<PAGE>
As filed with the Securities and Exchange Commission on November 26, 1996
REGISTRATION STATEMENT NO. 33-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
DATA TRANSLATION II, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-3332230
(State of Incorporation) (I.R.S. Employer Identification Number)
100 LOCKE DRIVE
MARLBORO, MASSACHUSETTS 01752-1192
(508) 481-3700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DATA TRANSLATION II, INC.
1996 STOCK OPTION PLAN
(Full Title of the Plan)
--------------------
ALFRED A. MOLINARI, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DATA TRANSLATION II, INC.
100 LOCKE DRIVE
MARLBORO, MASSACHUSETTS 01752-1192
(508) 481-3700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
With a copy to:
Stuart M. Cable, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Maximum Maximum
Ofering Aggregate Amount of
Title of Securities Being Amount to be Price Per Offering Registration
Registered Registered(1) Share Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 500,000 $7.32(2) $3,660,000 $1,110
$.01 per share shares
================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Data Translation II, Inc. 1996 Stock Option Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization or other similar
event.
(2) This estimate is based on the book value of the Common Stock of
Data Translation II, Inc. on August 31, 1996 pursuant to Rule 457(h)(1)
under the Securities Act of 1933, as amended, solely for purposes of
determining the registration fee.
================================================================================
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Data Translation II, Inc. (the "Company") hereby incorporates by reference
the documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission.
(a) The Company's effective Registration Statement on Form 10, containing
audited financial statements for the fiscal year ended November 30,
1995, filed with the Securities and Exchange Commission on September 13,
1996, as amended;
(b) All other reports filed since November 30, 1995 pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(c) The description of the Company's common stock contained in its
Registration Statement on Form 10, filed with the Securities and
Exchange Commission on September 13, 1996, as amended, under Section 12
of the Exchange Act and any amendments or reports filed for the purpose
of updating such description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
hereto which indicates that all securities offered hereunder have been sold or
that deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a 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.
-----------------------------------------
In accordance with Section 145 of the General Corporation Law of the State
of Delaware, Article VII of the Company's Certificate of Incorporation (the
"Certificate") provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit. In addition, the Certificate
provides that if the General Corporation Law of the State of Delaware is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General Corporation
Law of the State of Delaware, as so amended.
Article V of the Company's By-laws provides for indemnification by the
Company of its directors, officers and certain non-officer employees under
certain circumstances against expenses (including attorney's fees, judgments,
fines, taxes, penalties and amounts paid in settlement) reasonably incurred in
connection with the defense or settlement of any threatened, pending or
completed legal proceeding in which any such person is involved by reason of the
fact that such person is or was a director, officer or employee of the Company
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 Company, and, with respect
to criminal actions or proceedings, if such person had no reasonable cause to
believe his or her conduct was unlawful.
The Company carries directors' and officers' liability insurance covering
its directors and officers.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibits
- --------
4.1 Data Translation II, Inc. 1996 Stock Option Plan.
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Non-Qualified Stock Option Agreement for Employees
4.4 Form of Non-Qualified Stock Option Agreement for Non-Employee Directors
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (to be included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on page 4 of this registration statement).
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions,
3
<PAGE>
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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4
<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 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 Town of Marlboro, Commonwealth of Massachusetts, on November
26, 1996.
DATA TRANSLATION II, INC.
By: /s/ Alfred A. Molinari, Jr.
-------------------------------------
Alfred A. Molinari, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Data Translation II, Inc. hereby severally constitute Alfred A.
Molinari, Jr. our true and lawful attorney with full power to him to sign for us
and in our names in the capacities indicated below, the registration statement
filed herewith and any and all amendments to said registration statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Data Translation II, Inc. to comply with the provisions
of the Securities Act of 1933 and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said registration statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
Chairman of the November 26, 1996
/s/ Alfred A. Molinari, Jr. Board of Directors,
- -------------------------- President and Chief
Alfred A. Molinari, Jr. Executive Officer
(Principal Executive
Officer)
/s/ Gary B. Godin Chief Financial Officer November 26, 1996
- --------------------------- (Principal Financial
Gary B. Godin Officer and Principal
Accounting Officer)
/s/ Ellen W. Harpin Director, Vice President November 26, 1996
- --------------------------- and Secretary
Ellen W. Harpin
5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
4.1 Data Translation II, Inc. 1996 Stock Option Plan.
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Non-Qualified Stock Option Agreement for
Employees
4.4 Form of Non-Qualified Stock Option Agreement for
Non-Employee Directors
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (to be
included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on page 4 of this
registration statement).
<PAGE>
EXHIBIT 4.1
DATA TRANSLATION II, INC.
1996 STOCK OPTION PLAN
----------------------
1. Purpose
-------
This 1996 Stock Option Plan (the "Plan") is intended as a performance
incentive for officers, employees, consultants, directors and other key persons
of Data Translation II, Inc. (the "Company") and its Subsidiaries (as
hereinafter defined) to enable the persons to whom options are granted (the
"Optionees") to acquire or increase a proprietary interest in the success of the
Company. The Company intends that this purpose will be effected by the granting
of incentive stock options ("Incentive Options") as defined in Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), and nonqualified
stock options ("Nonqualified Options"). The term "Subsidiaries" means any
corporations in which stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock is owned directly or indirectly by
the Company.
2. Options to be Granted; Administration of the Plan
-------------------------------------------------
(a) Options granted under the Plan may be either Incentive
Options or Nonqualified Options, and shall be designated as such at the
time of grant. To the extent that any option intended to be an
Incentive Option shall fail to qualify as an Incentive Option under the
Code, such option shall be deemed to be a Nonqualified Option. Each
option granted hereunder shall be embodied in a written agreement, as
described in Section 5 hereof, that is signed by the Optionee and an
authorized officer of the Company.
(b) The Plan shall be administered either by the Board of
Directors of the Company (the "Board of Directors") or by a committee
(the "Option Committee") of not fewer than two directors of the Company
appointed by the Board of Directors (in either case, the
"Administrator"). None of the members of the Option Committee shall be
an officer or other full-time employee of the Company. It is the
intention of the Company that each member of the Option Committee shall
be a "Non-Employee Director" as that term is defined and interpreted
pursuant to Rule 16b-3(b)(3)(i) or any successor rule thereto
promulgated under the Securities Exchange Act of 1934, as amended (the
"Act"). Subject to the foregoing requirements of Section 2(b), the
Compensation Committee of the Board of Directors may serve as the
Option Committee. Action by the Option Committee shall require the
affirmative vote of a majority of all its members.
(c) Subject to the terms and conditions of the Plan, the
Administrator shall have the power:
<PAGE>
(i) To determine from time to time the options to
be granted to eligible persons under the Plan and to prescribe
the terms and provisions (which need not be identical) of
options (including, without limitation, the number of shares
subject to each such option, the effects upon such options of
any change in control of the Company and any vesting
provisions with respect to such options) granted under the
Plan to such persons;
(ii) To construe and interpret the Plan and grants
thereunder and to establish, amend, and revoke rules and
regulations for administration of the Plan (including to
correct any defect or supply any omission, or reconcile any
inconsistency in the Plan, in any option agreement, or in any
related agreements, in the manner and to the extent the
Administrator shall deem necessary or expedient to make the
Plan fully effective);
(iii) To amend from time to time, as the
Administrator may determine is in the best interests of the
Company, the terms of any outstanding options, including
without limitation, to modify the vesting schedule, exercise
price or expiration date thereof in a manner not inconsistent
with the terms of the Plan; and
(iv) Generally, to exercise such powers and to
perform such acts as are deemed necessary or expedient to
promote the best interests of the Company with respect to the
Plan.
All decisions and determinations by the Administrator in the exercise
of these powers shall be final and binding upon the Company and the
Optionees.
(d) Delegation of Authority to Grant Options. The
----------------------------------------
Administrator, in its discretion, may delegate to the Chief Executive
Officer of the Company or any Subsidiary all or part of the
Administrator's authority and duties with respect to Options, including
the granting thereof, to individuals who are not subject to the
reporting and other provisions of Section 16 of the Act. The
Administrator may revoke or amend the terms of a delegation at any
time, but such action shall not invalidate any prior actions of the
Administrator's delegate or delegates that were consistent with the
terms of the Plan.
3. Stock Subject to the Options
----------------------------
The stock granted under the Plan, or subject to the options granted
under the Plan, shall be shares of the Company's authorized but unissued Common
Stock, par value $.01 per share (the "Common Stock"), which may either be
authorized but unissued shares or treasury shares or shares previously reserved
for issuance upon exercise of options under the Plan, and allocable to one or
more options (or portions of options) which have expired or been canceled
2
<PAGE>
or terminated (other than by exercise). The total number of shares that may be
issued under the Plan shall not exceed an aggregate of 500,000 shares of Common
Stock. Such number of shares shall be subject to adjustment as provided in
Section 7 hereof.
4. Eligibility
-----------
(a) Incentive Options may be granted only to officers and
other employees of the Company or any Subsidiary that is a "subsidiary
corporation" within the meaning of Section 424(f) of the Code,
including members of the Board of Directors who are also employees of
the Company or any such Subsidiary. Nonqualified Options may be granted
to officers, other employees and directors of the Company or any
Subsidiary, and to consultants and other key persons who provide
services to the Company or any Subsidiary (regardless of whether they
are also employees).
(b) No person shall be eligible to receive any Incentive
Option under the Plan if, at the date of grant, such person owns or is
considered to own (by reason of the attribution rules of Section 424(d)
of the Code) stock representing in excess of ten percent of the voting
power of all outstanding capital stock of the Company (or of any
"parent corporation" or "subsidiary corporation" within the meaning of
Section 424(e) or (f) of the Code, respectively), unless
notwithstanding anything in this Plan to the contrary (i) the purchase
price for Common Stock subject to such option is at least 110% of the
fair market value of such Common Stock at the time of the grant and
(ii) the option by its terms is not exercisable more than five years
from the date of grant thereof.
(c) Notwithstanding any other provision of the Plan, the
aggregate fair market value (determined as of the time the option is
granted) of the Common Stock with respect to which Incentive Options
are exercisable for the first time by any individual during any
calendar year (under all plans of the Company and its parent and
subsidiary corporations, within the meaning of Sections 424(e) and (f)
of the Code) shall not exceed $100,000. Any option granted under the
Plan in excess of the foregoing limitations shall be deemed to be a
Nonqualified Option.
5. Terms of the Option Agreements
------------------------------
Subject to the terms and conditions of the Plan, each option agreement
shall contain such provisions as the Administrator shall from time to time deem
appropriate. Option agreements need not be identical, but each option agreement
by appropriate language shall include the substance of all of the following
provisions:
(a) Expiration; Termination of Employment. Each option shall
-------------------------------------
expire no later than the date specified in the option agreement, which
date in the case of any Incentive Option shall not be later than the
tenth anniversary of the date on which the
3
<PAGE>
option was granted. Each option may be subject to earlier termination,
as specified in the option agreement, if the Optionee's employment or
other business relationship with the Company and its Subsidiaries shall
terminate before such expiration date.
(b) Exercise. Each option shall be exercisable in such
--------
installments (which need not be equal) and at such times as may be
designated in the option agreement. To the extent not exercised,
installments shall accumulate and be exercisable, in whole or in part,
at any time after becoming exercisable, but not later than the date the
option expires.
(c) Purchase Price. The purchase price per share of Common
--------------
Stock subject to each option shall be the price specified in the option
agreement; provided, however, that the purchase price per share of
Common Stock subject to each Incentive Option shall be not less than
the fair market value of the Common Stock on the date such Incentive
Option is granted. For the purposes of the Plan, the fair market value
of the Common Stock shall be determined in good faith by the
Administrator; provided, however, that (i) if the Common Stock is
admitted to trading on a national securities exchange or the Nasdaq
National Market on the date the option is granted, the fair market
value shall not be less than the closing price reported for the Common
Stock on such exchange or system for such date or, if no sales were
reported for such date, for the last date preceding such date for which
a sale was reported, or (ii) if clause (i) does not apply but the
Common Stock is admitted to quotation on the National Association of
Securities Dealers Automated Quotation System Small-Cap Market
("NASDAQ") on the date the option is granted, the fair market value
shall not be less than the average of the highest bid and lowest asked
prices reported for the Common Stock on NASDAQ for such date or, if no
bid and asked prices were reported for such date, for the last date
preceding such date for which such prices were reported.
(d) Rights of Optionees. No Optionee shall be deemed for any
-------------------
purpose to be the owner of any shares of Common Stock subject to any
option unless and until (i) the option shall have been exercised
pursuant to the terms thereof, (ii) all requirements under applicable
law and regulations shall have been complied with to the satisfaction
of the Company, (iii) the Company shall have issued and delivered the
shares to the Optionee, and (iv) the Optionee's name shall have been
entered as a stockholder of record on the books of the Company.
Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such shares of Common Stock.
(e) Transfer. No option granted hereunder shall be
--------
transferable by the Optionee other than by will or by the laws of
descent and distribution, and such option may be exercised during the
Optionee's lifetime only by the Optionee, or his or her guardian or
legal representative. Notwithstanding the foregoing, the terms of a
Nonqualified Option may provide that the Optionee may transfer such
option, without consideration for the transfer, to members of his
immediate family, to trusts for the
4
<PAGE>
benefit of such family members, to partnerships in which such family
members are the only partners, or to charitable organizations, provided
that the transferee agrees in writing with the Company to be bound by
all of the terms and conditions of the Plan and the applicable option
agreement.
(f) Minimum Shares Exercisable. Option agreements may set
--------------------------
forth a minimum number of shares with respect to which an option may be
exercised at any one time.
6. Method of Exercise; Payment of Purchase Price
---------------------------------------------
(a) Any option granted under the Plan may be exercised by the
Optionee in whole or in part by delivering to the Company on any
business day a written notice specifying the number of shares of Common
Stock the Optionee then desires to purchase (the "Notice").
(b) Payment for the shares of Common Stock purchased pursuant
to the exercise of an option shall be made either: (i) in cash, or by
certified or bank check or other payment acceptable to the Company,
equal to the option exercise price for the number of shares specified
in the Notice (the "Total Option Price"); (ii) if authorized by the
applicable option agreement and if permitted by law, by delivery of
shares of Common Stock that the optionee may freely transfer having a
fair market value, determined by reference to the provisions of Section
5(c) hereof, equal to or less than the Total Option Price, plus cash in
an amount equal to the excess, if any, of the Total Option Price over
the fair market value of such shares of Common Stock; or (iii) by the
Optionee delivering the Notice to the Company together with irrevocable
instructions to a broker to promptly deliver the Total Option Price to
the Company in cash or by other method of payment acceptable to the
Company; provided, however, that the Optionee and the broker shall
comply with such procedures and enter into such agreements of indemnity
or other agreements as the Company shall prescribe as a condition of
payment under this clause (iii).
(c) The delivery of certificates representing shares of Common
Stock to be purchased pursuant to the exercise of an option will be
contingent upon the Company's receipt of the Total Option Price and of
any written representations from the Optionee required by the
Administrator, and the fulfillment of any other requirements contained
in the option agreement or applicable provisions of law (including
payment of any amount required to be withheld by the Company pursuant
to applicable law).
7. Adjustment Upon Changes in Capitalization
-----------------------------------------
(a) If the shares of the Company's Common Stock as a whole are
increased, decreased, changed into or exchanged for a different number
or kind of shares or
5
<PAGE>
securities of the Company, whether through reorganization,
recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate
structure or the like, an appropriate and proportionate adjustment
shall be made in the number and kind of shares subject to the Plan, and
in the number, kind, and per share exercise price of shares subject to
unexercised options or portions thereof granted prior to any such
change. In the event of any such adjustment in an outstanding option,
the Optionee thereafter shall have the right to purchase the number of
shares under such option at the per share price, as so adjusted, which
the Optionee could purchase at the total purchase price applicable to
the option immediately prior to such adjustment.
(b) Adjustments under this Section 7 shall be determined by
the Administrator and such determinations shall be conclusive. The
Administrator shall have the discretion and power in any such event to
determine and to make effective provision for acceleration of the time
or times at which any option or portion thereof shall become
exercisable. No fractional shares of Common Stock shall be issued under
the Plan on account of any adjustment specified above.
8. Effect of Certain Transactions
------------------------------
In the case of the dissolution or liquidation of the Company or a
Change of Control (as hereinafter defined), the Plan and the options issued
hereunder shall terminate upon the effectiveness of any such transaction or
event, unless provision is made in connection with such transaction for the
assumption of outstanding options by, or the substitution for such options of
new options of, the successor entity or parent thereof, with appropriate
adjustment as to the number and kind of shares and the per share exercise
prices, as provided in Section 7. In the event of such termination, all
outstanding options shall be exercisable in full for at least fifteen days prior
to the date of such termination whether or not otherwise exercisable during such
period.
"Change of Control" shall mean the occurrence of any one of the
following events:
(a) any "person," as such term is used in Sections 13(d) and
14(d) of the Act (other than the Company, any Subsidiary, or any
trustee, fiduciary or other person or entity holding securities under
any employee benefit plan or trust of the Company or any Subsidiary),
together with all "affiliates" and "associates" (as such terms are
defined in Rule 12b-2 under the Act) of such person, shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the Company representing
50 percent or more of either (i) the combined voting power of the
Company's then outstanding securities having the right to vote in an
election of the Board of Directors ("Voting Securities") or (ii) the
then outstanding shares
6
<PAGE>
of Common Stock of the Company (in either such case other than as a
result of an acquisition of securities directly from the Company); or
(b) Incumbent Directors, as hereinafter defined, cease for any
reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Board of Directors; or
(c) the stockholders of the Company shall approve (i) any
consolidation or merger of the Company or any Subsidiary where the
shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 80 percent
or more of the voting shares of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (ii) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of
the assets of the Company or (iii) any plan or proposal for the
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (a) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Common Stock or other Voting Securities outstanding,
increases (x) the proportionate number of shares of Common Stock beneficially
owned by any person to 50 percent or more of the shares of Common Stock then
outstanding or (y) the proportionate voting power represented by the Voting
Securities beneficially owned by any person to 50 percent or more of the
combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in clause (x) or (y) of this sentence
shall thereafter become the beneficial owner of any additional shares of Common
Stock or other Voting Securities (other than pursuant to a stock split, stock
dividend, or similar transaction), then a "Change of Control" shall be deemed to
have occurred for purposes of the foregoing clause (a).
"Incumbent Directors" means the members of the Board of Directors on
the effective date of the Plan (the "Original Directors") and each person who
thereafter becomes a director whose appointment, election or nomination for
election is approved by a vote of at least a majority of those Original
Directors and directors whose appointment, election or nomination have been so
approved who are then serving as directors.
7
<PAGE>
9. Tax Withholding
---------------
(a) Payment by Optionee. Each Optionee shall, no later than
-------------------
the date as of which the value of any option granted hereunder or of
any Common Stock issued upon the exercise of such option first becomes
includible in the gross income of the Optionee for federal income tax
purposes (the "Tax Date"), pay to the Company, or make arrangements
satisfactory to the Administrator regarding payment of any federal,
state, or local taxes of any kind required by law to be withheld with
respect to such income. In the event that an Optionee has not made the
arrangements described in this Section 9(a) and has not made an
election under Section 9(b) on or before the Tax Date, the Company is
hereby authorized to withhold the amount of any federal, state or local
taxes of any kind required by law with respect to such income from any
payment otherwise due to the Optionee.
(b) Payment in Shares. Subject to approval by the
-----------------
Administrator, an Optionee may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the
Company to withhold from shares of Common Stock to be issued pursuant
to an option exercise a number of shares with an aggregate fair market
value (determined by the Administrator in accordance with Section 5(c)
as of the date the withholding is effected) that would satisfy the
withholding amount due, or (ii) transferring to the Company shares of
Common Stock owned by the Optionee with an aggregate fair market value
(determined by the Administrator in accordance with Section 5(c) as of
the date the withholding is effected) that would satisfy the
withholding amount due.
10. Amendment of the Plan
---------------------
The Board of Directors may discontinue the Plan or amend the Plan at
any time, and from time to time, subject to any required regulatory approval,
provided that any such amendment is also approved by the stockholders of the
Company if required by the Code to ensure that Incentive Options granted under
the Plan are qualified under Section 422 of the Code. Except as otherwise
provided, an amendment shall be binding upon options previously granted under
the Plan unless the amendment adversely affects the rights of an Optionee, in
which event the consent of the Optionee shall be required with respect to any
portion of such amendment having such effect.
11. Nonexclusivity of the Plan
--------------------------
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock or stock options otherwise than under
the Plan, and such arrangements may be either applicable generally or
8
<PAGE>
only in specific cases. Neither the Plan nor any option granted hereunder shall
be deemed to confer upon any employee any right to continued employment with the
Company.
12. Government and Other Regulations; Governing Law
-----------------------------------------------
(a) The obligation of the Company to sell and deliver shares
of Common Stock with respect to options granted under the Plan shall be
subject to all applicable laws, rules and regulations, including all
applicable federal and state securities laws, and the obtaining of all
such approvals by governmental agencies as may be deemed necessary or
appropriate by the Administrator.
(b) The Plan shall be governed by Delaware law, except to the
extent that such law is preempted by federal law.
13. Effective Date of the Plan; Stockholder Approval
------------------------------------------------
The Plan shall become effective upon the date that it is approved by
the Board of Directors of the Company; provided, however, that the Plan shall be
subject to the approval of the Company's stockholders in accordance with
applicable laws and regulations within twelve months after such effective date.
No options granted under the Plan prior to such stockholder approval may be
exercised until such approval has been obtained. No options may be granted under
the Plan after the tenth anniversary of the effective date of the Plan.
* * *
Approved by Board of Directors: November 19, 1996
Approved by Stockholders: November 26, 1996
9
<PAGE>
FORM OF
DATA TRANSLATION II, INC.
1996 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
________ Shares ________
Pursuant to its 1996 Stock Option Plan (the "Plan"), Data Translation II,
Inc. (the "Company") hereby grants to ________ (the "Optionee") an Option to
purchase on or prior to ________ (the "Expiration Date") all or any part of
________ shares of Common Stock of the Company, par value $0.01 per share
("Option Shares") at a price of $________ per share in accordance with the
schedule set forth in Section 1 hereof and subject to the terms and conditions
---------
set forth hereinafter and in the Plan. This Option shall be construed in a
manner to qualify it as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and shall be governed by
the laws of Delaware.
1. Vesting Schedule. Subject to the provisions of Section 4 hereof and
---------------- ---------
Sections 5 and 8 of the Plan, this Option shall become vested and exercisable
- ----------------
with respect to the following whole number of Option Shares according to the
timetable set forth below:
<TABLE>
<CAPTION>
Percentage of Cumulative
Number of Years Shares Becoming Percentage
After Date of Grant Available for Exercise Available
- ------------------------ ----------------------- -----------
<S> <C> <C>
Less than 1 year 0% 0%
At least 1 year 25% 25%
At least 2 years 25% 50%
At least 3 years 25% 75%
At least 4 years 25% 100%
</TABLE>
2. Manner of Exercise. The Optionee may exercise this Option only in the
------------------
following manner: from time to time on or prior to the Expiration Date of this
Option, the Optionee may give written notice to the Company's Option Committee
(the "Committee") of his election to purchase some or all of the vested Option
Shares purchasable at the time of such notice. This notice shall specify the
number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one or
more of the following methods: (a) in cash, by certified or bank check or other
instrument acceptable to the Committee; (b) in the form of shares of Common
Stock, par value $0.01 per share, of the Company that are not then subject to
restrictions under any Company plan and that have been held by the Optionee for
at least six (6) months; (c) by the Optionee delivering to the
<PAGE>
Company a properly executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the option purchase price, provided
that in the event the Optionee chooses to pay the option purchase price as so
provided, the Optionee and the broker shall comply with such procedures and
enter into such agreements of indemnity and other agreements as the Committee
shall prescribe as a condition of such payment procedure; or (d) a combination
of (a), (b) and (c) above. Payment instruments will be received subject to
collection.
The delivery of certificates representing the Option Shares will be
contingent upon the Company's receipt from the Optionee of full payment for the
Option Shares, as set forth above, and any agreement, statement or other
evidence that the Company may require to satisfy itself that the issuance of
Option Shares to be purchased pursuant to the exercise of Options under the Plan
and any subsequent resale of the shares will be in compliance with applicable
laws and regulations.
If requested upon the exercise of this Option, certificates for shares may
be issued in the name of the Optionee jointly with another person or in the name
of the executor or administrator of the Optionee's estate.
Notwithstanding any other provision hereof or of the Plan, no portion of
this Option shall be exercisable after the Expiration Date hereof.
3. Non-transferability of Option. This Option shall not be transferable
-----------------------------
by the Optionee otherwise than by will or by the laws of descent and
distribution, and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee. Subject to the provisions of Section 4 hereof,
---------
this Option may be exercised after the Optionee's death by the Optionee's
personal representative or by the legatees or heirs who receive this Option by
will or by the laws of descent and distribution.
4. Termination of Employment. If the Optionee's employment by the
-------------------------
Company or any corporation or other entity (other than the Company) in any
unbroken chain of corporations or other entities, beginning with the Company if
each of the corporations or entities (other than the last corporation or entity
in the unbroken chain) owns stock or other interests possessing 50% or more of
the economic interest or the total combined voting power of all classes of stock
or other interests in one of the other corporations or entities in the chain (a
"Subsidiary") is terminated, the extent to which and the period within which the
Option may be exercised shall be as set forth below.
(a) Termination Due to Death. If the Optionee's employment terminates
------------------------
by reason of death, this Option may be exercised, to the extent
exercisable at the date of death, for a period of one (1) year from
the date of death or until the Expiration Date, if earlier.
2
<PAGE>
(b) Termination Due to Disability. If the Optionee's employment
-----------------------------
terminates because the Optionee is "permanently and totally disabled"
(as defined in Section 22(e)(3) of the Code), this Option may be
exercised, to the extent exercisable on the date of termination, for a
period of one (1) year from the date of termination or until the
Expiration Date, if earlier. The death of the Optionee during the
last six (6) months of the period provided in this Section 4(b) shall
extend such period until six (6) months after the date of death or
until the Expiration Date, if earlier.
(c) Termination for Cause. If the Optionee's employment terminates
---------------------
for cause (defined as a vote of the Board of Directors of the Company
resolving that the Optionee should be dismissed as a result of (i) any
material breach by the Optionee of any agreement to which the Optionee
and the Company or any Subsidiary are parties, (ii) any act (other
than retirement) or omission to act by the Optionee which may have a
material and adverse effect on the business of the Company or any
Subsidiary or on the Optionee's ability to perform services for the
Company or any Subsidiary, including, without limitation, the
commission of any crime (other than ordinary traffic violations), or
(iii) any material misconduct or neglect of duties by the Optionee in
connection with the business or affairs of the Company or any
Subsidiary), this Option shall immediately terminate and be of no
further force and effect.
(d) Other Termination. If the Optionee's employment terminates for
-----------------
any reason other than death, disability or cause, this Option may be
exercised, to the extent exercisable on the date of termination, for a
period of three (3) months from the date of termination or until the
Expiration Date, if earlier.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor an approved leave of
absence shall be deemed a "termination of employment."
5. Option Shares. The Option Shares are shares of Common Stock as
-------------
constituted on the date of this Option, subject to adjustment as provided in
Section 7 of the Plan.
- ---------
6. No Special Employment Rights. This Option will not confer upon the
----------------------------
Optionee any right with respect to continuance of employment by the Company or a
Subsidiary, nor will it interfere in any way with any right of the Optionee's
employer to terminate the Optionee's employment at any time.
7. Rights as a Shareholder. The Optionee shall have no rights as a
-----------------------
shareholder with respect to any shares of Common Stock that may be purchased by
exercise of this Option unless and until a certificate or certificates
representing such shares are duly issued and delivered to the Optionee. Except
as otherwise expressly provided in the Plan, no adjustment
3
<PAGE>
shall be made for dividends or other rights for which the record date is prior
to the date such share certificate is issued.
8. Qualification under Section 422. This Option is intended to qualify
-------------------------------
as an incentive stock option within the meaning of Section 422 of the Code, but
the Company does not represent or warrant that this Option qualifies or will be
treated as such. The Optionee acknowledges that stock options granted to the
Optionee by the Company (including this Option) may not be treated as incentive
stock options to the extent that the aggregate fair market value of stock with
respect to which such options are first exercisable during any calendar year
exceeds $100,000 (determined as of the date or dates such options were granted).
The Optionee understands that in order to obtain the benefits of an
incentive stock option under Section 422 of the Code, in general no sale or
other disposition may be made of any Option Shares acquired upon exercise of the
Option within the one-year period beginning on the day after the day of the
transfer of such Option Shares to him or her, nor within the two-year period
beginning on the day after the grant of the Option. If the Optionee intends to
dispose or does dispose (whether by sale, gift, transfer or otherwise) of any
such Option Shares within these periods, he or she shall notify the Company not
later than thirty (30) days after such disposition. The Optionee should consult
with his or her own tax advisors regarding the tax effects of the Option and the
requirements necessary to obtain favorable income tax treatment under Section
422 of the Code, including, but not limited to, holding period requirements.
9. Tax Withholding. No later than the date as of which part or all of
---------------
the value of any shares of Common Stock received pursuant to this Option first
becomes includible in the Optionee's gross income for federal tax purposes, the
Optionee shall make arrangements with the Company in accordance with Section 9
---------
of the Plan regarding the payment of any federal, state or local taxes required
to be withheld with respect to such income.
10. The Plan. In the event of any discrepancy or inconsistency between
--------
this Agreement and the Plan, the terms and conditions of the Plan shall control.
11. Miscellaneous. Notices hereunder shall be mailed or delivered to the
-------------
Company or the Committee at the Company's principal place of business and shall
be mailed or delivered to Optionee at the address set forth below or, in either
case, at such other address as one party may subsequently furnish to the other
party in writing.
DATA TRANSLATION II, INC.
By
-----------------------------------
Name
4
<PAGE>
Receipt of the foregoing Option is acknowledged and its terms and
conditions are hereby agreed to:
--------------------------------------
, Optionee
--------------
Date:
-------------------------------
5
<PAGE>
FORM OF
DATA TRANSLATION II, INC.
1996 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
For Employees
________ Shares ________
Pursuant to its 1996 Stock Option Plan (the "Plan"), Data Translation II,
Inc. (the "Company") hereby grants to ________ (the "Optionee") an Option to
purchase on or prior to ________ (the "Expiration Date") all or any part of
________ shares of Common Stock of the Company, par value $0.01 per share
("Option Shares") at a price of $________ per share in accordance with the
schedule set forth in Section 1 hereof and subject to the terms and conditions
---------
set forth hereinafter and in the Plan. This Option does not qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"), and consequently shall be treated as a non-qualified
stock option for tax purposes. This Option shall be governed by the laws of
Delaware.
1. Vesting Schedule. Subject to the provisions of Section 4 hereof and
---------------- ---------
Sections 5 and 8 of the Plan, this Option shall become vested and exercisable
- ----------------
with respect to the following whole number of Option Shares according to the
timetable set forth below:
<TABLE>
<CAPTION>
Percentage of Cumulative
Number of Years Shares Becoming Percentage
After Date of Grant Available for Exercise Available
- ------------------------ ----------------------- -----------
<S> <C> <C>
Less than 1 year 0% 0%
At least 1 year 25% 25%
At least 2 years 25% 50%
At least 3 years 25% 75%
At least 4 years 25% 100%
</TABLE>
2. Manner of Exercise. The Optionee may exercise this Option only in the
------------------
following manner: from time to time on or prior to the Expiration Date of this
Option, the Optionee may give written notice to the Company's Option Committee
(the "Committee") of his election to purchase some or all of the vested Option
Shares purchasable at the time of such notice. This notice shall specify the
number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one or
more of the following methods: (a) in cash, by certified or bank check or other
instrument acceptable to the Committee; (b) in the form of shares of Common
Stock, par value $0.01 per share, of
<PAGE>
the Company that are not then subject to restrictions under any Company plan and
that have been held by the Optionee for at least six (6) months; (c) by the
Optionee delivering to the Company a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company to pay the option purchase
price, provided that in the event the Optionee chooses to pay the option
purchase price as so provided, the Optionee and the broker shall comply with
such procedures and enter into such agreements of indemnity and other agreements
as the Committee shall prescribe as a condition of such payment procedure; or
(d) a combination of (a), (b) and (c) above. Payment instruments will be
received subject to collection.
The delivery of certificates representing the Option Shares will be
contingent upon the Company's receipt from the Optionee of full payment for the
Option Shares, as set forth above, and any agreement, statement or other
evidence that the Company may require to satisfy itself that the issuance of
Option Shares to be purchased pursuant to the exercise of Options under the Plan
and any subsequent resale of the shares will be in compliance with applicable
laws and regulations.
If requested upon the exercise of this Option, certificates for shares may
be issued in the name of the Optionee jointly with another person or in the name
of the executor or administrator of the Optionee's estate.
Notwithstanding any other provision hereof or of the Plan, no portion of
this Option shall be exercisable after the Expiration Date hereof.
3. Non-transferability of Option. This Option shall not be transferable
-----------------------------
by the Optionee otherwise than by will or by the laws of descent and
distribution, and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee. Subject to the provisions of Section 4 hereof,
---------
this Option may be exercised after the Optionee's death by the Optionee's
personal representative or by the legatees or heirs who receive this Option by
will or by the laws of descent and distribution.
4. Termination of Employment. If the Optionee's employment by the
-------------------------
Company or any corporation or other entity (other than the Company) in any
unbroken chain of corporations or other entities, beginning with the Company if
each of the corporations or entities (other than the last corporation or entity
in the unbroken chain) owns stock or other interests possessing 50% or more of
the economic interest or the total combined voting power of all classes of stock
or other interests in one of the other corporations or entities in the chain (a
"Subsidiary") is terminated, the extent to which and the period within which the
Option may be exercised shall be as set forth below.
(a) Termination Due to Death. If the Optionee's employment terminates
------------------------
by reason of death, this Option may be exercised, to the extent
exercisable at the
2
<PAGE>
date of death, for a period of one (1) year from the date of death or
until the Expiration Date, if earlier.
(b) Termination Due to Disability. If the Optionee's employment
-----------------------------
terminates because the Optionee is "permanently and totally disabled"
(as defined in Section 22(e)(3) of the Code), this Option may be
exercised, to the extent exercisable on the date of termination, for a
period of one (1) year from the date of termination or until the
Expiration Date, if earlier. The death of the Optionee during the
last six (6) months of the one (1) year period provided in this
Section 4(b) shall extend such period until six (6) months after the
date of death or until the Expiration Date, if earlier.
(c) Termination for Cause. If the Optionee's employment terminates
---------------------
for cause (defined as a vote of the Board of Directors of the Company
resolving that the Optionee should be dismissed as a result of (i) any
material breach by the Optionee of any agreement to which the Optionee
and the Company are parties, (ii) any act (other than retirement) or
omission to act by the Optionee which may have a material and adverse
effect on the business of the Company or any Subsidiary or on the
Optionee's ability to perform services for the Company or any
Subsidiary, including, without limitation, the commission of any crime
(other than ordinary traffic violations), or (iii) any material
misconduct or neglect of duties by the Optionee in connection with the
business or affairs of the Company or any Subsidiary), this Option
shall immediately terminate and be of no further force and effect.
(d) Other Termination. If the Optionee's employment terminates for
-----------------
any reason other than death, disability or cause, this Option may be
exercised, to the extent exercisable on the date of termination, for a
period of three (3) months from the date of termination or until the
Expiration Date, if earlier.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor an approved leave of
absence shall be deemed a "termination of employment."
5. Option Shares. The Option Shares are shares of Common Stock as
-------------
constituted on the date of this Option, subject to adjustment as provided in
Section 7 of the Plan.
- ---------
6. No Special Employment Rights. This Option will not confer upon the
----------------------------
Optionee any right with respect to continuance of employment by the Company or a
Subsidiary, nor will it interfere in any way with any right of the Optionee's
employer to terminate the Optionee's employment at any time.
3
<PAGE>
7. Rights as a Shareholder. The Optionee shall have no rights as a
-----------------------
shareholder with respect to any shares of Common Stock that may be purchased by
exercise of this Option unless and until a certificate or certificates
representing such shares are duly issued and delivered to the Optionee. Except
as otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
share certificate is issued.
8. Tax Withholding. No later than the date as of which part or all of
---------------
the value of any shares of Common Stock received pursuant to this Option first
becomes includible in the Optionee's gross income for federal tax purposes, the
Optionee shall make arrangements with the Company in accordance with Section 9
---------
of the Plan regarding the payment of any federal, state or local taxes required
to be withheld with respect to such income.
9. The Plan. In the event of any discrepancy or inconsistency between
--------
this Agreement and the Plan, the terms and conditions of the Plan shall control.
10. Miscellaneous. Notices hereunder shall be mailed or delivered to the
-------------
Company or the Committee at the Company's principal place of business and shall
be mailed or delivered to Optionees at the address set forth below or, in either
case, at such other address as one party may subsequently furnish to the other
party in writing.
DATA TRANSLATION II, INC.
By
---------------------------------------
Title
Receipt of the foregoing Option is
acknowledged and its terms and conditions are hereby agreed to:
--------------------------------------
, Optionee
---------------
Date:
----------------------------
4
<PAGE>
FORM OF
DATA TRANSLATION II, INC.
1996 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
For Non-Employee Directors
________ Shares ________
Pursuant to its 1996 Stock Option Plan (the "Plan"), Data Translation II,
Inc. (the "Company") hereby grants to ________ (the "Optionee") an Option to
purchase on or prior to ________ (the "Expiration Date") all or any part of
________ shares of Common Stock of the Company, par value $0.01 per share
("Option Shares") at a price of $________ per share in accordance with Section 1
---------
hereof and subject to the terms and conditions set forth hereinafter and in the
Plan. This Option does not qualify as an incentive stock option under Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
consequently shall be treated as a non-qualified stock option for tax purposes.
This Option shall be governed by the laws of Delaware.
1. Vesting Schedule. Subject to the provisions of Section 4 hereof and
---------------- ---------
Sections 5 and 8 of the Plan, this Option shall become 100% vested and
- ----------------
exercisable on the first anniversary of the date of grant so long as the
Optionee continues to serve as a director of the Company on such anniversary
date; provided, that if the Optionee ceases to serve as a director because the
--------
Optionee is "permanently and totally disabled" (as defined in Section 22(e)(3)
of the Code) or dies, this Option shall become vested and fully exercisable as
of the date of cessation.
2. Manner of Exercise. The Optionee may exercise this Option only in the
------------------
following manner: from time to time on or prior to the Expiration Date of this
Option, the Optionee may give written notice to the Company's Board of Directors
(the "Board"), of his election to purchase some or all of the vested Option
Shares purchasable at the time of such notice. This notice shall specify the
number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one or
more of the following methods: (a) in cash, by certified or bank check or other
instrument acceptable to the Board; (b) in the form of shares of Common Stock,
par value $0.01 per share, of the Company that are not then subject to
restrictions under any Company plan and that have been held by the Optionee for
at least six (6) months; (c) by the Optionee delivering to the Company a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and acceptable
to the Company to pay the option purchase price, provided that in the event the
Optionee chooses to pay the option purchase price as so provided, the Optionee
and the broker shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Board
<PAGE>
shall prescribe as a condition of such payment procedure; or (d) a combination
of (a), (b) and (c) above. Payment instruments will be received subject to
collection.
The delivery of certificates representing the Option Shares will be
contingent upon the Company's receipt from the Optionee of full payment for the
Option Shares, as set forth above, and any agreement, statement or other
evidence that the Company may require to satisfy itself that the issuance of
Option Shares to be purchased pursuant to the exercise of Options under the Plan
and any subsequent resale of the shares will be in compliance with applicable
laws and regulations.
If requested upon the exercise of this Option, certificates for shares may
be issued in the name of the Optionee jointly with another person or in the name
of the executor or administrator of the Optionee's estate.
Notwithstanding any other provision hereof or of the Plan, no portion of
this Option shall be exercisable after the Expiration Date hereof.
3. Non-transferability of Option. This Option shall not be transferable
-----------------------------
by the Optionee otherwise than by will or by the laws of descent and
distribution, and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee. Subject to the provisions of Section 4 hereof,
---------
this Option may be exercised after the Optionee's death by the Optionee's
personal representative or by the legatees or heirs who receive this Option by
will or by the laws of descent and distribution.
4. Termination as Director. If the Optionee ceases to be a director of
-----------------------
the Company, the extent to which and the period within which the Option may be
exercised shall be as set forth below.
(a) Termination for Cause. If the Optionee ceases to be a director
---------------------
for cause (defined as a vote of two-thirds of the total votes which
would be eligible to be cast by stockholders in the election of such
Optionee resolving that the Optionee should be dismissed as a result
of (i) conviction of a felony, (ii) declaration of unsound mind by
order of court, (iii) gross dereliction of duty, (iv) commission of
any action involving moral turpitude, or (v) commission of an action
which constitutes intentional misconduct or a knowing violation of law
if such action in either event results both an improper substantial
personal benefit and a material injury to the Company), this Option
shall immediately terminate and be of no further force and effect.
(b) Other Termination. If the Optionee ceases to be a director for
-----------------
any reason other than for cause, this Option may be exercised, to the
extent exercisable on the date of termination, for a period of one (1)
year from the date of termination or until the Expiration Date, if
earlier.
2
<PAGE>
5. Option Shares. The Option Shares are Common Stock as constituted on
-------------
the date of this Option, subject to adjustment as provided in Section 7 of the
---------
Plan.
6. Rights as a Shareholder. The Optionee shall have no rights as a
-----------------------
shareholder with respect to any Common Stock that may be purchased by
exercise of this Option unless and until a certificate or certificates
representing such shares are duly issued and delivered to the
Optionee. Except as otherwise expressly provided in the Plan, no
adjustment shall be made for dividends or other rights for which the
record date is prior to the date such share certificate is issued.
7. The Plan. In the event of any discrepancy or inconsistency between
--------
this Agreement and the Plan, the terms and conditions of the Plan shall control.
8. Miscellaneous. Notices hereunder shall be mailed or delivered to the
-------------
Company or the Board at the Company's principal place of business and shall be
mailed or delivered to Optionee at the address set forth below or, in either
case, at such other address as one party may subsequently furnish to the other
party in writing.
DATA TRANSLATION II, INC.
By
--------------------------------------
Title
Receipt of the foregoing Option is acknowledged and its terms and
conditions are hereby agreed to:
--------------------------------------
, Optionee
-------------
Date:
----------------------------------
3
<PAGE>
GOODWIN, PROCTER & HOAR LLP
COUNSELORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
Telephone (617) 570-1000
Telecopier (617) 523-1231
November 26, 1996
Data Translation II, Inc..
100 Locke Drive
Marlboro, MA 01752
Re: Data Translation II, Inc. 1996 Stock Option Plan
------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 500,000 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Data Translation II, Inc. (the "Company") which may be issued pursuant to
options granted under the Company's 1996 Stock Option Plan (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Certificate of
Incorporation and the By-laws of the Company; such records of the corporate
proceedings of the Company as we deemed necessary; a registration statement on
Form S-8 under the Act relating to the Shares (the "Registration Statement");
and such other certificates, receipts, records and documents as we considered
necessary for the purposes of this opinion. We have assumed the genuineness of
all signatures, the conformity to the originals of all documents reviewed by us
as copies, the authenticity and completeness of all original documents reviewed
by us in original form, and the legal competence of each individual executing a
document.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the Commonwealth of
Massachusetts and the General Corporation Law of the State of Delaware.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the Option Agreements entered into pursuant
to the Plan, the Shares will be legally issued, fully paid and non-assessable
shares of the Company's Common Stock.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
Data Translation II, Inc.
November 26, 1996
Page 2
The foregoing opinion assumes that all requisite steps will be taken
to comply with the requirements of the Act and applicable requirements of state
laws regulating the offer and sale of securities. The foregoing opinion further
assumes that the purchase price paid for the Shares will be in excess of the par
value thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
2
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 12, 1996
included in Data Translation II, Inc.'s Form 10 for the year ended November 30,
1995 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
November 22, 1996
