Unless such restrictions are so noted, the restrictions shall
be ineffective except against a person with actual knowledge of the
restrictions. The shares are also subject to any restrictions imposed by
law, including particularly restrictions imposed by federal or state
securities laws.
ARTICLE VIII
The business and affairs of the Corporation shall be under the
control and management of a Board of Directors, except as otherwise
provided by the Colorado Corporation Code.
The number of directors of the Corporation shall be not less
than three (3) except that there need be only as many directors as there
are shareholders in the event the outstanding shares are held of record by
fewer than three (3) shareholders. Subject to such limitation, the number
of directors shall be fixed by the Bylaws of the Corporation, and such
number may be increased or decreased in the manner provided in the Bylaws,
but no decrease shall have the effect of shortening the term of any
incumbent director.
ARTICLE IX
The Board of Directors shall have power to enact, alter, amend
and repeal such Bylaws not inconsistent with these Articles of
Incorporation and the laws of the State of Colorado as it may deem best
for the management of the Corporation.
ARTICLE X
The following provisions are inserted as notice of the specific
intent of the Corporation concerning the management of the business and
the conduct of the affairs of the Corporation, and the same are in
furtherance of, and not in limitation or exclusion of, the powers
conferred by the laws of the State of Colorado.
1. Contracts With Officers and Directors. No contract or
other transaction between this Corporation and one or more of its
directors or any other corporation, firm, association, or other entity in
which one or more of its directors or officers are directors or officers
or are financially interested shall be void or voidable solely because of
such relationship or interest or solely because such directors are present
at the meeting of the Board of Directors or a committee thereof which
authorizes, approves, or ratifies such contract or transaction or solely
because their votes are counted for such purpose if:
(a) The fact of such relationship or interest and is
disclosed or known to the Board of Directors or committee which
authorizes, approves, or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes of such
interested directors; or
(b) The fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote and they
authorize, approve, or ratify such contract or transaction by vote or
written consent; or
(c) The contract or transaction is fair and reasonable to
the Corporation.
Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee thereof which authorizes, approves, or
ratifies such contract or transaction.
2. Indemnification of Officers and Directors. The Board of
Directors of the Corporation shall have every power and duty of
indemnification of directors, officers, employees and agents, without
limitation, provided by the laws of the State of Colorado.
3. Personal Liability of Directors. The personal liability of
any of the Corporation's directors to the Corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director is
eliminated, except that this provision shall not eliminate the liability
of the director to the Corporation or to its shareholders for monetary
damages (a) for any breach of the director's duty of loyalty to the
Corporation or its shareholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law; (c) for acts specified in Section 7-5-114 of the Colorado Revised
Statutes; or (d) for any transaction from which the director derived an
improper personal benefit. This provision shall not eliminate the
liability of the director to the Corporation or its shareholders from
monetary damages for any act or omission occurring prior to the date of
filing of this amended Article to the Articles of Incorporation with the
Colorado Secretary of State.
IN WITNESS WHEREOF, the Corporation has caused these Restated
Articles of Incorporation with Amendments to be signed by its President
and Secretary this 30th day of December, 1993.
VARI-L COMPANY, INC.
ATTEST:
/s/ Lynnette S. Kiser /s/ David G. Sherman
Lynnette S. Kiser, Secretary David G. Sherman, President
EXHIBIT 4.3
TANDEM STOCK OPTION AND
STOCK APPRECIATION RIGHTS PLAN
As Amended and Restated February 23, 1996
1. PURPOSE. Vari-L Company, Inc. (the "Company") hereby
establishes the Tandem Stock Option and Stock Appreciation Rights Plan
(the "Plan"). The purpose of the Plan is to advance the interests of the
Company and its stockholders by providing a means by which the Company
shall be able to attract and retain competent officers, directors, key
employees, advisors and consultants by providing them with an opportunity
to participate in the increased value of the Company which their effort,
initiative, and skill have helped produce.
2. GENERAL PROVISIONS.
(a) The Plan will be administered by the Compensation
Committee of the Board of Directors of the Company (the "Committee"). The
Committee shall be comprised of two or more independent outside directors
designated by the Board of Directors. The Committee shall have full power
to construe and interpret the Plan and to establish and amend rules and
regulations for its administration. Each member of the Committee shall be
a "disinterested person" within the meaning of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934. Any action of the Committee
with respect to the Plan shall be taken by majority vote or by the
unanimous written consent of the Committee members.
(b) The Committee shall determine, in its sole discretion,
which participants under the Plan shall be granted stock options or stock
appreciation rights, the time or times at which options and rights are
granted, as well as the number of shares and the duration of the options
or rights which are granted to participants, provided, however, that no
participant may be granted more than 300,000 options during any three year
period under the Plan.
(c) The Committee shall also determine any other terms and
conditions relating to options and rights granted under the Plan as the
Committee may prescribe, in its sole discretion.
(d) The Committee may, in its discretion, delegate its
administrative duties with respect to the Plan to an officer or employees,
or to a committee composed of officers or employees, of the Company.
(e) The Committee shall make all other determinations and
take all other actions which it deems necessary or advisable for the
administration of the Plan.
(f) All decisions, determinations and interpretations made
by the Committee shall be binding and conclusive on all participants in
the Plan and on their legal representatives, heirs and beneficiaries.
(g) Notwithstanding anything to the contrary herein, the
Committee shall have no authority to determine the amount, price or timing
of grants hereunder to members of the Committee. All grants of options or
rights to members of the Committee shall be made only in accordance with
and pursuant to the provisions of Section 5(g) hereof.
3. ELIGIBILITY. Officers, directors and employees of the
Company and advisors and consultants to the Company shall be eligible to
participate in the Plan and to receive options and rights hereunder,
provided, however, that: (1) Incentive Stock Options may only be granted
to employees (including officers and directors who are employees) of the
Company or its subsidiaries; (2) advisors and consultants shall be
eligible for grants only if they provide bona fide services that are not
rendered in connection with the offer or sale of securities or in a
capital-raising transaction; and (3) members of the Committee are only
eligible to receive grants in accordance with the provisions of Section
5(g) hereof.
4. NUMBER OF SHARES SUBJECT TO PLAN. The aggregate number of
shares of the Company's $.01 par value Common Stock which may be granted
to participants shall be 3,000,000 shares, subject to adjustment only as
provided in Sections 5(h) and 7 hereof. These shares may consist of
shares of the Company's authorized but unissued Common Stock or shares of
the Company's authorized and issued Common Stock reacquired by the Company
and held in its treasury or any combination thereof. If an option granted
under this Plan is surrendered, or for any other reason ceases to be
exercisable in whole or in part, the shares as to which the option ceases
to be exercisable shall be available for options to be granted to the same
or other participants under the Plan, except to the extent that an option
is deemed surrendered by the exercise of a tandem stock appreciation right
and that right is paid by the Company in stock, in which event the shares
issued in satisfaction of the right shall not be available for new options
or rights under the Plan.
5. STOCK OPTION.
(a) Type of Options. Options granted on or after January
28, 1994 may be either Nonqualified Stock Options or Incentive Stock
Options as determined by the Committee in its sole discretion and as
reflected in the Notice of Grant issued by the Committee. All Options
granted under the Plan prior to January 28, 1994 were nonqualified stock
options. "Incentive Stock Option" means an option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "Code"). "Nonqualified Stock Option" means an
option not intended to qualify as an Incentive Stock Option or an
Incentive Stock Option which is converted to a Nonqualified Stock Option
under Section 5(f) hereof.
(b) Option Price. The price at which options may be
granted under the Plan shall be determined as follows:
(i) For Nonqualified Stock Options and Incentive
Stock Options the option price shall be equal to 100% of the Fair Market
Value of the stock on the date the option is granted provided, however,
that Incentive Stock Options granted to any person who, at the time such
option is granted owns (as defined in Section 422 of the Code) shares
possessing more than 10% of the total combined voting power of all classes
of shares of the Company or its parent or subsidiary corporation, the
Option Price shall be 110% of the Fair Market Value.
(ii) For purposes of this Plan, "Fair Market Value"
means the closing price per share on the date of the grant on the stock
exchange, automated quotation system or other recognized securities
trading market on which the Company's stock is traded. If the Company's
stock is traded on a securities market which does not quote a single
closing price, then "Fair Market Value" means the average of the closing
prices quoted or, if no closing prices are quoted, the average of the high
and low prices quoted. If the Company's stock is not traded on any
securities market, "Fair Market Value" means the most recent appraised
value of the shares or, if an appraisal has not been done since the date
of the Company's most recent audited financial statements, then the book
value per share as indicated by the Company's most recent audited
financial statements.
(c) Exercise of Option. The right to purchase shares
covered by any option or options under this Plan shall be exercisable only
in accordance with the terms and conditions of the grant to the
participant. Such terms and conditions may include a time period or
schedule whereby some of the options granted may become exercisable, or
"vested", over time and certain conditions, such as continuous service or
specified performance criteria or goals, must be satisfied for such
vesting. The determination as to whether to impose any such vesting
schedule or requirements, and the terms of such schedule or requirements,
shall be within the sole discretion of the Committee. These terms and
conditions may be different for different participants so long as all
options satisfy the requirements of the Plan.
Options shall be paid for in cash or in shares of the
Company's common stock, which shares shall be valued at the Fair Market
Value of the shares on the date of exercise, or any combination thereof.
The Committee may, in its discretion and subject to ratification by the
entire Board of Directors, loan one or more participants all or a portion
of the exercise price for up to three (3) years with interest payable at
the prime rate quoted in the Wall Street Journal on the date of exercise.
Members of the Committee may receive such loans for the exercise of their
options without Committee approval or Board ratification.
(d) Duration of Options. Unless otherwise prescribed by
the Committee or this Plan, options granted hereunder shall expire ten
(10) years from the date of grant, subject to early termination as
provided in Section 5(f) hereof.
(e) Incentive Stock Options Limitations. In no event
shall an Incentive Stock Option be granted to any person who, at the time
such option is granted, owns (as defined in Section 422 of the Code)
shares possessing more than 10% of the total combined voting power of all
classes of shares of the Company or of its parent or subsidiary
corporation, unless the option price is at least 110% of the Fair Market
Value of the stock subject to the Option, and such Option is by its terms
not exercisable after the expiration of five (5) years from the date such
Option is granted. Moreover, the aggregate Fair Market Value (determined
as of the time that option is granted) of the shares with respect to which
Incentive Stock Options are exercisable for the first time by any
individual employee during any single calendar year under the Plan shall
not exceed $100,000. In addition, in order to receive the full tax
benefits of an Incentive Stock Option, the employee must not resell or
otherwise dispose of the stock acquired upon exercise of the Incentive
Stock Option until two (2) years after the date the option was granted and
one (1) year after it was exercised.
(f) Early Termination of Options. In the event a
participant's employment with or service to the Company shall terminate as
the result of total disability or the result of retirement at 65 years of
age or later, then any options granted to such participant shall terminate
and may no longer be exercised three (3) months after the time such
participant is no longer an employee, officer or director of, or advisor
or consultant to, the Company. If the participant dies while employed or
engaged by the Company, to the extent that the option was exercisable at
the time of the participant's death, such option may, within one year
after the participant's death, be exercised by the person or persons to
whom the participant's rights under the option shall pass by will or by
the applicable laws of descent and distribution; provided, however, that
an option may not be exercised to any extent after the expiration of the
option as originally granted. In the event a participant's employment or
engagement by the Company shall terminate as the result of any
circumstances other than those referred to above, whether terminated by
the participant or the Company, with or without cause, then all options
granted to such participant under this Plan shall terminate and no longer
be exercisable as of the date of such termination, provided, however, that
if an employee with an Incentive Stock Option terminates employment prior
to its exercise, but after such termination becomes or remains a non-
employee officer, director, advisor or consultant eligible for
Nonqualified Stock Options hereunder, then the Incentive Stock Option
shall be converted to a Nonqualified Stock Option on the date the
Incentive Stock Option would otherwise have terminated.
An employee who is absent from work with the Company
because of total disability, as defined below, shall not by virtue of such
absence alone be deemed to have terminated such participant's employment
with the Company. All rights which such participant would have had to
exercise options granted hereunder will be suspended during the period of
such absence and may be exercised cumulatively by such participant upon
his return to the Company so long as such rights are exercised prior to
the expiration of the option as originally granted. For purposes of this
Plan, "total disability" shall mean disability, as a result of sickness or
injury, to the extent that the participant is prevented from engaging in
any substantial gainful activity and is eligible for and receives a
disability benefit under Title II of the Federal Social Security Act.
(g) Automatic Grants to Committee Members. No action may
be taken by the Committee to grant any options to members of the
Committee, provided, however, that irrespective of any such action, on the
date of each meeting of the Board of Directors or a committee thereof,
each member of the Committee that attends such meeting in person shall
receive a grant of a ten year, fully vested, Nonqualified Stock Option to
purchase 500 shares of the Company's common stock at Fair Market Value on
that date.
(h) Reload by Payment in Shares. To the extent that a
participant pays for the exercise of an option with shares of the
Company's stock rather than cash, the tendered shares shall be deemed to
be added back to the Plan, increasing the total number of shares subject
to and reserved for the Plan by that amount.
6. STOCK APPRECIATION RIGHTS.
(a) Grant. Stock appreciation rights may be granted by
the Committee under this Plan upon such terms and conditions as it may
prescribe. A stock appreciation right may be granted only in connection
with an option previously granted to or to be granted under this Plan.
Each stock appreciation right shall become nonexercisable and be forfeited
if the related option is exercised. "Stock appreciation right" as used in
this Plan means a right to receive the excess of Fair Market Value, on the
date of exercise, of a share of the Company's Common Stock on which an
appreciation right is exercised over the option price provided for in the
related option and is issued in consideration of services performed for
the Company or for its benefit by the participant. Such excess is
hereafter called "the differential."
(b) Exercise of Stock Appreciation Rights. Stock
appreciation rights shall be exercisable and be payable in the following
manner:
(i) A stock appreciation right shall be exercisable
by the participant at the same time or times that the option to which it
relates could be exercised. A participant wishing to exercise a stock
appreciation right shall give written notice of such exercise to the
Company. Upon receipt of such notice, the Company shall determine, in its
sole discretion, whether the participant's stock appreciation rights shall
be paid in cash or in shares of the Company's Common Stock or any
combination of cash and shares and thereupon shall, without deducting any
transfer or issue tax, deliver to the person exercising such right an
amount of cash or shares of the Company's Common Stock or a combination
thereof with a value equal to the differential. The date the Company
receives the written notice of exercise hereunder is the exercise date.
The shares issued upon the exercise of a stock appreciation right may
consist of shares of the Company's authorized but unissued Common Stock or
of its authorized and issued Common Stock reacquired by the Company and
held in its treasury or any combination thereof. No fractional share of
Common Stock shall be issued; rather, the Committee shall determine
whether cash shall be given in lieu of such fractional share or whether
such fractional share shall be eliminated.
(ii) The exercise of a stock appreciation right shall
automatically result in the surrender of the related stock option by the
participant on a share for share basis. Likewise, the exercise of a stock
option shall automatically result in the surrender of the related stock
appreciation right. Shares covered by surrendered options shall be
available for granting further options under this Plan only to the extent
and in the amount that such rights are paid by the Company with shares of
stock.
(iii) The Committee may impose any other terms and
conditions it prescribes upon the exercise of a stock appreciation right,
which conditions may include a condition that the stock appreciation right
may only be exercised in accordance with rules and regulations adopted by
the Committee from time to time.
(c) Limitation on Payments. Notwithstanding any other
provision of this Plan, the Committee may from time to time determine,
including at the time of exercise, the maximum amount of cash or stock
which may be given upon exercise of any stock appreciation right in any
year, provided, however, that all such amounts shall be paid in full no
later than the end of the year immediately following the year in which the
participant exercised such stock appreciation rights. Any determination
under this paragraph may be changed by the Committee from time to time
provided that no such change shall require the participant to return to
the Company any amount theretofore received or to extend the period within
which the Company is required to make full payment of the amount due as
the result of the exercise of the participant's stock appreciation rights.
(d) Expiration or termination of stock appreciation
rights.
(i) Each stock appreciation right and all rights and
obligations thereunder shall expire on the date on which the related
option expires or terminates.
(ii) A stock appreciation right shall terminate and
may no longer be exercised upon the expiration or termination of the
related option.
7. CAPITAL ADJUSTMENTS. The aggregate number of shares of the
Company's Common Stock subject to this Plan, the maximum number of shares
as to which options may be granted to any one participant hereunder, and
the number of shares and the price per share subject to outstanding
options, shall be appropriately adjusted by the Committee for any increase
or decrease in the number of shares of Common Stock which the Company has
issued resulting from any stock split, reverse stock split, stock
dividend, combination of shares or any other change, or any exchange for
other securities or any reclassification, merger, reorganization,
consolidation, redesignation, recapitalization, or otherwise. Similar
adjustments shall be made to the terms of stock appreciation rights.
8. NONTRANSFERABILITY. During a participant's lifetime, an
option may be exercisable only by the participant and options granted
under the Plan and the rights and privileges conferred thereby shall not
be subject to execution, attachment or similar process and may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will or by the applicable
laws of descent and distribution. Notwithstanding the foregoing, to the
extent permitted by applicable law and Rule 16b-3, the Committee may (i)
permit a recipient of a Nonqualified Stock Option to designate in writing
during the participant's lifetime a beneficiary to receive and exercise
the participant's Nonqualified Stock Options in the event of such
participant's death (as provided in Section 5(f)), (ii) grant Nonqualified
Stock Options that are transferable to the immediate family or a family
trust of the recipient, and (iii) modify existing Nonqualified Stock
Options to be transferable to the immediate family or a family trust of
the recipient. Any other attempt to transfer, assign, pledge, hypothecate
or otherwise dispose of any option under the Plan or of any right or
privilege conferred thereby, contrary to the provisions of the Plan shall
be null and void.
9. AMENDMENT, SUSPENSION, OR TERMINATION OF PLAN. The
Committee may at any time suspend or terminate the Plan and may amend it
from time to time in such respects as the Committee may deem advisable in
order that options and rights granted hereunder shall conform to any
change in the law, or in any other respect which the Committee may deem to
be in the best interests of the Company; provided, however, that no such
amendment shall, without the participant's consent, alter or impair any of
the rights or obligations under any option or stock appreciation rights
theretofore granted to him under the plan; and provided further that no
such amendment shall, without shareholder approval: increase the total
number of shares available for grants of options or rights under the Plan
(except as provided by Section 7 hereof); (a) materially modify the
benefits to participants or the eligibility requirements for grants under
the Plan; or (b) effect any change to the Plan which is required to be
approved by shareholder by the Code. In addition, the provisions of
Section 5(g) relating to the amount, price and timing of grants to members
of the Committee shall not be amended more than once every six (6) months
other than to comport with applicable changes to the Code, the Employee
Retirement Income Security Act or rules thereunder.
10. EFFECTIVE DATE. The effective date of the Plan shall be
December 31, 1987, provided, however, that the effective date of the Plan
as it relates to Incentive Stock Options shall be January 28, 1994 and no
Incentive Stock Option may be granted hereunder before January 28, 1994.
If the January 28, 1994 amendment to and restatement of the Plan is not
approved by the affirmative vote of a majority of the Company's
shareholders on or before January 28, 1995, then the Plan shall remain in
effect as it was last amended on June 14, 1990. The failure of the
shareholders to approve such amendment and restatement of the Plan shall
not, however, affect the validity, duration or any other terms and
conditions of options or rights granted prior to January 28, 1994, and
shall affect the terms and conditions of options or rights granted after
that date only to the extent required by law.
11. TERMINATION DATE. Unless this Plan shall have been
previously terminated by the Committee, this Plan shall terminate on
January 28, 2004, except as to options and rights theretofore granted and
outstanding under the Plan at that date, and no stock option or stock
appreciation rights shall be granted after that date.
12. RESALE OF SHARES PURCHASED. All shares of stock purchased
under this Plan may be freely resold, subject to applicable state and
federal securities laws restricting their transfer. As a condition to
exercise of an option, the Company may impose various conditions,
including a requirement that the person exercising such option represent
and warrant that, at the time of such exercise, the shares of common stock
being purchased are being purchased for investment and not with a view to
resale or distribution thereof. The resale of shares purchased upon the
exercise of Incentive Stock Options may, however, cause the employee to
lose certain tax benefits if the employee fails to comply with the holding
period requirements described in Section 5(e) hereof.
13. ACCELERATION OF OPTIONS. If the Company or its
shareholders enter into an agreement to dispose of all or substantially
all of the assets or stock of the Company by means of a sale, merger or
other reorganization, liquidation, or otherwise, any option granted
pursuant to the Plan shall become immediately exercisable with respect to
the full number of shares subject to that option during the period
commencing as of the date of the agreement to dispose of all or
substantially all of the assets or stock of the Company and ending when
the disposition of assets or stock contemplated by that agreement is
consummated or the option is otherwise terminated in accordance with its
provisions or the provisions of the Plan, whichever occurs first; provided
that no option shall be immediately exercisable under this Section on
account of any agreement of merger or other reorganization where the
shareholders of the Company immediately before the consummation of the
transaction will own 50% or more of the total combined voting power of all
classes of stock entitled to vote of the surviving entity (whether the
Company or some other entity) immediately after the consummation of the
transaction. In the event the transaction contemplated by the agreement
referred to in this section is not consummated, but rather is terminated,
cancelled or expires, the options granted pursuant to the Plan shall
thereafter be treated as if that agreement had never been entered into.
13. WRITTEN NOTICE REQUIRED; TAX WITHHOLDING. Any option or
right granted pursuant to the Plan shall be exercised when written notice
of that exercise by the participant has been received by the Company at
its principal office and, with respect to options, when such notice is
received and full payment for the shares with respect to which the option
is exercised has been received by the Company. Participant agrees that,
to the extent required by law, the Company shall withhold or require the
payment by participant of any state, federal or local taxes resulting from
the exercise of an option or right, provided however that to the extent
permitted by law, the Committee may in its discretion, permit some or all
of such withholding obligation to be satisfied by the delivery by the
participant of, or the retention by the Company of, shares of its common
stock.
14. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be
issued with respect to any option or right granted under the Plan unless
the exercise of that option and the issuance and delivery of the shares
pursuant thereto shall comply with all relevant provisions of state and
federal law, including without limitation the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the
requirements of any stock exchange or automated quotation system upon
which the shares may then be listed or traded, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. Further, each participant must consent to the imposition of a
legend on the certificate representing the shares of common stock issued
upon the exercise of the option or right restricting their transferability
as may be required by law, the option, or the Plan.
14. WAIVER OF VESTING RESTRICTIONS BY COMMITTEE.
Notwithstanding any provision of the Plan, in the event a participant
dies, becomes disabled, retires as an employee, officer or director of, or
as an advisor or consultant to, the Company, the Committee shall have the
discretion to waive any vesting restrictions on the retiree's options, or
the early termination of any Nonqualified Stock Options held by the
retiree.
15. REPORTS TO PARTICIPANTS. The Company shall furnish to each
participant a copy of the annual report sent to the Company's
shareholders. Upon written request, the Company shall furnish to each
participant a copy of its most recent annual report and each quarterly
report to shareholders issued since the end of the Company's most recent
fiscal year.
16. NO EMPLOYEE CONTRACT. The grant of an option or right
under the Plan shall not confer upon any participant any right with
respect to continuation of employment by, or the rendition of advisory or
consulting services to, the Company, nor shall it interfere in any way
with the Company's right to terminate the participant's employment or
services at any time.
Adopted by the Board of Directors of the Company on January 29, 1994 and
approved by the Company's Shareholders on June 20, 1994. Adopted as
amended and restated by the Compensation Committee on February 23, 1996
and approved by the Company's Shareholders on June 26, 1996.
DAVID G. SHERMAN, JOSEPH H. KISER,
President Chairman of the Board
and Secretary
EXHIBIT 5.1
GORSUCH KIRGIS L.L.C.
Attorneys at Law
1401 Seventeenth Street, Suite 1100
Denver, Colorado 80202
Telephone (303) 299-8900
Fax (303) 298-0215
July 19, 1996
Vari-L Company, Inc.
11101 East 51st Avenue
Denver, Colorado 80239
Re: Vari-L Company, Inc.
Registration Statement on Form S-8
SEC No. 33-88666
Gentlemen:
We are counsel to Vari-L Company, Inc., a Colorado corporation (the
"Company"), in connection with the preparation of an amendment to the
registration statement on Form S-8 (SEC No. 33-88666) to be filed with the
Securities and Exchange Commission (the "Registration Statement"),
relating to the proposed offering by the Company of up to 1,518,750
additional shares of Common Stock pursuant to the Company's Tandem Stock
Option and Stock Appreciation Rights Plan (the "Plan").
In this connection, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such corporate records,
certificates and written or oral statements of officers, legal counsel and
accountants of the Company and of public officials, and other documents
that we have considered necessary and appropriate, and, based thereon, we
advise you that in our opinion:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Colorado.
2. The shares offered by the Company, when issued pursuant to and
in accordance with the Plan will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Gorsuch Kirgis L.L.C.
GORSUCH KIRGIS L.L.C.
EXHIBIT 23.1
HAUGEN, SPRINGER & CO.
Certified Public Accountants
9250 East Costilla Avenue Robert S. Haugen, C.P.A.
Suite 150 Charles K. Springer, C.P.A.
Englewood, Colorado 80012
(303) 799-6969
FAX (303) 799-6974
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
The Board of Directors and Stockholders
Vari-L Company, Inc.
We consent to the incorporation by reference of our report
on the financial statements of Vari-L Company, Inc. (the
"Company") as of December 31, 1995 and 1994 and for the years
then ended to the Company's Registration Statement on Form S-8
(SEC No. 33-88666).
/s/Haugen, Springer & Co.
HAUGEN, SPRINGER & CO.
July 16, 1996
