<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 19, 1996,
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
SYNC RESEARCH, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3661 33-0676350
(State of other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
7 STUDEBAKER
IRVINE, CA 92718
(714) 588-2070
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
ASSUMED TYLINK CORPORATION 1994 EQUITY INCENTIVE PLAN*
SYNC RESEARCH, INC. 1996 NON-EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
*Assumed pursuant to an Agreement and Plan of Reorganization, dated June 27,
1996
------------------------------
JOHN H. RADEMAKER
CHIEF EXECUTIVE OFFICER
SYNC RESEARCH, INC.
7 STUDEBAKER
IRVINE, CA 92718
(714) 588-2070
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
MARK A. MEDEARIS
VENTURE LAW GROUP
2800 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(415) 854-4488
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
ASSUMED TYLINK CORPORATION 1994 EQUITY INCENTIVE PLAN
Common Stock, $0.001 par value........................ 423,155 $ 1.5558 $ 658,344.55 $ 227.02(1)
Common Stock, $0.001 par value........................ 23,605 $14.6875 $ 346,698.44 $ 119.55(2)
Total Assumed Plan.................................... 446,760(3)
SYNC RESEARCH INC. 1996 NON-EXECUTIVE STOCK OPTION PLAN
Common Stock, $0.001 par value........................ 330,500 $12.6400 $4,177,520.00 $1,440.52(1)
Common Stock, $0.001 par value........................ 20,000 $14.6875 $ 293,750.00 $ 101.29(2)
Total 1996 Plan....................................... 350,500(4)
TOTAL................................................. 797,260 $5,476,312.99 $1,888.38
</TABLE>
(1) Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. Computation
based on the weighted average per share exercise price (rounded to nearest
cent) of outstanding options under the referenced plan, the shares issuable
under which are registered hereby.
(2) Estimated in accordance with Rule 457(h) and 457(c) under the Securities Act
of 1933 solely for the purpose of calculating the registration fee. The
computation with respect to unissued options is based on the average of the
high and low sale prices of the Common Stock as reported on The Nasdaq
National Market on September 17, 1996.
(3) This total represents 446,760 shares reserved for issuance under the Assumed
TyLink Corporation 1994 Equity Incentive Plan (the "Assumed Plan"), which
was assumed by the Registrant in connection with the Registrant's
acquisition of TyLink Corporation (the "Merger"), as described in the
Registrant's Current Report on Form 8-K, filed with the Securities and
Exchange Commission on September 6, 1996. Of the total 446,760 shares,
423,155 shares are subject to outstanding options and 23,605 shares are
available for issuance.
(4) This total represents 350,500 shares reserved for issuance under the Sync
Research, Inc. 1996 Non-Executive Stock Option Plan (the "1996 Plan"), which
was approved by the Registrant's Board of Directors on August 27, 1996. Of
the total 350,500 shares, 330,500 shares are subject to outstanding options
and 20,000 shares are available for issuance.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the Securities
and Exchange Commission are hereby incorporated by reference:
ITEM 3 (A)
The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, filed on March 30, 1996, pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
contains audited financial statements for the Registrant's latest fiscal
year for which such statements have been filed.
ITEM 3 (B)
The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed on May 2, 1996, Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed on August 12, 1996, each pursuant to
Section 13 of the Exchange Act, and Current Report on Form 8-K, filed on
September 6, 1996.
ITEM 3 (C)
Items 1 and 2 of the Registrant's Registration Statement on Form 8-A
filed on October 10, 1995, and Items 1 and 2 of the Registrant's
Registration Statement on Form 8-A, filed on November 4, 1995, each pursuant
to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law 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 such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Act").
Article X of the Registrant's Amended and Restated Certificate of
Incorporation, filed November 17, 1995, provides for indemnification of its
directors, officers and employees to the maximum extent permitted by the
Delaware General Corporation Law.
II-1
<PAGE>
Article VI of the Registrant's Bylaws provides that the Registrant shall
indemnify its directors and officers to the fullest extent permitted by Delaware
law against expenses, judgments and other amounts actually and reasonably
incurred in connection with a proceeding arising from the person's status as an
agent of the Corporation. Such expenses shall be paid by the Corporation in
advance of the final disposition of such action if the indemnified person
undertakes to repay such amounts if it is determined that he or she is not
entitled to indemnification.
The Registrant has entered into indemnification agreements with certain of
its officers and directors containing provisions that are in some respects
broader than the specific indemnification provisions contained in the Delaware
General Corporation Law. The indemnification agreements require the Registrant,
among other things, to indemnify its directors against certain liabilities that
may arise by reason of their status or service as directors (other than
liabilities arising from willful misconduct of culpable nature, insured claims,
and claims under Section 16(b)), and to advance their expenses incurred as a
result of any proceeding against them as to which they could be indemnified.
Reference is also made to Section (c) of the Underwriting Agreement entered
into by the Registrant in connection with its initial public offering of its
Common Stock indemnifying officers and directors of the Registrant against
certain liabilities. In addition, the Registrant has obtained directors and
officers' liability insurance covering, subject to certain exceptions, actions
taken by the Registrant's directors and officers in their capacities as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT PAGE
- ------------ ------------------------------------------------------------------------------------------------ ---------
<S> <C> <C>
3.2* Amended and Restated Certificate of Incorporation
3.3* Bylaws.
4.1** Amended and Restated 1991 Stock Plan and form of agreement thereunder.
4.2* 1995 Employee Stock Purchase Plan and forms of agreements thereunder.
4.3* 1995 Directors' Stock Option Plan and form of agreement thereunder.
4.4 Assumed TyLink Corporation 1994 Equity Incentive Plan.
4.5 Sync Research, Inc. 1996 Non-Executive Stock Option Plan.
5.1 Opinion of Venture Law Group, A Professional Corporation, as to Legality of Securities Being
Registered.
23.1 Consent of Venture Law Group, a Professional Corporation (contained in Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney.
</TABLE>
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* Incorporated by reference from Registrant's Registration Statement on Form
S-1 (Registration No. 33-96910), as amended, filed with the Commission on
September 14, 1995.
** Incorporated by reference from Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, as filed with the Commission on August
12, 1996.
II-2
<PAGE>
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 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 Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Sec-tion 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 Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Sync Research, Inc., a corporation organized and existing under the laws of the
State of Delaware, 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 Irvine, State of California, on September 19,
1996.
SYNC RESEARCH, INC.
By: /s/ RONALD J. SCIOSCIA
-----------------------------------------
Ronald J. Scioscia
VICE PRESIDENT OF FINANCE AND
ADMINISTRATION AND CHIEF FINANCIAL OFFICER
II-4
<PAGE>
POWER OF ATTORNEY
[SEE EXHIBIT 24.1]
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------------
<S> <C>
3.2* Amended and Restated Certificate of Incorporation.
3.3* Bylaws.
4.1** Amended and Restated 1991 Stock Plan and form of agreement thereunder.
4.2* 1995 Employee Stock Purchase Plan and forms of agreements thereunder.
4.3* 1995 Directors' Stock Option Plan and form of agreement thereunder.
4.4 Assumed TyLink Corporation 1994 Equity Incentive Plan.
4.5 Sync Research, Inc. 1996 Non-Executive Stock Option Plan.
5.1 Opinion of Venture Law Group, A Professional Corporation, as to legality of securities being registered.
23.1 Consent of Venture Law Group, A Professional Corporation (included in Exhibit 5.1).
23.2 Consent of Ernst & Young, L.L.P., Independent Auditors.
24.1 Powers of Attorney.
</TABLE>
- ------------------------
* Incorporated by reference from Registrant's Registration Statement on Form
S-1, as amended (Registration No. 33-96910), filed with the Commission on
September 14, 1995.
** Incorporated by reference from Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, as filed with the Commission on August
12, 1996.
<PAGE>
EXHIBIT 4.4
TYLINK CORPORATION
1994 EQUITY INCENTIVE PLAN
AS AMENDED JANUARY 20, 1995
SECTION 1. PURPOSE
The purpose of the TyLink Corporation 1994 Equity Incentive Plan (the
"Plan") is to attract and retain key employees and directors and consultants of
the Company, to provide an incentive for them to achieve long-range performance
goals, and to enable them to participate in the long-term growth of the Company.
The Plan constitutes an amendment and restatement of the TyLink Corporation
1991 Equity Incentive Plan (the "1991 Plan"), which is hereby merged with and
into the Plan, and the separate existence of the 1991 Plan shall terminate on
the Effective Date. The rights and privileges of holders of outstanding options
or rights under the 1991 Plan shall not be adversely affected by the foregoing
action.
SECTION 2. DEFINITIONS
"Affiliate" means any business entity in which the Company owns directly or
indirectly 50% or more of the total combined voting power or has a significant
financial interest as determined by the Committee.
"Award" means any Option, Restricted Stock or other Stock-Based Award
awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor to such Code.
"Committee" means a committee of not less than three members of the Board
appointed by the Board to administer the Plan.
"Common Stock" or "Stock" means the Common Stock, $0.01 par value, of the
Company.
"Company" means TyLink Corporation.
"Designated Beneficiary" means the beneficiary designated by a Participant,
in a manner determined by the Committee, to receive amounts due or exercise
rights of the Participant in the event of the Participant's death. In the
absence of an effective designation by a Participant, "Designated Beneficiary"
shall mean the Participant's estate.
"Effective Date" means May 16, 1994.
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Committee
in good faith or in the manner established by the Committee from time to time.
"Incentive Stock Option" means an option to purchase shares of Common Stock
awarded to a Participant under Section 6 that is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Nonstatutory Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under Section 6 that is not intended to be an
Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock Option.
"Other Stock-Based Award" means an Award, other than an Option or Restricted
Stock, having a Common Stock element and awarded to a Participant under Section
8.
"Participant" means a person selected by the Committee to receive an Award
under the Plan.
<PAGE>
"Reporting Person" means a person subject to Section 16 of the Securities
Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time during which an Award may be
forfeited to the Company pursuant to the terms and conditions of such Award.
"Restricted Stock" means shares of Common Stock subject to forfeiture
awarded to a Participant under Section 7.
SECTION 3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall have
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Committee's
decisions shall be final and binding. To the extent permitted by applicable law,
the Committee may delegate to one or more executive officers of the Company the
power to make Awards to Participants who are not Reporting Persons and all
determinations under the Plan with respect thereto, provided that the Committee
shall fix the maximum amount of such Awards for all such Participants and a
maximum for any one Participant.
SECTION 4. ELIGIBILITY
All employees and, in the case of Awards other than Incentive Stock Options,
directors and consultants of the Company or any Affiliate, capable of
contributing significantly to the successful performance of the Company, other
than a person who has irrevocably elected not to be eligible, are eligible to be
Participants in the Plan. Incentive Stock Options may be awarded only to persons
eligible to receive such Options under the Code.
SECTION 5. STOCK AVAILABLE FOR AWARDS
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan for up to 3,142,944 shares of Common Stock (the "Cap"), with any Restricted
Stock or outstanding options awarded under the 1991 Plan counting toward the
Cap. If any Award in respect of shares of Common Stock expires or is terminated
unexercised or is forfeited without the Participant having had the benefits of
ownership (other than voting rights), the shares subject to such Award, to the
extent of such expiration, termination or forfeiture, shall again be available
for award under the Plan. Common Stock issued through the assumption or
substitution of outstanding grants from an acquired company shall not reduce the
shares available for Awards under the Plan. Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Committee determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock at a price substantially below fair market value, or other similar
transaction affects the Common Stock such that an adjustment is required in
order to preserve the benefits or potential benefits intended to be made
available under the Plan, then the Committee (subject, in the case of Incentive
Stock Options, to any limitation required under the Code) shall equitably adjust
any or all of (i) the number and kind of shares in respect of which Awards may
be made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award or exercise price with respect to any of
the foregoing, and if considered appropriate, the Committee may make provision
for a cash payment with respect to an outstanding Award, provided that the
number of shares subject to any Award shall always be a whole number.
2
<PAGE>
SECTION 6. STOCK OPTIONS
(a) Subject to the provisions of the Plan, the Committee may award Incentive
Stock Options and Nonstatutory Stock Options and determine the number of shares
to be covered by each Option, the option price therefor and the conditions and
limitations applicable to the exercise of the Option. The terms and conditions
of Incentive Stock Options shall be subject to and comply with Section 422 of
the Code or any successor provision and any regulations thereunder, and no
Incentive Stock Option may be granted hereunder more than ten years after the
Effective Date.
(b) The Committee shall establish the option price at the time each Option
is awarded, which price shall not be less than 100% of the Fair Market Value of
the Common Stock on the date of award with respect to Incentive Stock Options
and not less than 85% of the Fair Market Value of the Common Stock on the date
of the award with respect to Nonstatutory Stock Options.
(c) For purposes of Section 6(b) above, if, at the time the Option is
awarded, the Company's Common Stock is publicly traded, Fair Market Value of the
Common Stock shall be determined as of the last business day for which the
prices or quotes discussed in this sentence are available prior to the date of
such Option is awarded and shall mean (i) the average (on that date) of the high
and low prices of the Common Stock on the principal national securities exchange
on which the Common stock is traded, if the Common Stock is then traded on a
national securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the NASDAQ National Market List, if the Common
Stock is not then traded on a national securities exchange; or (iii) the closing
bid price (or average of bid prices) last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common
Stock is not reported on the NASDAQ National Market List. However, if the Common
Stock is not publicly traded at the time an Option is awarded under the Plan,
Fair Market Value shall be determined as set forth in Section 2 hereof.
(d) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Committee may specify in the applicable Award or
thereafter. The Committee may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(e) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefor is received by the Company. Such
payment may be made in whole or in part in cash or, to the extent permitted by
the Committee at or after the award of the Option, by delivery of a note or
shares of Common Stock owned by the optionee, including Restricted Stock, or by
retaining shares otherwise issuable pursuant to the Option, in each case valued
at their Fair Market Value on the date of delivery or retention, or such other
lawful consideration as the Committee may determine.
(f) The Committee may provide that, subject to such conditions as it
considers appropriate, upon the delivery or retention of shares to the Company
in payment of an Option, the Participant automatically be awarded an Option for
up to the number of shares so delivered.
SECTION 7. RESTRICTED STOCK
(a) Subject to the provisions of the Plan, the Committee may award shares of
Restricted Stock and determine the duration of the Restricted Period during
which, and the conditions under which, the shares may be forfeited to the
Company and the other terms and conditions of such Awards. Shares of Restricted
Stock may be issued for no cash consideration or such minimum consideration as
may be required by applicable law.
(b) Shares of Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered, except as permitted by the Committee, during
the Restricted Period. Shares of Restricted Stock shall be evidenced in such
manner as the Committee may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the Participant
and unless otherwise
3
<PAGE>
determined by the Committee, deposited by the Participant, together with a stock
power endorsed in blank, with the Company. At the expiration of the Restricted
Period, the Company shall deliver such certificates to the Participant or if the
Participant has died, to the Participant's Designated Beneficiary.
SECTION 8. OTHER STOCK-BASED AWARDS
(a) Subject to the provisions of the Plan, the Committee may make other
awards of Common Stock and other awards that are valued in whole or in part by
reference to, or are otherwise based on, Common Stock, including without
limitation convertible preferred stock, convertible debentures, exchangeable
securities and Common Stock awards or options. Other Stock-Based Awards may be
granted either alone or in tandem with other Awards granted under the Plan
and/or cash awards made outside of the Plan.
(b) The Committee may establish performance goals, which may be based on
performance goals related to book value, subsidiary performance or such other
criteria as the Committee may determine, Restricted Periods, Performance Cycles,
conversion prices, maturities and security, if any, for any Other Stock-Based
Award. Other Stock-Based Awards may be sold to Participants at the face value
thereof or any discount therefrom or awarded for no consideration or such
minimum consideration as may be required by applicable law.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) REPORTING PERSON LIMITATIONS. Notwithstanding any other provision of
the Plan, to the extent required to qualify for the exemption provided by Rule
16b-3 under the Securities Exchange Act of 1934 or any successor provision, as
applicable to the Company at the time ("Rule 16b-3"), Awards made to a Reporting
Person shall not be transferable by such person other than by will or the laws
of descent and distribution or, if then permitted by Rule 16b-3, pursuant to a
qualified domestic relations order as defined in the Code or Title I of the
Employee Retirement Income Security Act or the rules thereunder.
(b) DOCUMENTATION. Each Award under the Plan shall be evidenced by a
writing delivered to the Participant specifying the terms and conditions thereof
and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Committee considers necessary or advisable to
achieve the purposes of the Plan or to comply with applicable tax and regulatory
laws and accounting principles.
(c) COMMITTEE DISCRETION. Each type of Award may be made alone, in addition
to or in relation to any other type of Award. The terms of each type of Award
need not be identical, and the Committee need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Committee at the time
of award or at any time thereafter.
(d) SETTLEMENT. The Committee shall determine whether Awards are settled in
whole or in part in cash, Common Stock, other securities of the Company, Awards
or other property. The Committee may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(e) DIVIDENDS AND CASH AWARDS. In the discretion of the Committee, any
Award under the Plan may provide the Participant with (i) dividends or dividend
equivalents payable currently or deferred with or without interest, and (ii)
cash payments in lieu of or in addition to an Award.
(f) TERMINATION OF EMPLOYMENT. The Committee shall determine the effect on
an Award of the disability, death, retirement or other termination of employment
of a Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder.
4
<PAGE>
(g) CHANGE IN CONTROL. In order to preserve a Participant's rights under an
Award in the event of a change in control of the Company, the Committee in its
discretion may, at the time an Award is made or at any time thereafter, take one
or more of the following actions: (i) provide for the acceleration of any time
period relating to the exercise or realization of the Award, (ii) provide for
the purchase of the Award upon the Participant's request for an amount of cash
or other property that could have been received upon the exercise or realization
of the Award had the Award been currently exercisable or payable, (iii) adjust
the terms of the Award in a manner determined by the Committee to reflect the
change in control, (iv) cause the Award to be assumed, or new rights substituted
therefor, by another entity, or (v) make such other provision as the Committee
may consider equitable and in the best interests of the Company.
(h) LOANS. The Committee may authorize the making of loans or cash payments
to Participants in connection with any Award under the Plan, which loans may be
secured by any security, including Common Stock, underlying or related to such
Award (provided that such Loan shall not exceed the Fair Market Value of the
security subject to such Award), and which may be forgiven upon such terms and
conditions as the Committee may establish at the time of such loan or at any
time thereafter.
(i) WITHHOLDING TAXES. The Participant shall pay to the Company, or make
provision satisfactory to the Committee for payment of, any taxes required by
law to be withheld in respect of Awards under the Plan no later than the date of
the event creating the tax liability. In the Committee's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock, including
shares retained from the Award creating the tax obligation, valued at their Fair
Market Value on the date of delivery. The Company and its Affiliates may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to the Participant.
(j) FOREIGN NATIONALS. Awards may be made to Participants who are foreign
nationals or employed outside the United States on such terms and conditions
different from those specified in the Plan as the Committee considers necessary
or advisable to achieve the purposes of the Plan or to comply with applicable
laws.
(k) AMENDMENT OF AWARD. The Committee may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the same or
a different type, changing the date of exercise or realization and converting an
Incentive Stock Option to a Nonstatutory Stock Option, provided that the
Participant's consent to such action shall be required unless the Committee
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
SECTION 10. MISCELLANEOUS
(a) NO RIGHT TO EMPLOYMENT. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment. The Company expressly reserves
the right at any time to dismiss a Participant free from any liability or claim
under the Plan, except as expressly provided in the applicable Award.
(b) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed under
the Plan until he or she becomes the holder thereof. A Participant to whom
Common Stock is awarded shall be considered the holder of the Stock at the time
of the Award except as otherwise provided in the applicable Award.
(c) EFFECTIVE DATE. Subject to the approval of the stockholders of the
Company, the Plan shall be effective on the Effective Date. Before such
approval, Awards may be made under the Plan expressly subject to such approval.
(d) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan
or any portion thereof at any time, subject to any stockholder approval that the
Board determines to be necessary or advisable.
5
<PAGE>
(e) GOVERNING LAW. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of Delaware.
------------------------
THIS PLAN WAS APPROVED BY THE BOARD OF DIRECTORS ON MAY 16, 1994.
THIS PLAN WAS APPROVED BY THE STOCKHOLDERS ON MAY 16, 1994.
THIS PLAN WAS AMENDED BY THE BOARD OF DIRECTORS ON JANUARY 20, 1995, WHICH
AMENDMENT WAS APPROVED BY THE STOCKHOLDERS ON JANUARY 20, 1995.
6
<PAGE>
EXHIBIT 4.5
SYNC RESEARCH, INC.
1996 NON-EXECUTIVE STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business. Options
granted hereunder shall be Nonstatutory Stock Options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" shall mean the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "AFFILIATE" shall mean an entity other than a Subsidiary (as defined
below) in which the Company owns an equity interest.
(c) "APPLICABLE LAWS" shall have the meaning set forth in Section 4(a)
below.
(d) "BOARD" shall mean the Board of Directors of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "COMMITTEE" shall mean the Committee appointed by the Board of
Directors in accordance with Section 4(a) of the Plan, if one is appointed.
(g) "COMMON STOCK" shall mean the Common Stock of the Company.
(h) "COMPANY" shall mean Sync Research, Inc., a Delaware corporation.
(i) "CONSULTANT" means any person, including an advisor, who is engaged
by the Company or any Parent or Subsidiary to render services and is
compensated for such services, and any director of the Company whether
compensated for such services or not, provided that the term Consultant
shall not include directors who are not compensated for their services or
are paid only a director's fee by the Company.
(j) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT" shall mean the
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Administrator; PROVIDED that such
leave is for a period of not more than 90 days or reemployment upon the
expiration of such leave is guaranteed by contract or statute. For purposes
of this Plan, a change in status from an Employee to a Consultant or from a
Consultant to an Employee will not constitute a termination of employment.
(k) "DIRECTOR" shall mean a member of the Board.
(l) "EMPLOYEE" shall mean any person (excluding any Named Executive,
Officer or Director) employed by the Company or any Parent, Subsidiary or
Affiliate of the Company. The payment by the Company of a director's fee to
a Director shall not be sufficient to constitute "employment" of such
Director by the Company.
(m) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(n) "FAIR MARKET VALUE" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system including without limitation the National
Market of the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") System, its Fair Market Value shall be the closing
sales price for such stock as quoted on such system on the date of
determination (if for a given
<PAGE>
day no sales were reported, the closing bid on that day shall be used),
as such price is reported in The Wall Street Journal or such other source
as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq System (but not on
the National Market thereof) or regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market
Value shall be the mean between the bid and asked prices for the Common
Stock or;
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(o) [Intentionally omitted].
(p) "NAMED EXECUTIVE" shall mean any individual who, on the last day of
the Company's fiscal year, is the chief executive officer of the Company (or
is acting in such capacity) or among the four highest compensated officers
of the Company (other than the chief executive officer). Such officer status
shall be determined pursuant to the executive compensation disclosure rules
under the Exchange Act.
(q) "NONSTATUTORY STOCK OPTION" shall mean an Option not intended to
qualify as an Incentive Stock Option, as designated in the applicable
written option agreement.
(r) "OFFICER" shall mean a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(s) "OPTION" shall mean a stock option granted pursuant to the Plan.
(t) "OPTIONED STOCK" shall mean the Common Stock subject to an Option.
(u) "OPTIONEE" shall mean an Employee or Consultant who receives an
Option.
(v) "PARENT" shall mean a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(w) "PLAN" shall mean this 1996 Non-Executive Stock Option Plan.
(x) "RULE 16B-3" shall mean Rule 16b-3 promulgated under the Exchange
Act as the same may be amended from time to time, or any successor
provision.
(y) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 14 of the Plan.
(z) "SUBSIDIARY" shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 14 of
the Plan, the maximum aggregate number of shares that may be optioned and sold
under the Plan is 350,500 shares of Common Stock. The Shares may be authorized,
but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares that were subject thereto
shall, unless the Plan shall have been terminated, become available for future
grant under the Plan. Notwithstanding any other provision of the Plan, shares
issued under the Plan and later repurchased by the Company shall not become
available for future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) COMPOSITION OF ADMINISTRATOR.
(i) ADMINISTRATION WITH RESPECT TO OTHER PERSONS. With respect to
grants of Options to Employees or Consultants who are neither Directors
nor Officers of the Company, the Plan shall
2
<PAGE>
be administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to
satisfy the Applicable Laws.
(ii) GENERAL. If a Committee has been appointed pursuant to
subsection (i) of this Section 4(a), such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board.
From time to time the Board may increase the size of any Committee and
appoint additional members thereof, remove members (with or without
cause) and appoint new members in substitution therefor, fill vacancies
(however caused) and remove all members of a Committee and thereafter
directly administer the Plan, all to the extent permitted by the
Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the Plan
and in the case of a Committee, the specific duties delegated by the Board
to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(m) of the Plan;
(ii) to select the Employees and Consultants to whom Options may from
time to time be granted hereunder;
(iii) to determine whether and to what extent Options are granted
hereunder;
(iv) to determine the number of shares of Common Stock to be covered
by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation, or any
vesting acceleration or waiver of forfeiture restrictions regarding any
Option and/or the shares of Common Stock relating thereto, based in each
case on such factors as the Administrator shall determine, in its sole
discretion);
(vii) to reduce the exercise price of any Option to the then current
Fair Market Value if the Fair Market Value of the Common Stock covered by
such Option shall have declined since the date the Option was granted.
(c) Effect of Administrator's Decision. All decisions, determinations
and interpretations of the Administrator shall be final and binding on all
Optionees and any other holders of any Options.
5. ELIGIBILITY.
(a) RECIPIENTS OF GRANTS. Nonstatutory Stock Options may be granted to
Employees and Consultants. An Employee or Consultant who has been granted an
Option may, if he or she is otherwise eligible, be granted an additional
Option or Options.
(b) TYPE OF OPTION. Each Option shall be designated in the written
option agreement as a Nonstatutory Stock Option.
(c) NO EMPLOYMENT RIGHTS. The Plan shall not confer upon any Optionee
any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with his or
her right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to occur
of its adoption by the Board or its approval by the stockholders of the Company
as described in Section 20 of the Plan. It shall continue in effect for a term
of ten (10) years unless sooner terminated under Section 16 of the Plan.
3
<PAGE>
7. TERM OF OPTION. The term of each Option shall be the term stated in the
Option Agreement. However, in the case of an Option granted to an Optionee who,
at the time the Option is granted, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the term of the Option shall be five (5) years from the date of
grant thereof or such shorter term as may be provided in the Option Agreement.
8. LIMITATION ON GRANTS TO EMPLOYEES. Subject to adjustment as provided in
this Plan, the maximum number of Shares which may be subject to options granted
to any one Employee under this Plan for any fiscal year of the Company shall be
50,000.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is
determined by the Administrator, but shall be subject to the following:
(i) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of the grant of such
Option, is a Named Executive of the Company, the per share Exercise
Price shall be no less than 100% of the Fair Market Value on the date
of grant; or
(B) granted to any person other than a Named Executive, the per
Share exercise price shall be no less than 85% of the Fair Market
Value per Share on the date of grant.
(ii) Notwithstanding anything to the contrary in subsections 9(a)(i)
above, in the case of an Option granted on or after the effective date of
registration of any class of equity security of the Company pursuant to
Section 12 of the Exchange Act and prior to six months after the
termination of such registration, the per Share exercise price shall be
no less than 100% of the Fair Market Value per Share on the date of
grant.
(b) PERMISSIBLE CONSIDERATION. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Administrator and may consist entirely
of (1) cash, (2) check, (3) other Shares that (x) in the case of Shares
acquired upon exercise of an Option either have been owned by the Optionee
for more than six months on the date of surrender or were not acquired,
directly or indirectly, from the Company, and (y) have a Fair Market Value
on the date of surrender equal to the aggregate exercise price of the Shares
as to which said Option shall be exercised, (4) authorization from the
Company to retain from the total number of Shares as to which the Option is
exercised that number of Shares having a Fair Market Value on the date of
exercise equal to the exercise price for the total number of Shares as to
which the Option is exercised, (5) delivery of a properly executed exercise
notice together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds required to pay
the exercise price, (7) a combination of any of the foregoing methods of
payment, (8) a combination of any of the foregoing methods of payment at
least equal in value to the stated capital represented by the Shares to be
issued, plus a promissory note for the balance of the exercise price, or (9)
such other consideration and method of payment for the issuance of Shares to
the extent permitted under Applicable Laws. In making its determination as
to the type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Company.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the
terms of the Plan.
4
<PAGE>
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received
by the Company. Full payment may, as authorized by the Administrator,
consist of any consideration and method of payment allowable under Section
9(b) of the Plan. Until the issuance (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such stock certificate
promptly upon exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
stock certificate is issued, except as provided in Section 14 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT. In the event of
termination of an Optionee's Continuous Status as an Employee or Consultant,
such Optionee may, but only within thirty (30) days or such other period of
time, not exceeding six (6) months in the case of a Nonstatutory Stock
Option, as is determined by the Administrator, after the date of such
termination (but in no event later than the date of expiration of the term
of such Option as set forth in the Option Agreement), exercise his or her
Option to the extent that he or she was entitled to exercise it at the date
of such termination. To the extent that the Optionee was not entitled to
exercise the Option at the date of such termination, or if the Optionee does
not exercise such Option (which he or she was entitled to exercise) within
the time specified herein, the Option shall terminate.
(c) DISABILITY OF OPTIONEE. Notwithstanding Section 10(b) above, in the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant as a result of his or her total and permanent disability (as
defined in Section 22(e)(3) of the Code), he or she may, but only within six
(6) months (or such other period of time not exceeding twelve (12) months as
is determined by the Administrator, from the date of such termination (but
in no event later than the date of expiration of the term of such Option as
set forth in the Option Agreement), exercise his or her Option to the extent
he or she was entitled to exercise it at the date of such termination. To
the extent that he or she was not entitled to exercise the Option at the
date of termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option shall
terminate.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee:
(i) during the term of the Option who is at the time of his death an
Employee or Consultant of the Company and who shall have been in
Continuous Status as an Employee or Consultant since the date of grant of
the Option, the Option may be exercised, at any time within six (6)
months (or such other period of time, not exceeding twelve (12) months,
as is determined by the Administrator) following the date of death (but
in no event later than the date of expiration of the term of such Option
as set forth in the Option Agreement), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or
inheritance but only to the extent of the right to exercise that would
have accrued had the Optionee continued living and remained in Continuous
Status as an Employee or Consultant three (3) months (or such other
period of time as is determined by the Administrator as provided above)
after the date of death, subject to the limitation set forth in Section
5(b); or
5
<PAGE>
(ii) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Administrator) after
the termination of Continuous Status as an Employee or Consultant, the
Option may be exercised, at any time within six (6) months following the
date of death (but in no event later than the date of expiration of the
term of such Option as set forth in the Option Agreement), by the
Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the date of termination.
11. WITHHOLDING TAXES. As a condition to the exercise of Options granted
hereunder, the Optionee shall make such arrangements as the Administrator may
require for the satisfaction of any federal, state, local or foreign withholding
tax obligations that may arise in connection with the exercise, receipt or
vesting of such Option. The Company shall not be required to issue any Shares
under the Plan until such obligations are satisfied.
12. STOCK WITHHOLDING TO SATISFY WITHHOLDING TAX OBLIGATIONS. At the
discretion of the Administrator, Optionees may satisfy withholding obligations
as provided in this paragraph. When an Optionee incurs tax liability in
connection with an Option which tax liability is subject to tax withholding
under applicable tax laws, and the Optionee is obligated to pay the Company an
amount required to be withheld under applicable tax laws, the Optionee may
satisfy the withholding tax obligation by one or some combination of the
following methods: (a) by cash payment, or (b) out of Optionee's current
compensation, or (c) if permitted by the Administrator, in its discretion, by
surrendering to the Company Shares that (i) in the case of Shares previously
acquired from the Company, have been owned by the Optionee for more than six
months on the date of surrender, and (ii) have a fair market value on the date
of surrender equal to or less than Optionee's marginal tax rate times the
ordinary income recognized, or (d) by electing to have the Company withhold from
the Shares to be issued upon exercise of the Option that number of Shares having
a fair market value equal to the amount required to be withheld. For this
purpose, the fair market value of the Shares to be withheld shall be determined
on the date that the amount of tax to be withheld is to be determined (the "TAX
DATE").
All elections by an Optionee to have Shares withheld to satisfy tax
withholding obligations shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, the election shall be irrevocable as to the particular
Shares of the Option as to which the election is made; and
(c) all elections shall be subject to the consent or disapproval of the
Administrator.
In the event the election to have Shares withheld is made by an Optionee and
the Tax Date is deferred under Section 83 of the Code because no election is
filed under Section 83(b) of the Code, the Optionee shall receive the full
number of Shares with respect to which the Option is exercised but such Optionee
shall be unconditionally obligated to tender back to the Company the proper
number of Shares on the Tax Date.
13. NON-TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution; PROVIDED that the Administrator
may in its discretion grant transferable Nonstatutory Stock Options pursuant to
option agreements specifying (i) the manner in which such Nonstatutory Stock
Options are transferable and (ii) that any such transfer shall be subject to the
Applicable Laws. The designation of a beneficiary by an Optionee will not
constitute a transfer. An Option may be exercised, during the lifetime of the
Optionee, only by the Optionee or a transferee permitted by this Section 13.
14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
(a) ADJUSTMENT. Subject to any required action by the stockholders of
the Company, the number of shares of Common Stock covered by each
outstanding Option, the number of shares of Common
6
<PAGE>
Stock that have been authorized for issuance under the Plan but as to which
no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, the maximum number of shares
of Common Stock for which Options may be granted to any employee under
Section 8 of the Plan, and the price per share of Common Stock covered by
each such outstanding Option, 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
or decrease in the number of issued 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 Administrator, 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) CORPORATE TRANSACTIONS. In the event of the proposed dissolution or
liquidation of the Company, the Option will terminate immediately prior to
the consummation of such proposed action, unless otherwise provided by the
Administrator. The Administrator may, in the exercise of its sole discretion
in such instances, declare that any Option shall terminate as of a date
fixed by the Administrator and give each Optionee the right to exercise his
or her Option as to all or any part of the Optioned Stock, including Shares
as to which the Option would not otherwise be exercisable. 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, the Option shall
be assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless
the Administrator determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, that the Optionee shall have the
right to exercise the Option as to some or all of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable.
If the Administrator makes an Option exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Administrator
shall notify the Optionee that the Option shall be exercisable for a period
of fifteen (15) days from the date of such notice, and the Option will
terminate upon the expiration of such period.
15. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the determination
granting such Option or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option is so granted within a reasonable time after the date of such
grant.
16. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate the Plan
from time to time in such respects as the Board may deem advisable; provided
that, the following revisions or amendments shall require approval of the
stockholders of the Company in the manner described in Section 20 of the
Plan:
(i) any change in the designation of the class of persons eligible to
be granted Options; or
(ii) any change in the limitation on grants to employees as described
in Section 8 of the Plan or other changes which would require stockholder
approval to qualify options granted hereunder as performance-based
compensation under Section 162(m) of the Code.
(b) STOCKHOLDER APPROVAL. If any amendment requiring stockholder
approval under Section 16(a) of the Plan is made subsequent to the first
registration of any class of equity securities by the Company under Section
12 of the Exchange Act, such stockholder approval shall be solicited as
described in Section 20 of the Plan.
7
<PAGE>
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Board, which agreement must be in writing and signed by the Optionee
and the Company.
17. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, 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.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased 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 by any of the
aforementioned relevant provisions of law.
18. RESERVATION OF SHARES. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
19. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
20. STOCKHOLDER APPROVAL.
(a) In the event that the Company registers any class of equity
securities pursuant to Section 12 of the Exchange Act, any required approval
of the stockholders of the Company obtained after such registration shall be
solicited substantially in accordance with Section 14(a) of the Exchange Act
and the rules and regulations promulgated thereunder.
(b) If any required approval by the stockholders of any amendment to
this Plan is solicited at any time otherwise than in the manner described in
Section 20(a) hereof, then the Company shall, at or prior to the first
annual meeting of stockholders held subsequent to the later of (1) the first
registration of any class of equity securities of the Company under Section
12 of the Exchange Act or (2) the granting of an Option hereunder to an
officer or director after such registration, do the following:
(i) furnish in writing to the holders entitled to vote for the Plan
substantially the same information that would be required (if proxies to
be voted with respect to approval or disapproval of the Plan or amendment
were then being solicited) by the rules and regulations in effect under
Section 14(a) of the Exchange Act at the time such information is
furnished; and
(ii) file with, or mail for filing to, the Securities and Exchange
Commission four copies of the written information referred to in
subsection (i) hereof not later than the date on which such information
is first sent or given to stockholders.
8
<PAGE>
SYNC RESEARCH, INC.
1996 NON-EXECUTIVE STOCK OPTION PLAN
NOTICE OF STOCK OPTION GRANT
Optionee's Name and Address:
You have been granted an option to purchase Common Stock of Sync Research,
Inc. (the "Company"), as follows:
<TABLE>
<S> <C>
Board Approval Date:
-------------------------------------------
Date of Grant (Later of Board
Approval Date or
Commencement of
Employment/Consulting):
-------------------------------------------
Exercise Price Per Share:
-------------------------------------------
Total Number of Shares
Granted:
-------------------------------------------
Total Price of Shares Granted:
-------------------------------------------
Type of Option: Shares Nonstatutory Stock Option
Term/Expiration Date:
-------------------------------------------
Vesting Commencement Date:
-------------------------------------------
Vesting Schedule:
-------------------------------------------
Termination Period: Option may be exercised for a period of 30
days after termination of employment or
consulting relationship except as set out
in Sections 7 and 8 of the Stock Option
Agreement (but in no event later than the
Expiration Date).
</TABLE>
By your signature and the signature of the Company's representative below,
you and the Company agree that this option is granted under and governed by the
terms and conditions of the Sync Research, Inc. 1996 Non-Executive Stock Option
Plan and the Stock Option Agreement, all of which are attached and made a part
of this document.
<TABLE>
<S> <C>
OPTIONEE: SYNC RESEARCH, INC.
- -------------------------------------------- By:
Signature
- -------------------------------------------- Title:
Print Name
</TABLE>
<PAGE>
SYNC RESEARCH, INC.
1996 NON-EXECUTIVE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Sync Research, Inc., a Delaware corporation (the
"COMPANY"), hereby grants to the Optionee named in the Notice of Stock Option
Grant attached to this Agreement ("OPTIONEE"), an option (the "OPTION") to
purchase the total number of shares of Common Stock (the "SHARES") set forth in
the Notice of Stock Option Grant, at the exercise price per share set forth in
the Notice of Stock Option Grant (the "EXERCISE PRICE") subject to the terms,
definitions and provisions of the 1996 Non-Executive Stock Option Plan (the
"PLAN") adopted by the Company, which is incorporated in this Agreement by
reference. In the event of a conflict between the terms of the Plan and the
terms of this Agreement, the terms of the Plan shall govern. Unless otherwise
defined in this Agreement, the terms used in this Agreement shall have the
meanings defined in the Plan.
This Option is intended to be a Nonstatutory Stock Option.
2. EXERCISE OF OPTION. This Option shall be exercisable during its term
in accordance with the Vesting Schedule set out in the Notice of Stock Option
Grant and with the provisions of Sections 9 and 10 of the Plan as follows:
(a) RIGHT TO EXERCISE.
(i) This Option may not be exercised for a fraction of a share.
(ii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed
by Sections 6, 7 and 8 below, subject to the limitations contained in
paragraphs (iii) and (iv) below.
(iii) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of Stock
Option Grant.
(b) METHOD OF EXERCISE.
(i) This Option shall be exercisable by delivering to the Company a
written notice of exercise (in the form attached as EXHIBIT A) which
shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with
respect to such Shares of Common Stock as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be
signed by Optionee and shall be delivered in person or by certified mail
to the Secretary of the Company. The written notice shall be accompanied
by payment of the Exercise Price. This Option shall be deemed to be
exercised upon receipt by the Company of such written notice accompanied
by the Exercise Price.
(ii) As a condition to the exercise of this Option, Optionee agrees
to make adequate provision for federal, state or other tax withholding
obligations, if any, which arise upon the exercise of the Option or
disposition of Shares, whether by withholding, direct payment to the
Company, or otherwise.
(iii) No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all relevant
provisions of law and the requirements of any stock exchange upon which
the Shares may then be listed. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to Optionee on the
date on which the Option is exercised with respect to such Shares.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), at the time this
Option is exercised, Optionee shall, if required by the Company, concurrently
with the exercise of all or any portion of this Option, deliver to the Company
an investment representation statement in customary form, a copy of which is
available for Optionee's review from the Company upon request.
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4. METHOD OF PAYMENT. Payment of the Exercise Price shall be by any of
the following, or a combination of the following, at the election of Optionee:
(a) cash; (b) check; (c) surrender of other Shares of Common Stock of the
Company that (i) either have been owned by Optionee for more than six (6) months
on the date of surrender or were not acquired, directly or indirectly, from the
Company, and (ii) have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised; (d) authorization from the Company to retain from the total number of
Shares as to which the Option is exercised that number of Shares having a Fair
Market value on the date of exercise equal to the exercise price for the total
number of Shares as to which the Option is exercised; or (e) if there is a
public market for the Shares and they are registered under the Securities Act,
delivery of a properly executed exercise notice together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds required to pay the exercise price.
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("REGULATION G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
6. TERMINATION OF RELATIONSHIP. In the event of termination of Optionee's
Continuous Status as an Employee or Consultant, Optionee may, to the extent
otherwise so entitled at the date of such termination (the "TERMINATION DATE"),
exercise this Option during the Termination Period set out in the Notice of
Stock Option Grant. To the extent that Optionee was not entitled to exercise
this Option at the date of such termination, or if Optionee does not exercise
this Option within the time specified in the Notice of Stock Option Grant, the
Option shall terminate.
7. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 6
above, in the event of termination of Optionee's Continuous Status as an
Employee or Consultant as a result of total and permanent disability (as defined
in Section 22(e)(3) of the Code), Optionee may, but only within six (6) months
from the date of termination of employment (but in no event later than the date
of expiration of the term of this Option as set forth in Section 10 below),
exercise the Option to the extent otherwise so entitled at the date of such
termination. To the extent that Optionee was not entitled to exercise the Option
at the date of termination, or if Optionee does not exercise such Option (to the
extent otherwise so entitled) within the time specified in this Agreement, the
Option shall terminate.
8. DEATH OF OPTIONEE. In the event of the death of Optionee:
(a) during the term of this Option and while an Employee of the Company
and having been in Continuous Status as an Employee or Consultant since the
date of grant of the Option, the Option may be exercised, at any time within
six (6) months following the date of death (but in no event later than the
date of expiration of the term of this Option as set forth in Section 10
below), by Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent of the
right to exercise that would have accrued had Optionee continued living and
remained in Continuous Status as an Employee or Consultant three (3) months
after the date of death, subject to the limitation contained in Section
2(i)(d) above in the case of an Incentive Stock Option; or
(b) within thirty (30) days after the termination of Optionee's
Continuous Status as an Employee or Consultant, the Option may be exercised,
at any time within six (6) months following the date of death (but in no
event later than the date of expiration of the term of this Option as set
forth in Section 10 below), by Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that had accrued at the date of termination.
2
<PAGE>
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution. The
designation of a beneficiary does not constitute a transfer. An Option may be
exercised during the lifetime of Optionee only by Optionee or a transferee
permitted by this section. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of Optionee.
10. TERM OF OPTION. This Option may be exercised only within the term set
out in the Notice of Stock Option Grant, and may be exercised during such term
only in accordance with the Plan and the terms of this Option.
11. NO ADDITIONAL EMPLOYMENT RIGHTS. Optionee understands and agrees that
the vesting of Shares pursuant to the Vesting Schedule is earned only by
continuing as an Employee or Consultant at the will of the Company (not through
the act of being hired, being granted this Option or acquiring Shares under this
Agreement). Optionee further acknowledges and agrees that nothing in this
Agreement, nor in the Plan which is incorporated in this Agreement by reference,
shall confer upon Optionee any right with respect to continuation as an Employee
or Consultant with the Company, nor shall it interfere in any way with his or
her right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
12. TAX CONSEQUENCES. Optionee acknowledges that he or she has read the
brief summary set forth below of certain federal tax consequences of exercise of
this Option and disposition of the Shares under the law in effect as of the date
of grant. OPTIONEE UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT HIS
OR HER OWN TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF NONSTATUTORY STOCK OPTION. Optionee may incur regular
federal income tax liability upon the exercise of the Option. Optionee will
be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of
the Shares on the date of exercise over the Exercise Price. In addition, if
Optionee is an employee of the Company, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to
the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(b) DISPOSITION OF SHARES. Gain realized on the disposition of Shares
will be treated as long-term or short-term capital gain depending on whether
or not the disposition occurs more than one year after the exercise date.
13. SIGNATURE. This Stock Option Agreement shall be deemed executed by the
Company and Optionee upon execution by such parties of the Notice of Stock
Option Grant attached to this Stock Option Agreement.
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EXHIBIT A
NOTICE OF EXERCISE
<TABLE>
<S> <C>
To: Sync Research, Inc.
Attn: Stock Option Administrator
Subject: NOTICE OF INTENTION TO EXERCISE STOCK OPTION
</TABLE>
This is official notice that the undersigned ("Optionee") intends to
exercise Optionee's option to purchase shares of Sync Research, Inc.
Common Stock, under and pursuant to the Company's 1996 Non-Executive Stock
Option Plan and the Stock Option Agreement dated , as follows:
<TABLE>
<S> <C>
Grant Number:
Date of Purchase:
Number of Shares:
Purchase Price:
Method of Payment
of Purchase Price:
</TABLE>
Social Security No.: ________________________________________________
The shares should be issued as follows:
<TABLE>
<S> <C>
Name:
Address:
Signed:
Date:
</TABLE>
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EXHIBIT 5.1
September 19, 1996
Sync Research, Inc.
7 Studebaker
Irvine, CA 92718
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about September 19, 1996 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 330,500 shares of your Common
Stock reserved for issuance under the Sync Research, Inc. 1996 Non-Executive
Stock Option Plan (the "1996 Plan") and 446,760 shares of your Common Stock
reserved for issuance under the Assumed TyLink Corporation 1994 Equity Incentive
Plan (the "Assumed Plan") (all of which constitute the "Shares"). The 1996 Plan
and the Assumed Plan are referred to as the "Plans." As your legal counsel, we
have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the sale and issuance of the
Shares under the Plans.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the respective agreement which accompanies each grant
under the plan, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP
A Professional Corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 and related prospectus) pertaining to the Sync Research, Inc. 1996
Non-Executive Stock Option Plan and the Assumed TyLink Corporation 1994 Equity
Incentive Plan of our report dated January 26, 1996 with respect to the
financial statements and schedule of Sync Research, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
September 19, 1996
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John H. Rademaker and Ronald J. Scioscia, jointly
and severally, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ --------------------------------- ----------------------
<C> <S> <C>
/s/ JOHN H. RADEMAKER Chief Executive Officer and
------------------------------------------- Director (Principal Executive September 19, 1996
John H. Rademaker Officer)
/s/ ROGER A. DORF
------------------------------------------- President, Chief Operating September 19, 1996
Roger A. Dorf Officer and Director
Vice President, Finance and
/s/ RONALD J. SCIOSCIA Administration and Chief
------------------------------------------- Financial Officer (Principal September 19, 1996
Ronald J. Scioscia Financial and Accounting
Officer)
/s/ GREGORIO REYES
------------------------------------------- Chairman of the Board of September 19, 1996
Gregorio Reyes Directors
/s/ DOUGLAS C. CARLISLE
------------------------------------------- Director September 19, 1996
Douglas C. Carlisle
/s/ ROBERT J. FINOCCHIO, JR.
------------------------------------------- Director September 19, 1996
Robert J. Finocchio, Jr.
/s/ CHARLES A. HAGGERTY
------------------------------------------- Director September 19, 1996
Charles A. Haggerty
/s/ WILLIAM J. O'MEARA
------------------------------------------- Director September 19, 1996
William J. O'Meara
</TABLE>
