UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Exact name of issuer as specified in its charter:
HEWLETT-PACKARD COMPANY
State or other jurisdiction of I.R.S. Employer
incorporation or organization: Identification No.:
California 94-1081436
Address of principal executive offices:
3000 Hanover Street, Palo Alto, California 94304
Full title of the plans:
VeriFone, Inc. 1997 Non-Qualified Employee Stock Purchase Plan
Name and address of agent for service:
D. CRAIG NORDLUND
3000 Hanover Street, Palo Alto, California 94304
Telephone Number, including area code, of agent for service: (650) 857-1501
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
To be To Be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee(1)(2)
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Common Stock
Par Value $1.00
per Share 25,000 $61.7188 $1,542,970 $455.18
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(1) Estimated pursuant to Rule 457 solely for purposes of calculating
the registration fee. Amount of the Registration Fee was calculated
pursuant to Section 6(b) of the Securities Act of 1933, as amended,
and was determined by multiplying the aggregate offering amount by
.000295.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of $61.7188 per share, which
represents the average of the high and low prices of the Common
Stock reported on the New York Stock Exchange Composite Tape on
January 26, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Hewlett-Packard Company (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) Annual Report on Form 10-K for the fiscal year ended October
31, 1997 filed with the Securities and Exchange Commission ("SEC") on
January 27, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the fiscal year covered by the Company document referred
to in (a) above;
(c) The description of the Company's capital stock contained in the
Company's Registration Statement under the Exchange Act filed with the SEC
on or about November 6, 1957 and the Amended and Restated Articles of
Incorporation which appeared as Exhibit 3(a) to the Annual Report on
Form 10-K for the fiscal year ended October 31, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of the
filing of such documents.
Item 4. Description of Securities.
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Section 204 of the General Corporation Law of the State of
California ("California Law") authorizes a corporation to adopt a
provision in its articles of incorporation eliminating the personal
liability of directors to corporations and their shareholders for
monetary damages for breach or alleged breach of directors' "duty of
care." Following a California corporation's adoption of such a provision,
its directors are not accountable to corporations and their shareholders
for monetary damages for conduct constituting negligence (or gross
negligence) in the exercise of their fiduciary duties; however, directors
continue to be subject to equitable remedies such as injunction or
rescission. Under California Law, a director also continues to be
liable for (1) a breach of his or her duty of loyalty; (2) acts or
omissions not in good faith or involving intentional misconduct or
knowing violations of law; (3) illegal payments of dividends; and (4)
approval of any transaction from which a director derives an improper
personal benefit. The adoption of such a provision in the articles of
incorporation also does not limit directors' liability for violations of
the federal securities laws.
Section 317 of the California Law makes a provision for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances,
for liabilities (including reimbursement for expenses incurred) arising
under the Securities Act of 1933, as amended (the "Securities Act"). An
amendment to Section 317 provides that the indemnification provided by
this section is not exclusive to the extent additional rights are authorized
in a corporation's articles of incorporation.
The Company has adopted provisions in its Amended Articles of
Incorporation which eliminate the personal liability of its directors to
the Company and its shareholders for monetary damages for breach of the
directors' fiduciary duties in certain circumstances and authorize the
Company to indemnify its officers, directors and other agents to the
fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
See Exhibit Index on page 8.
Item 9. Undertakings.
(a) Rule 415 Offering.
-----------------
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
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The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Regulation S-K Item 512(h) Undertaking for Registration
Statement on Form S-8.
-------------------------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Palo Alto, State
of California, on this 29th day of January, 1998.
HEWLETT-PACKARD COMPANY
By: /s/Ann O. Baskins
-------------------
Ann O. Baskins
Assistant Secretary
& Managing Counsel
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the persons whose signatures
appear below constitute and appoint D. Craig Nordlund and Ann O. Baskins,
and each of them, as true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities to sign the
Form S-8 Registration Statement pertaining to the VeriFone, Inc. 1997
Non-Qualified Employee Stock Purchase Plan, and any or all amendments
(including post-effective amendments) to said Form S-8 Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and these Amendments to Registration Statements have
been signed below by the following persons in the capacities and on the
dates indicated. Moreover, the undersigned hereby also certify that
to the best of their knowledge and belief the issuer meets all of the
requirements for filing on Form S-8.
Signature Title Date
--------- ----- ----
/s/Raymond W. Cookinghamv Vice President and Controller January 23, 1998
---------------------- (Principal Accounting Officer)
Raymond W. Cookingham
Director January , 1998
----------------------
Thomas E. Everhart
/s/John B. Fery Director January 23, 1998
----------------------
John B. Fery
/s/Jean-Paul G. Gimon Director January 23, 1998
----------------------
Jean-Paul G. Gimon
/s/Sam Ginn Director January 23, 1998
----------------------
Sam Ginn
/s/Richard A. Hackborn Director January 23, 1998
----------------------
Richard A. Hackborn
/s/Walter B. Hewlett Director January 23, 1998
----------------------
Walter B. Hewlett
---------------------- Director January , 1998
George A. Keyworth II
/s/David M. Lawrence,M.D. Director January 23, 1998
----------------------
David M. Lawrence, M.D.
/s/Paul F. Miller, Jr. Director January 23, 1998
---------------------
Paul F. Miller, Jr.
/s/Susan P. Orr Director January 23, 1998
---------------------
Susan P. Orr
/s/David W. Packard Director January 23, 1998
---------------------
David W. Packard
/s/Lewis E. Platt Chairman, President and January 23, 1998
--------------------- Chief Executive Officer
Lewis E. Platt (Principal Executive Officer)
/s/Robert P. Wayman Executive Vice President, January 23, 1998
--------------------- Finance and Administration
Robert P. Wayman (Chief Financial Officer)
and Director
EXHIBIT INDEX
Exhibit No.
1-3 Not applicable.
4 None
5 Opinion re legality.
6-22 Not applicable.
23.1 Consent of Independent Accountants. Found at page 10
of this registration statement and incorporated herein
by reference.
23.2 Consent of Counsel. Contained with the opinion filed as
Exhibit 5 hereto and incorporated herein by reference.
24 Powers of attorney. Contained in the signature pages
(pages 6-7) of this Form S-8 registration statement and
incorporated herein by reference.
25-98 Not applicable.
99 VeriFone, Inc. 1997 Non-Qualified Employee Stock Purchase
Plan
EXHIBIT 5
January 29, 1998
Hewlett-Packard Company
3000 Hanover Street
Palo Alto, California 94304
25,000 Shares of Common Stock of Hewlett-Packard Company
Offered pursuant to the VeriFone, Inc. 1997 Non-Qualified
Employee Stock Purchase Plan
Dear Sir or Madam:
I have examined the proceedings taken and the instruments executed
in connection with the organization and present capitalization of
Hewlett-Packard Company (the "Company") and the reservation for
issuance and authorization of the sale and issuance from time to
time of not in excess of 25,000 shares of the Company's Common Stock
(the "Shares") pursuant to the terms of the VeriFone, Inc. 1997
Non-Qualified Employee Stock Purchase Plan (the "Plan"). The Shares
are the subject of a Registration Statement on Form S-8 under the
Securities Act of 1933, as amended, which is being filed with the
Securities and Exchange Commission and to which this opinion is to be
attached as an exhibit.
Upon the basis of such examination, I am of the following opinion:
1. The authorized shares of the Company consist of 300,000,000 shares
of Preferred Stock and 2,400,000,000 shares of Common Stock.
2. The proper corporate proceedings necessary to the reservation for
issuance and the authorization of the sale and issuance from time to
time of not in excess of 25,000 shares of the Common Stock of the
Company pursuant to the Plan have been duly taken and, when issued
pursuant to such plan, the Shares will be duly and validly issued and
fully paid and nonassessable.
3. When the above-mentioned registration statement relating to the
Shares has become effective and when the listing of the Shares on the
New York Stock Exchange and The Pacific Exchange has been authorized,
all authorizations, consents, approvals, or other orders of all United
States regulatory authorities required for the issuance of the Shares
will have been obtained.
You are further advised that I consent to the use of this opinion as an
exhibit to the above-mentioned Registration Statement.
Very truly yours,
/s/Ann O. Baskins
Ann O. Baskins
Assistant Secretary
and Managing Counsel
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 November 17, 1997, which appears
on page 54 of the 1997 Annual Report to Shareholders of Hewlett-Packard
Company, which is incorporated in Hewlett-Packard Company's Annual Report
on Form 10-K for the year ended October 31, 1997.
/s/Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
January 29, 1998
Exhibit 23.2
CONSENT OF COUNSEL
Contained with the opinion filed as Exhibit 5 hereto and incorporated
herein by reference.
Exhibit 99
VERIFONE, INC.
1997 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Plan is to provide certain
employees of the Company and its Designated Subsidiaries with an
opportunity to purchase Common Stock of Hewlett-Packard through
accumulated payroll deductions. It is the intention of the Company that
this Plan not qualify as an "Employee Stock Purchase Plan" under Section
423 of the Internal Revenue Code of 1986, as amended.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the Common Stock of
Hewlett-Packard Company.
(d) "Company" shall mean VeriFone, Inc., and any Designated
Subsidiary of the Company.
(e) "Compensation" shall mean all salary, wages (including
amounts elected to be deferred by the employee, that would otherwise have
been paid, under any cash or deferred arrangement established by the
Company), overtime pay, commissions, bonuses and any other remuneration
paid directly to the employee, but excluding profit sharing, the cost of
employee benefits paid for by the Company, education or tuition
reimbursements, imputed income arising under any Company group insurance
or benefit program, traveling expenses, business and moving
expense reimbursements, income recognized in connection with stock
options, contributions made by the Company under any employee benefit
plan, and similar items of compensation.
(f) "Designated Subsidiary" shall mean any Subsidiary which
has been designated by the Board from time to time in its sole discretion
as eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an Employee
of the Company for tax purposes whose customary employment with the
Company is at least twenty (20) hours per week and more than five (5)
months in any calendar year. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the individual
is on sick leave or other leave of absence approved by the Company. Where
the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the
employment relationship may be deemed to have terminated on the 91st day
of such leave.
(h) "Enrollment Date" shall mean the first day of the
Offering Period.
(i) "Exercise Date" shall mean the last day of the Offering
Period.
(j) "Fair Market Value" shall mean the average of the
highest and lowest selling prices for the Common Stock as reported on the
New York Stock Exchange composite tape on the date of such determination.
(k) "Offering Period" shall mean the period of approximately
six (6) months at the conclusion of which an option granted pursuant to
the Plan shall be exercised, commencing on the first Trading Day on or
after August 1, 1997 and terminating on the last Trading Day in
the period ending the following January 30, 1998.
(l) "Plan" shall mean this 1997 Non-Qualified Employee Stock
Purchase Plan.
(m) "Purchase Price" shall mean an amount equal to 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or on
the Exercise Date, whichever is lower.
(n) "Reserves" shall mean the number of shares of Common
Stock covered by each option under the Plan which have not yet been
exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but not yet placed under option.
(o) "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary.
(p) "Trading Day" shall mean a day on which the New York
Stock Exchange is open for trading.
3. Eligibility. Any Employee who (i) was not, on June 25, 1997,
participating in the Offering Period commencing February 1, 1997 under the
VeriFone, Inc. Amended and Restated Employee Stock Purchase Plan, and (ii)
who has been an Employee since May 1, 1997 shall be eligible to
participate in the Plan.
4. Offering Period. The Plan shall be implemented by a single
Offering Period commencing on the first Trading Day on or after August 1,
1997 and ending on the last Trading Day in the period ending January 30,
1998.
5. Participation.
(a) An eligible Employee may become a participant in the
Plan by completing a subscription agreement authorizing payroll deductions
to this Plan and filing it with the Company's payroll office prior to the
applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on
the first payroll following the Enrollment Date and shall end on the last
payroll in the Offering Period to which such authorization is applicable,
unless sooner terminated by the participant as provided in
Section 10 hereof.
6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each
pay day during the Offering Period in an amount not exceeding 15 percent
(15%) of the Compensation which he or she receives on each pay day during
the Offering Period.
(b) All payroll deductions made for a participant shall be
credited to his or her account under the Plan and shall be withheld in
whole percentages only. A participant may not make any additional
payments into such account.
(c) A participant may discontinue his or her participation
in the Plan as provided in Section 10 hereof, or decrease their
contribution percentage to zero, but otherwise may not increase or
decrease the rate of his or her payroll deductions during the Offering
Period.
(d) At the time the option is exercised, in whole or in
part, or at the time some or all of the Company's Common Stock issued
under the Plan is disposed of, the participant must make adequate
provision for the Company's federal, state, or other tax withholding
obligations, if any, which arise upon the exercise of the option or the
disposition of the Common Stock. At any time, the Company may withhold
from the participant's compensation the amount necessary for the Company
to meet applicable withholding obligations, including any withholding
required to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by the Employee.
7. Grant of Option. On the Enrollment Date of the Offering
Period, each eligible Employee participating in such Offering Period shall
be granted an option to purchase on the Exercise Date of such Offering
Period (at the applicable Purchase Price) up to a number of shares of the
Company's Common Stock determined by dividing such Employee's payroll
deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase
Price; provided that in no event shall an Employee be permitted to
purchase during the Offering Period more than the lesser of (i) 1,000
shares (subject to any adjustment pursuant to Section 19), or (ii) $12,500
divided by the Fair Market Value of one share of Common Stock on August
1, 1997. Exercise of the option shall occur as provided in Section 8
hereof, unless the participant has withdrawn pursuant to Section 10
hereof.
8. Exercise of Option. Unless a participant withdraws from the
Plan as provided in Section 10 hereof, his or her option for the purchase
of shares shall be exercised automatically on the Exercise Date, and the
maximum number of full shares subject to option shall be purchased
for such participant at the applicable Purchase Price with the accumulated
payroll deductions in his or her account. No fractional shares shall be
purchased; any payroll deductions accumulated in a participant's account
which are not sufficient to purchase a full share shall be returned to the
participant. Any other monies left over in a participant's account after
the Exercise Date shall be returned to the participant. During a
participant's lifetime, a participant's option to purchase shares
hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after each Exercise Date
on which a purchase of shares occurs, the Company shall arrange the
delivery to each participant (or his or her brokerage account), of a
certificate representing the shares purchased upon exercise of his or her
option, or the Company shall establish some other means for such
participants to receive ownership of the shares.
10. Withdrawal. A participant may withdraw all but not less than
all the payroll deductions credited to his or her account and not yet used
to exercise his or her option under the Plan at any time by giving written
notice to the Company. All of the participant's payroll deductions
credited to his or her account shall be paid to such participant promptly
after receipt of notice of withdrawal and such participant's option for
the Offering Period shall be automatically terminated, and no further
payroll deductions for the purchase of shares shall be made for such
Offering Period.
11. Termination of Employment. Upon a participant's ceasing to
be an Employee for any reason, he or she shall be deemed to have elected
to withdraw from the Plan and the payroll deductions credited to such
participant's account during the Offering Period but not yet used to
exercise the option shall be returned to such participant or, in the case
of his or her death, to the person or persons entitled thereto under
Section 15 hereof, and such participant's option shall be automatically
terminated.
12. Interest. No interest shall accrue on the payroll deductions
of a participant in the Plan.
13. Stock.
(a) The maximum number of shares of the Common Stock which
shall be made available for sale under the Plan shall be 25,000 shares,
subject to adjustment upon changes in capitalization of the Company as
provided in Section 19 hereof.
(b) The participant shall have no interest or voting right
in shares covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan
shall be registered in the name of the participant or in the name of the
participant and his or her spouse.
14. Administration. The Plan shall be administered by the Board
or a committee of members of the Board appointed by the Board. The Board
or its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine
eligibility and to adjudicate all disputed claims filed under the Plan.
Every finding, decision and determination made by the Board or its
committee shall, to the full extent permitted by law, be final and binding
upon all parties.
15. Designation of Beneficiary.
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's
death subsequent to an Exercise Date on which the option is exercised but
prior to delivery to such participant of such shares and cash. In
addition a participant may file a written designation of a beneficiary who
is to receive any cash from the participant's account under the Plan in
the event of such participant's death prior to exercise of the option.
If a participant is married and the designated beneficiary is not the
spouse, spousal consent shall be required for such designation to be
effective.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of
the participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's death, the
Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the participant,
or if no spouse, dependent or relative is known to the Company, then to
such other person as the Company may designate.
16. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an
option or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will, the laws
of descent and distribution or as provided in Section 15 hereof) by the
participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds from an Offering Period in
accordance with Section 10 hereof.
17. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
18. Reports. Individual accounts shall be maintained for each
participant in the Plan. Statements of Account shall be given to
participating Employee, which statements shall set forth the amounts of
payroll deductions, the Purchase Price and the number of shares purchased.
19. Adjustments Upon Changes in Capitalization, Dissolution,
Liquidation, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action by
the stockholder of the Company, the Reserves, the maximum number of shares
each participant may purchase per Offering Period (pursuant to Section 7),
as well as the price per share and the number of shares of Common Stock
covered by each option under the Plan which has not yet been exercised
shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase of decrease in the number of
shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt
of consideration". Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to
an option.
(b) Merger or Asset Sale. In the event of a proposed sale
of all or substantially all of the assets of the Company, or the merger
of the Company with or into another corporation, each outstanding option
shall be assumed or an equivalent option substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation.
20. Amendment or Termination.
(a) The Board of Directors of the Company may at any time
and for any reason terminate or amend the Plan. Except as provided in
Section 19 hereof, no such termination can affect options previously
granted. Except as provided in Section 19 hereof, no amendment may make
any change in any option theretofore granted which adversely affects the
rights of any participant.
(b) Without stockholder consent and without regard to
whether any participant rights may be considered to have been "adversely
affected", the Board (or its committee) shall be entitled to establish the
exchange ratio applicable to amounts withheld in a currency other than
U.S. dollars, permit payroll withholding in excess of the amount
designated by a participant in order to adjust for delays or mistakes in
the Company's processing or properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or accounting and
crediting procedures to ensure that amounts applied toward the purchase
of Common Stock for each participant properly correspond with amounts
withheld from the participant's Compensation, and establish such other
limitations or procedures as the Board (or its committee) determines in
its sole discretion advisable which are consistent with the Plan.
21. Notices. All notices or other communications by a participant
to the Company under or in connection with the Plan shall be deemed to
have been duly given when received in the form specified by the Company
at the location, or by the person, designated by the Company for the
receipt thereof.
22. Conditions Upon Issuance of Shares. Shares of Common Stock
shall not be issued with respect to an option unless the exercise of such
option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of the law, domestic and foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon
which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
23. Term of Plan. The Plan shall become affective August 1, 1997
and shall continue in effect until shares have been purchased and
distributed in the Offering Period. After such purchase and distribution,
the Plan shall automatically terminate.