<PAGE>
As filed with the Securities and Exchange Commission on September 8, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
METRO ONE TELECOMMUNICATIONS, INC.
(Exact name of registrant as specified in charter)
OREGON 93-0995165
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
------------------------
11200 MURRAY SCHOLLS PLACE
BEAVERTON, OREGON 97007
(503) 643-9500
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
------------------------
METRO ONE TELECOMMUNICATIONS, INC.
1994 STOCK INCENTIVE PLAN
(Full Title of the Plan)
------------------------
TIMOTHY A. TIMMINS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRO ONE TELECOMMUNICATIONS, INC.
11200 MURRAY SCHOLLS PLACE
BEAVERTON, OREGON 97007
(503) 643-9500
(Name, address, including zip code and telephone number,
including area code, of agent for service)
------------------------
with copies to:
BYRON W. MILSTEAD, ESQ.
ATER WYNNE LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price per Aggregate Offering Registration
Share (1) Price (1) Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no 400,000
par value shares $16.4375 $6,575,000 $1,828
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h) the aggregate offering price is based on the
exercise prices of outstanding options and the average of the high and low
per share sales prices reported for the Common Stock on September 2, 1999,
for options not yet granted.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement is filed in accordance with the provisions of
General Instruction E to Form S-8 for the purpose of registering additional
shares of common stock for offer and sale under the Metro One
Telecommunications, Inc. 1994 Stock Incentive Plan, for which a registration
statement on Form S-8 (File No. 333-20387) is already effective. Except to the
extent that exhibits are filed herewith, the contents of Metro One
Telecommunications, Inc.'s registration statement on Form S-8 (File
No. 333-20387) are hereby incorporated by reference.
ITEM 3. EXHIBITS
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
5.1 Opinion of Ater Wynne LLP as to the legality of the
securities being registered
23.1 Consent of Ater Wynne LLP (included in legal opinion filed
as Exhibit 5.1)
23.2 Consent of Deloitte & Touche, LLP
24.1 Powers of Attorney (included in signature page in Part II of
the Registration Statement)
99.1 Metro One Telecommunications, Inc. 1994 Stock Incentive
Plan, as amended
</TABLE>
ITEM 4. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) to include any material information with respect to the
plan of
-2-
<PAGE>
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those subparagraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(d) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such a director, officer or controlling person in
connection with securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
-3-
<PAGE>
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 Portland, State of Oregon, on the 31st day of August,
1999.
METRO ONE TELECOMMUNICATIONS, INC.
By: /s/Timothy A. Timmins
---------------------------------------------
Timothy A. Timmins
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Timothy A. Timmins and Stebbins B. Chandor, Jr.,
and each of them singly, as true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities to sign the registration statement filed
herewith and any or all amendments to said registration statement (including
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agent or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
---------- ----- ----
<S> <C> <C>
/s/Timothy A. Timmins President, Chief Executive 09/03/99
--------------------- Officer and Director
Timothy A. Timmins (Principal Executive Officer)
-4-
<PAGE>
/s/Stebbins B. Chandor, Jr. Senior Vice President and 09/03/99
--------------------------- Chief Financial Officer
Stebbins B. Chandor, Jr. (Principal Financial Officer)
/s/R. Tod Hutchinson Vice President-Finance 09/03/99
-------------------- (Principal Accounting
R. Tod Hutchinson Officer)
/s/A. Jean de Grandpre Director 09/03/99
----------------------
A. Jean de Grandpre
/s/William D. Rutherford Director 09/03/99
------------------------
William D. Rutherford
/s/James M. Usdan Director 09/03/99
-----------------
James M. Usdan
</TABLE>
-5-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
5.1 Opinion of Ater Wynne LLP as to the legality of the
securities being registered
23.1 Consent of Ater Wynne LLP (included in legal opinion
filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche, LLP
24.1 Powers of Attorney (included in signature page in Part
II of the Registration Statement)
99.1 Metro One Telecommunications, Inc. 1994 Stock Incentive Plan, as
amended
</TABLE>
-6-
<PAGE>
ATER WYNNE LLP
LETTERHEAD
EXHIBIT 5.1
September 4, 1999
Board of Directors
Metro One Telecommunications, Inc.
11200 Murray Scholls Place
Beaverton, OR 97007
Gentlemen:
In connection with the registration of 400,000 shares of common stock, no
par value (the "Common Stock"), of Metro One Telecommunications, Inc., an Oregon
corporation (the "Company"), under the Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission on September 8, 1999, and the
proposed offer and sale of the Common Stock pursuant to the terms of the
Company's 1994 Stock Incentive Plan (the "1994 Plan"), we have examined such
corporate records, certificates of public officials and officers of the Company
and other documents as we have considered necessary or proper for the purpose of
this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the 1994 Plan, when such shares have been delivered against payment
therefor as contemplated by the 1994 Plan, will be validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
/s/ Ater Wynne LLP
ATER WYNNE LLP
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Metro One Telecommunications, Inc. on Form S-8 of our report dated February 15,
1999, appearing in the Annual Report on Form 10-K of Metro One
Telecommunications, Inc. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Portland, Oregon
September 4, 1999
<PAGE>
METRO ONE TELECOMMUNICATIONS, INC.
1994 STOCK INCENTIVE PLAN
DATED JULY 28, 1995
AS AMENDED DECEMBER 18, 1996, MAY 8, 1997 AND JUNE 29, 1999
1. PURPOSES OF THE PLAN. The purposes of this Stock Incentive Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees and
Consultants of the Company and to promote the success of the Company's business.
Options granted hereunder may be either "incentive stock options," as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, or
"nonqualified stock options," at the discretion of the Board and as reflected in
the terms of the written option agreement. In addition, shares of the Company's
Common Stock may be Sold hereunder independent of any Option grant.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "BOARD" shall mean the Committee, if one has been
appointed, or the Board of Directors of the Company, if no Committee is
appointed.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean Metro One Telecommunications, Inc., an
Oregon corporation.
(e) "COMMITTEE" shall mean the Committee appointed by the Board
of Directors in accordance with Section 4(a) of the Plan, if one is appointed.
(f) "CONSULTANT" shall mean any person who is engaged by the
Company or any Subsidiary to render consulting services and is compensated for
such consulting services and any director of the Company whether compensated for
such services or not.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT" shall mean
the absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Board; provided that such leave is for a period
of not more than ninety days or reemployment upon the expiration of such leave
is guaranteed by contract or statute.
1 - STOCK INCENTIVE PLAN
<PAGE>
(h) "EMPLOYEE" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(i) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
(j) "INCENTIVE STOCK OPTION" shall mean an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(k) "NONQUALIFIED STOCK OPTION" shall mean an Option not
intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
(l) "OPTION" shall mean a stock option granted pursuant to the
Plan.
(m) "OPTIONED STOCK" shall mean the Common Stock subject to an
Option.
(n) "OPTIONEE" shall mean an Employee or Consultant who
receives an Option.
(o) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424 of the Code.
(p) "PLAN" shall mean this 1994 Stock Incentive Plan.
(q) "SALE" or "SOLD" shall include, with respect to the sale of
Shares under the Plan, the sale of Shares for consideration in the form of cash
or notes, as well as a grant of Shares without consideration, except past or
future services.
(r) "SHARE" shall mean a share of the Common Stock, as adjusted
in accordance with Section 11 of the Plan.
(s) "SUBSIDIARY" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424 of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of Shares which may be
optioned and/or Sold under the Plan is 2,300,000 shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject thereto
shall, unless the Plan shall have been terminated, become available for future
Option grants and/or Sales under the Plan.
2 - STOCK INCENTIVE PLAN
<PAGE>
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by the Board of
Directors of the Company.
The Board of Directors may appoint a Committee consisting of not less
than two (2) members of the Board of Directors to administer the Plan on behalf
of the Board of Directors, subject to such terms and conditions as the Board of
Directors may prescribe. Once appointed, the Committee shall continue to serve
until otherwise directed by the Board of Directors. From time to time the Board
of Directors may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan.
Members of the Board who are either eligible for Options and/or Sales or
have been granted Options or Sold Shares may vote on any matters affecting the
administration of the Plan or the grant of any Options or Sale of any Shares
pursuant to the Plan, except that no such member shall act upon the granting of
an Option or Sale of Shares to himself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Board during which
action is taken with respect to the granting of Options or Sale of Shares to
him.
(b) POWERS OF THE BOARD. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to grant
Incentive Stock Options in accordance with Section 422 of the Code, or
Nonqualified Stock Options; (ii) to authorize Sales of Shares of Common Stock
hereunder; (iii) to determine, upon review of relevant information and in
accordance with Section 8(b) of the Plan, the fair market value of the Common
Stock; (iv) to determine the exercise/purchase price per Share of Options to be
granted or Shares to be Sold, which exercise/purchase price shall be determined
in accordance with Section 8(a) of the Plan; (v) to determine the Employees or
Consultants to whom, and the time or times at which, Options shall be granted
and the number of Shares to be represented by each Option; (vi) to determine the
Employees or Consultants to whom, and the time or times at which, Shares shall
be Sold and the number of Shares to be Sold; (vii) to interpret the Plan;
(viii) to prescribe, amend and rescind rules and regulations relating to the
Plan; (ix) to determine the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the holder thereof, modify or
amend each Option; (x) to determine the terms and provisions of each Sale of
Shares (which need not be identical) and, with the consent of the purchaser
thereof, modify or amend each Sale; (xi) to accelerate or defer (with the
consent of the Optionee) the exercise date of any Option; (xii) to accelerate or
defer (with the consent of the Optionee or purchaser of Shares) the vesting
restrictions applicable to Shares Sold under the Plan or pursuant to Options
granted under the Plan; (xiii) to authorize any person to execute on behalf of
the Company any instrument required to effectuate the grant of an Option or Sale
of Shares previously granted or authorized by the Board; (xiv) to determine the
restrictions on transfer, vesting restrictions, repurchase rights, or other
restrictions applicable to Shares issued under the Plan; (xv) to effect, at any
time and from time to time, with the consent of the affected Optionees, the
cancellation of any or all outstanding Options under the Plan and to grant in
substitution therefor new Options under the Plan covering
3 - STOCK INCENTIVE PLAN
<PAGE>
the same or different numbers of Shares, but having an Option price per Share
consistent with the provisions of Section 8 of this Plan as of the date of the
new Option grant; (xvi) to establish, on a case-by-case basis, different terms
and conditions pertaining to exercise or vesting rights upon termination of
employment, whether at the time of an Option grant or Sale of Shares, or
thereafter; and (xvii) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) EFFECT OF BOARD'S DECISION. All decisions, determinations
and interpretations of the Board shall be final and binding on all Optionees and
any other holders of any Options granted under the Plan or Shares Sold under the
Plan.
5. ELIGIBILITY.
(a) PERSONS ELIGIBLE. Options may be granted and/or Shares
Sold only to Employees and Consultants. Incentive Stock Options may be granted
only to Employees. An Employee or Consultant who has been granted an Option or
Sold Shares may, if he is otherwise eligible, be granted an additional Option or
Options or Sold additional Shares.
(b) ISO LIMITATION. No Incentive Stock Option may be granted
to an Employee which, when aggregated with all other Incentive Stock Options
granted to such Employee by the Company or any Parent or Subsidiary, would
result in Shares having an aggregate fair market value (determined for each
Share as of the date of grant of the Option covering such Share) in excess of
$100,000 becoming first available for purchase upon exercise of one or more
Incentive Stock Options during any calendar year.
(c) SECTION 5(b) LIMITATIONS. Section 5(b) of the Plan shall
apply only to an Incentive Stock Option evidenced by an "Incentive Stock Option
Agreement" which sets forth the intention of the Company and the Optionee that
such Option shall qualify as an Incentive Stock Option. Section 5(b) of the
Plan shall not apply to any Option evidenced by a "Nonqualified Stock Option
Agreement" which sets forth the intention of the Company and the Optionee that
such Option shall be a Nonqualified Stock Option.
(d) NO RIGHT TO CONTINUED EMPLOYMENT. The Plan shall not
confer upon any Optionee any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way with
his right or the Company's right to terminate his employment or consulting
relationship at any time.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years, unless sooner terminated under
Section 13 of the Plan.
7. TERM OF OPTION. The term of each Incentive Stock Option shall be
ten (10) years from the date of grant thereof or such shorter term as may be
provided in the Stock Option Agreement. The term of each Nonqualified Stock
Option shall be ten (10) years and one (1) day
4 - STOCK INCENTIVE PLAN
<PAGE>
from the date of grant thereof or such other term as may be provided in the
Stock Option Agreement. However, in the case of an Option granted to an
Optionee who, at the time the Option is granted, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, (a) if the Option is an Incentive Stock
Option, the term of the Option shall be five (5) years from the date of grant
thereof or such shorter time as may be provided in the Stock Option Agreement,
or (b) if the Option is a Nonqualified Stock Option, the term of the Option
shall be five (5) years and one (1) day from the date of grant thereof or such
other term as may be provided in the Stock Option Agreement.
8. EXERCISE/PURCHASE PRICE AND CONSIDERATION.
(a) EXERCISE/PURCHASE PRICE. The per-Share exercise/purchase
price for the Shares to be issued pursuant to exercise of an Option or a Sale
(other than a Sale which is a grant for which no purchase price is payable)
shall be such price as is determined by the Board, but shall be subject to the
following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of
the grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the fair market value per Share on the date of the
grant.
(B) granted to any other Employee, the per Share
exercise price shall be no less than one hundred percent (100%) of the fair
market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option or Sale
(A) granted or Sold to a person who, at the time
of the grant of such Option or authorization of such Sale, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the per Share
exercise/purchase price shall be no less than one hundred ten percent (110%) of
the fair market value per Share on the date of the grant or authorization of
Sale, unless otherwise expressly determined by the Board of Directors.
(B) granted or Sold to any other person, the per
Share exercise/purchase price shall be no less than eighty-five percent (85%) of
the fair market value per Share on the date of grant or authorization of Sale,
unless otherwise expressly determined by the Board of Directors.
(C) Any determination to sell stock at less than
fair market value on the date of the grant or authorization of Sale shall be
accompanied by an express finding by the Board of Directors specifying that the
sale is in the best interest of the Company, and
5 - STOCK INCENTIVE PLAN
<PAGE>
specifying both the fair market value and the grant or sale price of the stock.
(iii) In the case of an Option granted or Sale authorized
on or after the effective date of registration of any class of equity security
of the Company pursuant to Section 12 of the Exchange Act and prior to six (6)
months after the termination of such registration, the per Share
exercise/purchase price shall be no less than one hundred percent (100%) of the
fair market value per Share on the date of grant or authorization of Sale.
(b) FAIR MARKET VALUE. The fair market value per Share shall
be determined by the Board in its discretion; provided, however, that where
there is a public market for the Common Stock, the fair market value per Share
shall be the closing price of the Common Stock for the date of grant or
authorization of Sale, as reported in THE WALL STREET JOURNAL (or, if not so
reported, as otherwise reported by the National Association of Securities
Dealers Automated Quotation (NASDAQ) System) or, in the event the Common Stock
is listed on a stock exchange, the fair market value per Share shall be the
closing price on such exchange on the date of grant of the Option or
authorization of Sale, as reported in THE WALL STREET JOURNAL.
(c) CONSIDERATION. The consideration to be paid for the Shares
to be issued upon exercise of an Option or pursuant to a Sale, including the
method of payment, shall be determined by the Board and may consist in whole or
part of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) transfer to the Company of Shares having a Fair Market Value at
the time of such exercise equal to the Option exercise price; or
(v) delivery of instructions to the Company to withhold from the
Shares that would otherwise be issued on the exercise that number of Shares
having a Fair Market Value at the time of such exercise equal to the Option
exercise price.
If the Fair Market Value of the number of whole Shares transferred or the
number of whole Shares surrendered is less than the total exercise price of the
Option, the shortfall must be made up in cash or by check.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Board, including performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible under
the terms of the Plan.
6 - STOCK INCENTIVE PLAN
<PAGE>
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Each Optionee who exercises an Option shall, upon notification of the amount due
(if any) and prior to or concurrent with delivery of the certificate
representing the Shares, pay to the Company amounts necessary to satisfy
applicable federal, state and local tax withholding requirements. An Optionee
must also provide a duly executed copy of any stock transfer agreement then in
effect and determined to be applicable by the Board. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT. If an
Employee or Consultant ceases to serve as an Employee or Consultant (as the case
may be), he may, but only within three (3) months (or such other period of time
not exceeding the limitations of Section 7 above as is determined by the Board
at the time of grant of an Option or thereafter) after the date he ceases to be
an Employee or Consultant (as the case may be) of the Company, exercise his
Option to the extent that he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of such termination, or if he does not exercise such Option (which he
was entitled to exercise) within the time specified herein, the Option shall
terminate.
(c) DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 9(b) above, in the event an Employee or Consultant is unable to continue
his employment or consulting relationship (as the case may be) with the Company
as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, but only within twelve (12) months (or
such other period of time not exceeding the limitations of Section 7 above as is
determined by the Board at the time of grant of an Option or thereafter) from
the date of termination, exercise his Option to the extent he was entitled to
exercise it at the date of such termination. To the extent that he was not
entitled to exercise the Option at the date of termination, or if he does not
exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate.
(d) DEATH OF OPTIONEE. In the event of the death of an
Optionee during the
7 - STOCK INCENTIVE PLAN
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term of the Option who is at the time of his death an Employee or Consultant of
the Company and who shall have been in Continuous Status as an Employee or
Consultant since the date of grant of the Option, the Option may be exercised,
at any time within twelve (12) months (or such other period of time not
exceeding the limitations of Section 7 above as is determined by the Board at
the time of grant of an Option or thereafter) following the date of death, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise as of the date of death.
10. NONTRANSFERABILITY OF OPTIONS. An Option may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will, or by the laws of descent and distribution, and may be exercised
during the lifetime of the Optionee only by the Optionee or, if incapacitated,
by his or her legal guardian or legal representative.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to
any required action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or Sales made or which have been returned
to the Plan upon cancellation or expiration of an Option, as well as the price
per share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
Option.
In the event of the proposed dissolution or liquidation of the Company,
the Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. The Board may, in the exercise
of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board makes an Option fully
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the Optionee that the Option shall be
fully exercisable for a
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period of thirty (30) days from the date of such notice or such shorter period
as the Board may specify in the notice, and the Option will terminate upon the
expiration of such period.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall,
for all purposes, be the date on which the Board makes the determination
granting such Option. Notice of the determination shall be given to each
Employee or Consultant to whom an Option is so granted within a reasonable time
after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable; provided, however, that if required to qualify the Plan under
Rule 16b-3 promulgated under Section 16 of the Securities Exchange Act of 1934,
as amended, no amendment shall be made more than once every six months that
would change the amount, price or timing of the option grants, other than to
comport with changes in the Internal Revenue Code of 1986, as amended, or the
rules and regulations promulgated thereunder; and provided, further, that, if
required to qualify the Plan under Rule 16b-3, no amendment shall be made
without the approval of the stockholders of the Company in the manner described
in Section 17 of the Plan if the amendment would:
(i) increase the number of Shares subject to the Plan,
other than in connection with an adjustment under Section 11 of the Plan;
(ii) make a change in the designation of the class of
Employees or Consultants eligible to be granted Options; or
(iii) if the Company has a class of equity security
registered under Section 12 of the Exchange Act at the time of such revision or
amendment, cause any material increase in the benefits accruing to participants
under the Plan.
(b) STOCKHOLDER APPROVAL. If any amendment requiring
stockholder approval under Section 13(a) of the Plan is made subsequent to the
first registration of any class of equity security by the Company under
Section 12 of the Exchange Act, such stockholder approval shall be solicited as
described in Section 17 of the Plan.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option or a Sale unless the exercise of such
Option or consummation of the Sale and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended,
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applicable state securities laws, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange (including
NASDAQ) upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option or a Sale, the Company may
require the person exercising such Option or to whom Shares are being Sold to
represent and warrant at the time of any such exercise or Sale that the Shares
are being purchased only for investment and without any present intention to
sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned relevant
provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
17. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve months before or after
the date the Plan is adopted. If such stockholder approval is obtained at a
duly held stockholders' meeting, it may be obtained by the affirmative vote of
the holders of a majority of the outstanding shares of the Company, such holders
being present or represented and entitled to vote thereon. If and in the event
that the Company registers any class of any equity security pursuant to
Section 12 of the Exchange Act, the approval of such stockholders of the Company
shall be:
(a) SOLICITATION.
(i) solicited substantially in accordance with
Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder, or
(ii) solicited after the Company has furnished in writing
to the holders entitled to vote substantially the same information concerning
the Plan as that which would be required by the rules and regulations in effect
under Section 14(a) of the Exchange Act at the time such information is
furnished; and
(b) TIME. Obtained at or prior to the first annual meeting of
stockholders held subsequent to the first registration of any class of equity
securities of the Company under
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Section 12 of the Exchange Act.
If such stockholder approval is obtained by written consent, it
must be obtained by the written consent of stockholders of the Company in
compliance with the requirements of applicable state law.
18. SIX MONTH HOLDING PERIOD FOR AFFILIATES. If the Company registers
any class of any equity security pursuant to Section 12 of the Exchange Act,
then from the effective date of such registration until six (6) months after the
termination of such registration (the Public Period), these limits will apply to
each officer, director and beneficial owner of ten percent (10%) or more of any
class of equity securities of the Company (Affiliates.) During the Public
Period, any Affiliate shall hold Shares Sold hereunder at least six months from
the date of Sale. During the Public Period, at least six months must elapse
from the date of grant of an Option to an Affiliate to the date the Affiliate
disposes of the Shares acquired upon exercise of the Option, or (if the Option
is disposed of other than by exercise) to the date of disposition of the Option
itself.
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