As filed with the Securities and Exchange Commission on September 18, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
WESTERN POWER & EQUIPMENT CORP.
(Exact name of registrant as specified in its charter)
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Delaware 91-1688446
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4601 NE 77th Avenue, Suite 200
Vancouver, Washington 98662
(Address of Principal Executive Offices) (Zip Code)
1995 Employee Stock Option Plan
and
Second Amended and Restated
1995 Stock Option Plan For
Non-Employee Directors
(Full title of the plan)
C. DEAN McLAIN
President and Chief Executive Officer
Western Power & Equipment Corp.
4601 NE 77th Street, Suite 200
Vancouver, Washington 98662
(Name and address of agent for service)
(360) 253-2346
(Telephone number, including area code, of agent for service)
Copies of communications to:
RUTH A. BEYER
Stoel Rives LLP
Standard Insurance Center
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
Tel: (503) 224-3380
Fax: (503) 220-2480
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of to be offering price aggregate registration
securities to be registered registered (1) per share offering price fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 1,500,000 shares (2) $4.55 (3) $6,825,000 (4) $ 2,013.37
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.001 per share 25,000 shares (5) $4.95 (3) $ 123,850 (4) $ 36.54
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.001 per share 125,000 shares (6) $4.38 (7) $ 547,500 (8) $ 161.51
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL: 1,650,000 shares $7,500,412 $ 2,211.42
===============================================================================================================================
<PAGE>
(1) Pursuant to Rule 416(a), the number of shares of Common Stock being
registered shall be adjusted to include any additional shares which may
become issuable as a result of stock splits, stock dividends, or similar
transactions in accordance with the anti-dilution provisions of the 1995
Employee Stock Option Plan (the "Employee Plan") and the Second Amended and
Restated 1995 Stock Option Plan for Non-Employee Directors (the "Formula
Plan").
(2) Represents the aggregate number of 1,500,000 shares issuable upon exercise
of currently outstanding options granted under the Employee Plan.
(3) Represents the weighted average exercise price (rounded to the nearest
cent) at which the shares will be issued.
(4) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. The aggregate offering price and amount of registration fee have been
computed based on the weighted average exercise price (rounded to the
nearest cent) at which the shares will be issued.
(5) Represents the aggregate number of shares issuable upon exercise of
currently outstanding options granted under the Formula Plan.
(6) Represents the aggregate number of shares underlying options presently
available for issuance under the Formula Plan.
(7) Represents the average of the high and low prices of the Common Stock
(rounded to the nearest cent) as reported on the Nasdaq National Market on
September 14, 1998.
(8) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the total
registration fee. The aggregate offering price and amount of registration
fee have been computed based on the average of the high and low prices of
the Common Stock (rounded to the nearest cent) as reported on the Nasdaq
National Market on September 14, 1998, because the exercise price at which
the shares will be issued in the future is not currently determinable.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Western Power & Equipment Corp. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents filed by the
Registrant with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act") that contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report or prospectus referred to in (a) above.
(c) The description of the common stock, par value $.001, of the
Registrant contained in the Registrant's Registration Statement on Form S-1
(Registration No. 33-89762), filed with the Commission on May 16, 1995, pursuant
to Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such reports and 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 or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware (the
"General Corporation Law") provides that a Delaware corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the General Corporation Law provides that a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 of the General Corporation Law further provides that to the
extent a director or officer of a corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of such person against
any liability asserted against him or her or
II-2
<PAGE>
incurred by him or her in any such capacity or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liabilities under such Section 145.
Article Fourteenth of the Registrant's Certificate of Incorporation and
Article VI of the Registrant's By-laws provide that no provision in the
Registrant's Certificate of Incorporation shall be construed as limiting in any
way the Registrant's right to indemnify its directors and officers, in the
capacities defined and prescribed by the General Corporation Law, and that the
Corporation shall, to the fullest extent permitted by the laws of the State of
Delaware, including but not limited to Section 145 of the General Corporation
Law, as amended from time to time, indemnify any and all persons whom it shall
have power to indemnify under Section 145 or otherwise under Delaware law from
and against any and all expenses, liabilities or other matters referred to or
covered by Section 145. The Articles and By-laws further provide that
indemnification provisions contained in the General Corporation Law shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, resolution or otherwise.
As permitted by Section 102(b)(7) of the General Corporation Law, Article
Thirteenth of the Registrant's Certificate of Incorporation eliminates the
personal liability of directors to the Company for monetary damages for breaches
of their fiduciary duties as directors; provided, that such elimination of the
personal liability of a director of the Registrant does not apply to (i) any
breach of such person's duty of loyalty to the Registrant or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) actions prohibited under Section 174 of the
General Corporation Law (i.e., liabilities imposed upon directors who vote for
or assent to the unlawful payment of dividends, unlawful repurchases or
redemption of stock, unlawful distribution of assets of the Registrant to the
stockholders without the prior payment or discharge of the Registrant's debts or
obligations, or unlawful making or guaranteeing of loans to directors and/or
officers), or (iv) any transaction from which the director derived an improper
personal benefit.
The Registrant maintains directors' and officers' liability insurance under
which its directors and officers are insured against liability asserted against
them in actions, suits or proceedings to which they are parties by reason of
being or having been directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-3
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
4.1 Certificates of Incorporation of the Registrant. Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, filed May 16, 1995 (File No. 33-89762).
4.2 By-laws of the Registrant. Incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, filed
May 16, 1995 (File No. 33-89762).
4.3 1995 Employee Stock Option Plan.
4.4 Second Amended and Restated 1995 Stock Option Plan For Non-
Employee Directors.
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Stoel Rives LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature pages to
this Registration Statement and incorporated herein by
reference).
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
Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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 and 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 a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
II-4
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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 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 this 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 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 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 Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Vancouver, State of Washington, on September 18,
1998.
WESTERN POWER & EQUIPMENT CORP.
By: C. DEAN MCLAIN
-------------------------------------
C. Dean McLain
President and Chief Executive Officer
S-1
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of WESTERN POWER & EQUIPMENT CORP. does hereby constitute and appoint
C. DEAN MCLAIN and MARK J. WRIGHT his true and lawful attorney and agent to do
any and all acts and things and to execute in his name (whether on behalf of
WESTERN POWER & EQUIPMENT CORP. or as an officer or director of said Company, or
otherwise) any and all instruments which said attorney and agent may deem
necessary or advisable in order to enable WESTERN POWER & EQUIPMENT CORP. to
comply with the Securities Act of 1933, as amended, and any requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock of WESTERN POWER & EQUIPMENT CORP. issuable pursuant to the 1995 Employee
StockOption Plan including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of WESTERN POWER & EQUIPMENT
CORP. or as an officer or director of said Company, or otherwise) to a
Registration Statement on Form S-8 and any amendment thereto (including any
post-effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same with the
Securities and Exchange Commission; and the undersigned does hereby ratify and
confirm all that said attorney and agent shall do or cause to be done by virtue
hereof.
--------------------
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
--------- -------- ----
ROBERT M. RUBIN
- ------------------------ Chairman of the Board and September 11, 1998
Robert M. Rubin Director
C. DEAN MCLAIN
- ------------------------ President, Chief Executive September 11, 1998
C. Dean McLain Officer and Director
MARK J. WRIGHT
- ------------------------ Vice President of Finance, September 11, 1998
Mark J. Wright Chief Financial and Principal
Accounting Officer, Treasurer
and Secretary
HAROLD CHAPMAN, JR.
- ------------------------ Director September 11, 1998
Harold Chapman, Jr.
MERRILL A. MCPEAK
- ------------------------ Director September 11, 1998
Merrill A. McPeak
S-2
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4.1 Certificates of Incorporation of the Registrant. Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, filed May 16, 1995 (File No. 33-89762).
4.2 By-laws of the Registrant. Incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, filed
May 16, 1995 (File No. 33-89762).
4.3 1995 Employee Stock Option Plan.
4.4 Second Amended and Restated 1995 Stock Option Plan For Non-
Employee Directors.
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Stoel Rives LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature pages to
this Registration Statement and incorporated herein by
reference).
EXHIBIT 4.3
WESTERN POWER & EQUIPMENT CORP.
1995 EMPLOYEE STOCK OPTION PLAN
PURPOSES
The purposes of the Western Power & Equipment Corp. 1995 Employee Stock
Option Plan (the "Plan") are to aid Western Power & Equipment Corp., its
"subsidiaries" or "parents" (as defined under the federal securities laws)
(together the "Company") in attracting and retaining highly capable employees
and to enable selected key employees and consultants or other representatives of
the Company to acquire or increase ownership interest in the Company on a basis
that will encourage them to perform at increasing levels of effectiveness and
use their best efforts to promote the growth and profitability of the Company.
Consistent with these objectives, this Plan authorizes the granting to selected
key employees and consultants of options to acquire shares of the Company's
Common Stock, par value $.001 per share ("Common Stock"), pursuant to the terms
and conditions hereinafter set forth.
Options granted hereunder may be (i) "Incentive Options" (which term, as
used herein, shall mean options that are intended to be "incentive stock
options" within the meaning of Code Section 422), or (ii) "Nonqualified Options"
(which term, as used herein, shall mean options that are not intended to be
Incentive Options).
EFFECTIVE DATE
Following approval by the holders of a majority of the outstanding shares
of common stock, this plan shall become effective on February 1, 1995, (the
"Effective Date").
ADMINISTRATION
(a) This Plan shall be administrated by a committee (the "Committee")
consisting of three members of the Board of Directors of the Company (the "Board
of Directors"), who are selected by the Board of Directors. If, at any time,
there are less than three members of the Committee eligible to serve in such
capacity, the Board of Directors shall appoint one or more other eligible
members of the Board of Directors to serve on the Committee. All Committee
members shall serve, and may be removed, at the pleasure of the Board of
Directors. No Committee member shall be eligible to receive incentive options
under the Plan.
(b) A majority of the members of the Committee (but not less than two)
shall constitute a quorum, and any action taken by a majority of such members
present at any meeting at which a quorum is present, or acts approved in writing
by all such members, shall be the acts of the Committee.
Page 1 Employee Stock
<PAGE>
(c) Subject to the other provisions of this Plan, the Committee shall have
full authority to decide the date or dates on which options (the "Options") to
acquire shares of Common Stock will be granted under this Plan (the "Date of
Grant"), to determine whether the Options to be granted shall be Incentive
Options or Nonqualified Options, or a combination of both, to select the key
employees to whom the Options will be granted and to determine the number of
shares of Common Stock to be covered by each Option, the price at which such
shares may be purchased upon the exercise of such option (the "Option Exercise
Price") and other terms and conditions of such purchase. In making those
determinations, the Committee shall solicit the recommendations of the President
and Chairman of the Board of the Company and may take into account the key
employee's present and potential contributions to the Company's business and any
other factors which the Committee may deem relevant. Subject to the other
provisions of this Plan, the Committee shall also have full authority to
interpret this Plan and any stock option agreements evidencing Options granted
hereunder, to issue rules for administering this Plan, to change, alter, amend
or rescind such rules, and to make all other determinations necessary or
appropriate for the administration of this Plan. All determinations,
interpretations and constructions made by the Committee pursuant to this Section
3 shall be final and conclusive. No member of the Board of Directors or the
Committee shall be liable for any action, determination or omission taken or
made in good faith with respect to this Plan or any Option granted hereunder.
ELIGIBILITY
Subject to the provisions of Section 7 below, key employees of the Company
(including officers and directors who are employees) and consultants and other
representatives of the Company shall be eligible to receive Options under this
Plan; provided, however, that no person shall be eligible to receive an Option
while serving as a member of the Committee.
OPTION SHARES
The shares subject to Options granted under this Plan shall be shares of
Common Stock and, except as otherwise required or permitted by Subsection 5(b)
below, the aggregate number of shares with respect to which Options may be
granted shall not exceed 1,500,000 shares. If an Option expires, terminates or
is otherwise surrendered, in whole or in part, the shares allocable to the
unexercised portion of such Option shall again become available for grants of
Options hereunder. As determined from time to time by the Board of Directors,
the shares available under this Plan for grants of Options may consist either in
whole or in part of authorized but unissued shares of Common Stock or shares of
Common Stock which have been reacquired by the Company or a subsidiary following
original issuance.
The aggregate number of shares of Common Stock as to which Options may be
granted hereunder, as provided in Subsection 5(a) above, the number of shares
covered by each outstanding Option and the Option Exercise Price shall be
proportionately
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<PAGE>
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split or other subdivision or consolidation of
shares or other capital adjustment, or the payment of a stock dividend;
provided, however, that any fractional shares resulting from any such adjustment
shall be eliminated.
The aggregate fair market value, determined on the Date of Grant (as such
term is defined in Section 6(a) below), of the shares of stock with respect to
which Incentive Options are exercisable for the first time by an Optionee (as
such term as defined in Section 6 below) during any calendar year (under all
incentive stock option plans of the Company and its subsidiaries) may not exceed
$100,000.
TERMS AND CONDITIONS OF OPTIONS
The Committee may, in its discretion, grant to a key employee only
Incentive Options, only Nonqualified Options, or a combination of both, and each
Option granted shall be clearly identified as to its status. Recipients other
than key employees can only receive Nonqualified Options. Each Option granted
pursuant to this Plan shall be evidenced by a stock option agreement between the
Company and the recipient to whom the option is granted (the "Optionee") in such
form or forms as the Committee, from time to time, shall prescribe, which
agreements need not be identical to each other but shall comply with and be
subject to the following terms and conditions:
Optional Exercise Price. The Option Exercise Price at which each share of
Common Stock may be purchased pursuant to an Option shall be determined by the
Committee, except that (i) the Option Exercise Price at which each share of
Common Stock may be purchased pursuant to an Incentive Option shall be not less
than 100% of the fair market value for each such share on the Date of Grant of
such Incentive Option and (ii) the Option Exercise Price at which each share of
Common Stock may be purchased pursuant to a Nonqualified Option shall not be
less than 85% of the fair market value for each share on the Date of Grant of
such Nonqualified Option. Anything contained in this Section 6(a) to the
contrary notwithstanding, in the event that the number of shares of Common Stock
subject to any Option is adjusted pursuant to Section 5(b) above, a
corresponding adjustment shall be made in the Option Exercise Price per share.
Duration of Options. The duration of each Option granted hereunder shall be
determined by the Committee, except that each Nonqualified Option granted
hereunder shall expire and all rights to purchase shares of Common Stock
pursuant thereto shall cease one day before the tenth anniversary of the Date of
Grant of such Option and each Incentive Option granted hereunder shall expire
and all rights to purchase shares of Common Stock pursuant thereto shall cease
one day before the tenth anniversary of the Date of Grant of such Option (in
each case, the "Expiration Date").
Vesting of Options. The vesting of each Option granted hereunder shall be
determined by the Committee. Only such vested portions of Options may be
exercised. Anything contained in this Section 6(c) to the contrary
notwithstanding, an Optionee shall
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become fully (100%) vested in each of his or her Options upon his or her
termination of employment with the Company or any of its subsidiaries for
reasons of death, disability or retirement. The Committee shall, in its sole
discretion, determine whether or not disability or retirement has occurred.
Merger, Consolidation, etc. In the event the Company shall, pursuant to
action by its Board of Directors, at any time propose to merge into, consolidate
with, or sell or otherwise transfer all or substantially all of its assets to,
another corporation and provision is not made pursuant to the terms of such
transaction for (i) the assumption by the surviving, resulting or acquiring
corporation of outstanding Options, (ii) the substitution therefor of new
options granting reasonably similar rights and privileges, or (iii) the payment
of cash or other consideration in respect thereof, the Committee shall cause
written notice of the proposed transaction to be given to each Optionee not less
than 30 days prior to the announced anticipated effective date of the proposed
transaction, and the Committee shall specify in such notice a date, which date
shall be not less than 10 days prior to the announced anticipated effective date
of the proposed transaction (the "Vesting Date"), upon which Vesting Date each
Optionee's Options shall become fully (100%) vested. Each Optionee shall have
the right to exercise his or her Options to purchase any or all shares then
subject to such Options during the period commencing on the Vesting Date and
ending at 5:00 p.m. on the day which is two (2) days prior to the announced
anticipated effective date of the proposed transaction. If the transaction is
consummated, each Option, to the extent not previously exercised prior to the
effective date of the transaction, shall terminate on such effective date. If
the transaction is abandoned or otherwise not consummated, then to the extent
that any Option not exercised prior to such abandonment shall have vested solely
by operation of this Section 6(d), such vesting shall be annulled and be of no
further force or effect and the vesting period set forth in Section 6(c) above
shall be reinstituted as of the date of such abandonment.
Exercise of Options. A person entitled to exercise an Option, or any
portion thereof, may exercise it (or such vested portion thereof) in whole at
any time, or in part from time to time, by delivering to the Company at its
principal office, directed to the attention of its Chairman, President or such
other duly elected officer as shall be designated in writing by the Committee to
the Optionee, written notice specifying the number of shares of Common Stock
with respect to which the Option is being exercised, together with payment in
full of the Option Exercise Price for such shares. Such payment shall be made in
cash or by certified check or bank draft to the order of the Company; provided,
however, that the Committee may, in its sole discretion, authorize such payment,
in whole or in part, in any other form, including payment by personal check or
by the exchange of shares of Common Stock of the Company previously acquired by
the person entitled to exercise the Option and having a fair market value on the
date of exercise equal to the price for which the shares of Common Stock may be
purchased pursuant to the Option.
Nontransferability. Option shall not be transferable other than by will or
the laws of descent and distribution and no Option may be exercised by anyone
other than the
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Optionee; that if the Optionee dies or becomes incapacitated, the Option may be
exercised by his or her estate, legal representative or beneficiary, as the case
may be, subject to all other terms and conditions contained in this plan.
Termination of Employment. The following rules shall apply in the event
that an Optionee is an employee of the Company as regards such Optionee's
termination of employment with the Company:
In the event of an Optionee's termination of employment with the
Company either (1) by the Company for Cause (as defined in any relevant
employment agreement to which Optionee is a party) or for fraud,
dishonesty, habitual drunkenness or drug use, or willful disregard of
assigned duties by such Optionee in the absence of such an agreement, or
(2) by the Optionee voluntarily otherwise than at the end of an employment
term under a relevant employment agreement to which Optionee is a party and
without the written consent of the Company, then the Option shall
immediately terminate.
In the event of the Optionee's termination of employment with the
Company for reason of retirement or under circumstances other than those
specified in subsection (g)(i) immediately above, and for reasons other
than death or disability, the Option shall terminate three months after the
date of such termination of employment or on the Expiration Date, whichever
shall first occur; provided, however, that if the Optionee dies within such
3-month period, the time period set forth in subsection (g) (iii)
immediately below shall apply.
In the event of the death or disability, of the Optionee while the
Optionee is employed by the Company, the Option shall terminate on the
first anniversary of the Optionee's date of termination of employment, or
on the Expiration Date, whichever shall first occur.
Anything contained in this Section 6 to the contrary notwithstanding,
the Option may only be exercised following the Optionee's termination of
employment with the Company for reasons other than death, disability or
retirement if, and to the extent that, the Option was exercisable
immediately prior to such termination of employment.
The Optionee's transfer of employment between Western Power &
Equipment Corp. and its "subsidiaries" and "parents" (as defined under the
federal securities laws) shall not constitute a termination of employment
and the Committee shall determine in each case whether an authorized leave
of absence for military service or otherwise shall constitute a termination
of employment.
Termination of the Optionee's employment shall not effect the vesting
schedule of the Optionee's Option.
Page 5 Employee Stock
<PAGE>
No Rights as Stockholder or to Continued Employment. No Optionee shall have
any rights as a stockholder of the Company with respect to any shares covered by
an Option prior to the date of issuance to such Optionee of the certificate or
certificates for such shares, and neither this Plan nor any Option granted
hereunder shall confer upon an Optionee any right to continuance of employment
by the Company or interferes in any way with the right of the Company to
terminate the employment of such Optionee.
Each stock option agreement shall specify whether the Options granted
thereunder are Incentive Options, Nonqualified Options, or a combination of
both.
TEN PERCENT STOCKHOLDERS
The Committee shall not grant an Incentive Option to an individual who
owns, at the time such Incentive Option is granted (directly or by attribution
pursuant to Section 425(d) of the Code), shares of capital stock of the Company
possessing more than 10% of the voting power of all classes of capital stock of
the Company unless, at the time such Incentive Option is granted, the price at
which each share of Common Stock may be purchased pursuant to the Incentive
Option is at least 110% of the fair market value of each such share on the Date
of Grant and such Incentive Option, by its terms, is not exercisable after the
expiration of five years from the Date of Grant.
ISSUANCE OF SHARES; RESTRICTIONS
Subject to the conditions and restrictions provided in this Section 8, the
Company shall, within 20 business days after an Option has been duly exercised
in whole or in part, deliver to the person who exercised the Option one or more
certificates, registered in the name of such person, for the number of shares of
Common Stock with respect to which the Option has been exercised. The Company
may legend any stock certificate issued hereunder to reflect any restrictions
provided for in this Section 8.
Unless the shares subject to Options granted under the Plan have been
registered under the Securities Act of 1933, as amended (the "Act") (and, in the
case of any Optionee who may be deemed an "affiliate" of the Company as such
term is defined in Rule 405 under the Act, such shares have been registered
under the Act for resale by the Optionee), or the Company has determined that an
exemption from registration under the Act is available, the Company may require
prior to and as a condition of the issuance of any shares of Common Stock, that
the person exercising an Option hereunder (i) sign such agreements with respect
thereto as the Company may require in any Option Agreement by and between the
Company and the Optionee, and (ii) furnish the Company with a written
representation in a form prescribed by the Committee to the effect that such
person is acquiring such shares solely with a view to investment for his or her
own account and not with a view to the resale or distribution of all or any part
thereof, and that such person will not dispose of any of such shares otherwise
than in accordance with the provisions of Rule 144 under the Act unless and
until either the distribution of such shares is registered under the Act or the
Company is satisfied that an exemption from such registration is available.
Page 6 Employee Stock
<PAGE>
Anything contained herein to the contrary notwithstanding, the Company
shall not be obliged to sell or issue any shares of Common Stock pursuant to the
exercise of an Option granted hereunder unless and until the Company is
satisfied that such sale or issuance complies with all applicable provisions of
the Act and all other laws or regulations by which the Company is bound or to
which the Company or such shares are subject.
SUBSTITUTE OPTIONS
Anything contained herein to the contrary notwithstanding, Options may, at
the discretion of the Board of Directors, be granted under this Plan in
substitution for options to purchase shares of capital stock of another
corporation which is merged into, consolidated with, or all or a substantial
portion of the property or stock of which is acquired by, the Company or a
subsidiary. The terms, provisions and benefits to Optionees of such substitute
options shall in all respects be as similar as reasonably practicable to the
terms, provisions and benefits to Optionees of the Options of the other
corporation on the date of substitution, except that such substitute Options
shall provide for the purchase of shares of Common Stock of the Company instead
of shares of such other corporation.
TERM OF THE PLAN
Unless the plan has been sooner terminated pursuant to Section 11 below,
this Plan shall terminate on, and no Options shall be granted after, the tenth
anniversary of the Effective Date. The provisions of this Plan, however, shall
continue thereafter to govern all Options theretofore granted, until the
exercise, expiration or cancellation of such Options.
AMENDMENT AND TERMINATION OF PLAN
The Board of Directors at any time may terminate this Plan or amend it from
time to time in such respects as it deems desirable; provided, however, that,
without the further approval of the stockholders of the Company, no amendment
shall (i) increase the maximum aggregate number of shares of Common Stock with
respect to which Options may be granted under this Plan, (ii) change the
eligibility provisions of Section 4 hereof, or (iii) create a "modification" of
any Incentive Stock Option previously granted or otherwise modify the Plan with
respect to the granting of Incentive Stock Options, as those terms are defined
under the Code; and provided, however, that, subject to the provision of Section
6 hereof, no termination of or amendment hereto shall adversely affect the
rights of an Optionee or other person holding an option theretofore granted
hereunder without the consent of such Optionee or other person, as the case may
be.
Page 7 Employee Stock
EXHIBIT 4.4
WESTERN POWER & EQUIPMENT CORP.
SECOND AMENDED AND RESTATED
1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purposes.
The Second Amended and Restated 1995 Stock Option Plan for Non-Employee
Directors (the "Plan") is established to attract, retain and compensate highly
qualified individuals who are not employees of Western Power & Equipment Corp.
(the "Company") for service as members of the Board of Directors ("Non-Employee
Directors") and to provide them with an ownership interest in the Company's
common stock (the "Common Stock"). The Plan will be beneficial to the Company
and its stockholders by allowing these Non-Employee Directors to have a personal
financial stake in the Company through an ownership interest in the Company's
common stock, in addition to underscoring their common interest with
stockholders in increasing the value of the Company's stock over the long term.
2. Effective Date.
The Plan shall be effective as of the date it is adopted by the Board of
Directors of the Company, subject to the approval of the Plan by the holders of
at least a majority of the outstanding shares of Company common stock present,
or represented, and entitled to vote at the 1996 Annual Meeting of Stockholders.
Grants of options may be made under the Plan on and after its effective date,
subject to stockholder approval of the Plan as provided above. In the event such
approval is not obtained, any options granted under the Plan shall be null and
void.
3. Administration of the Plan.
The Plan shall be administered by a committee appointed by the Board of
Directors and consisting of Directors who are not eligible to participate in the
Plan (the "Committee"), or by the full Board of Directors in the event that a
Committee has not been appointed (in the event that a Committee has not been
appointed, any action hereunder to be taken by the Committee shall be taken by
the Board of Directors). Subject to the provisions of the Plan, the Committee
shall be authorized to interpret the Plan, to establish, amend and rescind any
rules and regulations relating to the Plan and to make all other determinations
necessary or advisable for the administration of the Plan; provided, however,
that the Committee shall have no discretion with respect to the eligibility or
Election of Non-Employee Directors to receive options under the Plan, the number
of shares of stock subject to any such options or the Plan, or the purchase
price thereunder; and provided further, that the Committee shall not have the
authority to take any action or make any determination that would materially
increase the benefits accruing to participants under the Plan. The Committee's
interpretation of the Plan, and all actions taken and determinations made by the
Committee pursuant to the
<PAGE>
powers vested in it hereunder, shall be conclusive and binding upon all parties
concerned including the Company, its stockholders and persons granted options
under the Plan. The Chairman of the Board and Chief Executive Officer of the
Company, or any other officer of the Company as designated by the Committee,
shall be authorized to implement the Plan in accordance with its terms and to
take or cause to be taken such actions of a ministerial nature as shall be
necessary to effectuate the intent and purposes thereof.
4. Participation In the Plan.
All active members of the Company's Board of Directors who are not as of
the date of any option grant employees of the Company or any of its subsidiaries
or affiliates shall be eligible to participate in the Plan. Directors emeritus
shall not be eligible to participate.
5. Non-Qualified Stock Options.
Only non-qualified stock options ("Options") may be granted under this
Plan.
6. Terms, Conditions and Form of Options.
(a) Option Grant Dates. Options to purchase Five Thousand (5,000) shares of
Common Stock (as adjusted pursuant to Section 8) shall be automatically granted
[to each eligible Non-Employee Director] on an annual basis to each eligible
Non-Employee Director on August 1, 1998 and each year thereafter (or the first
succeeding business day thereafter of which the Common Stock is traded on the
principal securities exchange on which it is listed).
(b) Exercise Price. The exercise price per share of Common Stock for which
each option is exercisable shall be 100% of the fair market value per share of
Common Stock on the date the Option is granted, which shall be the average of
the closing bid and asked prices of the stock (or the closing sale price of the
stock if traded on a national securities exchange) as generally reported for the
principal securities exchange on which the Company's Common Stock is listed.
(c) Exercisability and Term of Options. Each Option granted under the Plan
shall become fully exercisable on the date of grant. Each Option granted under
the Plan shall expire five years from the date of grant.
(d) Termination of Service. In the event of the termination of service on
the Board by the holder of any Option, for any reason whatsoever, the then
outstanding Options of such holder shall remain exercisable through their stated
expiration date. In the event of termination of service by reason of permanent
disability or death of the holder of any Option, each of the then outstanding
Options of such holder will continue to be exercisable by the holder's legal
representative through their stated expiration date.
2
<PAGE>
(e) Payment. The option price shall be paid in cash (whether or not such
cash is loaned by the Company to the participant for such purpose) or by the
surrender of shares of Common Stock of the Company, valued at their fair market
value on the date of exercise, or by any combination of cash and such shares.
7. Shares of Stock Subject to The Plan.
The shares that may be purchased pursuant to Options under the Plan shall
not exceed an aggregate of 150,000 shares of Company Common Stock (as adjusted
pursuant to Section 8). Any shares subject to an Option grant which for any
reason expires or is terminated unexercised as to such shares shall again be
available for issuance under the Plan.
8. Dilution and Other Adjustment.
In the event of any change in the outstanding shares of Company Common
Stock by reason of any stock split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other similar corporate
change, such equitable adjustment shall be made in the Plan and the grants
thereunder, including the exercise price of outstanding Options, as the
Committee determines are necessary or appropriate, including, if necessary, any
adjustments in the maximum number of shares referred to in Section 7 of the
Plan. Such adjustment shall be conclusive and binding for all purposes of the
Plan.
9. Miscellaneous Provisions.
(a) Rights as Stockholder. A participant under the Plan shall have no
rights as a holder of Company Common Stock with respect to Option grants
hereunder, unless and until certificates for shares of such Common Stock are
issued to the participant.
(b) Assignment or Transfer. No Options granted under the Plan or any rights
or interests therein shall be assignable or transferable by a participant except
by will or the laws of descent and distribution. During the lifetime of a
participant, Options granted hereunder are exercisable only by, and payable only
to, the participant.
(c) Agreements. All Options granted under the Plan shall be evidenced by
agreements or certificates in such form and containing such terms and conditions
(not inconsistent with the Plan) as the Committee shall adopt.
(d) Compliance with Legal Regulations. During the term of the Plan and the
term of any Options granted under the Plan, the Company shall at all times
reserve and keep available such number of shares as may be issuable under the
Plan, and shall seek to obtain from any regulatory body having jurisdiction,
including the Office of the Secretary of State of the State of Georgia, any
requisite authority required in the opinion of counsel for the Company in order
to grant Options to purchase Shares of Company Common Stock or to issue such
stock pursuant thereto. If in the opinion of counsel for the Company the
transfer,
3
<PAGE>
issue or sale of any shares of its stock under the Plan shall not be lawful for
any reason, including the inability of the Company to obtain from any regulatory
body having jurisdiction authority deemed by such counsel to be necessary to
such transfer, issuance or sale, the Company shall not be obligated to transfer,
issue or sell any such shares. In any event, the Company shall not be obligated
to transfer, issue or sell any shares to any participant unless a registration
statement which complies with the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), is in effect at the time with respect to such
shares or other appropriate action has been taken under and pursuant to the
terms and provisions of the Securities Act, or the Company receives evidence
satisfactory to the Committee that the transfer, issuance or sale of such
shares, in the absence of an effective registration statement or other
appropriate action, would not constitute a violation of the terms and provisions
of the Securities Act. The Company's obligation to issue shares upon the
exercise of any Option granted under the Plan shall in any case be subject to
the Company being satisfied that the shares purchased are being purchased for
investment and not with a view to the distribution thereof, if at the time of
such exercise a result of such issuance of shares would otherwise violate the
Securities Act in the absence of an effective registration statement relating to
such shares.
(e) Costs and Expenses. The costs and expenses of administering the Plan
shall be borne by the Company and not charged to any Option or to any
Non-Employee Director receiving an Option.
10. Amendment and Termination of the Plan.
(a) Amendment. The Committee may from time to time amend the Plan in whole
or in part; provided, that no such action shall adversely affect any rights or
obligations with respect to any Options theretofore granted under the Plan, and
provided further, that the provisions of Sections 4 and 6 hereof may not he
amended more than once every six months, other than to comport with a change in
the Internal Revenue Code or regulations thereunder.
Unless the holders of at least a majority of the outstanding shares of
Company Common Stock present, or represented, and entitled to vote at a meeting
of stockholders shall have first approved thereof, no amendment of the Plan
shall be effective which would (i) increase the maximum number of shares
referred to in Section 7 of the Plan or the number of shares subject to Options
that may be granted pursuant to section 6(a) of the Plan to any one Non-Employee
Director or (ii) extend the maximum period during which Options may be granted
under the Plan.
With the consent of the Non-Employee Director affected, the Committee may
amend outstanding agreements or certificates evidencing Options under the Plan
in a manner not inconsistent with the terms of the Plan.
(b) Termination. The Committee may terminate the Plan (but not any Options
theretofore granted under the Plan) at any time. The Plan (but not any Options
theretofore
4
<PAGE>
granted under the Plan) shall in any event terminate on, and no Options shall be
granted after, September 1, 2005.
11. Compliance with SEC Regulations.
It is the Company's intent that the Plan comply in all respects with Rule
16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and any related regulations. If any provision of this Plan is later found
not to be in compliance with such Rule and regulations, the provision shall be
deemed null and void. All grants and exercises of Options under this Plan shall
be executed in accordance with the requirements of Section 16 of the Exchange
Act and regulations promulgated thereunder.
12. Governing Law.
The validity and construction of the Plan and any agreements entered into
thereunder shall he governed by the laws of the State of Delaware.
5
EXHIBIT 5.1
September 18, 1998
Board of Directors
Western Power & Equipment Corp.
4601 NE 77th Street, Suite 200
Vancouver, Washington, 98662
We have acted as counsel for Western Power & Equipment Corp., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, covering 1,650,000 shares of common stock,
par value $.001 per share (the "Shares") of the Company issuable in connection
with the Company's 1995 Employee Stock Option Plan and the Company's Second
Amended and Restated 1995 Stock Option Plan For Non-Employee Directors
(collectively, the "Plans"). We have reviewed the corporate actions of the
Company in connection with this matter and have examined those documents,
corporate records, and other instruments we deemed necessary for the purposes of
this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the state of Delaware; and
2. The Shares have been duly authorized and, when issued pursuant to the
Plans and in accordance with the resolutions adopted by the Board of Directors
of the Company, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
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 September 16, 1997, which appears on
page F-17 of Western Power & Equipment Corp.'s Annual Report on Form 10-K for
the year ended July 31, 1997.
PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Portland, Oregon
September 18, 1998
