REGISTRATION NO. 33-33012
SECURITIES AND EXCHANGE COMMISSION
Post-Effective Amendment No. 2
FORM S-8
U.S. GLOBAL INVESTORS, INC.
(Exact name of registrant as specified in its charter)
Texas 74-6370582
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
--------------------
7900 Callaghan Road, San Antonio, TX 78229
Telephone No. (210)308-1234
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U.S. GLOBAL INVESTORS, INC.
1989 NON-QUALIFIED
STOCK OPTION PLAN
AND
1985 INCENTIVE STOCK OPTION PLAN
Susan B. McGee
Vice President and Corporate Secretary
United Services Advisors, Inc.
7900 Callaghan Road
San Antonio, Texas 78229
(210)308-1234
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registra-
to registered registered share(1) price(1) tion fee(2)
- --------------------------------------------------------------------------------
Class A Common Stock, 1,000,000 shares $2.00 $2,000,000 $400.00
par value $.05 per
share (formerly called
Preferred Stock)
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(Exhibit Table on Page 6 of ___)
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to the Note to Part I of Form S-8, the documents containing the information specified in Part I of Form S-8 will be distributed as specified by Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The U.S. Global Investors, Inc.'s ("U.S. Global's" or "Registrant's") Annual Report on Form 10-K for the year ended June 30, 1996, the Quarterly Report on Form 10-Q for the quarters ended September 30, 1996, and December 31, 1996, the July 10, 1996, and March 10, 1997, Current Reports on Form 8-K, the October 25, 1985, Form 8-A filed with the Securities and Exchange Commission by U.S. Global (Commission File Number 0-13928) pursuant to Section 13 of the Securities Exchange Act of 1934 ("Exchange Act") and the September 24, 1996, Report by Issuer of Securities Quoted on the NASDAQ Interdealer Quotation System on Form 10-C are incorporated herein by reference.
Each document filed by U.S. Global pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all shares offered hereunder have been sold or which deregisters all shares remaining unsold hereunder shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Required--class registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Required--no named expert nor counsel has an interest required to be disclosed under this item and none are employees of U.S. Global.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Article 2.02(16) of the Texas Business Corporation Act (the "TBCA") empowers U.S. Global to indemnify directors, officers, employees and agents of U.S. Global and to purchase liability insurance for those persons to the extent permitted by Article 2.02-1 of the TBCA.
Article 2.02-1 of the TBCA in part provides that a corporation may indemnify its officers and directors for any liability if it is determined that such officer or director (i) conducted himself in good faith, (ii) reasonably believes, in the case of conduct in his official capacity as an officer or director, that his conduct was in the corporation's best interest, and in all other cases, that his conduct was at least not opposed to the corporation's best interest, and (iii) in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. These determinations must be made (i) by a majority vote of a quorum consisting of the directors who at the time of the vote are not named defendants or respondents in the proceeding, (ii) if such a quorum cannot be obtained, by a majority vote of a committee of the Board of Directors, designated to act in the matter by a majority vote of all directors, consisting solely of two or more directors who, at the time of the vote, are not named defendants or respondents in the proceeding, (iii) by special legal counsel selected by the Board of Directors or a committee of the Board by a vote as set forth in (i) or (ii) above, or, if such a quorum cannot be obtained and such a committee vote cannot be established, by a majority vote of all directors, or (iv) by the shareholders in a vote that excludes the shares that are held by directors and officers who are named defendants or respondents in the proceeding.
Under Article 2.02-1 of the TBCA, an officer or a director may be
indemnified against judgments, penalties (including excise and similar taxes),
fines, settlements, and reasonable expenses actually incurred by the officer or
director in connection with the proceeding, but if the officer or director is
found liable to the corporation or is found liable on the basis that personal
benefit was improperly received by the officer or director, the indemnification
(i) is limited to reasonable expenses actually incurred by the officer or
director in connection with the proceeding, and (ii) shall not be made in
respect of any proceeding in which the officer or director shall have been found
liable for willful or intentional misconduct in the performance of his duty to
the corporation. The termination of a proceeding by judgment, order, settlement,
or conviction, or upon a plea nolo contendere or its equivalent is not of itself
determinative that the officer or director did not meet the requirements set
forth above. An officer or director shall be deemed to have been found liable in
respect of any claim, issue or matter only after the officer or director shall
have been so adjudicated by a court of competent jurisdiction after exhaustion
of all appeals therefrom.
Article 2.02-1 of the TBCA further authorizes a corporation to pay the reasonable expenses incurred by an officer or director in advance of the final disposition of such proceeding if the corporation receives a written affirmation by the officer or director of his good faith belief that he has met the standard of conduct necessary for indemnification as well as a written undertaking to repay the amount paid by the corporation if it is ultimately determined that the officer or director has not met the requirements for indemnification. In addition, Article 2.02-1 of the TBCA empowers a corporation to indemnify and advance reasonable expenses to an employee, agent and certain other persons to the same extent it may indemnify in advance expenses to officers and directors. Finally, Article 2.02-1 of the TBCA empowers a corporation to purchase and maintain insurance on behalf of directors, officers, employees, agents and certain other persons against any liability asserted against such persons, whether or not the corporation would have the power to indemnify such persons against that liability under Article 2.02-1 of the TBCA.
Under U.S. Global's Bylaws, U.S. Global shall, to the fullest extent to which it is empowered to do so by the TBCA or any other applicable laws as may from time to time be in effect, indemnify any person who was, is 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 is or was a director or officer of U.S. Global or is or was serving at the request of U.S. Global as a director, officer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. U.S. Global's obligations under its Bylaws include, but are not limited to, the convening of a meeting and the consideration of any matter thereby, required by statute in order to determine the eligibility of an officer or director for indemnification. U.S. Global's obligation to indemnify and prepay expenses under its Bylaws shall arise, and all rights granted to directors, officers, employees or agents thereunder shall vest, at the time of the occurrence of the transaction or event to which such action, suit or proceeding relates, or at the time that the action or contact to which such action, suit or proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such action, suit or proceeding is first threatened, commenced or completed.
Accordingly, under U.S. Global's Bylaws, no action taken by U.S. Global, either by amendment of its Bylaws or its Articles of Incorporation or otherwise, shall diminish or adversely affect any rights to indemnification or prepayment of expenses granted under U.S. Global's Bylaws which have become vested prior to the date that such amendment or corporation action is taken. Further, under U.S. Global's Bylaws the Board of Directors has the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not U.S. Global would have the power to indemnify him against such liability under the provisions of the TBCA, U.S. Global's Article of Incorporation or U.S. Global's Bylaws.
U.S. Global has purchased liability insurance policies covering its directors and officers to provide protection where U.S. Global cannot legally indemnify a director or officer and where a claim arises under the Employee Retirement Income Security Act of 1974 against a director or officer based on an alleged breach of fiduciary duty or other wrongful act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No exemption has been relied upon.
ITEM 8. EXHIBITS.
(4)(a) U.S. Global Investors, Inc. 1989 Non-Qualified Stock Option Plan (as amended December 9, 1991) -- filed herewith.
(4)(b) U.S. Global Investors, Inc. 1985 Incentive Stock Option Plan (as amended November 7, 1989 and December 9, 1991) -- filed herewith.
(5) Opinion regarding legality -- filed herewith.
(23)(a) Consent of Independent Accountants -- Price Waterhouse LLP -- filed herewith.
(23)(b) Consent of Counsel -- filed herewith as part of Exhibit 5 above.
(24) Powers of Attorney -- filed herewith as part of the signature page.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof), which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 the undertakings set forth in
paragraphs (i) and (ii) above 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) That, for the 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 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 Securities Act of 1933 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 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 of controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Frank E. Holmes, Bobby D. Duncan, Susan B. McGee, Thomas D. Tays, and Charles W. Lutter, Jr. and each of them acting singularly, as our true and lawful attorneys-in-fact, with full powers to them and each of them to sign for us, in our names in the capacities indicated below, the Registration Statement on Form S-8 of U.S. Global Investors, Inc. and any and all amendments thereto or any related document required therewith, with the Securities and Exchange Commission, granting upon 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 to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, U.S. Global Investors, Inc. 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 San Antonio, State of Texas, on the 18th, day of April, 1997.
U.S. GLOBAL INVESTORS, INC.
(Registrant)
By: /S/ FRANK E. HOLMES ----------------------------------- Frank E. Holmes, President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement or amendment has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
/S/ FRANK E. HOLMES Chairman of the Board, Chief April 18, 1997
- ----------------------- Executive Officer, President,
FRANK E. HOLMES Chief Operating Officer
Chief Financial Officer
/S/ FICTOR FLORES Executive Vice President, April 18, 1997
- ------------------------ Chief Investment Officer
VICTOR FLORES and Director
/S/ KEVIN C. WHITE Chief Accounting Officer April 18, 1997
- ------------------------
KEVIN C. WHITE
/S/ BOBBY D. DUNCAN Executive Vice President, April 18, 1997
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- ------------------------ Strategic Development and BOBBY D. DUNCAN Special Projects, Director
/S/ JEROLD H. RUBINSTEIN Director April 18, 1997 - ------------------------ JEROLD H. RUBINSTEIN /S/ ROY D. TERRACINA Director April 18, 1997 - ------------------------ ROY D. TERRACINA |
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
(4)(a) U.S. Global Investors, Inc. 1989 Non-Qualified Stock Option Plan
(as amended December 9, 1991).
(4)(b) U.S. Global Investors, Inc. 1985 Incentive Stock Option Plan (as
amended November 7, 1989 and December 9, 1991).
(5) Opinion Regarding Legality.
(23)(a) Consent of Independent Accountants -- Price Waterhouse LLP.
(23)(b) Consent of Counsel -- filed herewith as part of Exhibit 5.
(24) Powers of Attorney -- filed herewith on signature page.
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EXHIBIT 4(a)
UNITED SERVICES ADVISORS, INC.
1989 NON-QUALIFIED STOCK OPTION PLAN
AS AMENDED DECEMBER 9, 1991
1. PURPOSE. This 1989 Non-Qualified Stock Option Plan (the "Plan") is intended to provide incentives to directors, officers and employees of United Services Advisors, Inc. (the "Company"), its parent (if any) and any present or future subsidiaries of the Company (collectively, "Related Corporations") as determined by the Company's Board of directors (the "Board of Directors") or the applicable administrator (as described in paragraph 2) to be in the best interests of the Company, by providing such directors, officers and employees with opportunities to purchase the Company's non-voting preferred stock, par value $.05 per share (the "Preferred Stock"), pursuant to options granted hereunder which do not qualify as "incentive stock options" under Section 422A(b) of the Internal Revenue Code of 1986 (the "Option" or "Options").
Recipients of such Options are hereafter referred to individually as an "Optionee" and collectively as "Optionees". As used herein, the terms "parent" and "subsidiary" mean "parent corporations" and "subsidiary corporation" respectively, as those terms are defined in Section 425 of the Internal Revenue Code of 1986, as amended (the "Code").
2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
committee consisting of all the independent outside, non-employee directors of
the Company. The administrator shall be referred to as the "Administrators" and
individually as the "Administrator." In administering the Plan, the
Administrator shall, subject to the terms of the Plan, have the authority to
determine the terms and conditions (which need not be identical) of all Options
granted, including, but not limited to, (i) the purchase price of the Preferred
Stock subject to the Options, (ii) the individuals to whom, and the time or
times at which, the Options shall be granted or awarded, (iii) the time or times
when each Option shall be exercisable and the duration of the exercise period,
(iv) the number of shares of Preferred Stock to be subject to each Option, (v)
whether the purchase price for the shares of Preferred Stock subject to the
Options shall be paid in cash or with some other consideration, (vi) when an
Option can be exercised and whether in whole or in installments, (vii) whether
restrictions such as repurchase options or rights of first refusal are to be
imposed on the shares of Preferred Stock subject to the Options, and (viii) the
form, terms and provisions of any agreement granting such Options; provided,
however, in no event shall either the Board of Directors or the applicable
Administrator have the authority to set the purchase price of the Preferred
Stock which is subject to an Option at an amount which is less than the fair
market value of the Preferred Stock on the date of the grant of the Option. The
Administrator shall take whatever actions it deems necessary to ensure that no
Option is treated as an "incentive stock option" under Section 422A(b) of the
Code and the regulations promulgated thereunder. The grant or authorization of
each Option by an Administrator shall be ratified by the Board of Directors if
required by applicable state law. The interpretation and construction by the
Board of Directors or an Administrator of any provisions of the Plan or of any
Option granted under it shall be final; however, such interpretation and
construction by an Administrator shall not be final if otherwise determined by
the Board of Directors. The Board of Directors or the applicable Administrator
may from time to time adopt such rules and regulations for
carrying out the Plan as it may deem best. No member of the Board nor any Administrator shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted under it.
3. STOCK. The stock subject to Options shall be the authorized but
unissued shares of the non-voting preferred stock of the Company, par value $.05
per share (the "Preferred Stock"), or shares of Preferred Stock reacquired by
the Company in any manner. The aggregate number of shares of Preferred Stock
which may be issued initially pursuant to the Plan is eight hundred thousand
(800,000). The number of shares of Preferred Stock authorized for the grant of
Options under the Plan shall be subject to adjustment as provided in paragraph
6. If any Option granted under the Plan shall expire or terminate for any reason
without having been exercised in full or shall cease for nay reason to be
exercisable in whole or in part, the unpurchased shares of Preferred Stock
subject to such Options shall again be available for grants of Options under the
Plan.
4. GRANTING OF OPTIONS. Options may be granted under the Plan at any time after November 7, 1989. The date of grant of an Option under the Plan will be the date specified by the Administrator at the time such Option is granted; PROVIDED, HOWEVER, that such date shall not be prior to the date on which the Board of Directors or the applicable Administrator acts to approve the grant.
5. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by instruments (which need not be identical) in such forms as the Board of Directors or the applicable Administrator may from time to time approve. Such instruments shall conform to such terms, conditions and provisions as are applicable hereunder and may contain such other terms and conditions and provisions as the Board of Directors or the applicable Administrator deems advisable which are not inconsistent with the Plan, including restrictions applicable to shares of Preferred Stock issuable upon exercise of Options. An Option shall not be exercised prior to the expiration of six months from the date of grant. An Option may provide for acceleration of exercise in the event of a change in control of the Company, in the discretion of and as defined by the Board of Directors or the applicable Administrator. The Board of Directors or the applicable Administrator may from time to time confer authority and responsibility on one or more of its own members and/or one or more officers of the Company to execute and deliver such instruments. The proper officers of the Company are authorized and directed to take any and all action necessary or advisable from time to time to carry out the terms of such instruments. Notwithstanding anything in this Plan to the Contrary, Options granted pursuant to this Plan shall not be transferrable other than (i) by will or the laws of descent and distribution, or (ii) if authorized by such instruments.
6. ADJUSTMENTS. Upon the happening of any of the following described events, an Optionee's rights with respect to Options granted to him hereunder, and an Optionee's rights with respect to Preferred Stock to be acquired pursuant to the exercise of such Options, shall be adjusted as hereinafter provided, unless otherwise specifically provided, in addition or to the contrary, in the written agreement between the Optionee and the Company relating to such Option.
A. In the event shares of Preferred Stock shall be subdivided or combined into a greater or smaller number of shares or if, upon a merger, reorganization, split-up, liquidation, combination, recapitalization or the like of the Company, the shares of Preferred Stock shall be exchanged for other securities of the Company or of another corporation, each Optionee shall be entitled, subject to the
conditions herein stated, to purchase such number of shares of other securities of the Company or such other corporation as were exchangeable for the number of shares of Preferred Stock which such Optionee would have been entitled to purchase except for such action, and appropriate adjustments shall be made in the purchase price per share to reflect such subdivision, combination or exchange.
B. In the event the Company shall issue any of its shares as a stock dividend upon or with respect to the shares of Preferred Stock, each Optionee upon exercising an Option shall be entitled to receive (for the purchase price paid upon such exercise) the shares of Preferred Stock as to which he is exercising his Option and, in addition thereto (at no additional cost), such number of shares in which such stock dividend or dividends were declared or paid, and such amount of cash in lieu of fractional shares, as he would have received if he had been the holder of the shares of the Preferred Stock as to which he is exercising his Option at all times between the date of grant of such Option and the date of its exercise.
C. If any person or entity owning restricted Preferred Stock obtained by exercise of an Option made hereunder receives new or additional or different shares or securities ("New Securities") in connection with a corporate transaction described in subparagraph A above or a stock dividend described in subparagraph B above as a result of owning such restricted Preferred Stock, such New Securities shall be subject to all of the conditions and restrictions applicable to the restricted Preferred Stock with respect to which such New Securities were issued.
D. No adjustments shall be made for dividends paid in cash or in property other than securities of the Company, unless specified to the contrary by the Board of Directors or the applicable Administrator in the instrument evidencing such Option.
E. No fractional shares shall actually be issued under the Plan. Any fractional shares which, but for this subparagraph E, would have been issued to Optionee pursuant to an Option shall be deemed to have been issued and immediately sold to the Company for their fair market value, and the Optionee shall receive from the Company cash in lieu of such fractional shares.
F. Upon the happening of any of the foregoing events described in subparagraphs A or B above, the aggregate number of shares of Preferred Stock set forth in paragraph 3 hereof that are subject to Options which previously have been or subsequently may be granted under the Plan shall also be appropriately adjusted to reflect the events described in such subparagraphs. The Board of Directors shall determine the specific adjustments to be made under this paragraph 6 and its determination shall be conclusive.
7. MEANS OF EXERCISING OPTION. An Option (or any part or installment thereof) shall be exercised as specified in the written instrument granting an Option such Option, which instrument may specify any legal method of exercise. An Option may not be exercised prior to the expiration of six months from the date of grant. An Optionee shall not have the rights of a shareholder with respect to the shares of Preferred Stock covered by an Option until the date of issuance of a stock certificate to him for such shares. Except as expressly provided above in paragraph 6 with respect to changes in capitalization and stock dividends, no adjustment shall be made for dividends or similar rights for which the record date is before the date such stock certificate is issued.
8. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board of Directors on November 13, 1989, effective November 7, 1989. The Board of Directors may terminate or amend the Plan in any respect at any time.
9. APPLICATION OF FUNDS. The proceeds received by the Company from the sale of shares of Preferred Stock pursuant to Options granted under the Plan shall be added to working capital and used for general corporate purposes.
10. GOVERNMENTAL REGULATION. The Company's obligation to sell and deliver shares of the Preferred Stock under this Plan is subject to the approval of any governmental authority required in connection with the authorization, issuance or sale of such shares. In addition, the Company, in its sole and absolute discretion, may postpone the issuance and delivery of shares of Preferred Stock upon any exercise of an Option until the Company is satisfied that the Company and the Optionee have complied with any applicable state or federal law, rule or regulation, and may require the Optionee to make such representations and furnish such information as it considers necessary, in connection with such issuance and delivery of shares of Preferred Stock, to comply with any applicable state or federal law, rule or regulation.
11. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the exercise of an Option, or any other event in connection with an Option, the Company, in accordance with Section 3402(a) of the Code, may require the Optionee, to pay additional withholding taxes in respect of the amount that is considered compensation includable in such person's gross income.
12. RIGHT OF COMPANY TO TERMINATE EMPLOYMENT. Nothing contained in the Plan or in any Option shall confer upon any Optionee any right to continue in the employ of the Company or any Related Corporation or interfere in any way with the right of the Company or any Related Corporation to terminate the employment of the Optionee at any time, with or without cause, except as may be otherwise provided in any employment agreement between the Optionee and the Company or any Related Corporation.
13. GOVERNING LAW; CONSTRUCTION. The validity and construction of the Plan and the instruments evidencing Options shall be governed by the laws of the State of Texas. In construing this Plan, the singular shall include the plural and the masculine gender shall include the feminine and neuter, unless the context otherwise requires.
14. SAVINGS PROVISIONS. With respect to persons subject to Section 16 of the Securities Exchange Act of 1934; transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 or any successor rule promulgated under the Act. To the extent any provision of the Plan or action by the Board or the Administrator fails to so comply, it shall be deemed null and void, and the remaining portion shall be valid to the extent permitted by law and deemed advisable by the Board or the Administrator.
UNITED SERVICES ADVISORS, INC.
1985 INCENTIVE STOCK OPTION PLAN
AS AMENDED NOVEMBER 7, 1989
AS AMENDED DECEMBER 9, 1991
1. PURPOSE OF THE PLAN. The United Services Advisors, Inc. 1985 Incentive Stock Option Plan (the "Plan") is designed to increase the interest of the directors, executive and other key salaried employees of United Services Advisors, Inc., a Texas corporation (the "Company"), and its subsidiaries in the Company's business through the added incentive created by the opportunity afforded for stock ownership under the Plan.
2. COMMITTEE. The Plan will be administered by a committee consisting of all the independent, outside, non-employee directors of the Company. Any action taken by a majority of the committee shall be the action of the committee. The decision of the committee on any questions concerning or involved in the interpretation or administration of the Plan shall, as between the Company and the option holders, be final and conclusive. The committee may consult with counsel, who may be counsel for the Company, and shall not incur any liability for any action taken in good faith in reliance upon the advice of counsel. Grants of options to individuals selected by the committee will be subject to approval by the Board of Directors and will become effective only upon such approval. For purposes of the Plan, the date of such approval shall be the date that options will be granted from time to time and the periods for which the options will be outstanding will be determined by the committee.
3. PARTICIPANTS. Participants will be selected by the committee from among the directors, executive and key salaried employees of the Company or of any subsidiary of the Company, including officers. An employee on leave of absence within the meaning of Section 1.421-7(h) of the Regulations promulgated under the Internal Revenue Code of 1986, as amended (the "Code"), may be considered as still in the employ of the Company for purposes of eligibility for participation in the Plan.
4. NUMBER OF SHARES. The total number of shares of the Company's Preferred Stock, par value $0.05 per share, which may be issued under options granted pursuant to the Plan shall not exceed 200,000. Shares subject to the Plan may be either authorized but unissued shares or shares that were once issued and subsequently reacquired by the Company. If any stock option granted hereunder is surrendered before exercise or lapses without exercise or for any other reason ceases to be exercisable, the shares reserved therefor shall continue to be available for the grant of options under the Plan. The Plan will terminate on December 31, 1994, and no option will be granted thereunder after such date.
5. STOCK ADJUSTMENTS. In the event that the outstanding shares of the Company's Preferred Stock are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation, through reorganization, merger, consolidation, liquidation, recapitalization, reclassification, stock split-up, combination of shares or dividends payable in stock of the class which is subject to this Plan, appropriate adjustment in the number and kind of shares as to which options may be granted and as to which options or portions thereof then unexercised shall be exercisable shall be made to the end that the proportionate number of shares or other securities as to which options may be granted and the option holder's proportionate interest under outstanding options shall be maintained as before the occurrence of such event. Any such adjustment in the shares or other securities subject to outstanding options (including any adjustment in the option price), shall be made in such manner as not to constitute a modification as defined by subsection (h) (3) of Section 425 of the Code.
6. OPTION PRICE. Subject to the provisions of Section 10 concerning the option price for ten percent shareholders, the option price will be the fair market value of the shares at the date on which the respective options are granted. For purposes of the Plan, the fair market value per share of the Company's Preferred Stock on any date shall be deemed to be the closing price of the Company's Preferred Stock on the principal national securities exchange on which the Company's Preferred Stock is then listed or admitted to trading, if the
Company's Preferred Stock is then listed or admitted to trading on any national securities exchange. The closing price shall be the last reported sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, as reported by said exchange. If the Company's Preferred Stock is not then so listed on a national securities exchange, the fair market value per share of the Company's Preferred Stock on any date shall be deemed to be the mean between the representative closing bid and asked prices of the Company's Preferred Stock in the over-the-counter market as reported by the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or, if the Company's Preferred Stock is not then quoted by NASDAQ, as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. If no member of the National Association of Securities Dealers, Inc. furnishes quotes with respect to the Preferred Stock of the Company, such fair market value shall be determined by resolution of the Company's Board of Directors. Notwithstanding the foregoing provisions of this Section 6, if the Board of Directors shall at any time determine that it is impracticable to apply the foregoing methods of determining fair market value, the Board of Directors is empowered to adopt other reasonable methods for such purpose.
7. TERMS OF OPTIONS. Each option will provide by its terms that it is not exercisable after the expiration of ten years from the date such option is granted. Within this limitation the committee will determine the expiration dates of the options. Options may be exercised at any time or from time to time, within their terms, in whole or in part, or otherwise as shall be determined by the committee, except that any option may not be exercised prior to the expiration of six months from the date of grant. Upon exercise, the options price shall be payable in cash or the equivalent fair market value of the Company's Preferred Stock or any combination of both as shall be determined by the committee at the time the option is granted.
8. LISTING AND REGISTRATION. The Company, in its discretion, may postpone the issuance and delivery of shares upon any exercise of an option until completion of such stock exchange listing, or registration or other qualification of such shares under any state or federal law, rule or regulation as the Company may consider appropriate; and may require any person exercising an option to make such representations and furnish such information as it considers appropriate in connection with the issuance of the shares in compliance with applicable law. In addition, the Company's obligation to sell and deliver shares of the Preferred Stock under this Plan is subject to the approval of any governmental authority required in connection with the authorization, issuance or sale of such shares.
9. CONSIDERATION FOR GRANT OF OPTIONS. The grantee of an option will be required to agree to remain in the employ of the Company or a subsidiary of the Company for a period of not less than one year from the date on which the option is granted on such terms as shall be approved by the Board of Directors.
10. TEN PERCENT SHAREHOLDERS. No employee shall be eligible to receive an option under this Plan if, at the time the option is granted, he owns more than ten percent of the total combined voting power of all classes of stock of the Company or of its parent or subsidiary corporations determined in accordance with Section 425(d) of the Code. This limitation shall not apply if, at the time an option is granted, the option price is one hundred ten percent (I 10%) of the fair market value of the Company's Preferred Stock and the option is not exercisable after the expiration of five years from the date it is granted.
11. LIMITATION ON VALUE OF SHARES. The aggregate fair market value (determined as of the time the option is granted) of the stock for which any employee may exercise options for the first time in any calendar year (under all incentive stock option plans of the Company and its parent and subsidiary corporations) shall not exceed $ 100,000. For the purpose of this Plan, the terms "incentive stock options" and "incentive stock option plans" shall mean options and plans which conform with the provisions of Section 422A of the Code.
12. FORM OF OPTIONS AND CONDITIONS TO THEIR EXERCISE. It is intended that the options shall conform to the requirements of Section 422A and 425 of the Code and to the provisions of this Plan and shall otherwise be as determined by the committee and approved by the Board of Directors. The terms "parent corporation" and
"subsidiary corporation" shall have the meanings given them by Section 425 of the Code.
The options by their terms will provide that they will not be transferable by the grantee otherwise than by will or the laws of descent and distribution and that each is exercisable, during the lifetime of the grantee, only by him.
An option may only be exercised after the expiration of six months from the date of grant, and may be exercised only if at all times during the period beginning with the date of the granting of the option and ending on the date of such exercise, the grantee was an employee of either the Company or of a parent or subsidiary corporation of the Company or of another corporation referred to in Section 422A(a)(2) of the Code, unless such continuous employment is terminated by such employer, or otherwise terminated with the written consent of the employer. If such continuous employment is so terminated, the option may also be exercised within three months (one year if the grantee is disabled within the meaning of Section 22(e)(3) of the Code) after such termination to the extent exercisable immediately prior to such termination, but in no event later than the termination date of the option. If the grantee should die at any time when any portion of the option shall be exercisable by him, the option will be exercisable in whole or in part during the next year succeeding his death by the person or persons to whom his rights under the option will have passed by will or by the laws of descent and distribution, but in no event at a date later than the termination of the option.
13. AMENDMENT OF PLAN. The Plan may be amended at any time by the board of Directors provided that (except pursuant to Section 5) no amendment made without approval of the shareholders of the Company shall increase the total number of shares which may be issued under the options granted pursuant to the Plan, or reduce the minimum option price, or extend the latest date upon which options may be granted or shall be exercisable, or change the class of employees eligible to receive options.
14. CODE REFERENCES. References to sections of the Code shall include any amendment of the Code section or any section that may be substituted for such section.
15. RIGHT OF COMPANY TO TERMINATE EMPLOYMENT. Nothing contained in the Plan or in any option granted under the Plan shall confer upon any optionee any right to continue in the employ of the Company or any parent or subsidiary of the Company or interfere in any way with the right of the Company or any parent or subsidiary of the Company to terminate the employment of the optionee at any time, with or without cause, except as may be otherwise provided in any employment agreement between the optionee and the Company or any parent or subsidiary of the Company.
16. GOVERNING LAW: CONSTRUCTION. The validity and construction of the Plan and the instruments evidencing options shall be governed by the laws of the State of Texas. In construing this Plan, the singular shall include the plural and the masculine gender shall include the feminine and neuter, unless the context otherwise requires.
17. SAVINGS PROVISIONS. With respect to persons subject to Section 16 of the Securities Exchange Act of 1934; transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 or any successor rule promulgated under the Act. To the extent any provision of the Plan or action by the Board or the Committee fails to so comply, it shall be deemed null and void, and the remaining portion shall be valid to the extent permitted by law and deemed advisable by the Board or the Committee.
April 16, 1997
Board of Directors
U.S. Global Investors, Inc.
Dear Sirs:
I have acted as counsel to U.S. Global Investors, Inc., a Texas corporation ("U.S. Global"), in connection with preparation of Post-Effective Amendment No. 2 to its Registration Statement on Form S-8 (SEC File No. 33-26470) covering the offering of Class A Common Stock under the 1989 Non-Qualified Stock Option Plan (the "1989 Plan") and the 1985 Incentive Stock Option Plan (the "1985 Plan") being filed with the Securities and Exchange Commission.
Please be advised that I have examined such proceedings and records of U.S. Global, and have made investigation of such other matters, as in my judgment permits me to render an informed opinion on the matters set forth herein. Based upon the foregoing, it is my opinion that:
(i) U.S. Global is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, with full power to issue and sell shares of its Class A Common Stock pursuant to the 1985 Plan and the 1989 Plan.
(ii) The shares of U.S. Global's Class A Common Stock to be issued by U.S. Global pursuant to the Plans have been duly authorized and, when issued and paid for in accordance with the terms of the Plans, will be legally issued, fully paid and non-assessable.
I consent to the use of this opinion as an exhibit to U.S. Global's Post-Effective Amendment No. 2 to its Registration Statement on Form S-8 and to the use of my name in the Registration Statement and Plan disclosure documents.
Sincerely,
/S/ CHARLES W. LUTTER, JR. Charles W. Lutter, Jr. CWL:pme |
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 2 to the Registration Statement on Form S-8 (No. 33-33012) of our report dated September 26, 1996 which appears on page 21 of the fiscal 1996 Annual Report to Shareholders of U.S. Global Investors, Inc., which is incorporated by reference in U.S. Global Investors, Inc. Annual Report on Form 10-K for the year ended June 30, 1996.
PRICE WATERHOUSE LLP
San Antonio, Texas
April 22, 1997