As filed with the Securities and Exchange Commission on April 2, 1998
Registration No. 333-00920
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
POST-EFFECTIVE
AMENDMENT NO. 1
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------
ROSS TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or 74-2507960
organization) (I.R.S. Employer
Identification Number)
5316 Highway 290 West, Suite 500
Austin, Texas 78735
(Address of Principal Executive Offices) (Zip Code)
------------------------
Stock Option and Restricted Stock Purchase Plan 3.0
(Full title of the Plan)
-------------------------
JACK W. SIMPSON, SR. Copies to:
President and Chief Executive Officer ANDREW W. GROSS, ESQ.
ROSS Technology, Inc. Irell & Manella LLP
5316 Highway 290 West, Suite 500 1800 Avenue of the Stars, Suite 900
Austin, Texas 78735 Los Angeles, CA 90067
(512) 436-2000 (310) 277-1010
(Name, address including zip code and telephone number, including
area code, of registrants' agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- ------------------------------------- ----------------- ----------------- ------------------ ================
Proposed Maximum Proposed Maximum
Title of Securities Amount Offering Price Aggregate Amount of
to be Registered to be Per Unit(2) Offering Price(2) Registration
Registered(1) Fee
- ------------------------------------- ----------------- ----------------- ------------------ ================
Common Stock, par value $0.01 per 1,925,451 shares $ 1.09 $ 2,105,962 $ 621.00
share
===================================== ================= ================= ================== ================
</TABLE>
(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
Registrant's Stock Option and Restricted Stock Purchase Plan 3.0 also
relates to an aggregate of 877,054 shares initially registered under
this Registration Statement. In addition, pursuant to Rule 416 of the
Securities Act, this Registration Statement also covers such additional
securities as may become issuable to prevent dilution resulting from
stock splits, stock dividends and similar events.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of calculating
the registration fee on the basis of the average of the high and low
sale prices of the Registrant's Common Stock on The Nasdaq Stock
Market's National Market on March 30, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus (the "Prospectus") is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8. The Registrant will provide without charge to employees, on the written or
oral request of any such person, a copy of any of the documents constituting the
Prospectus, except for the exhibits to such documents (unless such exhibits are
specifically incorporated by reference into the information that the Prospectus
incorporates). Written requests should be directed to: Francis S. (Kit) Webster
III, Chief Financial Officer, ROSS Technology, Inc., 5316 Highway 290 West,
Suite 500, Austin, Texas 78735. The Registrant's telephone number is (512)
436-2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a), (b), (c), (d), (e), (f) and (g) below are
incorporated by reference in this Registration Statement on Form S-8. In
addition, all documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997, filed pursuant to Section 13 of the
Exchange Act;
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended June 30, 1997, filed pursuant to Section 13 of the Exchange
Act
(c) The Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 1997, filed pursuant to Section 13 of the
Exchange Act (as amended by the Registrant's Quarterly Report on
Form 10-Q/A filed pursuant to Section 13 of the Exchange Act on
November 20, 1997);
(d) The Registrant's Quarterly Report on Form 10-Q for the period
ended December 31, 1997, filed pursuant to Section 13 of the
Exchange Act;
(e) The Registrant's Current Report on Form 8-K dated September 19,
1997 filed pursuant to Section 13 of the Act;
(f) The Registrant's Current Report on Form 8-K dated September 30,
1997 filed pursuant to Section 13 of the Act; and
(g) The description of the Common Stock contained under the caption
"Description of Capital Stock" in Registrant's Registration
Statement on Form S-1, File No. 33-95878, originally filed with
the Commission on August 21, 1995, including any amendment or
report filed for the purpose of updating such description.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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
incorporated or deemed to be incorporated herein by reference modifies or
supersedes such prior statement. Any 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.
2
<PAGE>
Item 5. Interests of Named Experts and Counsel.
As of the date of this Registration Statement, members of the firm Irell
& Manella LLP owned an aggregate of approximately 15,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law empowers a
corporation to 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, 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 or enterprise (other
than a suit by or in the right of the corporation). In any case, a corporation
may indemnify against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified 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 cause to believe his or her conduct was unlawful. In the case
of an action by or in the right of the corporation, no indemnification may be
made in respect to 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 of Chancery or the court in which such action or suit was brought
shall determine that, despite the adjudication of liability, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to above 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.
The Restated Certificate of Incorporation of the Registrant provides, in
effect, that, to the extent and under the circumstances permitted by Section 145
of the Delaware General Corporation Law, the Registrant shall indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding of the type described above by reason of the fact that he or
she is or was a director or officer of the Registrant, is or was serving at the
request of the Registrant as a director or officer of another corporation or
enterprise, or was a director or officer of a corporation which was a
predecessor corporation of the Registrant or of another enterprise at the
request of such predecessor corporation. The Restated Certificate of
Incorporation of the Registrant also provides, in effect, that, to the extent
and under the circumstances permitted by Section 145 of the Delaware General
Corporation Law, the Registrant shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she is
or was an employee or agent of the Registrant, is or was serving at the request
of the Registrant as an employee or agent of another corporation or enterprise,
or was an employee or agent of a corporation which was a predecessor corporation
of the Registrant or of another enterprise at the request of such predecessor
corporation.
As permitted by the Delaware General Corporation Law, the Restated
Certificate of Incorporation of the Registrant contains provisions limiting the
personal liability of the Registrant's directors for violations of their
fiduciary duty. Such provisions eliminate each director's liability to the
Registrant or its stockholders for monetary damages except (i) for any breach of
the director's duty of loyalty; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
pursuant to Section 174 of the Delaware General Corporation Law providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchase or redemptions; or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Stock Option and Restricted Stock Purchase Plan 3.0 (incorporated
by reference to Registrant's definitive Proxy Statement dated
July 18, 1997 for its 1997 Annual Meeting of Stockholders)
4.2 Form of Incentive Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.25 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.3 Form of Nonqualified Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.26 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.4 Form of Incentive Stock Option Agreement for options granted from
and after June 24, 1997
3
<PAGE>
4.5 Form of Nonqualified Stock Option Agreement for options granted
from and after June 24, 1997
4.6 Specimen of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to Registrant's Registration Statement on Form
S-1, File No. 33-95878)
4.7 Registrant's Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form S-1, File No. 33-95878)
4.8 Registrant's Restated Bylaws (incorporated by reference to
Exhibit 3.2 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 29, 1997)
5 Opinion of Irell & Manella LLP as to the legality of the shares
of Common Stock being registered
23.1 Written Consent of KPMG Peat Marwick LLP
23.2 Written Consent of Irell & Manella LLP (included in Exhibit 5)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed
in the registration statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or 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
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, State of Texas, on the April 2, 1998.
ROSS TECHNOLOGY, INC.,
a Delaware corporation
By:/s/ Jack W. Simpson, Sr.
---------------------------
Jack W. Simpson, Sr.
President & Chief Executive Officer
5
<PAGE>
Pursuant to the requirements of the Securities Act, this Amendment to
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- -------------------------------------------------------------------
/s/ Jack W. Simpson, Sr. Director, President
- --------------------------- and Chief Executive Officer April 2, 1998
Jack W. Simpson, Sr.
/s/ Francis S. (Kit) Webster III Chief Financial Officer
- --------------------------- and Secretary April 2, 1998
Francis S. (Kit) Webster III
(1) Chief Accounting Officer
- --------------------------- and Corporate Controller April 2, 1998
Carter L. Godwin
(1) Director
- --------------------------- April 2, 1998
Fred T. May
(1) Director
- --------------------------- April 2, 1998
Masahiro Saida
(1) Director
- --------------------------- April 2, 1998
Yasushi Tajiri
/s/ Edward F. Thompson Director
- --------------------------- April 2, 1998
Edward F. Thompson
(1) By Edward F. Thompson, as Attorney-in-fact
6
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description
- ------- -------------
4.1 Stock Option and Restricted Stock Purchase Plan 3.0 (incorporated
by reference to Registrant's definitive Proxy Statement dated
July 18, 1997 for its 1997 Annual Meeting of Stockholders)
4.2 Form of Incentive Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.25 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.3 Form of Nonqualified Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.26 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.4 Form of Incentive Stock Option Agreement for options granted from
and after June 24, 1997
4.5 Form of Nonqualified Stock Option Agreement for options granted
from and after June 24, 1997
4.6 Specimen of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to Registrant's Registration Statement on Form
S-1, File No. 33-95878)
4.7 Registrant's Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form S-1, File No. 33-95878)
4.8 Registrant's Restated Bylaws (incorporated by reference to
Exhibit 3.2 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 29, 1997)
5 Opinion of Irell & Manella LLP as to the legality of the shares
of Common Stock being registered
23.1 Written Consent of KPMG Peat Marwick LLP
23.2 Written Consent of Irell & Manella LLP (included in Exhibit 5)
i
<PAGE>
Exibit 4.4
ROSS TECHNOLOGY, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Option Agreement") is made
and entered into as of ______________________, 199_, by and between ROSS
TECHNOLOGY, INC., a Delaware corporation (the "Company"), and __________________
(the "Optionee"). The Company has granted Optionee this option (the "Option") to
purchase a total of _____________ shares of Common Stock of the Company (the
"Shares"), at the price determined as provided herein, and in all respects
subject to the terms, definitions and provisions of the Company's Stock Option
and Restricted Stock Purchase Plan 3.0 (the "Plan") adopted by the Company,
which is incorporated herein by reference. Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings herein.
Pursuant to the Plan, the Board or the Committee has determined that it is
to the advantage and best interest of the Company to grant this Option to
Optionee.
1. Nature of the Option.
This Option is intended by the Company and Optionee to qualify as an
incentive stock option as defined in Section 422 of the Code.
2. Exercise Price.
The exercise price is $_____ for each Share, which price has been
determined by the Committee to be not less than the fair market value (as
determined under Section 9 of the Plan) per Share of Common Stock (or, if the
Optionee owns at the time of grant more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any parent or
subsidiary corporation of the Company (a "10% Shareholder"), not less than one
hundred ten percent (110%) of such fair market value) on the date of grant set
forth herein.
3. Vesting and Exercisability.
This Option shall vest and become exercisable during its term in
accordance with the provisions of Section 8 of the Plan and as follows:
3.1 Vesting.
3.1.1 This Option shall vest cumulatively, during Optionee's
Continuous Status as an Employee (as defined below) as follows:
3.1.1.1 __% on __________________.
3.1.1.2 __% on __________________.
3.1.1.3 __% on __________________.
3.1.1.4 __% on __________________.
For purposes of this Option, "Continuous Status as an
Employee" shall mean the absence of any interruption or termination of
service as an employee of the Company or any of its subsidiaries.
Continuous Status as an Employee shall not be considered interrupted in
the case of a
1
<PAGE>
leave of absence approved in writing by the Committee;
provided, however, that this Option shall not be exercisable during any
such leave of absence, except during the first three (3) months
thereof.
3.1.2 In the event Optionee's employment with the Company
terminates for any reason, with or without cause, including as a result
of death or Permanent Disability (as defined below), this Option shall
cease vesting and shall be cancelled to the extent of the number of
Shares as to which this Option has not vested as of the date of
termination.
3.1.3 In connection with the occurrence of a Major Event, the
Committee may determine, in its discretion, that this Option shall
become immediately vested and exercisable in full.
3.2 Right to Exercise.
3.2.1 Subject to Sections 3.2.2, 3.2.3, and 3.2.4 below, this
Option shall be exercisable immediately, in whole or in part, to the
extent this Option has vested prior to exercise as provided in Section
3.1. If exercised in part, the balance of this Option shall be
exercisable at any time thereafter, subject to the vesting requirements
of Section 3.1.
3.2.2 This Option may not be exercised for a fraction of a
Share.
3.2.3 In the event of the termination of Optionee's Continuous
Status as an Employee, the exercisability of this Option is governed by
this Section 3.2 and Section 7 below.
3.2.4 In no event may this Option be exercised after the date
of expiration of the term of this Option as set forth in Section 11
below.
3.3 Method of Exercise. This Option shall be exercisable by written
notice in the form attached hereto as Exhibit A which shall state the election
to exercise this Option, the number of Shares in respect of which this Option is
being exercised, and such other representations and agreements as to the
Optionee's investment intent with respect to such Shares as may be required by
the Company pursuant to the provisions of the Plan. Such written notice shall be
signed by Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment of
the exercise price. This Option shall be deemed exercised upon receipt by the
Company of such written notice accompanied by the exercise price.
No Shares will be issued pursuant to the exercise of this Option unless
and until there shall have been full compliance with all applicable requirements
of the Securities Act (whether by registration or satisfaction of exemption
conditions), all applicable listing requirements of any national securities
exchange or other market system on which shares of the same class are then
listed and any other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery. The Company agrees to take such
reasonable actions as may be necessary to cause the issuance of the Shares to be
in compliance with the aforementioned laws and requirements.
2
<PAGE>
4. Optionee's Representations and Securities Law Compliance.
In the event the Shares purchasable pursuant to the exercise of this
Option have not been registered under the Securities Act at the time this Option
is exercised, (a) the Company may require Optionee, concurrently with the
exercise of all or any portion of this Option, to deliver to the Company an
Investment Representation Statement containing the statements (to the extent
required under applicable law) set forth in Exhibit B, and (b) the certificate
for the Shares shall bear appropriate legends.
5. Method of Payment.
Payment of the exercise price shall be in full at the time of exercise
in cash or by check payable to the order of the Company, or, subject in each
case to the approval of the Committee in its sole discretion, (i) by delivery of
shares of Common Stock already owned by, and in the possession of, Optionee,
(ii) by a promissory note made by Optionee in favor of the Company, in
accordance with Section 9 hereof, or (iii) through a "cashless exercise," in any
case complying with applicable law (including, without limitation, state and
federal margin requirements), or any combination thereof. shares of Common Stock
used to satisfy the exercise price of this Option shall be valued at their fair
market value determined (in accordance with Section 9 of the Plan) on the date
of exercise (or if such date is not a business day, as of the close of the
business day immediately preceding such date).
6. Restrictions on Exercise.
This Option may not be exercised if the issuance of such Shares upon
such exercise or the method of payment of consideration for such Shares would
constitute a violation of any applicable federal or state securities or other
law or regulation, including any rule under Part 207 of Title 12 of the Code of
Federal Regulations ("Regulation G") as promulgated by the Federal Reserve
Board. As a condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may be
necessary or appropriate, in the judgment of the Committee, to comply with any
applicable law or regulation.
3
<PAGE>
7. Termination of Continuous Status as an Employee.
In the event of termination of Optionee's Continuous Status as an
Employee, this Option shall continue to remain outstanding as to vested Shares
and shall be cancelled as to unvested Shares as provided in Sections 3.1 and
3.2. In the event this Option is partially or wholly vested on the date of
termination of Optionee's Continuous Status as an Employee and is not exercised
within the earlier of (a) the period set forth in Section 11, or (b) three (3)
months after termination of Optionee's Continuous Status as an Employee (or
within twelve (12) months in the case of termination as a result of Optionee's
death or Permanent Disability), this Option shall terminate. For purposes of
this Agreement, the "Permanent Disability" of Optionee shall have the meaning
set forth in Section 22(e)(3) of the Code. During the twelve (12) month period
after the death of Optionee, this Option may, to the extent it remained
unexercised (but exercisable by Optionee in accordance with its terms) on the
date of death, be exercised by the person or persons to whom Optionee's rights
under this Option pass by the Optionee's will or by the laws of descent and
distribution. Notwithstanding the foregoing, nothing herein shall prevent the
Company from entering into an agreement with Optionee upon the termination of
Optionee's Continuous Status as an Employee to repurchase any Shares issued
before such date upon the exercise of options granted under the Plan.
8. Non-Transferability of Option.
This Option may not be transferred in any manner otherwise than by will
or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by Optionee. The terms of this Option Agreement shall
be binding upon the executors, administrators, heirs, successors and assigns of
Optionee.
9. Optionee Loans.
In accordance with the provisions of Section above, the Company may
(but shall not be obligated to) lend Optionee up to the full amount of the
exercise price of this Option to enable Optionee to exercise this Option so long
as Optionee is in Continuous Status as an Employee. The loan shall be
represented by a full recourse promissory note (the "Note") delivered by
Optionee to the Company at the time of exercise of this Option. The Note shall
have a five-year maximum term, bear interest at a rate determined by the
Committee in its discretion, which shall be equal to or greater than the
Applicable Federal Rate under the Code, be secured by all the Shares acquired
with the proceeds of the Note, and contain such other terms and conditions as
the Committee may determine in its discretion. All of the proceeds from sales of
Shares securing the Note shall be applied to pay interest and principal on the
Note until it is repaid in full. The Note may be prepaid in full at any time.
Optionee may have a separate loan for each partial exercise of this Option (up
to the amount of the exercise price for the partial exercise). The foregoing
provisions of this Section shall be subject to compliance with any margin
requirements imposed by applicable law or regulations as specified in Section 6
above.
4
<PAGE>
10. Adjustment for Reorganizations, Stock Splits, etc.
If the outstanding shares of the Common Stock of the Company are
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, or other
similar transaction, an appropriate and proportionate adjustment shall be made
in the maximum number and kind of shares or securities receivable upon the
exercise of this Option, without change in the total price applicable to the
unexercised portion of this Option but with a corresponding adjustment in the
price for each share or other unit of any security covered by this Option.
Adjustments under this Section 10 shall be made by the Committee in good faith.
No fractional shares of stock shall be issued under the Plan on any such
adjustment.
11. Term of Option.
This Option may not be exercised more than ten (10) years (five (5)
years if Optionee is a 10% Shareholder) from the date of grant of this Option,
and may be exercised during such term only in accordance with the Plan and the
terms of this Option.
12. Early Disposition of Stock.
Optionee understands that, under current law, if any Shares received under
this Option are disposed of within two (2) years from the date of grant of this
Option or within one (1) year after such Shares were transferred to Optionee,
Optionee will be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount equal to the
difference between the exercise price and the lower of the fair market value of
the Shares at the date of exercise or the fair market value of the Shares at the
date of disposition. Optionee hereby agrees to notify the Company in writing
within ten (10) days after the date of any such disposition.
13. Withholding of Taxes.
The Company shall have the right to take whatever steps the Committee
deems necessary or appropriate to comply with all applicable federal, state,
local, and employment tax withholding requirements, and the Company's
obligations to deliver Shares upon the exercise of this Option shall be
conditioned upon compliance with all such withholding tax requirements. Without
limiting the generality of the foregoing, upon a disposition of Shares described
in Section 12 of this Agreement, the Company shall have the right to withhold
taxes from any other compensation or other amounts which it may owe to Optionee,
or to require Optionee to pay to the Company the amount of any taxes which the
Company may be required to withhold with respect to such Shares. Without
limiting the generality of the foregoing, the Committee in its discretion may
authorize Optionee to satisfy all or part of any withholding tax liability by
delivering to the Company previously-owned and unencumbered shares of the Common
Stock of the Company having a fair market value as of the date the withholding
tax liability arises equal to or less than the amount of the withholding tax
liability.
5
<PAGE>
14. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN
DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF DELAWARE OR ANY
OTHER JURISDICTION.
15. Notices.
Any notice required or permitted under this Agreement shall be given in
writing by express courier or by postage prepaid, United States registered or
certified mail, return receipt requested, to the address set forth below or to
such other address for a party as that party may designate by ten (10) days
advance written notice to the other parties. Notice shall be effective upon the
earlier of receipt or three (3) days after the mailing of such notice.
If to the Company: ROSS Technology, Inc.
Suite 500
5316 Highway 290 West
Austin, Texas 78735
Attn: Secretary
If to Optionee: __________________________
DATE OF GRANT: ______________, 199_
ROSS TECHNOLOGY, INC.,
a Delaware corporation
By:____________________________
Title:_________________________
6
<PAGE>
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT
TO SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OF THE
COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS
OPTION, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET
FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS AN EMPLOYEE FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL.
NOTHING IN THIS AGREEMENT OR THE PLAN SHALL LIMIT IN ANY MANNER WHATSOEVER THE
RIGHT OR POWER OF THE COMPANY TO TERMINATE OPTIONEE'S EMPLOYMENT WITH OR WITHOUT
CAUSE.
Optionee acknowledges receipt of copies of (i) the Plan and (ii) the
Prospectus dated January 25, 1996, as amended on _____________, 1998, relating
to the options and shares of Common Stock issuable under the Plan. Optionee
represents that he is familiar with the terms and provisions of the Plan, and
hereby accepts this Option subject to all of the terms and provisions thereof.
Optionee also acknowledges that the grant of this Option, the purchase of Shares
upon exercise of this Option, and the sale of such Shares has important tax
implications. Optionee has reviewed the Plan, this Option and the Prospectus in
their entirety, has had an opportunity and has been encouraged to obtain the
advice of his or her independent legal counsel and tax advisor prior to
executing this Option and fully understands all provisions of this Option.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Board or the Committee upon any questions arising
under the Plan.
---------------------------
Optionee
By his or her signature below, the spouse of Optionee affirms that
he/she has read in its entirety and agrees to be bound by all of the terms and
conditions of the foregoing Option Agreement.
---------------------------
Spouse
7
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
ROSS Technology, Inc.
5316 Highway 290 West, Suite 500
Austin, Texas 78735
Attn: Secretary
Ladies and Gentlemen:
The undersigned hereby elects to exercise the option indicated below with
respect to the number of shares of Common Stock of Ross Technology, Inc. (the
"Company") set forth:
Option Grant Date: ___________________
Type of Option:
_______ Incentive Stock Option
_______ Nonstatutory Option
Number of Shares Being Exercised: ____________ shares
Exercise Price Per Share: $___________
Total Exercise Price: $_____________
Method of Payment:
_______ Cash or Check
Other Method Permitted Under Section 5 of
_______ Option Agreement:__________________
(Description)
Enclosed herewith is payment in full of the total exercise price, a copy of
the Option Agreement and, if required by the Company, an executed copy of an
Investment Representation Statement (Exhibit B to the Option Agreement).
8
<PAGE>
My exact name, current address and social security number for purposes of
the stock certificates to be issued and the shareholder list of the Company are:
Name:_______________________________
Address:_____________________________
_____________________________
_____________________________
Social Security Number:________________
Sincerely,
Dated:_________________ ______________________________
(Optionee's Signature)
9
<PAGE>
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
COMPANY: ROSS TECHNOLOGY, INC.
SECURITY: COMMON STOCK
AMOUNT:
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am sufficiently aware of the Company's business affairs and
financial condition to reach an informed and knowledgeable decision to acquire
the Securities. I am purchasing these Securities for my own account for
investment purposes only and not with a view to, or for the resale in connection
with, any "distribution" thereof for purposes of the Securities Act of 1933, as
amended (the "Securities Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein. In this connection, I understand that, in the view of the
Securities and Exchange Commission (the "SEC"), the statutory basis for such
exemption may be unavailable if my representation was predicated solely upon a
present intention to hold these securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future. In addition, I understand the Securities
have not been registered under the Delaware Securities Act.
(c) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available (such as Rule 144 under the Securities
Act). Moreover, I understand that the Company is under no obligation to register
the securities. In addition, I understand that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel for the Company.
(d) I am familiar with the provisions of Rule 144, promulgated under
the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
The availability of certain public information about the Company; (2) the resale
occurring not less than one (1) year after the party has purchased, and made
full payment for, within the meaning of Rule 144, the securities to be sold;
and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two (2) years, (3) the sale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker, as such term is defined under the Securities Exchange Act of 1934 (the
"Exchange Act") and the amount of securities being sold during any three month
period not exceeding the specified limitations stated therein, if applicable.
There can be no assurances that the requirements of Rule 144 or Rule 701 will be
met, or that the Securities will ever be saleable.
10
<PAGE>
(e) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale, and that, even if
such a public market then exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that, in such event, I would be
precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period had been satisfied.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, compliance with some other registration
exemption or the notification to the Company of the proposed disposition by me
and the furnishing to the Company of (i) detailed information regarding the
disposition, and (ii) an opinion of my counsel to the effect that such
disposition will not require registration (I understand such counsel's opinion
shall concur with the opinion by counsel for the Company and I shall have been
informed of such compliance) will be required and that, notwithstanding the fact
that Rule 144 is not exclusive, the Staff of the SEC has offered its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
(g) I understand that this Investment Representation Statement is intended
to restrict the above-listed Securities only to the extent required by
applicable law, and that it shall not be construed to increase the limitations
on transfer of the above-listed Securities beyond the requirements of applicable
law.
Signature of Purchaser:
_____________________________
Date:__________________, 199_
11
<PAGE>
Exibit 4.5
ROSS TECHNOLOGY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Option Agreement") is
made and entered into as of _____________, 199_, by and between ROSS TECHNOLOGY,
INC., a Delaware corporation (the "Company"), and
________________________________ ("Optionee"). The Company has granted Optionee
this option (the "Option") to purchase a total of __________ shares of Common
Stock of the Company (the "Shares"), at the price determined as provided herein,
and in all respects subject to the terms, definitions and provisions of the
Company's Stock Option and Restricted Stock Purchase Plan 3.0 (the "Plan")
adopted by the Company, which is incorporated herein by reference. Unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings herein.
Pursuant to the Plan, the Board or the Committee has determined that it is
to the advantage and best interest of the Company to grant this Option to
Optionee.
1. Nature of the Option.
This Option is intended by the Company and Optionee to be a
non-qualified option and not an incentive stock option as defined in Section 422
of the Code.
2. Exercise Price.
The exercise price is $_______ for each Share.
3. Vesting and Exercisability.
This Option shall vest and become exercisable during its term in
accordance with the provisions of Section 8 of the Plan and as follows:
3.1 Vesting.
3.1.1 This Option shall vest cumulatively, during Optionee's
"Continuous Status" (as defined below) as follows:
3.1.1.1 ___% on _____________.
3.1.1.2 ___% on _____________.
3.1.1.3 ___% on _____________.
3.1.1.4 ___% on _____________.
For purposes of this Option, "Continuous Status" shall mean the continuous
status, without any interruption or termination of service, as at least one of
(a) an employee of the Company or any of its subsidiaries, (b) a director of the
Company or any of its subsidiaries, or (c) a consultant or provider of services
to the Company or any of its subsidiaries. Continuous Status shall not be
considered to be interrupted in the case of
<PAGE>
a leave of absence approved in writing by the Committee; provided, however,
that this Option shall not be exercisable during any such leave of absence,
except during the first three (3) months thereof.
3.1.2 In the event of optionee's termination of Continuous
Status for any reason, with or without cause, including as a result of
death or Permanent Disability (as defined below), this Option shall
cease vesting and shall be cancelled to the extent of the number of
Shares as to which this Option has not vested as of the date of
termination.
3.1.3 In connection with the occurrence of a Major Event, the
Committee may determine, in its discretion, that this Option shall
become immediately vested and exercisable in full.
3.2 Right to Exercise.
3.2.1 Subject to Sections 3.2.2, 3.2.3 and 3.2.4 below, this
Option shall be exercisable immediately, in whole or in part, to the
extent this Option has vested prior to exercise as provided in Section
3.1. If exercised in part, the balance of this Option shall be
exercisable at any time thereafter, subject to the vesting requirements
of Section 3.1.
3.2.2 This Option may not be exercised for a fraction of a
Share.
3.2.3 In the event of the termination of Optionee's Continuous
Status, the exercisability of this Option is governed by this Section
3.2 and Section 7 below.
3.2.4 In no event may this Option be exercised after the date
of expiration of the term of this Option as set forth in Section 11
below.
3.3 Method of Exercise. This Option shall be exercisable by written notice
in the form attached hereto as Exhibit A which shall state the election to
exercise this Option, the number of Shares in respect of which this Option is
being exercised, and such other representations and agreements as to Optionee's
investment intent with respect to such Shares as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be signed by
Optionee (or by an assignee,transferee or successor permitted under Section 8 of
this Agreement) and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment of
the exercise price. This Option shall be deemed exercised upon receipt by the
Company of such written notice accompanied by the exercise price.
No Shares will be issued pursuant to the exercise of this Option unless
and until there shall have been full compliance with all applicable requirements
of the Securities Act (whether by registration or satisfaction of exemption
conditions), all applicable listing requirements of any national securities
exchange or other market system on which shares of the same class are then
listed and any other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery. The Company agrees to take such
reasonable actions as may be necessary to cause the issuance of the Shares to be
in compliance with the aforementioned laws and requirements.
4. Optionee's Representations and Securities Law Compliance.
2
<PAGE>
In the event the Shares purchasable pursuant to the exercise of this Option
have not been registered under the Securities Act at the time this Option is
exercised, (a) the Company may require the Optionee (or an assignee, transferree
or successor permitted under Section 8 of this Agreement), concurrently with the
exercise of all or any portion of this Option, to deliver to the Company an
Investment Representation Statement containing the statements (to the extent
required under applicable law) set forth in Exhibit B, and (b) the certificate
for the Shares shall bear appropriate legends.
5. Method of Payment.
Payment of the exercise price shall be in full at the time of exercise
in cash or by check payable to the order of the Company, or, subject in each
case to the approval of the Committee in its sole discretion, (i) by delivery of
shares of Common Stock already owned by, and in the possession of, Optionee,
(ii) by a promissory note made by Optionee in favor of the Company, in
accordance with Section 9 hereof, or (iii) through a "cashless exercise," in any
case complying with applicable law (including, without limitation, state and
federal margin requirements), or any combination thereof. shares of Common Stock
used to satisfy the exercise price of this Option shall be valued at their fair
market value determined (in accordance with Section 9 of the Plan) on the date
of exercise (or if such date is not a business day, as of the close of the
business day immediately preceding such date).
3
<PAGE>
6. Restrictions on Exercise.
This Option may not be exercised if the issuance of such Shares upon
such exercise or the method of payment of consideration for such Shares would
constitute a violation of any applicable federal or state securities or other
law or regulation, including any rule under Part 207 of Title 12 of the Code of
Federal Regulations ("Regulation G") as promulgated by the Federal Reserve
Board. As a condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may be
necessary or appropriate, in the judgment of the Committee, to comply with any
applicable law or regulation.
7. Termination of Continuous Status.
In the event of termination of Optionee's Continuous Status, this
Option shall continue to remain outstanding as to vested Shares and shall be
cancelled as to unvested Shares as provided in Sections 3.1 and 3.2. In the
event this Option is partially or wholly vested on the date of termination of
Optionee's Continuous Status and is not exercised within the earlier of (a) the
period set forth in Section , or (b) three (3) months after termination of
Optionee's Continuous Status (or within twelve (12) months in the case of
termination as a result of Optionee's death or Permanent Disability), this
Option shall terminate. For purposes of this Agreement, the "Permanent
Disability" of Optionee shall have the meaning set forth in Section 22(e)(3) of
the Code. During the twelve (12) month period after the death of Optionee, this
Option may, to the extent it remained unexercised (but exercisable by Optionee
in accordance with its terms) on the date of death, be exercised by the person
or persons to whom Optionee's rights under this Option pass by Optionee's will
or by the laws of descent and distribution. Notwithstanding the foregoing,
nothing herein shall prevent the Company from entering into an agreement with
Optionee upon the termination of Optionee's Continuous Status to repurchase any
Shares issued prior to such date upon the exercise of options granted under the
Plan.
8. Non-Transferability of Option.
This Option may not be transferred in any manner otherwise than by will
or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by Optionee, except that (a) this option may be
transferred to, and exercised by, the spouse of the Optionee pursuant to a
"Qualified Domestic Relations Order," as defined in Section 414(p) of the Code,
and (b) with the prior written consent of the Committee, Optionee may assign
this Option in connection with Optionee's estate plan, in whole or in part,
during Optionee's lifetime to one or more members of Optionee's "Immediate
Family" (as defined below) or to a trust established exclusively for one or more
of such Immediate Family members, and this Option may be exercised by such
Immediate Family member or trust. If this Option is transferred or assigned
pursuant to the preceding sentence, it shall continue to be governed by the
terms and provisions of this Agreement, including, but not limited to, the
provisions hereof governing exercisability, vesting, and termination, all of
which shall be determined by reference to the Continuous Status of Optionee. For
purposes of this Agreement, the "Immediate Family" of Optionee means Optionee's
spouse, children, stepchildren, grandchildren, and parents. The terms of this
Option Agreement shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
9. Optionee Loans.
4
<PAGE>
In accordance with the provisions of Section above, the Company may
(but shall not be obligated to) lend Optionee up to the full amount of the
exercise price of this Option to enable Optionee to exercise this Option so long
as Optionee is in Continuous Status. The loan shall be represented by a full
recourse promissory note (the "Note") delivered by Optionee to the Company at
the time of exercise of this Option. The Note shall have a five-year maximum
term, bear interest at a rate determined by the Committee in its discretion, but
which shall be equal to or greater than the Applicable Federal Rate under the
Code, be secured by all the Shares acquired with the proceeds of the Note, and
contain such other terms and conditions as the Committee may determine in its
discretion. All of the proceeds from sales of Shares securing the Note shall be
applied to pay interest and principal on the Note until it is repaid in full.
The Note may be prepaid in full at any time. Optionee may have a separate loan
for each partial exercise of this Option (up to the amount of the exercise price
for the partial exercise). The foregoing provisions of this Section shall be
subject to compliance with any margin requirements imposed by applicable law or
regulations as specified in Section 6 above.
10. Adjustment for Reorganizations, Stock Splits, etc.
If the outstanding shares of the Common Stock of the Company are
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, or other
similar transaction, an appropriate and proportionate adjustment shall be made
in the maximum number and kind of shares or securities receivable upon the
exercise of this Option, without change in the total price applicable to the
unexercised portion of this Option but with a corresponding adjustment in the
price for each share or other unit of any security covered by this Option.
Adjustments under this Section shall be made by the Committee in good faith. No
fractional shares of stock shall be issued under the Plan on any such
adjustment.
11. Term of Option.
This Option may not be exercised more than ten (10) years from the date
of grant of this Option, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
5
<PAGE>
12. Withholding of Taxes.
The Company shall have the right to take whatever steps the Committee
deems necessary or appropriate to comply with all applicable federal, state,
local, and employment tax withholding requirements, and the Company's
obligations to deliver Shares upon the exercise of this Option shall be
conditioned upon compliance with all such withholding tax requirements. Without
limiting the generality of the foregoing, upon the exercise of this Option, the
Company shall have the right to withhold taxes from any other compensation or
other amounts which it may owe to Optionee, or to require Optionee or such other
person to pay to the Company the amount of any taxes which the Company may be
required to withhold with respect to such Shares. Without limiting the
generality of the foregoing, the Committee in its discretion may authorize
Optionee to satisfy all or part of any withholding tax liability by (a) having
the Company withhold from the Shares which would otherwise be issued on the
exercise of this Option that number of Shares having a fair market value as of
the date the withholding tax liability arises equal to or less than the amount
of the withholding tax liability, or (b) by delivering to the Company
previously-owned and unencumbered shares of the Common Stock of the Company
having a fair market value as of the date the withholding tax liability arises
equal to or less than the amount of the withholding tax liability.
13. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN
DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF DELAWARE OR ANY
OTHER JURISDICTION.
14. Notices.
Any notice required or permitted under this Agreement shall be given in
writing by express courier or by postage prepaid, United States registered or
certified mail, return receipt requested, to the address set forth below or to
such other address for a party as that party may designate by ten (10) days
advance written notice to the otherparties. Notice shall be effective upon the
earlier of receipt or three (3) days after the mailing of such notice.
If to the Company: ROSS Technology, Inc.
Suite 500
5316 Highway 290 West
Austin, Texas 78735
Attn: Secretary
6
<PAGE>
If to Optionee: _____________________
_____________________
_____________________
_____________________
DATE OF GRANT: ______________, 199_
ROSS TECHNOLOGY, INC.,
a Delaware corporation
By:__________________________
Title:________________________
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT
TO SECTION 3 HEREOF IS EARNED ONLY BY CONTINUOUS STATUS AS DEFINED IN SECTION
3.1 ABOVE AT THE WILL OF THE COMPANY AND ITS SHAREHOLDERS (NOT THROUGH THE ACT
OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER).
OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS CONSULTANT
TO OR DIRECTOR OR EMPLOYEE OF THE COMPANY FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL. NOTHING IN THIS AGREEMENT OR THE PLAN SHALL LIMIT IN ANY
MANNER WHATSOEVER THE RIGHT OR POWER OF THE COMPANY OR ITS SHAREHOLDERS TO
TERMINATE OPTIONEE'S RELATIONSHIP WITH THE COMPANY WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of copies of (i) the Plan and (ii) the
Prospectus dated January 25, 1996, as amended on ______________, 1998, relating
to the options and shares of Common Stock issuable under the Plan. Optionee
represents that he is familiar with the terms and provisions of the Plan, and
hereby accepts this Option subject to all of the terms and provisions thereof.
Optionee also acknowledges that the grant of this Option, the purchase of Shares
upon exercise of this Option, and the sale of such Shares has important tax
implications. Optionee has reviewed the Plan and this Option in their entirety,
has had an opportunity and has been encouraged to obtain the advice of his or
her independent legal counsel and tax advisor prior to executing this Option and
fully understands all provisions of this Option. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Board or the Committee upon any questions arising under the Plan.
---------------------------
Optionee
7
<PAGE>
By his or her signature below, the spouse of Optionee affirms that
he/she has read in its entirety and agrees to be bound by all of the terms and
conditions of the foregoing Option Agreement.
---------------------------
Spouse
8
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
ROSS Technology, Inc.
5316 Highway 290 West, Suite 500
Austin, Texas 78735
Attn: Secretary
Ladies and Gentlemen:
The undersigned hereby elects to exercise the option indicated below with
respect to the number of shares of Common Stock of Ross Technology, Inc. (the
"Company") set forth:
Option Grant Date: ____________________
Type of Option:
_______ Incentive Stock Option
_______ Nonstatutory Option
Number of Shares Being Exercised: ____________ shares
Exercise Price Per Share: $___________
Total Exercise Price: $_____________
Method of Payment:
_______ Cash or Check
_______ Other Method Permitted Under Section of
Option Agreement:___________________
(Description)
Enclosed herewith is payment in full of the total exercise price, a copy of
the Option Agreement and, if required by the Company, an executed copy of an
Investment Representation Statement (Exhibit B to the Option Agreement).
9
<PAGE>
My exact name, current address and social security number for
purposes of the stock certificates to be issued and the shareholder list of the
Company are:
Name:_______________________________
Address:_____________________________
_____________________________
_____________________________
Social Security Number:________________
Sincerely,
Dated:_________________ ______________________________
(Optionee's Signature)
10
<PAGE>
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
COMPANY: ROSS TECHNOLOGY, INC.
SECURITY: COMMON STOCK
AMOUNT:
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am sufficiently aware of the Company's business affairs and
financial condition to reach an informed and knowledgeable decision to acquire
the Securities. I am purchasing these Securities for my own account for
investment purposes only and not with a view to, or for the resale in connection
with, any "distribution" thereof for purposes of the Securities Act of 1933, as
amended (the "Securities Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein. In this connection, I understand that, in the view of the
Securities and Exchange Commission (the "SEC"), the statutory basis for such
exemption may be unavailable if my representation was predicated solely upon a
present intention to hold these securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future. In addition, I understand the Securities
have not been registered under the Delaware Securities Act.
(c) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available (such as Rule 144 under the Securities
Act). Moreover, I understand that the Company is under no obligation to register
the securities. In addition, I understand that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they areregistered or such registration is not required in the
opinion of counsel for the Company.
(d) I am familiar with the provisions of Rule 144, promulgated under
the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
The availability of certain public information about the Company; (2) the resale
occurring not less than one (1) year after the party has purchased, and made
full payment for, within the meaning of Rule 144, the securities to be sold;
and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two (2) years, (3) the sale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker, as such term is defined under the Securities Exchange Act of 1934 (the
"Exchange Act") and the amount of securities being sold during any three month
period not exceeding the specified limitations stated therein, if applicable.
There can be no assurances that the requirements of Rule 144 will be met, or
that the Securities will ever be saleable.
11
<PAGE>
(e) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale, and that, even if
such a public market then exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that, in such event, I would be
precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period had been satisfied.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, compliance with some other registration
exemption or the notification to the Company of the proposed disposition by me
and the furnishing to the Company of (i) detailed information regarding the
disposition, and (ii) an opinion of my counsel to the effect that such
disposition will not require registration (I understand such counsel's opinion
shall concur with the opinion by counsel for the Company and I shall have been
informed of such compliance) will be required and that, notwithstanding the fact
that Rule 144 is not exclusive, the Staff of the SEC has offered its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
(g) I understand that this Investment Representation Statement is
intended to restrict the above-listed Securities only to the extent required by
applicable law, and
12
<PAGE>
that it shall not be construed to increase the limitations on transfer of the
above-listed Securities beyond the requirements of applicable law.
Signature of Purchaser:
-----------------------------
Date:__________________, 199_
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<PAGE>
Exhibit 5
April 2, 1998
ROSS Technology, Inc.
5316 Highway 290 West, Suite 500
Austin, Texas 78735
Gentlemen and Ladies:
We have acted as counsel in connection with the preparation and filing of
Amendment No. 1 to the Registration Statement on Form S-8 No. 333-00920 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission in connection with the registration of 1,925,451 shares of the Common
Stock (the "Common Stock") of ROSS Technology, Inc., a Delaware corporation (the
"Company"), for sale and issuance pursuant to the Company's Stock Option and
Restricted Stock Purchase Plan 3.0 (the "Plan"). As counsel, we have examined
the proceedings proposed to be taken in connection with the Plans and the sale
and issuance of the Common Stock pursuant thereto and such other matters and
documents as we have deemed necessary or relevant as a basis for this opinion.
Based on these examinations, it is our opinion that upon completion of
the proceedings being taken or which we, as your counsel, contemplate will be
taken prior to the sale and issuance of the Common Stock, such Common Stock,
when sold and issued in the manner referred to in the Registration Statement and
the Plan, will be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and any amendment thereto. This opinion is furnished to you in
connection with the registration of the above-described shares, is solely for
your benefit, and may not be relied upon, nor copies delivered to, any other
person or entity without our prior written consent.
Very truly yours,
/s/ IRELL & MANELLA LLP
-----------------------
IRELL & MANELLA LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ross Technology, Inc.:
We consent to incorporation by reference in this Amendment
No. 1 to Registration Statement on Form S-8 of Ross
Technology, Inc. of our report dated June 23, 1997 relating
to the consolidated balance sheets of Ross Technology, Inc.
and subsidiary as of March 31, 1997 and April 1, 1996, and
the related consolidated statements of operations,
stockholders' equity (deficit), and cash flows for each of
the years in the three year period ended March 31, 1997 and
the related schedule, which report appears in the March 31,
1997 annual report on Form 10-K of Ross Technology, Inc.
Our report dated June 23, 1997, contains an explanatory
paragraph that states that the Company is dependent on its
Parent, Fujitsu Limited, for its cash and capital
requirements.
/s/ KPMG PEAT MARWICK LLP
-------------------------
KPMG PEAT MARWICK LLP
Austin, Texas
April 2, 1998
