<PAGE>
As filed with the Securities and Exchange Commission on March 30, 2000
Registration No. 333-___________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
---------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------------
MICROWARE SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
IOWA 42-1073196
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 NORTHWEST 118TH STREET, DES MOINES, IOWA 50325
(Address of Principal Executive Offices) (Zip Code)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
KENNETH B. KAPLAN
MICROWARE SYSTEMS CORPORATION
1500 NORTHWEST 118TH STREET
DES MOINES, IOWA 50325
(Name and address of agent for service)
(515) 223-8000
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
be registered registered per share price fee
- -------------------------------------------------------------------------------
Common Stock,
no par value 500,000 shares (a) See note (b) See note (b) $1,295.25 (c)
- -------------------------------------------------------------------------------
</TABLE>
(a) Represents the maximum number of shares which could be purchased under
the provisions of the 1999 Employee Stock Purchase Plan.
(b) Purchase price per share for outstanding options is 85% of the lesser
of (1) the fair market value on the Offering Date or (2) the fair
market value on the Purchase Date.
(c) Registration Fee computed pursuant to Rule 457(h)(1) and based on the
average of the high and low prices for March 27, 2000.
<PAGE>
PART I*
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the Registration
Statement in accordance with Rule 428 under the Securities Act
of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by
reference in this Registration Statement, and all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, 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
thereof from the date of filing of such documents:
(1) The Company's annual report on Form 10-K for the year ended
March 31, 1999.
(2) The Company's quarterly reports on Form 10-Q for the quarters
ended June 30, 1999, and September 30, 1999.
(3) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed March 14, 1996, File
No. 0-27988, including any amendment or report filed for the
purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be
passed upon by D'Ancona & Pflaum LLC, Chicago, Illinois. Mr. Arthur Don, a
Director of the Company and a member of D'Ancona & Pflaum LLC, directly owns
100 shares of the registrant's Common Stock, and has the right to acquire up
to an additional 40,000 shares of the Common Stock pursuant to outstanding
options. Other partners at D'Ancona & Pflaum beneficially own additional
shares of the Company's Common Stock, which ownership is not material.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 851 and 856 of the Iowa Business Corporation Act ("Iowa
BCA") empower a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorney's fees,
judgments, fines and certain settlements) actually and reasonably incurred by
them in connection with any suit or proceeding to which they are a party so
long as they acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
a criminal action or proceedings, so long as they had no reasonable cause to
believe their conduct to have been unlawful. The Registrant's Restated and
Amended Articles of Incorporation provide that the Registrant shall indemnify
its directors and such of its officers, employees and agents as the Board of
Directors may determine from time to time, to the fullest extent permitted by
Iowa law.
Section 832 of the Iowa BCA permits an Iowa corporation to include
in its articles of incorporation a provision eliminating or limiting a
director's liability to a corporation or its shareholders for monetary
damages for breaches of fiduciary duty. The enabling statute provides,
however, that liability for breaches of the duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct, or knowing
violation of the law, and the unlawful purchase or redemption of stock or
payment of unlawful dividends or the receipt of improper personal benefits
cannot be eliminated or limited in this manner. The Registrant's Restated and
Amended Articles of Incorporation include a provision which eliminates, to
the fullest extent permitted, director liability for monetary damages for
breaches of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. CONSULTANTS AND ADVISORS
Not Applicable.
ITEM 9. EXHIBITS.
4.1 Restated and Amended Articles of Incorporation of the Company,
filed as Exhibit 3.1(a) to Pre-Effective Amendment No. 3 to
the Company's Registration Statement on Form S-1, File No.
33-99160, and hereby incorporated by reference.
4.2 Restated and Amended Bylaws of the Company, filed as Exhibit
3.2(a) to Pre-Effective Amendment No. 3 to the Company's
Registration Statement on Form S-1, File No. 33-99160, and
hereby incorporated by reference.
4.3 Microware Systems Corporation 1999 Employee Stock Purchase
Plan.
5.1 Opinion of D'Ancona & Pflaum.
23.1 Consent of KPMG LLP.
23.2 Consent of D'Ancona & Pflaum (included in Exhibit 5.1).
24.1 Powers of Attorney (included herein on the signature page).
<PAGE>
ITEM 10. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and 1(ii) do not
apply if the registration statement is on Form S-3, Form S-8
or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the Company 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 Company 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 Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Des Moines, State of Iowa, on the
30th day of March, 2000.
MICROWARE SYSTEMS CORPORATION
(Company)
By: /s/ Kenneth B. Kaplan
-----------------------------------------
Kenneth B. Kaplan, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Microware Systems Corporation, an Iowa corporation, which is
filing a Registration Statement on Form S-8 with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended,
hereby constitute and appoint Kenneth B. Kaplan and George E. Leonard their
true and lawful attorneys-in-fact and agents, with full power and
substitution and re-substitution, for them and in their name, place and
stead, in any and all capacities, to sign any or all pre-effective and
post-effective amendments to the Registration Statement, and all other
documents in connection therewith to be filed with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all interests
and purposes as each of them might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Kenneth B. Kaplan Chairman of the Board, March 30, 2000
- ----------------------- President and Chief Executive
Kenneth B. Kaplan Officer
(Principal Executive Officer)
/s/ George E. Leonard Executive Vice President, March 30, 2000
- ----------------------- Chief Financial Officer, Treasurer
George E. Leonard and Secretary
(Principal Financial Officer)
<PAGE>
/s/ Beth Law Chief Accounting Officer, March 30, 2000
- ----------------------- Controller and Assistant
Beth Law Treasurer
(Principal Accounting Officer)
/s/ Martin Allen Director, Managing Director of March 30, 2000
- ----------------------- European Operations
Martin Allen
/s/ James A. Gordon Director March 30, 2000
- -----------------------
James A. Gordon
/s/ Daniel P. Howell Director March 23, 2000
- -----------------------
Daniel P. Howell
/s/ Dennis E. Young Director March 30, 2000
- -----------------------
Dennis E. Young
/s/ Arthur Don Director March 21, 2000
- -----------------------
Arthur Don
</TABLE>
<PAGE>
EXHIBIT 4.3
MICROWARE SYSTEMS CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT OF PLAN. Microware Systems Corporation, an Iowa
corporation (the "Company"), proposes to grant options for purchase of the
Company's Common Stock to eligible employees of the Company and its
Subsidiaries (as hereinafter defined) pursuant to this Employee Stock
Purchase Plan (this "Plan"). For purposes of this Plan, "Parent Corporation"
and "Subsidiary" (collectively "Subsidiaries") shall have the same meanings
as "parent corporation" and "subsidiary corporation" in Sections 424(e) and
424(f) respectively of the Internal Revenue Code of 1986, as amended (the
"Code"). The Company intends this Plan to qualify as an "employee stock
purchase plan" under Section 423 of the Code (including any amendments to or
replacements of such Section) and this Plan shall be so construed. Any term
not expressly defined in this Plan but defined for purposes of Section 423 of
the Code shall have the same definition herein.
2. SHARES RESERVED FOR ISSUANCE. A total of 500,000 shares of the
Company's Common Stock are reserved for issuance under this Plan. Such number
shall be subject to adjustments effected in accordance with Section 15 of
this Plan.
3. PURPOSE. The purpose of this Plan is to provide employees of the
Company and Subsidiaries designated by the Board of Directors of the Company
(the "Board") as eligible to participate in this Plan with a convenient means
of acquiring an equity interest in the Company through Cash Contributions (as
hereinafter defined) and payroll deductions to enhance such employees' sense
of participation in the affairs of the Company and Subsidiaries and to
provide an incentive for continued employment.
4. ADMINISTRATION. This Plan shall be administered by a committee
appointed by the Board (the "Committee") consisting of at least two (2)
members of the Board, each of whom is a Disinterested Person as defined in
Rule 16b-3(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and
an "Outside Director" within the meaning of Section 162(m) of the Code. As
used in this Plan, references to the "Committee" shall mean either such
committee or the Board if no committee has been established. Committee
members who are not Disinterested Persons may not vote on any matters
affecting the administration of this Plan, but any such member may be counted
for determining the existence of a quorum at any meeting of the Committee.
Subject to the provisions of this Plan and the limitations of Section 423 of
Code or any successor provision in the Code, all questions of interpretation
or application of this Plan shall be determined by the Committee and its
decisions shall be final and binding upon all participants. Members of the
Board shall receive no compensation for their services in connection with the
administration of this Plan, other than standard fees as established from
time to time by the Board for services rendered by Board members serving on
Board Committees. All expenses incurred in connection with the administration
of this Plan shall be paid by the Company.
5. ELIGIBILITY. Any employee of the Company or the Subsidiaries is
eligible to participate in an Offering Period (as hereinafter defined) under
this Plan except the following:
a. Employees who are not employed by the Company or
Subsidiaries as of the beginning of such Offering Period;
b. Employees who, together with any other person whose stock
would be attributed
<PAGE>
to such employee pursuant to Section 424(d) of the Code, own stock or
hold options to purchase stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the
Company or any of its Subsidiaries or who, as a result of being granted
an option under this Plan with respect to such Offering Period, would
own stock or hold options to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of all classes
of stock of the Company or any of its Subsidiaries.
6. OFFERING DATES. The offering periods of this Plan (each an
"Offering Period") shall be of three (3) months duration commencing on
January 1, April 1, July 1, and October 1 of each year and ending on March
31, June 30, September 30 and December 31 of each year. Each Offering Period
shall consist of one (1) three (3) month purchase period (individually, a
"Purchase Period") during which payroll deductions of participants are
accumulated under this Plan and aggregated with their respective Cash
Contributions (as hereinafter defined), if any. The first business day of
each Offering Period is referred to as the "Offering Date" The last business
day of each Purchase Period is referred to as the "Purchase Date". The Board
shall have the power to change the duration of Offering Periods or Purchase
Periods with respect to future offerings without stockholder approval if such
change is announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period or Purchase Period to be affected.
7. PARTICIPATION IN THIS PLAN. Eligible employees may become
participants in an Offering Period under this Plan on the first Offering Date
after satisfying the eligibility requirements by delivering to the Company's
Human Resources Department (the "Human Resources Department") not later than
the close of business of the first day of the Offering Period, or such other
date specified by the Committee, a Subscription Agreement in a form
designated by the Company setting forth payroll deductions and Cash
Contributions authorized in Section 10 of this Plan.
An eligible employee who does not deliver a subscription
agreement to the Human Resources Department by such date after
becoming eligible to participate in such Offering Period shall
not participate in that Offering Period or any subsequent
Offering Period, unless such employee enrolls in this Plan by
filing a subscription agreement with the Human Resources
Department not later than the commencement of a subsequent
Offering Period or such other date specified by the Committee.
Once an employee becomes a participant in an Offering Period,
such employee will automatically participate in the Offering
Period commencing immediately following the last day of the
prior Offering Period unless the employee withdraws or is
deemed to withdraw from this Plan or terminates further
participation in the Offering Period as set forth in Section
12 below. Such participant is not required to file any
additional subscription agreement in order to continue
participation in this Plan. Notwithstanding any provision to
the contrary, Cash Contributions will be permitted in any
Offering Period.
8. GRANT OF OPTION ON ENROLLMENT. Enrollment by an eligible employee
in this Plan with respect to an Offering Period will constitute the grant (as
of the Offering Date) by the Company to such employee of an option to
purchase on the Purchase Date up to that number of shares of Common Stock of
the Company determined by dividing (a) the amount accumulated in such
employee's payroll deduction account during such Purchase Period plus all
Cash Contributions by (b) the lower of (i) eighty-five percent (85%) of the
fair market value of a share of the Company's Common Stock on the Offering
Date (but in no event less than the par value of a share of the Company's
Common Stock), or (ii) eighty-five percent (85%) of the fair market value of
a share of the Company's Common Stock on the Purchase Date (but in no event
less than the par value of a share of the Company's Common Stock); PROVIDED,
HOWEVER, that the number of shares of the Company's Common Stock subject to
options granted pursuant to this Plan shall not exceed the lesser of (a) the
maximum number of shares set by the Board pursuant to
<PAGE>
Section 11(c) below with respect to the applicable Offering Period, or (b)
with respect to any participant, the maximum number of shares which may be
purchased pursuant to Section 11(b) below with respect to the applicable
Offering Period. The fair market value of a share of the Company's Common
Stock shall be determined as provided in Section 9 hereof.
9. PURCHASE PRICE. The purchase price per share at which a share of
Common Stock will be sold in any Offering Period shall be eighty-five percent
(85%) of the lesser of:
a. The fair market value on the Offering Date; or
b. The fair market value on the Purchase Date;
PROVIDED, HOWEVER, that in no event may the purchase price per share of the
Company's Common Stock be below the par value per share of the Company's
Common Stock. For purposes of this Plan, the term "fair market value" on a
given date shall mean the fair market value of the Company's Common Stock as
determined by the Board in its sole discretion, exercised in good faith,
PROVIDED, HOWEVER, that where there is a public market for the Common Stock,
the fair market value per share shall be the average of the last reported bid
and asked prices of the Common Stock on the last trading day prior to the
date of determination (or the average closing price over the number of
consecutive trading days preceding the date of determination as the Board
shall deem appropriate), or, in the event the Common Stock is listed on a
stock exchange or on any Nasdaq listing, the fair market value per share
shall be the closing price on such exchange or quotation system on the last
trading date prior to the date of determination (or the average closing price
over the number of consecutive trading days preceding the date of
determination as the Board shall deem appropriate).
10. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS, ISSUANCE
OF SHARES.
a. The purchase price of the shares for each respective
participant shall be the aggregate of (a) cash contributions of up to
$15,000 delivered to the Company during any Offering Period (the "Cash
Contributions"); and (b) regular payroll deductions made during each
Offering Period. The aggregated amount of the Cash Contributions and
accumulated payroll deductions shall not be permitted to exceed $15,000
during any Offering Period or fiscal year. The deductions are made in
specified whole dollar amounts with a pay period minimum no less than
twenty five dollars ($25.00) not to exceed fifteen percent (15%) of a
participant's compensation during any Offering Period or any lower
limit set by the Committee. Compensation shall mean all W-2
compensation, including, but not limited to base salary, wages, and
overtime; PROVIDED, HOWEVER, that for purposes of determining a
participant's compensation, any election by such participant to reduce
his or her regular cash remuneration under Sections 125 or 401(k) of
the Code shall be treated as if the participant did not make such
election. Payroll deductions shall commence on the first payday
following the Offering Date and shall continue to the end of the
Offering Period unless sooner altered or terminated as provided in this
Plan.
b. A participant may lower or increase the rate of payroll
deductions during an Offering Period by filing with the Human Resources
Department a new authorization for payroll deductions in which case the
new rates shall become effective for the next payroll period commencing
more than fifteen (15) days after the Human Resources Department's
receipt of the authorization and shall continue for the remainder of
the Offering Period unless changed as described below. Such changes in
the rate of payroll deductions may be made at any time during an
Offering Period, but not more than one (1) change may be made effective
during any three month period. A participant may increase or decrease
the rate of payroll deductions for any subsequent Offering Period by
filing with the Human Resources Department a new authorization
<PAGE>
for payroll deductions not later than the beginning of such Offering
Period.
c. Cash Contributions must be received by the Company in the
form of a cashiers check, certified check or wire transfer no later
than two business days prior to the end of an Offering Period and no
increase will be permitted although (i) one decrease will be permitted
and (ii) Cash Contributions, may be withdrawn through withdrawal from
the Plan as set forth in Section 12.
d. All payroll deductions and all Cash Contributions are
credited to the respective participant's account established under this
Plan and are deposited with the general funds of the Company. No
interest accrues on such amounts. All amounts received or held by the
Company under this Plan may be used by the Company for any corporate
purposes, and the Company shall not be obligated to segregate such
amounts.
e. On each Purchase Date, so long as this Plan remains in
effect and provided that the participant has not submitted a signed and
completed withdrawal form before that date which notifies the Company
that the participant wishes to withdraw from the Offering Period under
this Plan and have all payroll deductions and Cash Contributions, if
any, in the account maintained on behalf of the participant as of that
date returned to the participant, the Company shall apply the funds
then in the participant's account to the purchase of whole and
fractional shares of Common Stock reserved under the option granted to
such participant with respect to the Offering Period to the extent that
such option is exercisable on the Purchase Date. The Purchase Price per
share shall be as specified in Section 9 of this Plan. As provided in
Sections 12 and 13 hereof, no Common Stock shall be purchased on a
Purchase Date on behalf of any employee whose participation in this
Plan has terminated prior to such Purchase Date.
f. Shares purchased hereunder shall be initially maintained in
separate stock accounts for the participants at a brokerage firm, bank
or other administrator (the "Administrator") selected by, and pursuant
to an arrangement with the Company. The Administrator shall maintain
accounts for the benefit of the participants which shall reflect each
participant's interest in the shares of Company Stock held by the
Administrator for the benefit of each participant. Any participant may
elect to have the Company Stock purchased under the Plan on such
participant's behalf withdrawn from his or her account and certificates
issued directly to the participant. Any election under this paragraph
shall be on the forms provided by the Committee and shall be issued in
accordance with this Section. In the event that Company Stock under the
Plan is issued directly to a participant, the Company will deliver to
each participant a stock certificate or certificates issued in such
participant's name, or the name of the participant and another person
designated by the participant as joint tenants with rights of
survivorship, for the number of whole shares of Company Stock being
withdrawn from the participant's account, as soon as practicable after
the participant notifies the Administrator of his or her election to
withdraw the shares. Only certificates representing full shares of
Company Stock will be issued to a participant under this paragraph. In
the event of the complete withdrawal of shares from a participant's
account, the participant shall receive that number of full shares in
his or her account and cash in lieu of fractional shares. If and to the
extent provided by the Committee, for so long as such shares are
maintained in accounts, all dividends paid with respect to such shares
may be credited to each participant's account and be automatically
reinvested in Company Stock as a Cash Contribution. The Committee may
provide that transaction fees incurred with respect to dividend
reinvestment be paid by either the Company or the participant.
g. During a participant's lifetime, such participant's option
to purchase shares hereunder is exercisable only by him or her. The
participant will have no interest or voting right
<PAGE>
in shares covered by his or her option until such option has been
exercised. Shares to be delivered to a participant under this Plan
will be registered in the name of the participant or in the name of
the participant and, if so designated, his or her spouse.
11. LIMITATIONS ON SHARES TO BE PURCHASED.
a. No employee shall be entitled to purchase stock under this
Plan at a rate which, when aggregated with his or her rights to
purchase stock under all other employee stock purchase plans of the
Company or any Subsidiary exceeds $25,000 in fair market value,
determined as of the Offering Date (or such other limit as may be
imposed by the Code) for each calendar year in which the employee
participates in this Plan.
b. No employee shall be entitled to purchase more than the
Maximum Share Amount (as defined below) on any single Purchase Date.
Not less than fifteen (15) days prior to the commencement of any
Offering Period, the Board may in its sole discretion, set a maximum
number of shares which may be purchased by an employee at any single
Purchase Date (hereinafter the "Maximum Share Amount"). Initially,
there shall be no Maximum Share Amount. If a Maximum Share Amount is
set, then all participants must be notified of such Maximum Share
Amount not less than five (5) days prior to the commencement of the
next Offering Period. Once the Maximum Share Amount is set, it shall
continue to apply with respect to all succeeding Purchase Dates and
Offering Periods unless revised by the Board as set forth above.
c. If the number of shares to be purchased on a Purchase Date
by all employees participating in this Plan exceeds the number of
shares then available for issuance under this Plan, then the Company
will make a pro rata allocation of the remaining shares in as uniform a
manner as shall be reasonably practicable and as the Board shall
determine to be equitable. In such event, the Company shall give
written notice of such reduction of the number of shares to be
purchased under a participant's option to each participant affected
thereby.
d. Any payroll deductions and Cash Contributions accumulated
in a participant's account which are not used to purchase stock due to
the limitations in this Section 11 shall be returned to the participant
as soon as practicable after the end of the applicable Purchase Period,
without interest.
12. WITHDRAWAL.
a. Each participant may withdraw from an Offering Period under
this Plan by signing and delivering to the Human Resources Department a
written notice to that effect on a form provided for such purpose. Such
withdrawal may be elected at any time at least fifteen (15) days prior
to the end of an Offering Period.
b. Upon withdrawal from this Plan, the accumulated payroll
deductions and the Cash Contributions, if any, shall be returned to the
withdrawn participant without interest, and his or her interest in this
Plan shall terminate. In the event a participant voluntarily elects to
withdraw from this Plan, he or she may not resume his or her
participation in this Plan during the same Offering Period, but he or
she may participate in any Offering Period under this Plan which
commences on a date subsequent to such withdrawal by filing a new
Subscription Agreement in the same manner as set forth above for
initial participation in this Plan.
13. TERMINATION OF EMPLOYMENT. Termination of a participant's
employment for any
<PAGE>
reason, including retirement or death, immediately terminates his or her
participation in this Plan. In such event, the payroll deductions and Cash
Contributions, if any, credited to the participant's account will be returned
to him or her or, in the case of his or her death, to his or her legal
representatives without interest and the remaining shares credited to the
participant's account shall be distributed to the participant in accordance
with Section 10f. For purposes of this Section 13, an employee will not be
deemed to have terminated employment or failed to remain in the continuous
employ of the Company in the case of a transfer to or from the Company and to
or from any Subsidiary that the Board has designated as eligible to
participate in this Plan, sick leave, military leave, or any other leave of
absence approved by the Board; PROVIDED, HOWEVER, that such leave is for a
period of not more than ninety (90) days or reemployment upon the expiration
of such leave is guaranteed by contract or statute.
14. RETURN OF PAYROLL DEDUCTIONS AND CASH CONTRIBUTIONS. In the
event a participant's interest in this Plan is terminated by withdrawal or
termination of employment or otherwise, or in the event this Plan is
terminated by the Board, the Company shall promptly deliver to the
participant all payroll deductions and Cash Contributions credited to such
participant's account. No interest shall accrue on the payroll deductions or
Cash Contributions of a participant in this Plan.
15. CAPITAL CHANGES. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each option under this Plan which has not yet been exercised and the number
shares of Common Stock which have been authorized for issuance under this
Plan but have not yet been placed under option (collectively, the
"Reserves"), as well as the price per share of Common Stock covered by each
option under this Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
and outstanding shares of Common Stock of the Company resulting from a stock
split or the payment of a stock dividend (but only in the Common Stock) or
any other increase or decrease in the number of issued and outstanding shares
of Common Stock effected without receipt of any 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" and PROVIDED, FURTHER, that the price per share of Common
Stock shall not be reduced below its par value per share. Such adjustment
shall be made by the Board, whose determination shall be final, binding and
conclusive. Except as expressly provided herein, no issue 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.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board.
The Board may, in the exercise of its sole discretion in such instances,
declare that the options under this Plan shall terminate as of a date fixed
by the Board and give each participant the right to exercise his or her
option as to all of the optioned stock, including shares which would not
otherwise be exercisable. In the event of a proposed sale of all or
substantially all the assets of the Company, or the merger or consolidation
of the Company with or into another corporation, each option under this Plan
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 Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution that the
participant shall have the right to exercise the option as to all of the
optioned stock. If the Board makes an option exercisable in lieu of
assumption or substitution in the event of a merger, consolidation or sale of
assets, the Board shall notify the participant that the option shall be fully
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.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding
<PAGE>
option, in the event that the Company effects one or more reorganizations,
recapitalizations, rights offerings or other increases or reductions of
shares of its outstanding Common Stock, or in the event of the Company being
consolidated with or merged into any other corporation; PROVIDED, HOWEVER,
that the price per share of Common Stock shall not be reduced below its par
value per share.
16. NONASSIGNABILITY. Neither payroll deductions credited to a
participant's account nor Cash Contributions, if any, nor any rights with
regard to the exercise of an option or to receive shares under this Plan may
be assigned, transferred, pledged or otherwise disposed of in any way (other
than by will, the laws of descent and distribution or as provided in Section
23 hereof) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be void and without effect.
17. REPORTS. Individual accounts will be maintained for each
participant in this Plan. Each participant shall receive promptly after the
end of each Purchase Period and promptly following any other transaction or
activity on the account a report of his or her account setting forth (i) the
Cash Contributions, if any; (ii) the total payroll deductions accumulated;
(iii) the number of shares purchased; (iv) the per share price thereof and
(v) the remaining cash balance, if any, carried forward to the next Purchase
Period or Offering Period, as the case may be.
18. NOTICE OF DISPOSITION. Each participant shall notify the Company
if the participant disposes of any of the shares purchased in any Offering
Period pursuant to this Plan if such disposition occurs within two (2) years
from the Offering Date or within one (1) year from the Purchase Date on which
such shares were purchased (the "Notice Period"). Unless such participant is
disposing of any of such shares during the Notice Period, such participant
shall keep the certificates representing such shares in his or her name (and
not in the name of a nominee) during the Notice Period. The Company may, at
any time during the Notice Period, place a legend or legends on any
certificate representing shares acquired pursuant to this Plan requesting the
Company's transfer agent to notify the Company of any transfer of the shares.
The obligation of the participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.
19. NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Plan nor the
grant of any option hereunder shall confer any right on any employee to
remain in the employ of the Company or any Subsidiary, or restrict the right
of the Company or any Subsidiary to terminate such employee's employment.
20. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have
equal rights and privileges with respect to this Plan so that this Plan
qualifies as an "employee stock purchase plan" within the meaning of Section
423 or any successor provision of the Code and the related regulations. Any
provision of this Plan which is inconsistent with Section 423 or any
successor provision of the Code shall, without further act or amendment by
the Company or the Board, be revised to comply with the requirements of
Section 423. This Section 20 shall take precedence over all other provisions
in this Plan.
21. NOTICES. All notices or other communications by a participant
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or other
person, designated by the Company for the receipt thereof.
22. TERMS; STOCKHOLDER APPROVAL. After this Plan is adopted by the
Board, this Plan will become effective on the date that is the first
commencement of an Offering Period (as defined above). This Plan shall be
approved by the stockholders of the Company, in any manner permitted by
applicable corporate law, within twelve (12) months before or after the date
this Plan is adopted by the Board. No purchase of shares pursuant to this
Plan shall occur prior to such stockholder approval. Thereafter, no later
than twelve (12) months after the Company becomes subject to Section 16(b) of
the Exchange Act,
<PAGE>
the Company will comply with the requirements of Rule 16b-3 with respect to
stockholder approval. This Plan shall continue until the earlier to occur of
(a) termination of this Plan by the Board (which termination may be effected
by the Board at any time), (b) issuance of all of the shares of the Common
Stock reserved for issuance under this Plan, or (c) ten (10) years from the
adoption of this Plan by the Board.
23. DESIGNATION OF BENEFICIARY.
a. A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under this Plan in the event of such
participant's death subsequent to the end of a Purchase Period but
prior to delivery to him of such shares and cash. In addition, a
participant may file a written designation of a beneficiary who is to
receive any cash from the participant's account under this Plan in the
event of such participant's death prior to a Purchase Date.
b. Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of
a participant and in the absence of a beneficiary validly designated
under this Plan who is living at the time of such participant's death,
the Company shall deliver such shares or cash to the executor or
administrator of the estate of the participant or if no such executor
or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares or cash to the
spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
24. CONDITIONS UPON ISSUANCE OF SHARES; SECURITIES LAW LIMITATIONS
ON SALE OF SHARES. Shares shall not be issued with respect to an option
unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable provisions of law,
domestic or foreign, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, state securities law and regulations and the requirements of any
stock exchange or automated quotation system upon which the shares may than
be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
25. APPLICABLE LAW. Except to the extent governed by federal law,
the Plan shall be governed by the substantive laws (excluding the conflict of
laws rules) of the State of Iowa.
26. AMENDMENTS OR TERMINATION OF THIS PLAN. The Board may, at any
time, amend, terminate or extend the term of this Plan, except that any such
termination cannot affect options previously granted under this Plan, nor may
any amendments make any change in an option previously granted which would
adversely affect the right of any participant, nor may an amendment be made
without approval of the stockholders of the Company obtained in accordance
with Section 22 hereof within twelve (12) months of the adoption of such
amendment (or earlier if required by Section 22) if such amendment would:
a. Increase the number of shares that may be issued
under this Plan;
b. Change the designation of the employees (or class of
employees) eligible for participation in this Plan;
or
c. Constitute an amendment for which stockholder
approval is required in order to comply with Rule
16b-3 (or any successor rule) of the Exchange Act.
<PAGE>
ADOPTED BY the Company on the 28th day of July, 1999.
MICROWARE SYSTEMS CORPORATION
By: /s/ Kenneth B. Kaplan
--------------------------------
Its: Chairman
-------------------------------
<PAGE>
EXHIBIT 5.1
March 30, 2000
Microware Systems Corporation
1500 N.W. 118th Street
Des Moines, Iowa 50325
Ladies & Gentlemen:
We have acted as counsel for Microware Systems Corporation (the
"Company") in connection with the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offer and proposed registration of 500,000 shares
of the Company's common stock, no par value ("Common Stock"), under the terms
of the Company's 1999 Employee Stock Purchase Plan (the "Stock Purchase
Plan"), described in the Registration Statement.
In arriving at this opinion, we have examined the Company's Articles
of Incorporation, its Bylaws, the records of the corporate proceedings of the
Company authorizing the issuance and sale of the shares of Common Stock
covered by the Registration Statement, the Stock Purchase Plan and such other
instruments and documents as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that said shares of
Common Stock are duly authorized, and upon delivery of same to the
participants under the Stock Purchase Plan against payment therefor upon the
terms set forth in the Stock Purchase Plan, said shares of Common Stock will
be validly issued, fully paid and non-assessable shares of Common Stock of
the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in such Registration
Statement.
Very truly yours,
D'ANCONA & PFLAUM LLC
By: /s/ Steve Curtis
---------------------------------
Steve Curtis, a Member
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Microware Systems Corporation on Form S-8 pertaining to the 1999 Employee
Stock Purchase Plan of our report dated April 23, 1999, with respect to the
consolidated financial statements of Microware Systems Corporation included
in its Annual Report on Form 10-K for the year ended March 31, 1999, filed
with the Securities and Exchange Commission.
/s/ KPMG LLP
-------------------
Des Moines, Iowa
March 27, 2000
