AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GADZOOKS, INC.
(Exact name of Registrant as specified in its charter)
TEXAS 74-2261048
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4121 INTERNATIONAL PARKWAY
CARROLLTON, TEXAS 75007
(Address of Principal (Zip Code)
Executive Offices)
GADZOOKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
GERALD R. SZCZEPANSKI
4121 INTERNATIONAL PARKWAY
CARROLLTON, TEXAS 75007
(Name and address of agent for service)
(972) 307-5555
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
======================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES REGISTERED PRICE PER OFFERING REGISTRATION
TO BE REGISTERED (1) SHARE (2) PRICE (2) FEE
- ------------------- ------------ ---------- ---------- ------------
Common Stock, $0.01
par value
("Common Stock") 60,000 $25.56 $1,533,600 $452.41
======================================================================
(1) Pursuant to Rule 416, this Registration Statement also includes an
indeterminate number of additional shares that may hereafter become
issuable as a result of the adjustment provisions of the Plan.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) and calculated on the basis of the average of
the high and low sales prices of the Common Stock of Gadzooks, Inc. on
April 16, 1998, as reported by the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to employees of Gadzooks, Inc. (the "Company") as specified
by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended
(the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in
this Registration Statement:
(1) The Company's Quarterly Report on Form 10-Q for the quarter
ended November 1, 1997, as filed with the Commission on December 11,
1997.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended August 2, 1997, as filed with the Commission on September 16,
1997.
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 3, 1997, as filed with the Commission on June 16, 1997.
(4) The Company's Annual Report on Form 10-K for the fiscal year
ended February 1, 1997, as filed with the Commission on April 23, 1997.
(5) The description of the Company's Common Stock contained in the
Company's registration statement on Form S-1 (No. 333-00196) filed with
the Commission on January 9, 1996, as amended by Amendment No. 1 thereto
filed with the Commission on January 30, 1996, the Company's
registration statement filed pursuant to Rule 462(b) and the Final
Prospectus.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement 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 in this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
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 modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Texas corporation, is empowered by Article 2.02-1 of
the Texas Business Corporation Act (the "TBCA"), subject to the procedures
and limitations stated therein, to indemnify certain persons, including any
person who was, is or is threatened to be made a named defendant or
respondent in an action, suit or proceeding because the person is or was a
director or officer, against judgments, penalties (including excise and
similar taxes), fines, settlements and reasonable expenses (including court
costs and attorneys' fees) actually incurred by the person in connection
with the action, suit or proceeding. The Company is required by Article
2.02-1 to indemnify a director or officer against reasonable expenses
(including court costs and attorneys' fees) incurred by him in connection
with an action, suit or proceeding in which he is a named defendant or
respondent because he is or was a director or officer if he has been wholly
successful, on the merits or otherwise, in the defense of the action, suit
or proceeding. Article 2.02-1 provides that indemnification pursuant to
its provisions is not exclusive of other rights of indemnification to which
a person may be entitled under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise. The Second Restated Articles of
Incorporation and Amended and Restated Bylaws of the Company provide for
indemnification by the Company of its directors and officers to the fullest
extent permitted by the TBCA. In addition, the Company has, pursuant to
Article 1302-7.06 of the Texas Miscellaneous Corporation Laws Act, provided
in its Second Restated Articles of Incorporation that, to the fullest
extent permitted by applicable law, a director of the Company shall not be
liable to the Company or its shareholders for monetary damages for an act
or omission in a director's capacity as director of the Company.
Furthermore, the Company has entered into individual Indemnification
Agreements with each director of the Company which contractually obligate
the Company to provide to the directors (i) indemnification; (ii) insurance
or self-insurance in lieu thereof; and (iii) additional indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits, attached hereto.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the 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.
(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, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. 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.
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 Carrollton, State of Texas on
April 9, 1998.
GADZOOKS, INC.
By: /S/ GERALD R. SZCZEPANSKI
--------------------------------
Gerald R. Szczepanski
Chairman of the Board, Chief
Executive Officer and President
The undersigned directors and officers of Gadzooks, Inc. hereby
constitute and appoint Gerald R. Szczepanski and Monty R. Standifer and
each of them, with full power to act without the other and with full power
of substitution and resubstitution, our true and lawful attorneys-in-fact
with full power to execute in our name and behalf in the capacities
indicated below any and all amendments (including post-effective amendments
and amendments thereto) to this Registration Statement and to file the
same, with all exhibits thereto and other documents in connection therewith
with the Commission and hereby ratify and confirm all that such attorneys-
in-fact, or either of them, or their substitutes shall lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated on April 9, 1998.
SIGNATURE TITLE
/S/ GERALD R. SZCZEPANSKI Chairman of the Board, Chief Executive
- --------------------------- Officer and President (Principal Executive
Gerald R. Szczepanski Officer)
/S/ MONTY R. STANDIFER Senior Vice President, Chief Financial
- --------------------------- Officer, Treasurer and Secretary (Principal
Monty R. Standifer Financial and Accounting Officer)
/S/ LAWRENCE H. TITUS, JR. Director
- ---------------------------
Lawrence H. Titus, Jr.
/S/ G. MICHAEL MACHENS Director
- ---------------------------
G. Michael Machens
/S/ ALAN W. CRITES Director
- ---------------------------
Alan W. Crites
/S/ ROBERT E.M. NOURSE Director
- ---------------------------
Robert E.M. Nourse
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
4.1 - Second Restated Articles of Incorporation
of the Company (filed as Exhibit 4.1 to the
Company's Form S-8 (No. 33-98038) filed with the
Commission on October 12, 1995 and incorporated
herein by reference).
4.2 - Amended and Restated Bylaws of the Company
(filed as Exhibit 4.2 to the Company's Form S-8
(No. 33-98038) filed with the Commission on
October 12, 1995 and incorporated herein by
reference).
4.3 - First Amendment to the Amended and Restated
Bylaws of the Company (filed as Exhibit 3.3 to
the Company's Quarterly Report on Form 10-Q for
the quarter ended August 2, 1997 filed with the
Commission on September 16, 1997 and
incorporated herein by reference.
4.4 - Specimen Certificate for shares of Common
Stock, $.01 par value, of the Company (filed as
Exhibit 4.1 to the Company's Amendment No. 2 to
Form S-1 (No. 33-95090) filed with the
Commission on September 8, 1995 and incorporated
herein by reference).
4.5* - Gadzooks, Inc. Employee Stock Purchase
Plan.
5.1* - Opinion and Consent of Akin, Gump, Strauss,
Hauer & Feld, L.L.P.
23.1* - Consent of Price Waterhouse LLP.
23.2* - Consent of Akin, Gump, Strauss, Hauer &
Feld, L.L.P. (included in its opinion filed as
Exhibit 5.1 hereto).
24* - Power of Attorney (included on signature
page of this Registration Statement).
* Filed herewith
EXHIBIT 4.5
GADZOOKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I. PURPOSE
1.1 PURPOSE. This Gadzooks, Inc. Employee Stock Purchase Plan (the
"Plan") is intended to provide a method whereby employees of Gadzooks, Inc.
and any subsidiary corporations (hereinafter referred to, unless the
context otherwise requires, as the "Company") will have an opportunity to
acquire a proprietary interest in the Company through the purchase of
shares of the Common Stock of the Company. It is the intention of the
Company to have the Plan qualify as an "employee stock purchase plan" under
423 of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section
of the Code.
ARTICLE II. DEFINITIONS
In addition to other terms defined herein the following terms shall
have the indicated meanings when used in the Plan.
BOARD OF DIRECTORS. "Board of Directors" or "Board" shall mean the
Board of Directors of the Company.
COMPENSATION. "Compensation " shall mean base salary or wages plus
payments for overtime, commissions and bonuses, without reduction for
deferrals under qualified and nonqualified plans of deferred compensation.
COMMITTEE. "Committee" shall mean the individuals described in
Article XI.
EMPLOYEE. "Employee" means any person who is customarily employed on a
full-time or part-time basis by the Company, but who is regularly scheduled
to work more than 20 hours per week.
PARTICIPANT. "Participant" means an Employee who has met the
eligibility requirements of 3.1 hereof.
PLAN ENTRY DATE. "Plan Entry Date" means January 1 or July 1 of each
year.
SUBSIDIARY. "Subsidiary Corporation" shall mean any present or future
corporation which (i) would be a "subsidiary corporation" of Company as
that term is defined in 424 of the Code and (ii) is designated as a
participating affiliate in the Plan by the Board of Directors.
ARTICLE III. ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Except as otherwise specifically provided herein,
any individual who is an Employee as of the effective date set forth in
Section 12.5 shall become eligible to participate in Offerings under the
Plan which commence on or after the Effective Date. Thereafter, any
Employee who has completed six months' of employment with the Company shall
be eligible to participate in Offerings under the Plan which commence on or
after that Plan Entry Date which first occurs after meeting such service
requirement.
3.2 LEAVE OF ABSENCE. For purposes of participation in the Plan, a
person on leave of absence shall be deemed to be an Employee for the first
90 days of such leave of absence and such Employee's employment shall be
deemed to have terminated at the close of business on the 90th day of such
leave of absence unless such Employee shall have returned to regular full-
time or part-time employment (as the case may be) prior to the close of
business on such 90th day. Termination by the Company of any Employee's
leave of absence, other than termination of such leave of absence on return
to full-time or part-time employment, shall terminate an Employee's
employment for all purposes of the Plan and shall terminate such Employee's
participation in the Plan.
3.3 RESTRICTIONS IN PARTICIPATION. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall be granted an option to
participate in the Plan:
(a) if, immediately after the grant, such Employee would own
stock, and/or hold outstanding options to purchase stock, possessing
5% or more of the total combined voting power or value of all classes
of stock of the Company (for purposes of this paragraph, the rules of
424(d) of the Code shall apply in determining stock ownership of any
Employee); or
(b) which permits his or her rights to purchase stock under all
Employee stock purchase plans of the Company to accrue at a rate which
exceeds $25,000.00 in fair market value of the stock (determined at
the time such option is granted) for each calendar year in which such
option is outstanding.
3.4 COMMENCEMENT OF PARTICIPATION. An eligible Employee may become a
Participant by completing an authorization for a payroll deduction on the
form provided by the Company and filing it with the Company on or before
the date set therefor by the Committee, which date shall be prior to the
Offering Commencement Date for the Offering (as such terms are defined
below). Payroll deductions for a Participant shall commence on the
applicable Offering Commencement Date when such authorization for a payroll
deduction becomes effective and shall end on the Offering Termination Date
of the Offering to which such authorization is applicable unless sooner
terminated by the Participant as provided in Article VIII below.
ARTICLE IV. OFFERINGS
4.1 ANNUAL OFFERINGS. The Plan will be implemented by twenty-four
(24) monthly offerings of the Company's Common Stock (the "Offerings")
commencing, respectively, on April 1, 1998 and on the first day of each
calendar month thereafter ending with March of 2000. Each Offering shall
terminate on the last day of each such month, respectively.
In each Offering, the maximum number of shares that may be issued
shall be 2,500 shares, plus any unissued shares, whether offered or not,
from the immediately preceding Offering. The aggregate number of shares
that may be issued under the Plan is 60,000. The commencement date of each
Offering ("Offering Commencement Date") shall be the first day of each
calendar month in the period beginning April 1, 1998 and ending March 31,
2000. The termination date of each Offering ("Offering Termination Date")
shall be the last day of each such calendar month.
ARTICLE V. PAYROLL DEDUCTIONS
5.1 AMOUNT OF DEDUCTION. At the time a Participant files an
authorization for payroll deduction, the Employee shall elect to have
deductions made, in accordance with procedures established by the
Committee, on each payday during the time he or she is a Participant in an
Offering at the rate of not less than 1%, nor more than 15% of his or her
Compensation in effect at the Offering Commencement Date of such Offering.
5.2 PARTICIPANT'S ACCOUNT. All payroll deductions made for a
Participant shall be credited to the Employee's account under the Plan. A
Participant may not make any separate cash payment into such account except
when on leave of absence and then only as provided in 5.4 hereof.
5.3 CHANGES IN PAYROLL DEDUCTIONS. Within the first thirty (30) days
of a calendar quarter a Participant may make a prospective change (but not
below 1%) in the percentage of his or her Compensation to be deferred for
the rest of the quarter. However, no more than one such change may be made
in any such thirty (30) day period.
5.4 LEAVE OF ABSENCE. If a Participant goes on a leave of absence,
such Participant shall have the right to elect: (a) to discontinue
contributions to the Plan but remain a Participant in the Plan, or (b)
remain a Participant in the Plan during such leave of absence, authorizing
deductions to be made from any payments of Compensation by the Company to
the Participant during such leave of absence.
ARTICLE VI. GRANTING OF OPTION
6.1 NUMBER OF OPTION SHARES. On the Offering Termination Date of each
Offering, a participating Employee shall be deemed to have been granted an
option to purchase a maximum number of shares of Common Stock of the
Company equal to an amount determined as follows: an amount equal to (i)
that amount of the Employee's Compensation which has been withheld for the
Offering in accordance with the Plan, divided by (ii) 85% of the market
value of the stock of the Company on that Offering Termination Date or the
nearest prior business day on which trading in Common Stock of the Company
occurred on the NASDAQ National Market System.. The market value of the
Company's stock shall be determined as provided in 6.2 below.
6.2 OPTION PRICE. The option price of stock purchased with payroll
deductions made during such Offering for a Participant therein shall be 85%
of the closing price of the stock on the Offering Termination Date or the
nearest prior business day on which trading in Common Stock of the Company
occurred on the NASDAQ National Market System. If the Common Stock of the
Company is not admitted to trading on such date, then reference shall be
made to the fair market value of the stock on that date, as determined on
such basis as shall be established or specified for purposes of the
Offering by the Committee.
ARTICLE VII. EXERCISE OF OPTION
7.1 AUTOMATIC EXERCISE. The option for the purchase of stock with
payroll deductions made during any Offering will be deemed to have been
exercised automatically on the Offering Termination Date applicable to such
Offering, for the purchase of the number of full shares of stock which the
accumulated payroll deductions in his or her account at that time will
purchase at the applicable option price (but not in excess of the number of
shares for which options have been granted to the Employee pursuant to
6.1), and any excess in his or her account at that time will be returned
to the Participant.
7.2 FRACTIONAL SHARES. Fractional shares will be calculated to the
fourth decimal point.
7.3 TRANSFERABILITY OF OPTION. During a Participant's lifetime,
options held by such Participant shall be exercisable only by that
Participant.
7.4 DELIVERY OF STOCK. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each
Participant, as appropriate, the stock purchased upon exercise of his or
her option.
ARTICLE VIII. WITHDRAWAL
8.1 IN GENERAL. A Participant may withdraw from participation in the
Plan at any time by giving written notice to the Company. The Compensation
deferrals of a withdrawing Participant shall cease beginning with the next
pay period. None of the Participant's payroll deductions then credited to
his or her account in connection with an Offering will be returned to the
Participant, but will instead be applied to the exercise of options during
the appropriate Offering. The Company may, at its option, treat any attempt
to borrow by an Employee on the security of his or her accumulated payroll
deductions as an election to withdraw from the Plan.
8.2 EFFECT ON SUBSEQUENT PARTICIPATION. A Participant's withdrawal
from any Offering will disqualify the Participant from again participating
in the Plan until the first Offering that commences after the next
January 1 or July 1.
8.3 TERMINATION OF EMPLOYMENT. Upon loss of status as an Employee or
termination of the Participant's employment for any reason, including
retirement (but excluding death while in the employ of the Company or
continuation of a leave of absence for a period beyond 90 days), any
payroll deductions then credited to the Employee's account will be returned
to the Employee.
8.4 TERMINATION OF EMPLOYMENT DUE TO DEATH. Upon termination of the
Participant's employment because of his or her death, his or her legal
representative shall have the right to elect, by written notice given to
the Company prior to the Offering Termination Date, either:
(a) to withdraw all of the payroll deductions credited to the
Participant's account under the Plan, or
(b) to exercise the Participant's option for the purchase of
stock on the Offering Termination Date next following the date of the
Participant's death for the purchase of the number of full shares of
stock which the accumulated payroll deductions in the Participant's
account at the date of the Participant's death will purchase at the
applicable option price (but not in excess of the number of shares for
which options have been granted to the Employee pursuant to 6.1),
and any excess in such account will be paid to the legal
representative, without interest. In the event that no such written
notice of election shall be duly received by the Company, the legal
representative shall automatically be deemed to have elected, pursuant
to this paragraph (b), to exercise the Participant's option.
8.5 LEAVE OF ABSENCE. A Participant on leave of absence shall,
subject to the election made by such Participant, continue to participate
in the Plan so long as such Participant is on continuous leave of absence.
A Participant who has been on leave of absence for more than 90 days and
who, therefore, is not an Employee for the purpose of the Plan shall not be
entitled to participate in any Offering commencing after the 90th day of
such leave of absence. Notwithstanding any other provisions of the Plan,
unless a Participant on leave of absence returns to regular full-time or
part-time employment with the Company at the earlier of: (a) the
termination of such leave of absence or (b) three months from the 90th day
of such leave of absence, such Participant's participation in the Plan
shall terminate on whichever of such dates first occurs.
ARTICLE IX. INTEREST
9.1 PAYMENT OF INTEREST. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any Participant
Employee; provided, however, that interest shall be paid on any and all
money which is distributed to an Employee or a legal representative
pursuant to the provisions of 8.3 and 8.4 hereof. Such distributions
shall bear simple interest during the period from the date of withholding
to the date of return at the regular passbook savings account rates per
annum in effect at Wells Fargo Bank in Dallas, Texas during the applicable
Offering period or, if such rates are not published or otherwise available
for such purpose, at the regular passbook savings account rates per annum
in effect during such period at another major commercial bank in Dallas,
Texas selected by the Board of Directors or the Committee. Where the amount
returned represents an excess amount in an Employee's account after such
account has been applied to the purchase of stock, the Employee's
withholding account shall be deemed to have been applied first toward
purchase of stock under the Plan, so that interest shall be paid on the
last withholdings during the period which results in the excess amount.
ARTICLE X. STOCK
10.1 MAXIMUM SHARES. The maximum number of shares which shall be
reserved for issuance under the Plan, subject to adjustment upon changes in
capitalization of the Company as provided in 12.4 hereof shall be 2,500
shares in each monthly Offering plus in each Offering all unissued shares
from prior Offerings, whether offered or not, not to exceed 60,000 shares
for all Offerings. Such shares may be newly issued by the Company or may
be purchased by the Company on the open market. If the total number of
shares for which options are exercised on any Offering Termination Date in
accordance with Article VI above exceeds the maximum number of shares for
the applicable Offering, the Company shall make a pro rata allocation of
the shares available for delivery and distribution in a nearly uniform
manner as shall be practicable and as it shall determine to be equitable,
and the balance of payroll deductions credited to the account of each
Participant under the Plan shall be returned as promptly as possible.
10.2 PARTICIPANT'S INTEREST IN OPTION STOCK. A Participant will have
no interest in stock covered by his or her option until such option has
been exercised.
10.3 REGISTRATION OF STOCK. Stock to be delivered to a Participant
under the Plan will be registered in the name of the Participant, or, if
the Participant so directs by written notice to the Company prior to the
Offering Termination Date applicable thereto, in the names of the
Participant and one such other person as may be designated by the
Participant, as joint tenants with rights of survivorship or as tenants by
the entireties, to the extent permitted by applicable law. Any such notice
shall be given in accordance with procedures established by the Committee.
10.4 RESTRICTIONS ON EXERCISE. The Board of Directors may, in its
discretion, require as conditions to the exercise of any option that the
shares of Common Stock reserved for issuance upon the exercise of the
option shall have been duly listed, upon official notice of issuance, upon
a stock exchange, and that a Registration Statement under the Securities
Act of 1933, as amended, with respect to said shares shall be effective.
ARTICLE XI. ADMINISTRATION
11.1 APPOINTMENT OF COMMITTEE. The Board of Directors shall appoint a
committee (the "Committee") to administer the Plan, which shall consist of
no fewer than three individuals who need not be members of the Board.
11.2 AUTHORITY OF COMMITTEE. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules
and regulations for administering the Plan, and to make all other
determinations deemed necessary or advisable for administering the Plan.
The Committee's determination on the foregoing matters shall be conclusive.
11.3 RULES GOVERNING THE ADMINISTRATION OF THE COMMITTEE. The Board of
Directors may from time to time appoint members of the Committee in
substitution for or in addition to members previously appointed and may
fill vacancies, however caused, in the Committee. The Committee may select
one of its members as its Chairman and shall hold its meetings at such
times and places as it shall deem advisable and may hold telephonic
meetings. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members.
The Committee may correct any defect or omission or reconcile any
inconsistency in the Plan, in the manner and to the extent it shall deem
desirable. Any decision or determination reduced to writing and signed by a
majority of the members of the Committee shall be as fully effective as if
it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary and shall make such rules and regulations
for the conduct of its business as it shall deem advisable.
ARTICLE XII. MISCELLANEOUS
12.1 TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an
option or to receive stock under the Plan may be assigned, transferred,
pledged, or otherwise disposed of in any way by the Participant other than
by will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw from
the Plan.
12.2 USE OF FUNDS. All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate
purpose and the Company shall not be obligated to segregate such payroll
deductions.
12.3 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) If, while any options are outstanding, the outstanding
shares of Common Stock of the Company have increased, decreased,
changed into, or been exchanged for a different number or kind of
shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split
or similar transaction, appropriate and proportionate adjustments may
be made by the Committee in the number and/or kind of shares which are
subject to purchase under outstanding options and on the option
exercise price or prices applicable to such outstanding options. In
addition, in any such event, the number and/or kind of shares which
may be offered in the Offerings described in Article IV hereof shall
also be proportionately adjusted. No adjustments shall be made for
stock dividends. For the purposes of this paragraph, any distribution
of shares to shareholders in an amount aggregating 20% or more of the
outstanding shares shall be deemed a stock split and any distributions
of shares aggregating less than 20% of the outstanding shares shall be
deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or upon
a reorganization, merger or consolidation of the Company with one or
more corporations as a result of which the Company is not the
surviving corporation, or upon a sale of substantially all of the
property or stock of the Company to another corporation, the holder of
each option under the Plan will be entitled to receive at the Offering
Termination Date upon the exercise of such option for each share as to
which such option shall be exercised, as nearly as reasonably may be
determined, the cash, securities and/or property which a holder of one
share of the Common Stock was entitled to receive upon and at the time
of such transaction. The Board of Directors shall take such steps in
connection with such transactions as the Board shall deem necessary to
assure that the provision of this 12.3 shall thereafter be
applicable, as nearly as reasonably may be determined, in relation to
the said cash, securities and/or property as to which such holder of
such option might thereafter be entitled to receive.
12.4 AMENDMENT AND TERMINATION. The Board of Directors shall have
complete power and authority to terminate and amend the Plan; PROVIDED,
however, that the Board of Directors shall not, without the approval of the
stockholders of the Corporation (i) increase the maximum number of shares
which may be issued under any Offering (except pursuant to 12.3 hereof);
or (ii) amend the requirements as to the class of Employees eligible to
purchase stock under the Plan or permit the members of the Committee to
purchase stock under the Plan.
12.5 EFFECTIVE DATE. The Plan shall become effective as of April 1,
1998, subject to approval by the holders of the majority of the Common
Stock present and represented at a special or annual meeting of the
shareholders held on or before December 31, 1998. If the Plan is not so
approved, the Plan shall not become effective.
12.6 NO EMPLOYMENT RIGHTS. The Plan does not, directly or indirectly,
create any right for the benefit of any Employee or class of Employees to
purchase any shares under the Plan, or create in any Employee or class of
Employees any right with respect to continuation of employment by the
Company, and it shall not be deemed to interfere in any way with the
Company's right to terminate, or otherwise modify, an Employee's employment
at any time.
12.7 EFFECT OF PLAN. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all
successors of each Employee participating in the Plan, including, without
limitation, such Employee's estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such Employee.
12.8 GOVERNING LAW. The law of the State of Texas will govern all
matters relating to this Plan except to the extent it is superseded by the
laws of the United States.
12.9 NOTICES. All notices to the Company shall be in writing or
written telecommunication and deemed effective when received by the Company
at:
Gadzooks, Inc.
4121 International Parkway
Carrollton, Texas 75007
Phone: (972) 307-5555
Fax: (972) 662-4296
Attn: Human Resources - Benefits Department
(or such other address as may be specified from time to time by the
Company); provided that notice by telecommunication shall be confirmed in
writing by personal delivery, U.S. mail, certified mail or registered mail
of a copy thereof.
EXHIBIT 5.1
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
ATTORNEYS AT LAW
a registered limited liability partnership
including professional corporations
1700 PACIFIC AVENUE
SUITE 4100
DALLAS, TEXAS 75201-4675
(214) 969-2800
FAX (214) 969-4343
WRITER'S DIRECT DIAL NUMBER (214) 969 - 2800
April 17, 1998
Gadzooks, Inc.
4121 International Parkway
Carrollton, Texas 75007
Gentlemen:
We have acted as counsel to Gadzooks, Inc., a Texas corporation (the
"Company"), in connection with the proposed registration of 60,000 shares
of the Company's common stock, par value $.01 per share (the "Common
Stock"), as described in a registration statement on Form S-8 (the
"Registration Statement") relating to the Common Stock to be issued under
the Company's Employee Stock Purchase Plan (the "Plan") which Registration
Statement is to be filed with the Securities and Exchange Commission.
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed
necessary, relevant or appropriate to enable us to render the below-listed
opinions. In rendering such opinions, we have assumed the genuineness of
all signatures and the authenticity of all documents examined by us. As to
various questions of fact material to such opinions, we have relied upon
representations of the Company.
Based upon such examination and representations, we advise you that,
in our opinion:
A. The shares of Common Stock to be issued under the Plan which are
to be registered pursuant to the Registration Statement have been duly and
validly authorized by the Company.
B. The shares of Common Stock to be issued under the Plan which are
to be registered pursuant to the Registration Statement, when issued and
delivered in accordance with the Plan (and assuming an option price at
least equal to the par value of the Common Stock), will be validly issued,
fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Sincerely,
/s/ Akin, Gump, Strauss, Hauer & Feld, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 12, 1997, which appears on
page 31 of the 1996 Annual Report to Shareholders of Gadzook's, Inc., which
is incorporated in Gadzook's Annual Report on Form 10-K for the year ended
February 1, 1997.
/S/ PRICE WATERHOUSE LLP
Dallas, Texas
April 21, 1998
