-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WUpcfT44n6DyMibJGhCCjbjhrEEyQysEkyEKHr/QMXDT9ok/IaulmoOgvbQkwCbe dtCFTaoyOfE4Nea9eBXlEQ== 0000891618-98-001452.txt : 19980401 0000891618-98-001452.hdr.sgml : 19980401 ACCESSION NUMBER: 0000891618-98-001452 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19980331 EFFECTIVENESS DATE: 19980331 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CISCO SYSTEMS INC CENTRAL INDEX KEY: 0000858877 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 770059951 STATE OF INCORPORATION: CA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-48949 FILM NUMBER: 98581489 BUSINESS ADDRESS: STREET 1: 170 WEST TASMAN DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134-1706 BUSINESS PHONE: 4085264000 MAIL ADDRESS: STREET 1: 225 WEST TASMAN DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134-1706 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on March 31, 1998 Registration No. 333-________________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- CISCO SYSTEMS, INC. (Exact name of issuer as specified in its charter) CALIFORNIA 77-0059951 (State or other jurisdiction (IRS Employer Identification No.) of incorporation or organization) 170 WEST TASMAN DRIVE, SAN JOSE, CALIFORNIA 95134-1706 (Address of principal executive offices) (Zip Code) ---------- WHEELGROUP CORPORATION STOCK OPTION PLAN (Full title of the plan) ---------- JOHN T. CHAMBERS PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR CISCO SYSTEMS, INC. 170 WEST TASMAN DRIVE, SAN JOSE, CALIFORNIA 95134-1706 (Name and address of agent for service) (408) 526-4000 (Telephone number, including area code, of agent for service) ---------- CALCULATION OF REGISTRATION FEE
============================================================================================= Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered(1) per Share(2) Price(2) Fee ---------- ------------- ------------ --------- ------------ WheelGroup Corporation Stock Option Plan Common Stock 835,262 $0.35 $292,341.70 $86.24 =============================================================================================
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the WheelGroup Corporation Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference Cisco Systems, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended July 26, 1997 filed with the Commission on October 22, 1997, pursuant to Section 13 of the Securities Exchange Act of 1934 (the "1934 Act"). (b) The Registrant's Quarterly Reports on Forms 10-Q for the fiscal quarters ended October 25, 1997 and January 24, 1998, filed with the Commission on December 9, 1997, and March 9, 1998, respectively. (c) The Registrant's current reports on Forms 8-K filed with the Commission on August 22, 1997, September 9, 1997 and February 11, 1998. (d) The Registrant's Registration Statement No. 0-18225 on Form 8-A filed with the Commission on January 11, 1990, together with Amendment No. 1 on Form 8-A filed with the Commission on February 15, 1990, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. 3 Item 6. Indemnification of Directors and Officers Section 317 of the California Corporations Code authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit indemnification (including reimbursement of expenses incurred) under certain circumstances for liabilities arising under the Securities Act of 1933, as amended, (the "1933 Act"). The Registrant's Restated Articles of Incorporation, as amended, and Amended and Restated Bylaws provide for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the California Corporations Code. In addition, the Registrant has entered into Indemnification Agreements with each of its directors and officers. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits
Exhibit Number Exhibit - -------------- ------- 4.0 Instruments Defining Rights of Shareholders. Reference is made to Registrant's Registration Statement No. 0-18225 on Form 8-A, including the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d). 5.0 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Independent Accountants - Coopers & Lybrand L.L.P. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 WheelGroup Corporation Stock Option Plan. 99.2 Form of Stock Option Agreement in connection with the WheelGroup Corporation Stock Option Plan. 99.3 Form of acceleration waiver letter.
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 1933 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, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference into the Registration Statement; (2) that for the purpose of determining any liability under the 1933 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; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the WheelGroup Corporation Stock Option Plan. II-2. 4 B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnity provisions summarized in Item 6 or otherwise, the Registrant has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue. II-3. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 30th day of March, 1998. CISCO SYSTEMS, INC. By /s/ JOHN T. CHAMBERS -------------------------------- John T. Chambers President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John T. Chambers and Larry R. Carter and each of them acting individually, as such person's true and lawful attorneys-in-fact and agents, each with full power of substitution, for such person, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file 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, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes, may do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated:
Signatures Title Date - ---------- ----- ---- /s/ John T. Chambers President, Chief Executive March 30, 1998 John T. Chambers Officer and Director (Principal Executive Officer) /s/ Larry R. Carter Senior Vice President, Finance and March 30, 1998 - ---------------------------- Administration, Chief Financial Larry R. Carter Officer and Secretary (Principal Financial and Accounting Officer) /s/ John P. Morgridge Chairman of the Board March 30, 1998 - ---------------------------- and Director John P. Morgridge
II-4. 6
Signatures Title Date - ---------- ----- ---- /s/ DONALD T. VALENTINE Director March 30, 1998 - ---------------------------- Donald T. Valentine /s/ JAMES F. GIBBONS Director March 30, 1998 - ---------------------------- James F. Gibbons /s/ ROBERT L. PUETTE Director March 30, 1998 - ---------------------------- Robert L. Puette /s/ MASAYOSHI SON Director March 30, 1998 - ---------------------------- Masayoshi Son /s/ STEVEN M. WEST Director March 30, 1998 - ---------------------------- Steven M. West /s/ EDWARD KOZEL Director March 30, 1998 - ---------------------------- Edward Kozel /s/ CAROL BARTZ Director March 30, 1998 - ---------------------------- Carol Bartz Director - ---------------------------- Mary Cirillo - ---------------------------- Director James C. Morgan
II-5. 7 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 CISCO SYSTEMS, INC. II-6. 8 EXHIBIT INDEX
Exhibit Number Exhibit - -------------- ------- 4.0 Instruments Defining Rights of Shareholders. Reference is made to Registrant's Registration Statement No. 0-18225 on Form 8-A, including the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d). 5.0 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Independent Accountants - Coopers & Lybrand L.L.P. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 WheelGroup Corporation Stock Option Plan. 99.2 Form of Stock Option Agreement in connection with the WheelGroup Corporation Stock Option Plan. 99.3 Form of acceleration waiver letter.
EX-5.0 2 OPINION OF BROBECK, PHLEGER & HARRISON LLP 1 EXHIBIT 5 March 30, 1998 Cisco Systems, Inc. 170 West Tasman Drive San Jose, CA 95134-1706 Re: Cisco Systems, Inc. Registration Statement for Offering of 835,262 shares of Common Stock Ladies and Gentlemen: We refer to your registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 835,262 shares of the common stock ("Common Stock") of Cisco Systems, Inc. (the "Company") issuable under the WheelGroup Corporation Stock Option Plan (the "Plan") as assumed by the Company. We advise you that, in our opinion, when such shares have been issued and sold pursuant to the applicable provisions of the Plan and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Brobeck, Phleger & Harrison LLP ----------------------------------- BROBECK, PHLEGER & HARRISON LLP EX-23.1 3 CONSENT OF COOPERS & LYBRAND 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 of Cisco Systems, Inc. for the registration of 835,262 common shares pursuant to the acquisition of Wheel Group Corporation, of our reports dated August 4, 1997, on our audits on the consolidated financial statements and financial statement schedule of Cisco Systems, Inc. as of July 26, 1997 and July 28, 1996, and for the years ended July 26, 1997, July 28, 1996 and July 30, 1995 which reports are included in the Company's 1997 Annual Report on Form 10-K, filed with the Securities and Exchange Commission. /s/ Coopers & Lybrand L.L.P. - ------------------------------ COOPERS & LYBRAND L.L.P. San Jose, California March 30, 1998 EX-99.1 4 WHEELGROUP CORPORATION STOCK OPTION PLAN 1 EXHIBIT 99.1 WHEELGROUP CORPORATION STOCK OPTION PLAN A. PURPOSE AND SCOPE The purposes of the Plan are to encourage stock ownership by employees of WHEELGROUP CORPORATION (the "Company"), to provide an incentive for such employees to expand and improve the profits and prosperity of the Company, and to assist the Company in attracting and retaining key personnel through the grant of Options to purchase shares of the Company's common stock. B. DEFINITIONS Unless otherwise required by the context: 1. "Board" shall mean the Board of Directors of the Company. 2. "Committee" shall mean the Stock Option Plan Committee, which is appointed by the Board and which shall be composed of three members of the Board. 3. "Company" shall mean the WheelGroup Corporation, a Texas corporation, and any subsidiaries. 4. "Code" shall mean the Internal Revenue Code of 1986, as amended. 5. "Disability" shall have the meaning of Section 37(e)(3) of the Code, as determined by the Committee. 6. "Option" shall mean a right to purchase Stock, granted pursuant to the Plan. 7. "Option Price" shall mean the purchase price for Stock under an Option, as determined in Section F below. 8. "Participant" shall mean an employee of the Company to whom an Option is granted under the Plan. 9. "Plan" shall mean this WheelGroup Corporation Stock Option Plan. 10. "Retirement" shall mean retirement on or after age sixty-five (65), or, with the advance consent of the Company, at an earlier age. 11. "Stock" shall mean the common stock of the Company. 12. "Termination Date" shall mean a date fixed by the Committee but not later than the day following the tenth (10th) anniversary of the date on which the Option is granted. C. STOCK TO BE OPTIONED Subject to the provisions of Section L of the Plan, the maximum number of shares of Stock that may be optioned under the Plan is 1,250,000 shares. 2 D. ADMINISTRATION The Plan shall be administered by the Committee. Two members of the Committee shall constitute a quorum for the transaction of business. The Committee shall be responsible to the Board for the operation of the Plan, and shall make recommendations to the Board with respect to participation in the Plan by employees of the Company, and with respect to the extent of that participation. The interpretation and construction of any provision of the Plan by the Committee shall be final, unless otherwise determined by the Board. No member of the Board or the Committee shall be liable for any action or determination made by him in good faith. E. ELIGIBILITY The Board, upon recommendation of the Committee, may grant Options to any employee (including an employee who is a director or an officer) of the Company. Options may be awarded by the Board at any time and from time to time to new Participants, or to then Participants, or to a greater or lesser number of Participants, and may include or exclude previous Participants, as the Board, upon recommendation by the Committee shall determine. Options granted at different times need not contain similar provisions. F. OPTION PRICE The Option Price for Stock under each Option shall be determined by the Board. G. TERMS AND CONDITIONS OF OPTIONS Options granted pursuant to the Plan shall be authorized by the Board and shall be evidenced by agreements in such form as the Board, upon recommendation of the Committee, shall from time to time approve. Such agreements shall comply with and be subject to the following terms and conditions: 1. Employment Agreement. The Board may, in its discretion, include in any Option granted under the Plan a condition that the Participant shall agree to remain in the employ of, and to render services to, the Company for a period of time (specified in the agreement) following the date the Option is granted. No such agreement shall impose upon the Company, however, any obligation to employ the Participant for any period of time. 2. Time and Method of Payment. the Option Price shall be paid in full in cash at the time an Option is exercised under the Plan. Otherwise, an exercise of any Option granted under the Plan shall be invalid and of no effect. Promptly after the exercise of an Option and the payment of the full Option Price, the Participant shall be entitled to the issuance of a stock certificate evidencing his ownership of such Stock. A Participant shall have none of the rights of a shareholder until shares are issued to him and no adjustment will be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. 3. Number of Shares. Each Option shall state the total number of shares of Stock to which it pertains. 3 4. Option Period and Limitations on Exercise of Options. The Board may, in its discretion, provide that an Option may not be exercised in whole or in part for any period or periods of time specified in the Option agreement. Except as provided in the Option agreement, an Option may be exercised in whole or in part at any time during its term. No Option may be exercised after the Termination Date. No Option may be exercised for a fractional share of Stock. H. CESSATION OF EMPLOYMENT OF PARTICIPANT 1. Cessation of Employment Other than by Reason of Retirement or Disability or Death. If a Participant shall cease to be employed by the Company otherwise than by reason of Retirement, Disability, or Death, each Option held by the Participant, together with all rights hereunder, shall be exercisable only to the extent exercisable on the date of the cessation of employment, and shall terminate on the earlier of the Termination Date or the one-hundred and eightieth (180th) day following the date of cessation of employment, to the extent not previously exercised; provided, however, that in the event of gross misconduct by the Participant, the Options granted to such Participant hereunder shall be null and void after such termination occurs or such determination is made. 2. Cessation of Employment by Reason of Retirement or Disability. If a Participant shall cease to be employed by the Company by reason of Retirement or Disability, each Option held by the Participant shall remain exercisable, to the extent it was exercisable at the time of cessation of employment, until the earliest of: i. the Termination Date; ii. the death of the Participant, or such later date not more than one (1) year after the death of the Participant as the Committee, in its discretion, may provide pursuant to Section H(3); or iii. the first (1st) anniversary of the date of the cessation of the Participant's employment, and thereafter all such Options shall terminate together with all rights hereunder, tot he extent not previously exercised. 3. Cessation of Employment by Reason of Death. In the event of the Death of the Participant, while employed by the Company, an Option may be exercised at any time or from time to time prior to the earlier of the Termination Date or the first (1st) anniversary of the date of the Participant's Death, by the person or persons whom the Participant's rights under each Option shall pass by will or by the applicable laws of descent and distribution, tot he extent that the Participant was entitled to exercise it on the Participant's date of Death. In the event of the Death of the Participant while entitled to exercise an Option pursuant to Section H(2), the Committee, in its discretion, may permit such Option to be exercised at any time or from time to time prior to the Termination Date during a period of up to one (1) year from the Death of the Participant, as determined by the Committee, by the person or persons to whom the Participant's rights under each Option shall pass by will or by the applicable laws of descent and distribution, to the extent that the Option was exercisable at the time of cessation of the Participant's employment. Any person or persons to whom a Participant's rights under an Option have passed by will or by the applicable laws of descent and distribution shall be subject to all terms and conditions of the Plan and the Option applicable to the Participant. 4 I. INDEMNIFICATION In addition to such other rights of Indemnification as they may have as members of the Board, or the Committee, the members of the Committee and the Board shall be indemnified by the Company against all costs and expenses reasonably incurred by them in connection with any action, suit or proceeding to which they or any of them may be party by reason of any action taken or failure to act under or in connection with the Plan or any Option granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction or a judgment in any such action, suit or proceeding, except a judgment based upon a finding of bad faith; provided that upon the institution of any such action, suit or proceeding, a Committee or Board member shall, in writing, give the Company notice thereof and an opportunity, at its own expense, to handle and defend the same before such Committee or Board member undertakes to handle and defend it on such member's own behalf. J. NO OBLIGATIONS TO EXERCISE OPTION The granting of an Option shall impose no obligation upon the Participant to exercise such Options. K. NONASSIGNABILITY Options shall not be transferable other than by will or by the laws of descent and distribution, and during a Participant's lifetime shall be exercisable only by such Participant. L. EFFECT OF CERTAIN CHANGES 1. The aggregate number of shares of Stock available for Options under the Plan, the shares subject to any Option, the price per share, shall all be proportionately adjusted for any increase or decrease in the number of issued shares of Stock subsequent to the effective date of the Plan resulting from (1) a subdivision or consolidation of shares or any other capital adjustment, (2) the payment of a stock dividend, or (3) other increase or decrease in such shares effected without receipt of consideration by the Company. 2. All unexercised Options shall become immediately vested and exercisable upon the earliest of (i) the merger of the Company, other than a merger into a wholly owned subsidiary, in which the Company is not the surviving entity, (ii) the consolidation of the Company with one or more other corporations, (iii) the sale of all or substantially all of the assets of the Company, (iv) the adjudication of the Company as a bankrupt or an insolvent by a court of competent jurisdiction, (v) the liquidation or dissolution of the Company, or (vi) the execution of an agreement to that effect by the Participant and the Company following the unanimous approval of the Board of Directors of such acceleration and agreement. M. AMENDMENT AND TERMINATION The Board, by resolution, may terminate, amend, or revise the Plan with respect to any shares as to which Options have not been granted. Neither the Board nor the Committee may, without the consent of the holder of an Option, alter or impair any Option previously granted under the Plan, except as authorized herein. Unless sooner terminated, the Plan shall remain in effect for a period of 10 years from the date of the Plan's adoption by the Board. Termination of the Plan shall not affect any Option previously granted. 5 N. AGREEMENT AND REPRESENTATION OF PARTICIPANTS As a condition to the exercise of any portion of an Option, the Company may require the person exercising such Option to represent and warrant at the time of such exercise that any shares of Stock acquired at exercise are being acquired only for investment and without any present intention to sell or distribute such shares, if, in the opinion of counsel for the Company, such a representation is required under the Securities Act of 1933 or any other applicable law, regulation, or rule of any governmental agency. O. RESERVATION OF SHARES OF STOCK; REGULATORY REQUIREMENTS The Company, during the term of this Plan, will at all times reserve and keep available, and will deed or obtain from any regulatory body having jurisdiction any requisite authority to issue and to sell, the number of shares of Stock that shall be sufficient to satisfy the requirements of this Plan; provided, however, that nothing in this Plan shall be deemed to require or obligate the Company to take any action or make any expenditure to register or qualify any Option granted or to be granted or any Stock issued or issuable under the Plan under any federal or state law or regulation. The inability of the Company to obtain from any regulatory body having jurisdiction the authority deemed necessary by counsel for the Company for the lawful issuance and sale of its Stock hereunder shall relieve the Company of any liability to all Participants in respect of the failure to issue or sell Stock as to which the requisite authority has not been obtained. Notwithstanding anything contained herein to the contrary, the Company shall not be required to sell or issue shares of Stock under any Option if the issuance thereof would constitute a violation by the Participant or the Company of any provisions of any law or regulation of any governmental authority or any national securities exchange or other forum in which shares of Stock are traded, if any; and, as a condition of any sale or issuance of shares of Stock under an Option, the Committee may require such agreements or undertakings, if any, as the Committee may deem necessary or advisable to assure compliance with any such law or regulation. The Plan, the grant and exercise of Options hereunder, and the obligation of the Company to sell and deliver shares of Stock, shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. P. MISCELLANEOUS PROVISIONS 1. Plan Expenses. Any expenses of administering this Plan shall be borne by the Company. 2. Use of Exercise Proceeds. Payments received from Participants upon the exercise of Options shall be used for the general corporate purposes of the Company, except that any Stock received in payment may be retired, or retained in the Company's treasury and reissued. Q. EFFECTIVE DATE OF PLAN The Plan shall be effective from the date that the Plan is approved by the Board. WHEELGROUP CORPORATION By: ----------------------------------------------- Toney E. Jennings, President EX-99.2 5 FORM OF STOCK OPTION AGREEMENT 1 EXHIBIT 99.2 FORM OF STOCK OPTION AGREEMENT IN CONNECTION WITH THE WHEELGROUP CORPORATION STOCK OPTION PLAN WHEELGROUP CORPORATION STOCK OPTION AGREEMENT WITH (INSERT NAME) - -------------------------------------------------------------------------------- THIS AGREEMENT is made and entered into as of ______________________________, by and between WheelGroup Corporation, a Texas Corporation (hereinafter called "WheelGroup") and James T. Anderson (hereinafter called "Employee"), a resident of the State of Texas. This Stock Option Agreement is governed by the terms of the 1995 Stock Option Plan. Furthermore WheelGroup and the Employee agree to the following terms. 1. Number of Optioned Shares -- The Board of Directors of WheelGroup hereby grants to the Employee a stock option to purchase up to (AMOUNT) shares of WheelGroup's common stock (hereinafter called "Optioned Shares") from time to time during the Option Term at a price of $.20 per share. 2. Effective Date of Grant and Option Term -- This option shall have an Effective Date as of ____________________________ (the commencement of full-time employment). Options may be exercised to purchase stock in accordance with the below Dates of Exercise. This agreement has a term of five years measured from the Effective Date. All options not exercised by the 5th anniversary date of this agreement expire. Dates of Exercise -- The Employee may, within the specified Option Term, purchase the Optioned Shares in accordance with the following schedule: 25% of the Optioned Shares at any time after the expiration of one year from the Effective Date and an additional 2.08% of the Optioned Shares for each full month occurring after the expiration of one year from the Effective Date, until all of the Optioned Shares are purchasable. Compliance with Laws and Regulations -- WheelGroup has not registered any of its shares of stock under any applicable federal or state securities laws. Resale Restrictions -- The Employee, upon the exercise of options, will be investing in WheelGroup's stock for his own account and understands that he bears the economic risk of holding an investment in the Optioned Shares for an indefinite period of time. The Employee will not sell nor pledge as collateral the Optioned Shares until they have been either: a. Subsequently registered under applicable securities laws or 2 b. Appropriately deemed as exempt from any applicable registration Successors and Assignees -- The provisions of this agreement shall inure to the benefit of and be binding upon the successors, administrators, heirs and legal representatives of the Employee and the successors and assignees of the WheelGroup. Governing Law -- The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, WheelGroup has caused this Agreement to be executed in duplicate on its behalf by its duly authorized officer and Employee has also executed this Agreement in duplicate, all as of the day and year indicated above. - -------------------------------------------------------------------------------- WHEELGROUP CORPORATION 13750 San Pedro, Suite 670 ------------------------------ San Antonio, Texas 78232 Toney Jennings President - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (NAME) -------------------------------- Signature - -------------------------------------------------------------------------------- EX-99.3 6 FORM OF ACCELERATION WAIVER LETTER 1 EXHIBIT 99.3 FORM OF ACCELERATION WAIVER LETTER [WHEELGROUP LETTERHEAD] 1~ c/o WheelGroup Corporation 14555 Blanco Road, Suite 1106 San Antonio, TX 78216 Dear 2~: As you know, Cisco Systems, Inc. ("Cisco") is in the process of acquiring WheelGroup Corporation (the "Company"). Under the terms of the acquisition (the "Acquisition"), Cisco has agreed to assume the outstanding options held by certain employees of the Company, such as yourself, provided the vesting acceleration provisions currently in effect for those options are revised prior the Acquisition so that those options do not accelerate in full upon the Acquisition. Each of these options is a non-statutory option which do NOT meet the requirements of Section 422 of the Internal Revenue Code (i.e., they are not "incentive stock options"). You currently hold the following non-statutory stock option(s) (collectively the "Options") to acquire shares of the Company's common stock under the Company's Stock Option Plan (the "Option Plan"):
Number of Outstanding Grant Date Exercise Price Option Shares ---------- -------------- ------------- 3~ 4~ 5~
In order for the Company to complete the Acquisition, the vesting acceleration provisions of your existing Options must be amended so that those Options will NOT vest in full at the time of the Acquisition and will NOT become exercisable for all of the shares of the Company's common stock subject to those Options at that time. Instead, each of your Options will only accelerate as to twelve (12) months of vesting upon the Acquisition and, accordingly, will become exercisable on an accelerated basis for only a total of 25% of the option shares. 2 Each of your Options currently becomes exercisable for the option shares as follows: (i) 25% upon your completion of one year of employment measured from the grant date, and (ii) an additional 2.08% of the option shares upon your completion of each of the next 36 months of employment thereafter. Accordingly, if your Option were to be exercisable for 45.80% of the option shares immediately before the Acquisition (based on 22 months of employment following the grant date), then an additional 25% of the option shares will vest upon the assumption of your Option by Cisco in the Acquisition, and the assumed Option will become exercisable for the remaining shares in 26 successive equal monthly installments over your period of continued employment following the Acquisition. The amendment to each of your Options to limit the acceleration to twelve (12) months of vesting will be effected by an amendment to Section L.2 of the Option Plan, which has been incorporated into the stock option agreement (the "Option Agreement") for each of your Options. Accordingly, as a condition to closing the Acquisition, you must agree to the following amendment of Section L.2 of the Option Plan and to the incorporation of that amended provision into each of your Option Agreements so that your Options will not vest in full on an accelerated basis at the time of the Acquisition. AMENDED SECTION L.2 TO BE EFFECTIVE IMMEDIATELY FOR EACH OF YOUR OptionS "2. (a) Upon a merger of the Company, other than a merger into a wholly-owned subsidiary, in which the Company is not the surviving entity (including the Acquisition), the vesting schedule applicable to all outstanding Options under the Plan at that time shall immediately accelerate only by a period of twelve (12) months. Accordingly, to the extent the Option is not otherwise fully exercisable at that time, each such Option shall become immediately exercisable for that number of additional option shares obtained by multiplying the total number of shares originally subject to the Option by twenty-five percent (25%) and may be exercised for all or any portion of those shares as fully-vested shares of Stock upon the consummation of such merger. The Option shall become exercisable for any remaining unvested shares of Stock subject to that option in accordance with the same installment exercise schedule in effect for that option immediately prior to the merger (or Acquisition). (b) Following the Acquisition, each outstanding Option as assumed by Cisco shall only become exercisable on an accelerated basis for the unvested shares of Cisco common stock subject to that option, and may be exercised for all or any portion of those shares as fully-vested shares, upon the earliest to occur of the following events: (i) the acquisition of Cisco by merger, other than a merger into a wholly-owned Cisco subsidiary, in which Cisco is not the surviving entity, (ii) the sale of all or substantially 3 all of the assets of Cisco in liquidation or dissolution of Cisco, (iii) the adjudication of Cisco as a bankrupt or an insolvent by a court of competent jurisdiction or (iv) the execution of an agreement to that effect by the optionee and Cisco following the unanimous approval of the Compensation Committee of the Cisco Board of Directors of such acceleration and agreement." In addition, you agree that you will not exercise any of your Options during the period between the date of this letter agreement and the effective date of the Acquisition (or such earlier date on which it is announced that the Acquisition will not be consummated). The Acquisition is expected to become effective in approximately 30 to 45 days following the date of this letter, but the actual effective date cannot be determined at this time. Since each of your Options is a non-statutory option under the federal tax laws, you will recognize ordinary income at the time that option is exercised in an amount equal to the excess of (i) the fair market value of the purchased shares on the exercise date over (ii) the exercise price paid for those shares. Such income will be subject to all applicable withholding taxes at that time. To indicate your agreement with (i) the foregoing amendment to your Options and to confirm that accelerated vesting you will receive under your Options at the time the Acquisition closes will be limited to twelve (12) months (ii) and the suspended exercise period for your Options, please sign and date the Acknowledgement section below. For your records, you should attach a copy of this letter to each of your Option Agreement(s) in order to evidence the revision to the acceleration provisions of your Option(s) effected by this letter agreement. Very truly yours, WHEELGROUP CORPORATION By: Title: 4 ACKNOWLEDGEMENT In order to satisfy one of the conditions to the closing of the Acquisition and in recognition of the twelve (12) months of accelerated vesting I will receive under each of my Options upon the closing of the Acquisition, I hereby agree to the foregoing amendment to Section L.2 of the Option Plan, as incorporated into the terms of the Option Agreement for each of my Options. I further agree not to exercise any of my Options during the period between the date of this letter agreement and the effective date of the Acquisition (or such earlier date on which it is announced that the Acquisition will not be consummated). Signature: 1~ Date: -----END PRIVACY-ENHANCED MESSAGE-----