As filed with the Securities and Exchange Commission on January _____, 1997
Registration No. 33-89714
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
WILD WINGS, INC.
(Exact name of registrant as specified in its Charter)
Nevada 84-1120614
(State or other jurisdiction of incorporation (I.R.S.Employer
or organization) Identification No.)
899 South Artistic Circle, Springville, Utah 84663
(Address of Principal Executive Offices) (Zip Code)
"Wild Wings, Inc. 1995 Stock Option Plan"
(Full title of the plan)
Poulton & Yordan
4 Triad Center, Suite 500-A, Salt Lake City, Utah 84180
(801) 355-1341
(Name, address and telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
_____________________________________________________________________
Common Stock
No Par value 400,000 $3.00 $250,000 $413.80
per share shares
_____________________________________________________________________
(1) Computed on the basis of the price at which the options may be
exercised, pursuant to Rule 457(h)(1) of the Securities Act of 1933,
as amended, solely for the purpose of calculating the amount of the
registration fee.
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AVAILABLE INFORMATION
Wild Wings, Inc. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company may be
inspected without charge and copied at the public reference facilities
maintained
by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following regional offices of the Commission: 7 World Trade
Center, New York, New York 10048; and 500 West Madison Street, 14th Floor,
Chicago, Illinois 60661-2511. Copies of such material may also be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates.
The Company is an electronic filer with the Securities and Exchange
Commission. The Commission maintains a Web site that contains reports, proxy
and
information statements and other information regarding issuers that file
electronically with the Commission. The Commission's Web site address is
(http:/www.sec.gov).
The Company has filed with the Commission a Registration Statement on Form
S-8 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the securities which may be
offered hereby. The following description does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement and
documents incorporated therein by reference.
The Company will deliver or cause to be delivered a copy of its most recent
annual report to shareholders or its most recent annual report on Form 10-K to
each person who receives this document who has not previously received such
reports. In addition, each person participating in the Plan, who does not
otherwise receive such materials as a shareholder of the Company will be
provided
with copies of all reports, proxy statements and other communications
distributed
to the shareholders of the Company generally. The company also undertakes to
provide, without charge, to each person to whom this document is delivered, upon
written or oral request of such person, a copy of any or all of the documents
which have been or may be incorporated by reference in Item 3 of Part II of the
Registration Statement (which items are described below under "Incorporation of
Certain Documents by Reference"), other than exhibits to such documents, and any
other documents required to be delivered pursuant to Rule 428(b) of the
Securities Act. Such requests should be directed to Ms. Brenda M. Hall,
President, 899 South Artistic Circle, Springville, Utah, 84663. Additional
information about the Plan and its administrators may be obtained by writing to
or telephoning the Company at the address or telephone number listed above.
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PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be given or sent to all employees as specified by
Rule 428.
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934
(the "Exchange Act") by Wild Wings, Inc. (the"Company") (File No. 33-89714)
are incorporated herein by reference:
(a) The description of the Company's Common Stock contained in the
Company's Company's Form SB-2, dated February 25, 1995.
(b) The Company's Report on Form SR for the period ended July 28,
1995.
(c) The Company's Annual Report on Form 10-KSB for the period ended
December 31, 1995.
(d) The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended September 30, 1996.
(e) The Company's Form 8-K dated October 8, 1996.
Each document filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicated that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and shall be part hereof from the date of filing of
such document. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or any other
subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so
modified or superseded.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.,
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Revised Statutes and Article XI or Wild
Wings, Inc.'s Articles of Incorporation filed as an exhibit to the Company's
Registration Statement on Form 10-SB, under the Exchange Act, to which
reference is hereby made, contain provisions authorizing indemnification by
the Company of directors, officers, employees or agents against certain
liabilities and expenses which they may incur as directors, officers,
employees or agents of Wild Wings, Inc. or of certain other entities,
Section 78.751 also provides that such indemnification may include payment by
Wild Wings, Inc. of expenses incurred in defending a civil or criminal action
or proceeding in advance of the final disposition of such action or
proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be entitled to indemnification
under Section 78.751. Any indemnification may be provided although the person
to be indemnified is no longer a director, officer, employee or agent of Wild
Wings, Inc. or such other entities. Section 78.752 also contains provisions
authorizing the Company to obtain insurance on behalf of any such director,
officer, employee or agent against liabilities, whether or not the Company
would have the power to indemnify against such liabilities.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended (the "Securities Act") and is, therefore, unenforceable, In
the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in successful defense of any
action, suite or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Poulton and Yordan
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23.1 Consent of Pritchett, Siler & Hardy, P.C.
23.2 Consent of Poulton and Yordan (included in Exhibit 5)
24 Power of Attorney (included on page II-6)
99.1 "Wild Wings, Inc. 1995 Stock Option Plan"
Item 9. Undertakings.
The Company hereby undertakes: (1)(i) to file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement 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, 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 (1)(i) and (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
Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement; (2) that,
for the purpose of determining any 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; 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 Wild Wings, Inc. 1995 Stock Option Plan.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses
defense of any action, suit or proceeding) is asserted by such director,
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officer or controlling person in connection with the securities being
registered, the Company 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that is 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 Springville, State of Utah, on January 6,
1997.
WILD WINGS, INC.
/s/ Brenda M. Hall
By ________________________
Brenda M. Hall, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints Brenda M. Hall, his true and lawful attorney-in-fact,
with full power of substitution, for him in any and all capacities, to execute
and cause to be filed with the Securities and Exchange Commission any and all
amendments and post-effective amendments to this Registration Statement, with
exhibits thereto and other documents in connection therewith, and hereby
ratifies
and confirms all that said attorney-in-fact or his substitute may do cause to be
done by virtue hereof.
Signature Title Date
/s/ Brenda M. Hall
__________________________ President, Secretary/Treasurer, January 6,1997
Brenda M. Hall Chief Financial Officer and a
Director
/s/ Paui Wichman
___________________________ Director January 9, 1997
Paui Wichman
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EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Exhibit Page
5 Opinion of Poulton and Yordan
23.1 Consent of Pritchett, Siler & Hardy, P.C.
23.2 Consent of Poulton and Yordan (included in Exhibit 5)
24 Power of Attorney (included on page 7)
99.1 "Wild Wings, Inc. 1995 Stock Option Plan"
_______________________
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POULTON & YORDAN
ATTORNEYS AT LAW
4 TRIAD CENTER, SUITE 500-A
SALT LAKE CITY, UTAH 84180
January 6, 1997
Board of Directors
Wild Wings, Inc.
899 Artistic Circle
Springville, Utah 84663
RE: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to a Nevada corporation (the "Company"), in
connection with the preparation and filing of a Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission on January 6, 1997 pertaining to 400,000 shares of the
Company's common stock, par value $.001 (the "Shares") being registered in
connection with the Company's "Wild Wings, Inc. 1995 Stock Option Plan",
(the "Plan").
We have reviewed the Articles of Incorporation and Bylaws of the
Company, resolutions of the board of directors and shareholders of the
Company, the Registration Statement, the Plan and such other documents as
we have deemed appropriate. As to factual matters we have relied
upon a certificate supplied to us by an officer of the Company. In
rendering the opinion expressed herein, we have assumed, without
investigation, the validity of all documents and the accuracy of
all information supplied to us by the Company.
Based upon the foregoing, we are of the opinion that the Shares
being registered pursuant to the Registration Statement, when the
Registration Statement becomes effective and the Shares are issued and
paid for in accordance with the Plan, will have been duly authorized and will be
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under "Legal Matters"
in the Prospectus contained in the Registration Statement.
Very truly yours,
POULTON & YORDAN
/s/ Cletha A. Walstrand
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
24, 1996 accompanying the financial statements as of December 31,
1995 of Wild Wings, Inc., as filed with the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1995.
/s/ Pritchett, Siler & Hardy, P.C.
PRITCHETT, SILER & HARDY, P.C.
Salt Lake City, Utah
January 6, 1997
Wild Wings, Inc.
1995 Stock Option Plan
Section 1. Purpose; Definitions.
1.1 Purpose. The purpose of Wild Wings, Inc. ("Company") 1995 Option
Plan ("Plan") is to enable the Company to offer to its key employees, officers,
directors, consultants and sales representatives whose past, present and/or
potential contributions to the Company and its Subsidiaries have been, are or
will be important to the success of the Company, an opportunity to acquire a
proprietary interest in the Company. The various types of long-term incentive
awards which may be provided under the Plan will enable the Company to respond
to changes in compensation practices, tax laws, accounting regulations and the
size and diversity of its businesses.
1.2 Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agreement" means the agreement between the Company and the
Holder setting forth the terms and conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto and the regulations promulgated
thereunder.
(d) "Committee" means the Stock Option Committee of the Board or
any other committee of the Board, which the Board may designate to administer
the Plan or any portion thereof. If no Committee is so designated, then all
references in this Plan to "Committee" shall mean the Board.
(e) "Common Stock" means the Common Stock of the Company, par value
$.001 per share.
(f) "Company" means Wild Wings, Inc., a corporation organized under
the laws of the State of Nevada.
(g) "Deferred Stock" means Stock to be received, under an award
made pursuant to Section 9, below, at the end of a specified deferral period.
(h) "Disability" means disability as determined under procedures
established by the Committee for purposes of the Plan.
(i) "Effective Date" means the date set forth in Section 13.1,
below.
(j) "Fair Market Value", unless otherwise required by any
applicable provision of the Code or any regulations issued thereunder, means, as
of any given date: (i) if the Common Stock is listed on a national securities
exchange or quoted on the Nasdaq National Market or Nasdaq SmallCap Market, the
last sale price of the Common Stock in the principal trading market for the
Common Stock on the last trading day preceding the date of grant of an award
hereunder, as reported by the exchange or Nasdaq, as the case may be; (ii) if
the Common Stock is not listed on a national securities exchange or quoted
on the
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Nasdaq National Market or Nasdaq SmallCap Market, but is traded in the
over-the-counter market, the closing bid price for the Common Stock on the
last trading day preceding the date of grant of an award hereunder for which
such quotations
are reported by the OTC Bulletin Board or the National Quotation Bureau,
Incorporated or similar publisher of such quotations; and (iii) if the fair
market value of the Common Stock cannot be determined pursuant to clause (i) or
(ii) above, such price as the Committee shall determine, in good faith.
(k) "Holder" means a person who has received an award under the
Plan.
(l) "Incentive Stock Option" means any Stock Option intended to be
and designated as an "incentive stock option" within the meaning of Section 422
of the Code.
(m) "Nonqualified Stock Option" means any Stock Option that is not
an Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment
with the Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 10,
below, that is valued in whole or in part be reference to, or is otherwise based
upon, Stock.
(p) "Parent" means any present or future parent corporation of the
Company, as such term is defined in Section 424(e) of the Code.
(q) "Plan" means Wild Wings, Inc. 1995 Stock Option Plan, as
hereinafter amended from time to time.
(r) "Restricted Stock" means Stock, received under an award made
pursuant to Section 8, below, that is subject to restrictions under said Section
8.
(s) "SAR Value" means the excess of the Fair Market Value (on the
exercise date) of the number of shares for which the Stock Appreciation Right is
exercised over the exercise price that the participant would have otherwise had
to pay to exercise the related Stock Option and purchase the relevant shares.
(t) "Stock" means the Common Stock of the Company, par value $.001
per share.
(u) "Stock Appreciation Right" means the right to receive from the
Company, on surrender of all or part of the related Stock Option, without a cash
payment to the Company, a number of shares of Common Stock equal to the SAR
Value
divided by the exercise price of the Stock Option.
(v) "Stock Option" or "Option" means any option to purchase shares
of Stock which is granted pursuant to the Plan.
(w) "Stock Reload Option" means any option granted under Section
6.3, below, as a result of the payment of the exercise price of a Stock Option
and/or the withholding tax related thereto in the form of Stock owned by the
Holder or the withholding of Stock by the Company.
(x) "Subsidiary" means any present or future subsidiary corporation
of the Company, as such term is defined in Section 424(f) of the Code.
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Section 2. Administration.
2.1 Committee Membership. The Plan shall be administered by the Board
or a Committee. Committee members shall serve for such terms as the Board may
in each case determine, and shall be subject to removal at any time by the
Board.
2.2 Powers of Committee. The Committee shall have full authority,
subject to Section 4, below, to award, pursuant to the terms of the Plan: (i)
Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv)
Deferred Stock, (v) Stock Reload Options and/or (vi) Other Stock-Based Awards.
For purposes of illustration and not of limitation, the Committee shall have the
authority (subject to the express provisions of this Plan):
(a) to select the officers, key employees, directors, consultants
and sales representatives of the Company or any Subsidiary to whom Stock
Options,
Stock Appreciation Rights, Restricted Stock, Deferred Stock, Reload Stock
Options
and/or Other Stock-Based Awards may from time to time be awarded hereunder.
(b) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any award granted hereunder (including, but not
limited
to, number of shares, share price, any restrictions or limitations, and any
vesting, exchange, surrender, cancellation, acceleration, termination, exercise
or forfeiture provisions, as the Committee shall determine);
(c) to determine any specified performance goals or such other
factors or criteria which need to be attained for the vesting of an award
granted
hereunder;
(d) to determine the terms and conditions under which awards
granted hereunder are to operate on a tandem basis and/or in conjunction with or
apart from other equity awarded under this Plan and cash awards made by the
Company or any Subsidiary outside of this Plan;
(e) to permit a Holder to elect to defer a payment under the Plan
under such rules and procedures as the Committee may establish, including the
crediting of interest on deferred amounts denominated is cash and of dividend
equivalents on deferred amounts denominated in Stock;
(f) to determine the extent and circumstances under which Stock and
other amounts payable with respect to an award hereunder shall be deferred which
may be either automatic or at the election of the Holder; and
(g) to substitute (i) new Stock Options for previously granted
Stock Options, which previously granted Stock Options have higher option
exercise
prices and/or contain other less favorable terms, and (ii) new awards of any
other type for previously granted awards of the same type, which previously
granted awards are upon less favorable terms.
2.3 Interpretation of Plan.
(a) Committee Authority. Subject to Section 4 and 12, below, the
Committee shall have the authority to adopt, alter and repeal such
administrative
rules, guidelines and practices governing the Plan as it shall, from time to
time, deem advisable, to interpret the terms and provisions of the Plan and any
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award issued under the Plan (and to determine the form and substance of all
Agreements relating thereto), to the otherwise supervise the administration of
the Plan. Subject to Section 12, below, all decisions made by the Committee
pursuant to the provisions of the Plan shall be made in the Committee's sole
discretion and shall be final and binding upon all persons, including the
Company, its Subsidiaries and Holders.
(b) Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term or provision of the Plan relating to Incentive Stock
Options (including but limited to Stock Reload Options or Stock Appreciation
rights granted in conjunction with an Incentive Stock Option) or any Agreement
providing for Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be so exercised, so
as to disqualify the Plan under Section 422 of the Code, or, without the consent
of the Holder(s) affected, to disqualify any Incentive Stock Option under such
Section 422.
Section 3. Stock Subject to Plan.
3.1 Number of Shares. The total number of share of Common Stock reserved
and available for distribution under the Plan shall be 400,000 shares. Share of
Stock under the Plan may consist, in whole or in part, of authorized and
unissued
shares or treasury shares. If any shares of Stock that have been granted
pursuant to a Stock Option cease to be subject to a Stock Option, or if any
shares of Stock that are subject to any Stock Appreciation Right, Restricted
Stock, Deferred Stock award, Reload Stock Option or Other Stock-Based Award
granted hereunder are forfeited or any such award otherwise terminates without
a payment being made to the Holder in the form of Stock, such shares shall again
be available for distribution in connection with future grants and awards under
the Plan. Only net shares issued upon a stock-for-stock exercise (including
stock used for withholding taxes) shall be counted against the number of shares
available under the Plan.
3.2 Adjustment Upon Changes in Capitalization, Etc. In the event of any
merger, reorganization, consolidation, recapitalization, dividend (other than a
cash dividend), stock split, reverse stock split, or other change in corporate
structure affecting the Stock, such substitution or adjustment shall be made in
the aggregate number of shares reserved for issuance under the Plan, in the
number and exercise price of shares subject to outstanding Options, in the
number
of shares and Stock Appreciation Right price relating to Stock Appreciation
Rights, and in the number of shares and Stock Appreciation Right price relating
to Stock Appreciation Rights, and in the number of shares subject to, and in the
related terms of, other outstanding awards (including but not limited to awards
of Restricted Stock, Deferred Stock, Reload Stock Options and Other Stock-Based
Awards) granted under the Plan as may be determined to be appropriate by the
Committee in order to prevent dilution or enlargement of rights, provided that
the number of shares subject to any award shall always be a whole number.
Section 4. Eligibility.
Awards may be made or granted to key employees, officers, directors,
consultants and sales representatives who are deemed to have rendered or to be
able to render significant services to the Company or its Subsidiaries and who
are deemed to have contributed or to have the potential to contribute to the
success of the Company. No Incentive Stock Option shall be granted to any
person
who is not an employee of the Company or a Subsidiary at the time of grant.
Section 5. Required Six-Month Holding Period.
Any equity security issued under this Plan may not be sold prior to six
months from the date of the grant of the related award without the approval of
the Company.
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Section 6. Stock Options.
6.1 Grant and Exercise. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and (ii) Nonqualified Stock Options. Any
Stock Option granted under the Plan shall contain such terms, not inconsistent
with this Plan, or with respect to Incentive Stock Options, not inconsistent
with
the Code, as the Committee may from time to time approve. The Committee shall
have the authority to grant Incentive Stock Options, Non-Qualified Stock
Options,
or both types of Stock Options and which may be granted alone or in addition to
other awards granted under the Plan. To the extent that any Stock Option
intended to qualify as an Incentive Stock Option does not so qualify, it shall
constitute a separate Nonqualified Stock Option. An Incentive Stock Option may
be granted only within the ten-year period commencing from the Effective Date
and
may only be exercised within ten years of the date of grant or five years in the
case of an Incentive Stock Option granted to an optionee ("10% Stockholder")
who,
at the time of grant, owns Stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company.
6.2 Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions:
(a) Exercise Price. The exercise price per share of Stock
purchasable under a Stock Option shall be determined by the Committee at the
time
of grant and may not be less than 100% of the Fair Market Value of the Stock as
defined above; provided, however, that the exercise price of an Incentive Stock
Option granted to a 10% Stockholder shall not be less than 110% of the Fair
Market Value of the Stock.
(b) Option Term. Subject to the limitations in Section 6.1, above,
the term of each Stock Option shall be fixed by the Committee.
(c) Exercisability. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee and as set forth in Section 11, below. If the Committee provides,
in its discretion, that any Stock Option is exercisable only in installments,
i.e., that it vests over time, the Committee may waive such installment exercise
provisions at any time at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever installment, exercise
and waiting period provisions are applicable in a particular case, Stock Options
may be exercised in whole or in part at any time during the term of the Option,
by giving written notice of exercise to the Company specifying the number of
shares of Stock to be purchase. Such notice shall be accompanied by payment in
full of the purchase price, which shall be in cash or , unless otherwise
provided
in the Agreement, in shares of Stock (including Restricted Stock and other
contingent awards under this Plan) or, partly in cash and partly in such Stock,
or such other means which the Committee determines are consistent with the
Plan's
purpose and applicable law. Cash payments shall be made by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; provided, however, that the Company shall not be required to
deliver
certificates for shares of Stock with respect to which an Option is exercised
until the Company has confirmed the receipt of good and available funds in
payment of the purchase price thereof. Payments in the form of Stock shall be
valued at the Fair Market Value of a share of Stock on the date prior to the
date
of exercise. Such payments shall be made by delivery of stock certificates in
negotiable form which are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. Subject to the terms of the
Agreement, the Committee may, in its sole discretion, at the request of the
Holder, deliver upon the exercise of a Nonqualified Stock Option a combination
of shares of Deferred Stock and Common Stock; provided that, notwithstanding the
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provision of Section 9 of the Plan, such Deferred Stock shall be fully
vested and
not subject to forfeiture. A Holder shall have none of the rights of a
stockholder with respect to the shares subject to the Option until such shares
shall be transferred to the Holder upon the exercise of the Option.
(e) Transferability. No Stock Option shall be transferable by the
Holder other than by will or by the laws of descent and distribution, and all
Stock Options shall be exercisable, during the Holder's lifetime, only by the
Holder.
(f) Termination by Reason of Death. If a Holders' employment by
the Company or a Subsidiary terminates by reason of death, any Stock Option held
by such Holder, unless otherwise determined by the Committee at the time of
grant
and set forth in the Agreement, shall be fully vested and may thereafter be
exercised by the legal representative of the estate or by the legatee of the
Holder under the will of the Holder, for a period of one year (or such other
greater or lesser period as the Committee may specify at grant) from the date of
such death or until the expiration of the stated term of such Stock Option,
which
ever period is the shorter.
(g) Termination by Reason of Disability. If a Holder's employment
by the Company or any Subsidiary terminates by reason of Disability, any Stock
Option held by such Holder, unless otherwise determined by the Committee at the
time of grant and set forth in the Agreement, shall be fully vested and may
thereafter be exercised by the Holder for a period of one year (or such other
greater or lesser period as the Committee may specify at the time of grant) from
the date of such termination of employment or until the expiration of the stated
term of such Stock Option, whichever period is the shorter.
(h) Other Termination. Subject to the provisions of Section 14.3,
below, and unless otherwise determined by the Committee at the time of grant and
set forth in the Agreement, if a Holder is an employee of the Company or a
Subsidiary at the time of grant and if such Holder's employment by the Company
or any Subsidiary terminates for any reason other than death or Disability, the
Stock Option shall thereupon automatically terminate, except that if the
Holder's
employment is terminated by the Company or a Subsidiary without cause or due to
Normal Retirement, then the portion of such Stock Option which has vested on the
date of termination of employment may be exercised for the lesser of three
months
after termination of employment or the balance of such Stock Option's term.
(i) Additional Incentive Stock Option Limitation. In the case of
an Incentive Stock Option, the aggregate Fair Market Value of Stick (determined
at the time of grant of the Option) with respect to which Incentive Stock
Options
become exercisable by a Holder during any calendar year (under all such plans of
the Company and its Parent and Subsidiary) shall not exceed $100,000.
(j) Buyout and Settlement Provisions. The Committee may at any
time, in its sole discretion, offer to buy out a Stock Option previously
granted,
based upon such terms and conditions as the Committee shall establish and
communicate to the Holder at the time that such offer is made.
(k) Stock Option Agreement. Each grant of a Stock Option shall be
confirmed by and shall be subject to the terms of, the Agreement executed by the
Company and the Holder.
6.3 Stock Reload Option. The Committee may also grant to the Holder
(concurrently with the grant of an Incentive Stock Option and at or after the
time of grant in the case of a Nonqualified Stock Option) a Stock Reload Option
up to the amount of shares of Stock held by the Holder for at least six months
and used to pay all or part of the exercise price of an Option and, if any,
withheld by the Company as payment for withholding taxes. Such Stock Reload
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Option shall have an exercise price equal to the Fair Market Value as of the
date
of the Stock Reload Option grant. Unless the Committee determines otherwise, a
Stock Reload Option may be exercised commencing one year after it is granted and
shall expire on the date of expiration of the Option to which the Reload Option
is related.
Section 7. Stock Appreciation Rights.
7.1 Grant and Exercise. The Committee may grant Stock Appreciation
Rights to participants who have been, or are being granted, Options under the
Plan as a means of allowing such participants to exercise their Options without
the need to pay the exercise price in cash. In the case of a Nonqualified Stock
Option, a Stock Appreciation Right may be granted either at or after the time of
the grant of such Nonqualified Stock Option. In the case of an Incentive Stock
Option, a Stock Appreciation Right may be granted only at the time of the grant
of such Incentive Stock Option.
7.2 Terms and Conditions. Stock Appreciation Rights shall be subject to
the following terms and conditions:
(a) Exercisability. Stock Appreciation Rights shall be exercisable
as determined by the Committee and set forth in the Agreement, subject to the
limitations, if any, imposed by the Code, with respect to related Incentive
Stock Options.
(b) Termination. A Stock Appreciation Right shall terminate and
shall no longer be exercisable upon the termination or exercise of the related
Stock Option.
(c) Method of Exercise. Stock Appreciation Rights shall be
exercisable upon such terms and conditions as shall be determined by the
Committee and set forth in the Agreement and by surrendering the applicable
portion of the related Stock Option. Upon such exercise and surrender, the
Holder shall be entitled to receive a number of Option Shares equal to the SAR
Value divided by the exercise price of the Option.
(d) Shares Affected Upon Plan. The granting of a Stock
Appreciation Rights shall not affect the number of shares of Stock available
under for awards under the Plan. The number of shares available for awards
under
the Plan will, however, be reduced by the number of shares of Stock acquirable
upon exercise of the Stock Option to which such Stock Appreciation right
relates.
Section 8. Restricted Stock.
8.1 Grant. Shares of Restricted Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be awarded, the price
(if any) to be paid by the Holder, the time or times within which such
awards may
be subject to forfeiture (the "Restriction Period"), the vesting schedule and
rights to acceleration thereof, and all other terms and conditions of the
awards.
8.2 Terms and Conditions. Each Restricted Stock award shall be subject
to the following terms and conditions:
(a) Certificates. Restricted Stock, when issued, will be
represented by a stock certificate or certificates registered in the name of the
Holder to whom such Restricted Stock shall have been awarded. During the
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Restriction Period, certificates representing the Restricted Stock and any
securities constituting Retained Distributions (as defined below) shall bear a
legend to the effect that ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are subject
to the restrictions, terms and conditions provided in the Plan and the
Agreement.
Such certificates shall be deposited by the Holder with the Company, together
with stock powers or other instruments of assignment, each endorsed in blank,
which will permit transfer to the Company of all or any portion of the
Restricted
Stock and any securities constituting Retained Distributions that shall be
forfeited or that shall not become vested in accordance with the Plan and the
Agreement.
(b) Rights of Holder. Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Stock, to receive and retain all regular
cash dividends and other cash equivalent distributions as the Board may in its
sole discretion designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a holder of Common Stock
with
respect to such Restricted Stock, with the exceptions that (i) the Holder will
not be entitled to delivery of the stock certificate or certificates
representing
such Restricted Stock until the Restriction Period shall have expired and unless
all other vest requirements with respect thereto shall have been fulfilled; (ii)
the Company will retain custody of the stock certificate or certificates
representing the Restricted Stock during the Restriction Period; (iii) other
than
regular cash dividends and other cash equivalent distributions as the Board may
in its sole discretion designate, pay or distribute, the Company will retain
custody of all distributions ("Retained Distributions") made or declared with
respect to the Restricted Stock (and such Retained Distributions will be subject
to the same restrictions, terms and conditions as are applicable to the
restricted Stock) until such time, if ever, as the Restricted Stock with respect
to which such Retained Distributions shall have been made, paid or declared
shall
have become vested and with respect to which the Restriction Period shall have
expired; (iv) a breach of any of the restrictions, terms or conditions contained
in this Plan or the Agreement or otherwise established by the Committee with
respect to any Restricted Stock or Retained Distributions will cause a
forfeiture
of such Restricted Stock and any Retained Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration of the Restriction
Period with respect to each award of Restricted Stock and the satisfaction of
any
other applicable restrictions, terms and conditions (i) all or part of such
Restricted Stock shall become vested in accordance with the terms of the
Agreement, subject to Section 11, below, and (ii) any Retained Distributions
with
respect to such Restricted Stock shall become vested to the extent that the
Restricted Stock related thereto shall have become vested, subject to
Section 11,
below. Any such Restricted Stock and Retained Distributions that do not vest
shall be forfeited to the Company and the Holder shall not thereafter have any
rights with respect to such Restricted Stock and Retained Distributions that
shall have been so forfeited.
Section 9. Deferred Stock.
9.1 Grant. Shares of Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom and the time or times at which grants of Deferred
Stock shall be awarded, the number of shares of Deferred Stock to be awarded to
any person, the duration of the period (the "Deferral Period") during which, and
the conditions under which, receipt of the shares will be deferred, and all the
other terms and conditions of the awards.
9.2 Terms and Conditions. Each Deferred Stock award shall be subject to
the following terms and conditions:
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(a) Certificates. At the expiration of the Deferral Period (or the
Additional Deferral Period referred to in Section 9.2 (d) below, where
applicable), shares certificates shall be issued and delivered to the Holder, or
his legal representative, representing the number equal to the shares covered by
the Deferred Stock award.
(b) Rights of Holder. A person entitled to receive Deferred stock
shall not have any rights of a stockholder by virtue of such award until the
expiration of the applicable Deferral Period and the issuance and delivery of
the
certificates representing such Stock. The shares of Stock issuable upon
expiration of the Deferral Period shall not be deemed outstanding by the Company
until the expiration of such Deferral period and the issuance and delivery of
such Stock to the Holder.
(c) Vesting; Forfeiture. Upon the expiration of the Deferral
Period with respect to each award of Deferred Stock and the satisfaction of any
other applicable restrictions, terms and conditions all or part of such Deferred
Stock shall become vested in accordance with the terms of the Agreement, subject
to Section 11, below. Any such Deferred Stock that does not vest shall be
forfeited to the Company and the Holder shall not thereafter have any rights
with
respect to such Deferred Stock.
(d) Additional Deferral Period. A Holder may request to, and the
Committee may at any time, defer the receipt of an award (or an installment of
an award) for an additional specified period or until a specified event (the
"Additional Deferral Period"). Subject to any exceptions adopted by the
Committee, such request must generally be made at least one year prior to
expiration of the Deferral Period for such Deferred Stock award (or such
installment).
Section 10. Other Stock-Based Awards.
10.1 Grant and Exercise. Other Stock-Based Awards may be awarded, subject
to limitations under applicable law, that are denominated or payable, in value
in whole or in part by reference to, or otherwise based on, or related to,
shares
of Common Stock, as deemed by the Committee to be consistent with the purposes
of the Plan, including, without limitation, purchase rights, shares of Common
Stock awarded which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights convertible into shares
of Common Stock and awards valued by reference to the value of securities of or
the performance of specified subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any other awards under
this Plan or any other plan of the Company.
10.2 Eligibility for Other Stock-Based Awards. The Committee shall
determine the eligible persons to whom and the time or times at which grants of
such other stock-based awards shall be made, the number of shares of Common
Stock
to be awarded pursuant to such awards, and all other terms and conditions of the
awards.
10.3 Terms and Conditions. Each Other Stock-Based Award shall be subject
to such terms and conditions as may be determined by the Committee and to
Section 11, below.
Section 11. Accelerated Vesting and Exercisability.
If (i) any person or entity other than the Company and/or any stockholders
of the Company as of the Effective Date acquire securities of the Company
(in one
or more transactions) having 25% or more of the total voting power of all the
Company's securities then outstanding and (ii) the Board of Directors of the
Company does not authorize or otherwise approve such acquisition, then, the
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vesting periods of any and all Options and other awards granted and outstanding
under the Plan shall be accelerated and all such Options and awards will
immediately and entirely vest, and the respective holders thereof will have the
immediate right to purchase and/or receive any and all Stock subject to such
Options and awards on the terms set forth in this Plan and the respective
agreements respecting such Options and awards.
Section 12. Amendment and Termination.
Subject to Section 4 hereof, the Board may at any time, and from time to
time, amend alter, suspend or discontinue any of the provisions of the Plan, but
no amendment, alteration, suspension or discontinuance shall be made which would
impair the rights of a Holder under any Agreement theretofore entered into
hereunder, without the Holder's consent.
Section 13. Term of Plan.
13.1 Effective Date. The Plan shall be effective as of the date on which
the Company's stockholders approved the Plan ("Effective Date").
13.2 Termination Date. Unless terminated by the Board, this Plan shall
continue to remain effective until such time no further awards may be granted
and all awards granted under the Plan are no longer outstanding.
Notwithstanding the foregoing, grants of Incentive Stock Options may only
be made during the ten year period following the Effective Date.
Section 14. General Provisions.
14.1 Written Agreements. Each award granted under the Plan shall be
confirmed by, and shall be subject to the terms of the Agreement executed by the
Company and the Holder. The Committee may terminate any award made under the
Plan if the Agreement relating thereto is not executed and returned to the
Company within 10 days after the Agreement has been delivered to the Holder for
his or her execution.
14.2 Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Holder by the Company, nothing contained herein shall
give any such Holder any rights that are greater than those of a general
creditor of the Company.
14.3 Employees.
(a) Engaging in Competition With the Company. In the event aa
Holder's employment with the Company or a Subsidiary is terminated for any
reason
whatsoever, and within one year after the date thereof such Holder accepts
employment with any competitor of, or otherwise engages in competition with, the
Company, the Committee, in its sole discretion, may require such Holder to
return to the Company the economic value of any award which was realized or
obtained by
such Holder at any time during the period beginning on that date which is six
months prior to the date of such Holder's termination of employment with the
Company.
(b) Termination for Cause. The Committee may, in the event a
Holder's employment with the company or a Subsidiary is terminated for cause,
annul any award granted under this Plan to return to the Company the economic
value of any award which was realized or obtained by such Holder at any time
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during the period beginning on that date which is six months prior to the date
of such Holder's termination of employment with the Company.
(c) No Right of Employment. Nothing contained in the Plan or in
any award hereunder shall be deemed to confer upon any Holder who is an employee
of the Company or any Subsidiary any right to continued employment with the
Company or any Subsidiary, nor shall it interfere in any way with the right of
the Company or any Subsidiary to terminate the employment of any Holder who is
an employee at any time.
14.4 Investment Representations. The Committee may require each person
acquiring shares of Stock pursuant to a Stock Option or other award under the
Plan to represent to and agree with the Company in writing that the Holder is
acquiring the shares for investment without a view to distribution thereof.
14.5 Additional Incentive Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting such other or additional incentive
arrangements as it may deem desirable, including, but not limited to, the
granting of Stock Options and the awarding of stock and cash otherwise than
under
the Plan; and such arrangements may be either generally applicable or applicable
only in specific cases.
14.6 Withholding Taxes. Not later than the date as of which an amount
must first be included in the gross income of the Holder for Federal income tax
purposes with respect to any option or other award under the Plan, the Holder
shall pay to the Company, or made arrangements satisfactory to the Committee
regarding the payment of, any Federal, state and local taxes of any kind
required
by law to be withheld or paid with respect to such amount. If permitted by the
Committee, tax withholding or payment obligations may be settled with Common
Stock, including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Company under the Plan shall be
conditioned upon such payment or arrangements and the Company or the Holder's
employer (if not the Company) shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to
the
Holder from the Company or any Subsidiary.
14.7 Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of Nevada (without regard to choice of law provisions).
14.8 Other Benefit Plans. Any award granted under the Plan shall not be
deemed compensation for purposes of computing benefits under any retirement plan
of the Company or any Subsidiary and shall not affect any benefits under any
other benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation (unless required by
specific reference in any such other plan to awards under this Plan).
14.9 Non-Transferability. Except as otherwise expressly provided in the
Plan, no right or benefit under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbranced or charged, and any
attempt to alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void.
14.10 Applicable Laws. The obligations of the Company with respect to
all
Stock Options and awards under the Plan shall be subject to (i) all applicable
laws, rules and regulations and such approvals by any governmental agencies as
may be required, including, without limitation, the Securities Act of 1933, as
amended, and (ii) the rules and regulations of any securities exchange on which
the Stock may be listed.
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14.11 Conflicts. If any of the terms or provisions of the Plan or an
Agreement (with respect to Incentive Stock Options) conflict with the
requirements of Section 422 of the Code, then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of said
Section 422 of the Code. Additionally, if this Plan or any Agreement does not
contain any provision required to be included herein under Section 422 of the
Code, such provision shall be deemed to be incorporated herein and therein with
the same force and effect as if such provision had been set out at length herein
and therein. If any of the terms or provision of any Agreement conflict
with any
terms or provision of the Plan, then such terms or provision shall be deemed
inoperative to the extent they so conflict with the requirements of the Plan.
Additionally, if any Agreement does not contain any provision required to be
included therein under the Plan, such provision shall be deemed to be
incorporated therein with the same force and effect as if such provision had
been set out at length therein.
14.12 Non-Registered Stock. The shares of Stock to be distributed
under this Plan have not been, as of the Effective Date, registered under the
Securities Act of 1933, as amended, or any applicable state or foreign
securities
laws and the Company has no obligation to any Holder to register the Stock or to
assist the Holder in obtaining an exemption from the various registration
requirements, or to list the Stock on a national securities exchange.
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WRITTEN CONSENT OF SHAREHOLDERS
WILD WINGS, INC.
The undersigned, being the shareholders of Wild Wings, Inc., a Nevada
corporation, hereby approve and consent in writing, pursuant to provisions of
Nevada corporate law which permit majority shareholder approval of action by
written consent without a meeting, to the adoption of the Wild Wings, Inc. 1995
Stock Option Plan, in the form attached hereto.
Dated this ________ day of October, 1995
Name of Shareholder: Signature:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
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