<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 1997,
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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>
40 PARKER
IRVINE, CA 92618
(714) 588-2070
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
SYNC RESEARCH, INC. 1996 NON-EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
------------------------------
ROGER A. DORF
CHIEF EXECUTIVE OFFICER
SYNC RESEARCH, INC.
40 PARKER
IRVINE, CA 92618
(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
------------------------------
<PAGE>
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 SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
SYNC RESEARCH INC. 1996 NON-EXECUTIVE STOCK OPTION PLAN
Common Stock, $0.001 par value........................ 756,155(1) $3.8832 $2,936,301.10 $889.79(2)
Common Stock, $0.001 par value........................ 70,417 $4.0313 $ 283,872.05 $ 86.02(3)
------- ------------- -------
826,572(1) $3,220,173.15 $975.81(2)
</TABLE>
(1) This total represents a 826,572 share increase in the shares reserved for
issuance under the 1996 Non-Executive Stock Option Plan (the "Plan"),
which increase was approved by the Registrant's Board of Directors at
meetings and by actions taken by unanimous written consent of the board
of directors on September 27, 1996, November 26, 1996, January 8, 1997,
January 14, 1997, January 29, 1997 and March 7, 1997. Of the 826,572 shares
being registered hereunder, 756,155 shares are subject to outstanding
options and 70,417 are available for issuance. An additional 350,500
shares were registered for issuance under the Plan pursuant to a previous
registration statement on Form S-8 filed by the Registrant, (registration
number 333-12315) with the Commission on September 19, 1996.
(2) 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.
(3) 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 May 22, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The contents of the Registrant's previous Registration Statement on
Form S-8 (No. 333-12315) pertaining to the Sync Research, Inc. 1996
Non-Executive Stock Option Plan are hereby incorporated by reference
herein.
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 year ended
December 31, 1996, filed on March 31, 1997, 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, 1997, filed on May 12, 1997 pursuant to Section 13 of the
Exchange Act.
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 also entered into indemnification agreements with its
officers and directors. The indemnification agreements require the Registrant
to indemnify such persons in proceedings if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Registrant, provided no indemnification shall be made
if the indemnitee is adjudged liable to the Company if applicable law
prohibits such indemnification unless the court determines that
indemnification may nevertheless be made by the Company. With respect to any
crimimal proceeding other than one brought by or in the right of the
Registrant, the indemnitee also must have no reasonable cause to believe his
or her conduct was unlawful in order to gain indemnity.
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>
4.1(1) Amended and Restated 1991 Stock Plan and form of agreement thereunder.
4.2(2) Amended 1995 Employee Stock Purchase Plan and forms of agreements thereunder.
4.3(3) 1995 Directors' Stock Option Plan and form of agreement thereunder.
4.4(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.
23.3 Consent of Price Waterhouse LLP, Independent Accountants.
24.1 Power of Attorney.
</TABLE>
- ------------------------
(1) 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.
(2) Incorporated by reference from Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996, as filed with the
Commission on November 14, 1996.
(3) 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.
(4) Incorporated by reference from Registrant's Registration Statement on
Form S-8 (Registration Statement No. 333-12315), filed with the
Commission on September 19, 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 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 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 May 30, 1997.
SYNC RESEARCH, INC.
By: /s/ RONALD J. SCIOSCIA
-----------------------------------------
Ronald J. Scioscia
VICE PRESIDENT OF FINANCE AND
ADMINISTRATION AND CHIEF FINANCIAL OFFICER
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------------
<S> <C>
4.1(1) Amended and Restated 1991 Stock Plan and form of agreement thereunder.
4.2(2) Amended 1995 Employee Stock Purchase Plan and forms of agreements thereunder.
4.3(3) 1995 Directors' Stock Option Plan and form of agreement thereunder.
4.4(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 LLP, Independent Auditors.
23.3 Consent of Price Waterhouse LLP, Independent Accountants.
24.1 Powers of Attorney.
</TABLE>
- ------------------------
(1) 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.
(2) Incorporated by reference from Registrant's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1996, as filed with the Commission on
November 14, 1996.
(3) 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.
(4) Incorporated by reference from Registrant's Registration Statement on
Form S-8 (Registration Statement No. 333-12315), filed with the Commission
on September 19, 1996.
<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, provided that the term Consultant shall not
include Directors or Officers.
<PAGE>
(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 Officer
or Director) employed by the Company or any Parent, Subsidiary or
Affiliate of the Company. Notwithstanding the foregoing, an Officer who was
not previously employed by the Company and for whom an Option grant is an
inducement essential to the Officer's entering into an employment
relationship or contract with the Company shall be treated as an Employee
for purposes of the Option grant made to the Officer in connection with
commencement of the Officer's employment with 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 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.
-2-
<PAGE>
(o) "NONSTATUTORY STOCK OPTION" shall mean an Option not intended to
qualify as an Incentive Stock Option, as designated in the applicable written
option agreement.
(p) "OFFICER" shall mean a person who is appointed or elected by
the Board of Directors as an officer of the Company, including but not
limited to 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.
(q) "OPTION" shall mean a stock option granted pursuant to the Plan.
(r) "OPTIONED STOCK" shall mean the Common Stock subject to an
Option.
(s) "OPTIONEE" shall mean an Employee or Consultant who receives an
Option.
(t) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(u) "PLAN" shall mean this 1996 Non-Executive Stock Option Plan.
(v) "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.
(w) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 14 of the Plan.
(x) "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 1,177,072 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. With respect to grants of
Options to Employees or Consultants, the Plan shall 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. If a
Committee has been appointed pursuant to 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.
-3-
<PAGE>
(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.
-4-
<PAGE>
(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.
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, provided however, that the per Share
exercise price shall be no less than 85% of the Fair Market Value per Share
on the date of grant. Notwithstanding anything to the contrary in the
immediately preceding sentence, 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.
-5-
<PAGE>
(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.
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.
-6-
<PAGE>
(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
(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.
-7-
<PAGE>
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
-8-
<PAGE>
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 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
-9-
<PAGE>
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) 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
-10-
<PAGE>
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.
-11-
<PAGE>
EXHIBIT 5.1
May 30, 1997
Sync Research, Inc.
40 Parker
Irvine, CA 92618
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 May 30, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 826,572 shares of your
Common Stock (the "Shares") reserved for issuance under the Sync Research,
Inc. 1996 Non-Executive Stock Option Plan (the "Plan"). 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 Plan.
It is our opinion that, when issued and sold in the manner referred to in
the Plan 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 of our report dated January 28,
1997, except for Note 12, as to which date is March 20, 1997, with respect to
the consolidated financial statements and schedule of Sync Research,
Inc. included in its Annual Report (Form 10-K) for the year ended December
31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
May 23, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 and related prospectus pertaining to the Sync Research,
Inc. 1996 Non-Executive Stock Option Plan of our report dated June 13, 1996,
except as to Note 11 which is as of August 23, 1996, relating to the
financial statements of TyLink Corporation appearing in the Form 10-K of Sync
Research, Inc. for the year ended December 31, 1996.
PRICE WATERHOUSE LLP
Boston, Massachusetts
May 23, 1997
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Roger A. Dorf 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/ ROGER A. DORF
------------------------------------------- Chief Executive Officer, May __, 1997
Roger A. Dorf President and Director
(Principal Executive
Officer)
Vice President, Finance and
/s/ RONALD J. SCIOSCIA Administration and Chief
------------------------------------------- Financial Officer (Principal May __, 1997
Ronald J. Scioscia Financial and Accounting
Officer)
/s/ GREGORIO REYES
------------------------------------------- Chairman of the Board of May __, 1997
Gregorio Reyes Directors
/s/ JOHN H. RADEMAKER Vice Chairman of the Board
------------------------------------------- of Directors May __, 1997
John H. Rademaker
/s/ DOUGLAS C. CARLISLE
------------------------------------------- Director May __, 1997
Douglas C. Carlisle
/s/ ROBERT J. FINOCCHIO, JR.
------------------------------------------- Director May __, 1997
Robert J. Finocchio, Jr.
/s/ CHARLES A. HAGGERTY
------------------------------------------- Director May __, 1997
Charles A. Haggerty
/s/ WILLIAM J. O'MEARA
------------------------------------------- Director May __, 1997
William J. O'Meara
</TABLE>
