As filed with the Securities and Exchange Commission on February 24, 1999
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Gemstar International Group Limited
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-4782077
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
135 North Los Robles Avenue, Suite 800
Pasadena, California 91101
(626) 792-5700
(Address and telephone number of principal executive offices)
___________________
NuvoMedia, Inc. 1997 Stock Plan, as Amended
(Full title of the plan)
___________________
Stephen A. Weiswasser, Esq.
Executive Vice President and General Counsel
Gemstar International Group Limited
135 North Los Robles Avenue, Suite 800
Pasadena, California 91101
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (626) 792-5700
___________________
Copy to:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered per unit price fee
registered
Common Stock, 193,124(1),(2) $8.14(3) $1,572,029(3) $415(3)
$0.01 par shares
value per
share
(1) This Registration Statement covers, in addition to the number of
shares of Common Stock stated above, options to purchase the shares
of Common Stock covered by the Prospectus and, pursuant to Rule
416 under the Securities Act of 1933, as amended (the "Securities
Act"), an additional indeterminate number of shares which by reason
of certain events specified in the Plan may become subject to the
Plan.
(2) Each share registered is accompanied by a preferred stock purchase
right pursuant to the Registrant's Amended and Restated Rights
Agreement, by and between Gemstar International Group Limited, a
Delaware corporation which is a continuation of Gemstar International
Group Limited, a British Virgin Islands corporation, and American
Stock Transfer & Trust Company, a New York company.
(3) Pursuant to Rule 457(h), the maximum offering price, per share and
in the aggregate, and the registration fee were calculated based upon
the price at which the options under the Plan may be exercised.
The Exhibit Index for this Registration Statement follows the signature
page.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part
I of Form S-8 (plan information and registrant information) will
be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act. Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents, which include the statement of
availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Gemstar International Group
Limited (the "Company") filed with the Commission are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended March 31, 1999;
(b) Quarterly Reports on Form 10-Q for the Company's
fiscal quarters ended June 30, 1999, September 30,
1999 and December 31, 1999; and
(c) Current Reports on Forms 8-K for event dates October
4, 1999, January 10, 2000 and February 9, 2000.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), 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 into this Registration
Statement and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to
be 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 amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, par value $0.01 per share (the
"Common Stock"), is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is
omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of the Common Stock
registered hereby is passed on for the Company by Stephen A.
Weiswasser, the Executive Vice President and General Counsel of
the Company. Mr. Weiswasser is compensated by the Company as an
employee and is the holder of options to acquire shares of
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation and Bylaws
provide for indemnification of the officers and directors of the
Company to the fullest extent permitted by law. Section
102(b)(7) of the Delaware General Corporation Law (the "DGCL")
provides that a Delaware corporation has the power to eliminate
or limit the personal liability of a director for violations of
the director's fiduciary duty, except (i) for any breach of the
director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions), or (iv) for any
transaction from which a director derived an improper personal
benefit.
Section 145 of the DGCL provides that a corporation may
indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an
action by or in the right of such corporation), by reason of the
fact that such person was a director, officer, employee or agent
of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such
officer, director, employee or agent acted in good faith and in
a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, for criminal proceedings, had
no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer is successful on
the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses
which such officer or director actually and reasonably incurred.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index following the signature
page.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(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; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
executive officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 above, 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. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Pasadena, State of California, on the 24th day of
February, 2000.
By: /s/ Henry C. Yuen
---------------------------
Henry C. Yuen
Chief Executive Officer and
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Henry C. Yuen, Elsie Ma Leung and Stephen A.
Weiswasser, or any of them individually, his or her true and
lawful attorney-in-fact and agent, with full powers of
substitution and resubstitution, for him or her and in his or
her 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 Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either
of them individually, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
- --------------------------------------------------------------------
/s/ Henry C. Yuen Chief Executive February 24, 2000
- ------------------------ Officer, President
Henry C. Yuen and Director
(Principal Executive
Officer)
/s/ Elsie Ma Leung Chief Financial February 24, 2000
- ------------------------ Officer and Director
Elsie Ma Leung (Principal Financial
and Accounting
Officer)
- ------------------------
Thomas L.H. Lau Director
/s/ George Carrier
- ------------------------
George Carrier Director February 23, 2000
/s/ Teruyuki Toyama
- ------------------------
Teruyuki Toyama Director February 24, 2000
/s/ Perry A. Lerner
- ------------------------
Perry A. Lerner Director February 24, 2000
/s/ Douglas B. Macrae
- ------------------------
Douglas B. Macrae Director February 24, 2000
- ------------------------
James E. Meyer Director
/s/ Stephen A. Weiswasser Director February 23, 2000
- ------------------------
Stephen A. Weiswasser
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- ---------------------------------------------------
4.1 NuvoMedia, Inc. 1997 Stock Plan.
4.2 Amendment to the NuvoMedia, Inc. 1997 Stock Plan.
5 Opinion of Counsel (opinion re legality).
23.1 Consent of KPMG LLP (Consent of Independent
Accountants).
23.2 Consent of Deloitte & Touche LLP (Consent of
Independent Auditor).
23.3 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney (included in this Registration
Statement under "Signatures").
NUVOMEDIA, INC.
1997 STOCK PLAN
(As Amended April 13, 1998)
1. Purposes of the Plan. The purposes of this
Stock Plan are to attract and retain the best available
personnel for positions of substantial responsibility,
to provide additional incentive to Employees,
Directors and Consultants and to promote the success
of the Company's business. Options granted under the
Plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at
the time of grant. Stock Purchase Rights may also be
granted under the Plan.
2. Definitions. As used herein, the following
definitions shall apply:
(a) "Administrator" means the Board or any
of its Committees as shall be administering the Plan
in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements
relating to the administration of stock option plans
under U.S. state corporate laws, U.S. federal and
state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed
or quoted and the applicable laws of any other
country or jurisdiction where Options or Stock
Purchase Rights are granted under the Plan.
(c) "Board" means the Board of Directors
of the Company.
(d) "Code" means the Internal Revenue Code
of 1986, as amended.
(e) "Committee" means a committee of
Directors appointed by the Board in accordance with
Section 4 hereof.
(f) "Common Stock" means the Common Stock
of the Company.
(g) "Company" means NuvoMedia, Inc., a
California corporation.
(h) "Consultant" means any person who is
engaged by the Company or any Parent or Subsidiary to
render consulting or advisory services to such entity.
(i) "Director" means a member of the Board
of Directors of the Company.
(j) "Disability" means total and permanent
disability as defined in Section 22(e)(3) of the Code.
(k) "Employee" means any person, including
Officers and Directors, employed by the Company or any
Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case
of (i) any leave of absence approved by the Company
or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options, no
such leave may exceed ninety days, unless reemployment
upon expiration of such leave is guaranteed by statute
or contract. If reemployment upon expiration of a
leave of absence approved by the Company is not so
guaranteed, on the 181st day of such leave any
Incentive Stock Option held by the Optionee shall
cease to be treated as an Incentive Stock Option
and shall be treated for tax purposes as a Nonstatutory
Stock Option. Neither service as a Director nor
payment of director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(l) "Exchange Act" means the Securities
Exchange Act of 1934, as amended.
(m) "Fair Market Value" means, as of any
date, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on
any established stock exchange or a national market
system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be
the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such
exchange or system for the last market trading day
prior to the time of determination, as reported in
The Wall Street Journal or such other source as the
Administrator deems reliable;
(ii) If the Common Stock is regularly
quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall
be the mean between the high bid and low asked prices
for the Common Stock on the last market trading day
prior to the day of the determination; or
(iii) In the absence of an established
market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the
Administrator.
(n) "Incentive Stock Option" means an Option
intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code.
(o) "Nonstatutory Stock Option" means an
Option not intended to qualify as an Incentive Stock
Option.
(p) "Officer" means a person who is an
officer of the Company within the meaning of Section
16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(q) "Option" means a stock option granted
pursuant to the Plan.
(r) "Option Agreement" means a written or
electronic agreement between the Company and an
Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is
subject to the terms and conditions of the Plan.
(s) "Option Exchange Program" means a
program whereby outstanding Options are exchanged
for Options with a lower exercise price.
(t) "Optioned Stock" means the Common Stock
subject to an Option or a Stock Purchase Right.
(u) "Optionee" means the holder of an
outstanding Option or Stock Purchase Right granted
under the Plan.
(v) "Parent" means a "parent corporation,"
whether now or hereafter existing, as defined in
Section 424(e) of the Code.
(w) "Plan" means this 1997 Stock Plan.
(x) "Restricted Stock" means shares of
Common Stock acquired pursuant to a grant of a Stock
Purchase Right under Section 11 below.
(y) "Section 16(b)" means Section 16(b) of
the Securities Exchange Act of 1934, as amended.
(z) "Service Provider" means an Employee,
Director or Consultant.
(aa) "Share" means a share of the Common
Stock, as adjusted in accordance with Section 12 below.
(bb) "Stock Purchase Right" means a right to
purchase Common Stock pursuant to Section 11 below.
(cc) "Subsidiary" means a "subsidiary
corporation," whether now or hereafter existing, as
defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the
provisions of Section 12 of the Plan, the maximum
aggregate number of Shares which may be subject to
option and sold under the Plan is 4,000,000 Shares.
The Shares may be authorized but unissued, or
reacquired Common Stock.
If an Option or Stock Purchase Right expires
or becomes unexercisable without having been exercised
in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant
or sale under the Plan (unless the Plan has terminated).
However, Shares that have actually been issued under
the Plan, upon exercise of either an Option or Stock
Purchase Right, shall not be returned to the Plan and
shall not become available for future distribution
under the Plan, except that if Shares of Restricted
Stock are repurchased by the Company at their original
purchase price, such Shares shall become available
for future grant under the Plan.
4. Administration of the Plan.
(a) Administrator. The Plan shall be
administered by the Board or a Committee appointed by
the Board, which Committee shall be constituted to
comply with Applicable Laws.
(b) Powers of the Administrator. Subject to
the provisions of the Plan and, in the case of a
Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any
relevant authorities, the Administrator shall have the
authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to
whom Options and Stock Purchase Rights may from time to
time be granted hereunder;
(iii) to determine the number of Shares
to be covered by each such award granted hereunder;
(iv) to approve forms of agreement for
use under the Plan;
(v) to determine the terms and
conditions, of any Option or Stock Purchase Right
granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time
or times when Options or Stock Purchase Rights may be
exercised (which may be based on performance
criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or
limitation regarding any Option or Stock Purchase
Right or the Common Stock relating thereto, based in
each case on such factors as the Administrator, in its
sole discretion, shall determine;
(vi) to determine whether and under
what circumstances an Option may be settled in cash
under subsection 9(e) instead of Common Stock;
(vii) to reduce the exercise price of
any Option to the then current Fair Market Value if
the Fair Market Value of the Common Stock covered by
such Option has declined since the date the Option was
granted;
(viii) to initiate an Option Exchange
Program;
(ix) to prescribe, amend and rescind
rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(x) to allow Optionees to satisfy
withholding tax obligations by electing to have the
Company withhold from the Shares to be issued upon
exercise of an Option or Stock Purchase Right that
number of Shares having a Fair Market Value equal to
the amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined
on the date that the amount of tax to be withheld is
to be determined. All elections by Optionees to have
Shares withheld for this purpose shall be made in such
form and under such conditions as the Administrator may
deem necessary or advisable; and
(xi) to construe and interpret the
terms of the Plan and awards granted pursuant to the
Plan.
(c) Effect of Administrator's Decision. All
decisions, determinations and interpretations of the
Administrator shall be final and binding on all
Optionees.
5. Eligibility.
(a) Nonstatutory Stock Options and Stock
Purchase Rights may be granted to Service Providers.
Incentive Stock Options may be granted only to
Employees.
(b) Each Option shall be designated in the
Option Agreement as either an Incentive Stock Option
or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that
the aggregate Fair Market Value of the Shares with
respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during
any calendar year (under all plans of the Company and
any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 5(b),
Incentive Stock Options shall be taken into account
in the order in which they were granted. The Fair
Market Value of the Shares shall be determined as of
the time the Option with respect to such Shares is
granted.
(c) Neither the Plan nor any Option or Stock
Purchase Right shall confer upon any Optionee any
right with respect to continuing the Optionee's
relationship as a Service Provider with the Company,
nor shall it interfere in any way with his or her
right or the Company's right to terminate such
relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become
effective upon its adoption by the Board. It
shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 14
of the Plan.
7. Term of Option. The term of each Option
shall be stated in the Option Agreement; provided,
however, that the term shall be no more than ten (10)
years from the date of grant thereof. In the case
of an Incentive Stock 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, the term of the Option shall be
five (5) years from the date of grant or such shorter
term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the
Shares to be issued upon exercise of an Option shall
be such price as is determined by the Administrator,
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 grant of such 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 exercise price shall be no
less than 110% of the Fair Market Value per Share on
the date of grant.
(B) granted to any other Employee,
the per Share exercise price shall be no less than
100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Nonstatutory Stock
Option
(A) granted to a Service Provider
who, at the time of grant of such 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 exercise price shall be no
less than 110% of the Fair Market Value per Share on
the date of grant.
(B) granted to any other Service
Provider, the per Share exercise price shall be no
less than 85% of the Fair Market Value per Share on
the date of grant.
(iii) Notwithstanding the foregoing,
Options may be granted with a per Share exercise price
other than as required above pursuant to a merger or
other corporate transaction.
(b) The consideration to be paid for the
Shares to be issued upon exercise of an Option,
including the method of payment, shall be determined
by the Administrator (and, in the case of an Incentive
Stock Option, shall be determined at the time of
grant). Such consideration may consist of (1) cash,
(2) check, (3) promissory note, (4) other Shares
which (x) in the case of Shares acquired upon
exercise of an Option, have been owned by the Optionee
for more than six months on the date of surrender,
and (y) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of
the Shares as to which such Option shall be exercised,
(5) consideration received by the Company under a
cashless exercise program implemented by the Company
in connection with the Plan, or (6) any combination
of the foregoing methods of payment. In making its
determination as to the type of consideration to
accept, the Administrator shall consider if acceptance
of such consideration may be reasonably expected to
benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a
Shareholder. Any Option granted hereunder shall be
exercisable according to the terms hereof at such times
and under such conditions as determined by the
Administrator and set forth in the Option Agreement.
Except in the case of Options granted to Officers,
Directors and Consultants, Options shall become
exercisable at a rate of no less than 20% per year
over five (5) years from the date the Options are
granted. Unless the Administrator provides otherwise,
vesting of Options granted hereunder shall be tolled
during any unpaid leave of absence. An Option may not
be exercised for a fraction of a Share.
An Option shall be deemed exercised when
the Company receives: (i) written or electronic notice
of exercise (in accordance with the Option Agreement)
from the person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which
the Option is exercised. Full payment may consist of
any consideration and method of payment authorized by
the Administrator and permitted by the Option Agreement
and the Plan. Shares issued upon exercise of an Option
shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee
and his or her spouse. Until Shares are issued (as
evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect
to the Shares, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued)
such Shares promptly after the Option is exercised.
No adjustment will be made for a dividend or other
right for which the record date is prior to the date
the Shares are issued, except as provided in Section
12 of the Plan.
Exercise of an Option in any manner shall
result in a decrease in the number of Shares thereafter
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 Relationship as a Service
Provider. If an Optionee ceases to be a Service
Provider, such Optionee may exercise his or her Option
within such period of time as is specified in the Option
Agreement (of at least thirty (30) days) to the extent
that the Option is vested on the date of termination
(but in no event later than the expiration of the term
of the Option as set forth in the Option Agreement).
In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for
three (3) months following the Optionee's termination.
If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall
revert to the Plan. If, after termination, the Optionee
does not exercise his or her Option within the time
specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall
revert to the Plan.
(c) Disability of Optionee. If an
Optionee ceases to be a Service Provider as a result of
the Optionee's Disability, the Optionee may exercise
his or her Option within such period of time as is
specified in the Option Agreement (of at least six (6)
months) to the extent the Option is vested on the date
of termination (but in no event later than the
expiration of the term of such Option as set forth in
the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the
Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If,
after termination, the Optionee does not exercise his
or her Option within the time specified herein, the
Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee
dies while a Service Provider, the Option may be
exercised within such period of time as is specified
in the Option Agreement (of at least six (6) months) to
the extent that the Option is vested on the date of
death (but in no event later than the expiration of the
term of such Option as set forth in the Option
Agreement) by the Optionee's estate or by a person who
acquires the right to exercise the Option by bequest or
inheritance. In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable
for twelve (12) months following the Optionee's
termination. If, at the time of death, the Optionee is
not vested as to the entire Option, the Shares covered
by the unvested portion of the Option shall immediately
revert to the Plan. If the Option is not so exercised
within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Buyout Provisions. The Administrator
may at any time offer to buy out for a payment in cash
or Shares, an Option previously granted, based on such
terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time
that such offer is made.
10. Non-Transferability of Options and Stock
Purchase Rights. The Options and Stock Purchase
Rights may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime
of the Optionee, only by the Optionee.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase
Rights may be issued either alone, in addition to, or
in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the
Administrator determines that it will offer Stock
Purchase Rights under the Plan, it shall advise the
offeree in writing or electronically of the terms,
conditions and restrictions related to the offer,
including the number of Shares that such person shall
be entitled to purchase, the price to be paid, and the
time within which such person must accept such offer.
The terms of the offer shall comply in all respects
with Section 260.140.42 of Title 10 of the California
Code of Regulations. The offer shall be accepted by
execution of a Restricted Stock purchase agreement
in the form determined by the Administrator.
(b) Repurchase Option. Unless the
Administrator determines otherwise, the Restricted
Stock purchase agreement shall grant the Company a
repurchase option exercisable upon the voluntary or
involuntary termination of the purchaser's service with
the Company for any reason (including death or
disability). The purchase price for Shares repurchased
pursuant to the Restricted Stock purchase agreement
shall be the original price paid by the purchaser and
may be paid by cancellation of any indebtedness of the
purchaser to the Company. The repurchase option shall
lapse at such rate as the Administrator may determine.
Except with respect to Shares purchased by Officers,
Directors and Consultants, the repurchase option shall
in no case lapse at a rate of less than 20% per year
over five (5) years from the date of purchase.
(c) Other Provisions. The Restricted
Stock purchase agreement shall contain such other
terms, provisions and conditions not inconsistent with
the Plan as may be determined by the Administrator in
its sole discretion.
(d) Rights as a Shareholder. Once the
Stock Purchase Right is exercised, the purchaser shall
have rights equivalent to those of a shareholder and
shall be a shareholder when his or her purchase is
entered upon the records of the duly authorized
transfer agent of the Company. No adjustment shall be
made for a dividend or other right for which the record
date is prior to the date the Stock Purchase Right is
exercised, except as provided in Section 12 of the
Plan.
12. Adjustments Upon Changes in Capitalization,
Merger or Asset Sale.
(a) Changes in Capitalization. Subject to
any required action by the shareholders of the
Company, the number of shares of Common Stock covered
by each outstanding Option or Stock Purchase Right, and
the number of shares of Common Stock which have been
authorized for issuance under the Plan but as to which
no Options or Stock Purchase Rights have yet been
granted or which have been returned to the Plan upon
cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of
Common Stock covered by each such outstanding Option or
Stock Purchase Right, 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. The 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
or Stock Purchase Right.
(b) Dissolution or Liquidation. In the
event of the proposed dissolution or liquidation of
the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective
date of such proposed transaction. The Administrator
in its discretion may provide for an Optionee to have
the right to exercise his or her Option or Stock
Purchase Right until fifteen (15) days prior to such
transaction as to all of the Optioned Stock covered
thereby, including Shares as to which the Option or
Stock Purchase Right would not otherwise be
exercisable. In addition, the Administrator may
provide that any Company repurchase option applicable
to any Shares purchased upon exercise of an Option or
Stock Purchase Right shall lapse as to all such Shares,
provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the
extent it has not been previously exercised, an Option
or Stock Purchase Right will terminate immediately
prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event
of a merger of the Company with or into another
corporation, or the sale of substantially all of the
assets of the Company, each outstanding Option and
Stock Purchase Right shall be assumed or an equivalent
option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor
corporation refuses to assume or substitute for the
Option or Stock Purchase Right, the Optionee shall
fully vest in and have the right to exercise the Option
or Stock Purchase Right as to all of the Optioned
Stock, including Shares as to which it would not
otherwise be vested or exercisable. If an Option or
Stock Purchase Right becomes fully vested and
exercisable in lieu of assumption or substitution in
the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or
electronically that the Option or Stock Purchase Right
shall be fully exercisable for a period of fifteen (15)
days from the date of such notice, and the Option or
Stock Purchase Right shall terminate upon the
expiration of such period. For the purposes of this
paragraph, the Option or Stock Purchase Right shall be
considered assumed if, following the merger or sale of
assets, the option or right confers the right to
purchase or receive, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right
immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities
or property) received in the merger or sale of assets
by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were
offered a choice of consideration, the type of
consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if
such consideration received in the merger or sale of
assets is not solely common stock of the successor
corporation or its Parent, the Administrator may, with
the consent of the successor corporation, provide for
the consideration to be received upon the exercise of
the Option or Stock Purchase Right, for each Share of
Optioned Stock subject to the Option or Stock Purchase
Right, to be solely common stock of the successor
corporation or its Parent equal in fair market value to
the per share consideration received by holders of
Common Stock in the merger or sale of assets.
AMENDMENT TO THE
NUVOMEDIA, INC. 1997 STOCK PLAN
RECITALS
A. On January 10, 2000, Gemstar International Group
Limited ("Gemstar") acquired NuvoMedia, Inc., a California
corporation, pursuant to that certain Agreement and Plan of
Merger dated December 22, 1999 (the "Merger Agreement");
B. The Gemstar Board of Directors (the "Board"), at a
meeting on December 22, 1999, (1) approved the assumption by
Gemstar of the NuvoMedia, Inc. 1997 Stock Plan (the "Plan") and
all of the then outstanding options granted under the Plan, (2)
approved the conversion of awards outstanding under the Plan to
awards to acquire Gemstar common stock as contemplated by the
Merger Agreement, and (3) authorized the officers of Gemstar to
execute and deliver any and all documents necessary to carry out
the assumption of the Plan and the assumption and conversion of
all the outstanding options granted under the Plan;
C. Gemstar has or will deliver to the holders of
outstanding options granted under the Plan a notice reflecting
the assumption of such options by Gemstar and the conversion of
the number of shares of common stock subject thereto in
accordance with the Merger Agreement.
D. It is advisable to amend the Plan to reflect
Gemstar's assumption of the Plan.
AMENDMENT
The Plan is hereby amended as follows:
1. The definition of "Company" set forth in the Plan
is amended to read as follows: "`Company' means Gemstar
International Group Limited, a Delaware corporation."
2. The number of shares of stock set forth in Section
3 of the Plan is amended to read "347,214," which number of
shares equals the number of shares subject to the Plan
immediately prior to its assumption by Gemstar (4,000,000), as
adjusted in accordance with the Merger Agreement to reflect the
conversion of the shares to shares of Gemstar Common Stock.
IN WITNESS WHEREOF, Gemstar has caused this Amendment
to be executed by the undersigned duly authorized officer.
GEMSTAR INTERNATIONAL GROUP
LIMITED,
a Delaware corporation
Dated: February 24, 2000 By: /s/ Stephen A. Weiswasser
------------------------------
Stephen A. Weiswasser
Executive Vice President
and General Counsel
[LETTERHEAD OF GEMSTAR]
February 23, 2000
Gemstar International Group Limited
135 N. Los Robles Avenue, Suite 800
Pasadena, CA 91101
Re: Registration Statement on Form S-8 of
Gemstar International Group Limited
(the "Company")
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 to
be filed with the Securities and Exchange Commission in connection
with the registration under the Securities Act of 1933, as amended,
of 193,124 shares of Common Stock, $0.01 par value, of the Company
(the "Common Stock"), and additional rights pursuant to the Company's
Amended and Restated Rights Agreement by and between the
Company and American Stock Transfer & Trust Company (together
with the Common Stock, the "Shares"), to be issued pursuant to
the NuvoMedia, Inc. 1997 Stock Plan (the "Plan"). I have also
examined the steps taken and that will be taken in connection
with the authorization of the Plan and the issuance of the Shares
pursuant to and in accordance with the Plan.
Based upon my examination, including other matters I have
deemed relevant and advice I have received, I am of the opinion that
the Shares have been duly authorized by all necessary corporate
action on the part of the Company and, when issued in accordance
with the authorization by and in accordance with the terms of
the Plan, the Shares will be validly issued, and the Common
Stock will be fully paid and nonassessable.
This opinion will be an exhibit to the Registration Statement.
Respectfully submitted,
/s/ Stephen A. Weiswasser
----------------------------
Stephen A. Weiswasser
Executive Vice President and
General Counsel
[LETTERHEAD OF KPMG]
Independent Accountants' Consent
The Board of Directors
Gemstar International Group Limited
We consent to the incorporation by reference in the
Registration Statement on Form S-8 of Gemstar International
Group Limited of our report dated May 9, 1999, with respect
to the consolidated balance sheets of Gemstar International
Group Limited and subsidiaries as of March 31, 1999 and 1998,
and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the years
in the three-year period ended March 31, 1999, which report is
included in Gemstar International Group Limited's Annual Report
on Form 10-K for the year ended March 31, 1999.
/s/ KPMG LLP
Los Angeles, California
February 24, 2000
[LETTERHEAD OF DELOITTE & TOUCHE]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of NuvoMedia, Inc. 1997 Stock Plan on Form S-8 of Gemstar
International Group Limited ("Gemstar") of our report dated March 7,
1997, relating to the statement of operations of StarSight Telecast, Inc.
("StarSight") and the related statements of shareholders' equity and cash
flows for the year ended December 31, 1996 prior to restatement to conform
StarSight's accounting policies and fiscal year to those of Gemstar, which
report is included in Gemstar's Annual Report on Form 10-K for the year
ended March 31, 1999.
/s/ DELOITTE & TOUCHE LLP
San Francisco, California
February 24, 2000
