As filed with the Securities and Exchange Commission on September 10, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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GENERAL DATACOMM INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 06-0853856
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1579 Straits Turnpike, Middlebury, Connecticut 06762-1299
(Address of principal executive offices)
1991 STOCK OPTION PLAN
(Full title of the plan)
HOWARD S. MODLIN, Weisman, Celler, Spett & Modlin
445 Park Avenue, New York, New York 10022 (212) 371-5400
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered Per Share Price Fee
Common Stock, par
value $.10 per share 925,000 $7.1875 (1) $6,648,438 $2,014.68
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(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee on the basis of the average high/low price on September 4,
1997, per the New York Stock Exchange, Inc.
Rule 429: The prospectus contained herein is a combined prospectus with
Registration Nos. 33-53150, 33-62716, 33-53201 and 33-59573.
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GENERAL DATACOMM INDUSTRIES, INC.
1991 STOCK OPTION PLAN
Cross Reference Sheet Between Items
of Form S-8 and Prospectus
Item Required by Form S-8 Caption in Prospectus
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1. Plan Information Cover Page;
1991 Stock Option Plan;
Federal Income Tax Consequences
2. Registrant Information Available Information
and Employee Plan Annual
Information
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PROSPECTUS
GENERAL DATACOMM INDUSTRIES, INC.
1579 Straits Turnpike
Middlebury, Connecticut 06762-1299
203-574-1118
1991 Stock Option Plan
3,325,000 Shares of Common Stock, $.10 par value
This prospectus relates to the offering by General DataComm Industries,
Inc. (the "Corporation") of the shares of Common Stock covered hereby to
employees of the Corporation and its subsidiaries as may be granted options to
purchase shares pursuant to its 1991 Stock Option Plan which is described
herein.
Certain of the optionees may, from time to time, sell or otherwise
dispose of some or all of the shares of Common Stock which may be acquired by
them. Certain of the resales or other dispositions may be made pursuant to this
Prospectus, but others may be made by employees who are deemed to be
"affiliates" of the Corporation within the meaning of the Securities Act of
1933, as amended, and such persons may effect such resales only pursuant to a
separate prospectus or an appropriate exemption from registration.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is September 5, 1997.
THIS DOCUMENT CONSTITUTES A PROSPECTUS COVERING SECURITIES THAT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933.
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No person has been authorized by the Corporation to give any
information or to make any representation not contained in this Prospectus in
connection with the offer made hereby, and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Corporation. Neither the delivery of this Prospectus nor any sales made
hereunder shall under any circumstances create any implication that there has
been no change in the affairs of the Corporation since the date hereof.
TABLE OF CONTENTS
REGISTRATION STATEMENT ..................................................... 2
AVAILABLE INFORMATION ..................................................... 3
GENERAL INFORMATION ...................................................... 3
1991 STOCK OPTION PLAN...................................................... 4
FEDERAL INCOME TAX CONSEQUENCES ............................................ 6
DESCRIPTION OF CAPITAL STOCK ............................................... 7
LEGAL MATTERS............................................................... 9
EXPERTS.....................................................................10
INDEMNIFICATION.............................................................10
REGISTRATION STATEMENT
General DataComm Industries, Inc. (the "Corporation") has filed with
the Securities and Exchange Commission, Washington, DC, Registration Statements
(hereinafter, as amended to date, referred to as the Registration Statements")
on Form S-8 (File Nos. 33-53150, 33-62716, 33-53201, 33-59573 and 33-xxxxx)
under the Securities Act of 1933, as amended, in respect of 3,325,000 shares of
the Corporation's Common Stock, $.10 par value, subject to adjustment, which may
be purchased from time to time pursuant to stock options issued to key
employees, including officers and directors who are employees of the Corporation
and its subsidiaries under the Corporation's 1991 Stock Option Plan (the "1991
Plan"). For further information with respect to the Corporation and the
securities offered by this Prospectus, reference is made to the Registration
Statements and the exhibits filed as a part thereof.
The statements made about the 1991 Plan in this Prospectus are
summaries of certain provisions of the 1991 Plan, a copy of which is an exhibit
to this Registration Statement. Reference is made to the 1991 Plan for complete
statements of such provisions, and such summaries are qualified in their
entirety by such reference.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission in Washington, DC at Room 1024, 450 Fifth Street, NW, Washington, DC
20549; in New York City at 7 World Trade Center, Suite 1300, New York, New York
10048; and in Chicago at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can also be obtained from
the Public Reference Section of the Securities and Exchange Commission, 450
Fifth Street, NW, Washington, DC 20549 at prescribed rates. The Corporation will
provide at the written or oral request without charge at its principal office in
Middlebury, Connecticut to each person to whom this Prospectus is delivered a
copy of any or all of the information that has been incorporated by reference.
All such requests should be directed to the Corporation at its principal office,
P.O. Box 1299, Middlebury, Connecticut 06762-1299, Attention: Senior Vice
President, Finance, or by telephone (203) 574-1118. The Corporation's Common
Stock is listed and traded on the New York Stock Exchange, Inc. and the above
material is also available for inspection at such Exchange, 20 Broad Street, New
York, New York 10005.
The following documents, filed with the Securities and Exchange
Commission, as stated above (Commission File No. 1-8086), are hereby
incorporated by reference in this Prospectus:
1. The Corporation's annual report on Form 10-K for the year ended
September 30, 1996.
2. The Corporation's proxy statement dated December 10, 1996 with
respect to its annual meeting of shareholders held on February 6, 1997.
3. The Corporation's quarterly reports on Form 10-Q for the quarters
ended December 31, 1996, March 31, 1997, and June 30, 1997.
All documents filed by the Corporation after the date of this
Prospectus pursuant to Sections 13, 14, and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment to the registration
statement of which this Prospectus constitutes a part 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
Prospectus and to be a part hereof from the date of filing of such documents.
GENERAL INFORMATION
The Corporation, the executive offices of which are located at
Middlebury, Connecticut 06762-1299, is the issuer of the Common Stock, $.10 par
value covered by the Registration Statement and being offered by this
Prospectus. The Corporation's telephone number is (203) 574-1118.
Any optionee who may be deemed an affiliate of the Corporation, as
defined in Rule 405 issued under the Securities Act of 1933, as amended
("Securities Act"), must utilize an exemption, including Rule 144, from the
registration provisions of the Securities Act to sell shares received pursuant
to the exercise of an option unless a separate prospectus is in effect.
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1991 STOCK OPTION PLAN
Purpose and Eligibility
The 1991 Plan was adopted by the stockholders in 1992 for the purpose
of enabling the Corporation and its subsidiaries to provide an inducement to
attract and keep able and qualified key employees, including officers and
directors who are employees, by the grant of incentive and non-statutory stock
options up to a maximum of 625,000 shares. The 1991 Plan was amended by the
stockholders at the 1993, 1994, 1995 and 1997 Annual Meetings to authorize
625,000, 650,000, 500,000 and 925,000 additional shares, respectively. The
granting of options is determined by the Chairman of the Board of the
Corporation who administers the 1991 Plan as to all persons, other than
employees subject to Section 16 of the Securities Exchange Act of 1934
("Exchange Act") who are generally executive officers, and reports to the Board
of Directors the names of those granted options, the number of shares covered by
each option, the applicable option prices and the type of option. The Stock
Option Committee of the Board of Directors reports to the Board of Directors
with respect to the names of employees subject to Section 16 of the Exchange Act
who are granted stock options, the number of shares covered by each such option,
the applicable option prices and the types of options. The Chairman of the
Board, or the Stock Option Committee, as the case may be, subject to the
provisions of the 1991 Plan, has sole discretion to determine the employees to
whom options shall be granted, the number of shares to be subject to each option
and the increments by which such granted options are exercisable. In making such
determination, the Chairman of the Board or the Stock Option Committee, as the
case may be, considers in his or their opinion those employees who perform
services of special importance to the management, operation and development of
the business of the Corporation, provided that no employee whose basic salary
before bonuses or incentive payments is less than $20,000 per year shall be
eligible to receive an option. There is no limitation with respect to the number
of shares that are subject to grant of option to any one employee, except no
optionee may be granted incentive stock options resulting in shares becoming
exercisable for the first time in any calendar year having an aggregate fair
market value in excess of $100,000. It is presently expected that approximately
1,506 employees will be eligible to receive options under the 1991 Plan.
Shares Available and Exercise of Options
The 1991 Plan provides for options to purchase an aggregate of
3,325,000 shares of Common Stock of the Corporation. Such amount is subject to
appropriate adjustment in the event of changes in the outstanding Common Stock
of the Corporation by reason of stock dividends or splits in excess of 5% in any
one year, mergers, consolidations, exchanges or reorganizations.
The stock options granted under the 1991 Plan are intended to be either
"incentive stock options" within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended, ("Code") or non-statutory stock options. The
1991 Plan provides that the option price of incentive stock options shall not be
less than the fair market value of the stock at the time the option is granted,
except that if the optionee would own more than 10% of the outstanding shares of
Common Stock of the Corporation (and other voting securities, if any) if the
options were exercised, the exercise price of the options shall not be less than
110% of the fair market value on the date of grant; that each option granted is
exercisable, in whole or in part, from time to time during the term thereof as
may be determined by the Chairman of the Board or the Stock Option Committee, as
the case may be, and stated in the option, commencing one (1) year after the
date of grant of the option; and that the options expire unless exercised on or
before ten
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(10) years from the date of grant (five (5) years with respect to incentive
stock options if the optionee would own more than 10% of the outstanding stock).
The option price of non-statutory stock options shall be the fair
market value of the stock at the time of grant or such lesser or greater price
as determined by the Chairman of the Board or the Stock Option Committee, as the
case may be. The term of each non-statutory stock option shall be for a period
not exceeding ten (10) years from the date of grant. If an optionee holds more
than one (1) incentive or non-statutory stock option, such options may be
exercised by the optionee in any order.
Options are exercised by the payment in cash or delivery of Common
Stock of the Corporation valued at the market price for such shares at the time
of exercise.
As of August 31, 1997, 5,152,750 options have been granted under the
1991 Plan to 596 employees at an average exercise price of $9.52. Of such
granted options, 385,824 have been exercised, 2,316,000 remain outstanding and
2,450,926 have been canceled, including repriced options. Separately, 623,176
options remain available for grant at August 31, 1997. Options may not be
granted under the 1991 Plan after December 4, 2001.
Limitations in Participation
Options are not transferable other than by will or by the laws of
descent and distribution. If an optionee becomes permanently and totally
disabled or dies while employed by the Corporation, the option granted to the
optionee may be exercised only within one (1) year following the date of such
permanent and total disability or death, by the optionee in the case of such
disability and by the person or persons to whom the optionee's rights under the
option shall pass by the optionee's will or the laws of descent and distribution
in the case of death, to the extent of the following schedule, but in no event
after the expiration of the term of the option:
Time from Grant of Option
From To (the end of) Percentage Exercisable
1 Day 12 months 33%
12 Months 24 months 67%
Over 24 Months 100%
If an optionee ceases to be employed by the Corporation for any reason
other than death or disability, he or she may, but only within the three (3)
months following such cessation of employment, exercise his or her option to the
extent that the optionee was entitled to exercise it at the date of such
cessation, unless the optionee was discharged for cause. If an optionee is
discharged for cause, or the optionee fails to give reasonable notice of
termination of employment, such option terminates on the date of such discharge
and the optionee forfeits any and all rights which may have accrued prior
thereto.
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Modification
The Board of Directors may at any time, or from time to time, without
further stockholder approval, suspend, terminate or amend the 1991 Plan in such
respects as it shall deem advisable in order that options shall be "incentive
stock options" as defined in Section 422A of the Code, or to conform to any
change in the law, or in any other respects which shall not change:
(a) the maximum number of shares for which options may be granted under
the 1991 Plan; or
(b) the provisions relating to the determination of employees to whom
options may be granted.
FEDERAL INCOME TAX CONSEQUENCES
Tax Aspects - Non-Statutory Stock Options
Messrs. Weisman Celler Spett & Modlin, P.C., legal counsel to the
Corporation, have advised that under existing Treasury regulations with respect
to non-statutory stock options, (i) an optionee will not realize taxable income
upon the grant of an option; (ii) the difference between the option price and
the fair market value of the shares on the date of exercise is taxable as
ordinary income to the optionee at the time of exercise and is allowable to the
Corporation as an income tax deduction; (iii) the ordinary income to the
optionee will be treated as compensation to the optionee which is subject to
income tax withholding by the Corporation; (iv) the optionee will take a basis
in the shares equal to the sum of the option price plus the amount of his or her
ordinary income; and (v) any gain or loss on a subsequent sale of the shares,
which will equal the difference between the sales proceeds and the optionee's
basis in the shares, will be capital gain or loss at the time of sale.
Tax Aspects - Incentive Stock Options
The Corporation has been advised by such legal counsel that the federal
income tax consequences of incentive stock options under present law are
generally as follows: if an option is an incentive stock option, the optionee
will recognize no income upon grant or exercise (except for purposes of
computing the alternative minimum tax described below) of such option and the
Corporation will not be allowed a deduction for federal tax purposes as it would
in the case of a non-statutory stock option. Upon a sale of the shares by the
optionee (assuming that the sale occurs no sooner than two years after grant of
the option and one year after exercise of the option), any gain will be capital
gain to the optionee. If the optionee fails to hold the shares for the foregoing
period, the disposal is treated as a disqualifying disposition. The gain on such
disposition is ordinary income to the optionee to the extent of the difference
between the option price and the fair market value of the shares on the date of
exercise and any excess is long-term or short-term capital gain depending upon
the holding period. In such event, the Corporation will be entitled to an income
tax deduction equal to the ordinary income amount to the optionee.
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In order for an option to qualify as an incentive stock option, (i) the
option must be granted pursuant to a plan which includes the aggregate number of
shares which may be issued under options and the employees (or class of
employees) eligible to receive options; (ii) such option is granted within ten
(10) years from the date such plan is adopted, or the date such plan is approved
by the stockholders, whichever is earlier; (iii) the option must be exercised
while the optionee is an employee of the Corporation or a subsidiary of the
Corporation, or no more than three (3) months after the optionee's employment
ceases (twelve (12) months in the case of termination following the optionee's
total disability); (iv) the option may not by its terms be exercisable after the
expiration of ten (10) years from the date it is granted; (v) the option price
must not be less than the fair market value of the stock at the time such option
is granted; (vi) the option plan must be approved by the stockholders within
twelve (12) months after the date such plan is adopted; (vii) the option by its
terms is non-transferable other than upon death of the optionee and is
exercisable only by the optionee during his or her lifetime; (viii) if the
optionee owns more than 10% of the voting power of all classes of the
Corporation's stock at the time the option is granted, the option price must be
at least 110% of the fair market value on the date of grant and the option may
not be exercised after five (5) years from the date of grant; and (ix) under the
terms of the plan, the aggregate fair market value, determined at time of grant,
of stock for which an employee may exercise incentive stock options for the
first time in any calendar year under all plans cannot exceed $100,000.
For purposes of determining the alternative minimum tax, the spread
between the fair market value of the stock on the exercise date of an incentive
stock option and the option price is added to taxable income as an adjustment
for purposes of computing the alternative minimum tax. This spread between the
fair market value of the stock on the exercise date and the option price
included in alternative minimum taxable income is added to the basis of the
stock for purposes of computing alternative minimum tax on any subsequent
disposition.
Employee Retirement Income Security Act of 1974
The 1991 Plan is not subject to any of the provisions of the Employee
Retirement Income Security Act of 1974 or of Section 401(a) of the Code.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The shares of Common Stock are entitled to one (1) vote per share on
all matters submitted to stockholders. They are also entitled to vote separately
as a class (as are the shares of Class B Stock described below) on all matters
requiring an amendment to the Corporation's Certificate of Incorporation, as
well as on mergers, consolidations and certain other significant transactions
for which stockholder approval is required under Delaware law. Holders of the
Common Stock do not have preemptive rights or cumulative voting rights.
Dividends on the Common Stock will be paid if, and when, declared. The
Common Stock is entitled to cash dividends which are 11.11% higher per share
than the cash dividends which may be paid on the Class B Stock, but otherwise
the Common Stock and the Class B Stock rank equally. The Corporation has never
paid cash dividends, and such dividends are not permitted by the Corporation's
principal loan agreement. Stock dividends on and stock splits of Common Stock
may only be payable or made in shares of Common Stock.
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The Common Stock is entitled upon liquidation to receive the entire net
assets of the Corporation remaining after payment of all debts and other claims
of creditors and after the holders of each series of Preferred Stock outstanding
or to be issued in the future, if any, have been paid the preferred liquidating
distribution on their shares as fixed by the Board of Directors of the
Corporation (the liquidation preference of Preferred Stock outstanding at
September 5, 1997 amounted to $20 million). The Common Stock is not convertible
into shares of any other equity security of the Corporation.
The Common Stock is freely transferable.
Class B Stock
The shares of Class B Stock are entitled to one (1) vote per share on
all matters submitted to stockholders, except that they are entitled to ten (10)
votes per share in the election of directors under certain circumstances. They
are also entitled to vote separately as a class (as are the shares of Common
Stock) on all matters requiring an amendment to the Corporation's Certificate of
Incorporation, as well as on mergers, consolidations and certain other
significant transactions for which stockholder approval is required under
Delaware law. Holders of the Class B Stock do not have preemptive rights or
cumulative voting rights.
Dividends on the Class B Stock will be paid only as and when dividends
on the Common Stock are declared and paid. The Common Stock is entitled to cash
dividends which are 11.11% higher per share than the cash dividends which may be
paid on the Class B Stock, but otherwise the Common Stock and the Class B Stock
rank equally. Stock dividends on and stock splits of Class B Stock will only be
payable or made in shares of Class B Stock.
In the event of liquidation or insolvency, each share of Class B Stock
will be entitled, through conversion into Common Stock, to share ratably with
the Common Stock in the assets remaining after payment of all debts and other
claims of creditors, subject to the rights of any Preferred Stock outstanding or
which may be issued in the future, if any (the liquidation preference of
Preferred Stock outstanding at September 5, 1997 amounted to $20 million).
Holders of Class B Stock may elect at any time to convert any or all of
such shares back into shares of the Common Stock on a share-for-share basis. In
the event that the number of outstanding shares of Class B Stock falls below 5%
of the aggregate number of issued and outstanding shares of Common Stock and
Class B Stock, or the Board of Directors and a majority of the outstanding
shares of Class B Stock approve the conversion of all of the Class B Stock into
Common Stock, then immediately upon the occurrence of either event, the shares
of the Class B Stock will automatically be converted into shares of Common
Stock. In the event of such conversion, certificates formerly representing
outstanding shares of Class B Stock will thereafter be deemed to represent a
like number of shares of Common Stock.
The Class B Stock is not transferable except to certain family members
and related entities.
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Special Voting Requirements
The Corporation's Certificate of Incorporation, as presently in effect,
contains a provision requiring a two-thirds vote on mergers, consolidations or a
sale of substantially all of the Corporation's assets. It also contains a "fair
price" provision requiring all stockholders to receive equal treatment in the
event of a takeover which may be coercive; such provision may not be amended
except by a four-fifths vote of the stockholders and may be considered to have
the effect of discouraging tender offers, takeover attempts, acquisitions or
business combinations involving the Corporation; and such provision also
requires that business combinations involving the Corporation and certain
"Acquiring Persons" (i.e., a person or entity which directly or indirectly owns
or controls at least 5% of the voting stock of the Corporation) be approved by
the holders of four-fifths of the Corporations' outstanding shares entitled to
vote (other than shares held by an Acquiring Person with which or by or on whose
behalf a business combination is proposed) unless such business combination
either:
(1) has been authorized by the Board of Directors prior to the time
that the Acquiring Person involved in such business combination became an
Acquiring Person; or
(2) will result in the receipt by the other stockholders of a
specified minimum amount and form of payment for their shares.
Preferred Stock
The Preferred Stock may be issued in one or more series from time to
time by action of the Board of Directors. The shares of any series of Preferred
Stock may be convertible into Common Stock, may have priority over the Common
Stock and Class B Stock in the payment of dividends and as to the distribution
of assets in the event of liquidation, dissolution or winding up of the
Corporation and may have preferential or other voting rights, in each case, to
the extent, if any, determined by the Board of Directors at the time it creates
the series.
At August 15, 1997, 800,000 shares of 9% Cumulative Convertible
Exchangeable Preferred Stock ("9% Preferred Stock") were outstanding, with a
total liquidation preference of $25.00 per share, or $20 million. Each share of
the outstanding 9% Preferred Stock is convertible into common stock at $13.65
per share, or the equivalent of 1.8315 shares of common stock for each share of
9% Preferred Stock. Effective October 1, 1998, the Corporation has the option to
exchange the 9% Preferred Stock for 9% Convertible Subordinated Debentures Due
2006 ("Debentures") at the rate of $25.00 principal amount of Debentures for
each share of 9% Preferred Stock outstanding at the time of exchange. The 9%
Preferred Stock cannot be redeemed by the Corporation before September 30, 1999.
LEGAL MATTERS
The legality of the shares offered by this Prospectus has been passed
upon by Messrs. Weisman Celler Spett & Modlin, P.C., 445 Park Avenue, New York,
New York 10022. As of July 31, 1997, members of the firm of Weisman, Celler,
Spett & Modlin beneficially owned 6,750 shares of the Class B Stock of the
Corporation. Howard S. Modlin, a member of such firm, is Secretary and a
director of the Corporation.
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EXPERTS
The consolidated financial statements and financial statement schedules
of the Corporation as of September 30, 1996 and 1995 and for the years ended
September 30, 1996, 1995 and 1994, incorporated by reference in this Prospectus,
have been incorporated herein in reliance upon the report of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of that firm as experts
in accounting and auditing.
INDEMNIFICATION
The Corporation's Certificate of Incorporation authorizes the
indemnification of directors and officers and the purchase of insurance on
behalf of such persons against liability asserted against them in such capacity
or arising out of such status. The Corporation maintains an insurance policy
covering its directors and officers against certain losses. Section 145 of the
General Corporation Law of Delaware permits or requires indemnification of
officers and directors in the event that certain statutory standards of conduct
are met.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the foregoing provisions, or otherwise, the Corporation
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.
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FORM S-8
PART II: UNDERTAKINGS AND OTHER INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
See Prospectus, "Available Information," page 3 and "Description of
Capital Stock," page 7.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
The consolidated financial statements and financial statement schedules
of the Corporation as of September 30, 1996 and 1995 and for the years ended
September 30, 1996, 1995 and 1994, incorporated by reference in this
Registration Statement, have been incorporated herein in reliance upon the
report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
Reference is made to Article Tenth of the registrant's Restated
Certificate of Incorporation filed as Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1988, which is incorporated
by reference for information concerning indemnification of directors and
officers. Section 145 of the General Corporation Law of Delaware permits or
requires indemnification of officers and directors in the event that certain
statutory standards of conduct are met. However, reference is made to Item 9(d)
with respect to indemnification for liabilities arising under the Securities
Act.
Under an insurance policy with The Chubb Group of Companies, the
directors and certain officers of the undersigned registrant and its
subsidiaries are indemnified against certain losses arising from certain claims
which may be made against such persons, by reason of their being such directors
or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. List of Exhibits
10. (1) 1991 Stock Option Plan (Incorporated by reference to Exhibit A
to Proxy Statement dated December 10, 1996).
(2) Incentive Stock Option Agreement Form.
(3) Non-Statutory Stock Option Agreement Form.
23. Consents
(1) Coopers & Lybrand L.L.P.
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 of
1933 (the "Securities Act"); (ii) to reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement, provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein 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.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13 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) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the Prospectus to each employee to whom the Prospectus is sent
or given, a copy of the registrant's latest annual report to stockholders that
is incorporated by reference in the Prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act,
unless such employee otherwise has received a copy of such report in which case
the registrant shall state in the Prospectus that it will promptly furnish
without charge a copy of such report on written request of the employee, and
where interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the Prospectus, to deliver the latest
quarterly report that is specifically incorporated by reference in the
Prospectus to provide such financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the undersigned registrant pursuant to the foregoing provisions, or
otherwise, the undersigned 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 undersigned 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
undersigned 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.
II-3
<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 Middlebury, State of Connecticut, on the 5th day of
September, 1997.
GENERAL DATACOMM INDUSTRIES, INC.
By: ___________________________
Charles P. Johnson
Chairman of the Board
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 dates indicated.
Signature Title Date
/s/ CHARLES P. JOHNSON Chairman of the Board September 5, 1997
Charles P. Johnson and Chief Executive Officer
/S/ WILLIAM S. LAWRENCE Senior Vice President, Finance September 5, 1997
William S. Lawrence and Chief Financial Officer
/S/ WILLIAM G. HENRY Vice President, Corporate September 5, 1997
William G. Henry Controller and Principal
Accounting Officer
/S/ HOWARD S. MODLIN
Howard S. Modlin Director and Secretary September 5, 1997
/S/ FREDERICK R. CRONIN
Frederick R. Cronin Director and Vice President, September 5, 1997
Corporate Technology
/S/ LEE M. PASCHALL
Lee M. Paschall Director September 5, 1997
/S/ JOHN L. SEGALL
John L. Segall Director September 5, 1997
II-4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8, relating to the 1991 Stock Option Plan of General
DataComm Industries, Inc. and Subsidiaries, in the prospectus included therein,
of our report dated October 21, 1996 on our audits of the consolidated financial
statements and financial statement schedule of General DataComm Industries, Inc.
and Subsidiaries as of September 30, 1996 and 1995 and for the years ended
September 30, 1996, 1995 and 1994, which report is included in the 1996 Annual
Report on Form 10-K. We also consent to the reference to our firm under the
captions "Experts" and "Interest of Named Experts and Counsel."
COOPERS & LYBRAND L.L.P.
Stamford, Connecticut
September 5, 1997
AGREEMENT made as of __________________ between GENERAL DATACOMM INDUSTRIES,
INC., a Delaware corporation having offices at 1579 Straits Turnpike,
Middlebury, Connecticut ("Grantor") and _______________________________
("Optionee").
WITNESSETH:
WHEREAS, Grantor is desirous of inducing Optionee to accept employment by the
Grantor,
NOW THEREFORE, in consideration of the promise of the Optionee to remain in the
continuous service of the Grantor for a period of at least one year from the
date of the granting of this option at the pleasure of the Board of Directors at
such compensation as the Board or the Chairman of the Board shall reasonably
determine, the covenant contained in paragraph 13 of this Agreement and for
other good and valuable consideration, the Grantor hereby grants the Optionee
Incentive Stock Options to purchase common stock of the Grantor on the following
terms and conditions:
1. OPTION. Pursuant to its 1991 Stock Option Plan (Incentive) the Grantor hereby
grants to the Optionee the option to purchase up to ____ shares of common stock,
par value 10 cents per share, of the Grantor to be issued upon the exercise
hereof, fully paid and non-assessable, during the following periods.
(a) No shares may be purchased prior to the expiration of twelve (12)
months from the date of this option (unless otherwise authorized by the Board of
Directors) or after ten (10) years from the date thereof.
(b) All or any part of ____ shares may be purchased during the period
commencing _________ and terminating at 5:00
p.m. on ______________
2. PURCHASE PRICE. The purchase price shall be ______ per share, payable in cash
or by check (subject to collection) to the Grantor, or in the alternative,
payment may be made by delivery of common stock of the Grantor valued at the
closing price of such common stock on the New York Stock Exchange on the date of
exercise. The Grantor shall pay all original issue or transfer taxes on the
exercise of this option and all other fees and expenses necessarily incurred by
the Grantor in connection therewith.
3. EXERCISE OF OPTION. The Optionee shall notify the Grantor by registered mail
addressed to its principal offices as to the number and class of shares which
Optionee desires to purchase under the options herein granted, which notice
shall be accompanied by payment (by cash, check or stock of the Grantor as above
provided) of the option price therefore as specified in paragraph 2 above. As
soon as possible thereafter the Grantor shall, at its principal office, tender
to Optionee certificates issued in the Optionee's name evidencing the shares
purchased by the Optionee.
<PAGE>
4. OPTION CONDITIONED ON CONTINUED EMPLOYMENT.
(a) Each of the aforesaid options shall terminate and be void if the Optionee is
not in the employ of the Grantor on the date in which such option is first
exercisable.
(b) The Optionee shall have the right to purchase the shares as to which the
options shall become exercisable only while Optionee is employed by the Grantor,
except if the Optionee's employment has terminated for any reason other than
death or disability, the options may be exercised to the extent that they are
exercisable upon the effective date of such termination, at any time within
three (3) months after the date of termination but in no event after the
expiration of the last option herein contained, provided if employment is
terminated for cause or without the Optionee having given reasonable written
notice [not less than thirty (30) days unless waived in writing by the Chairman
of the Board] the options shall immediately terminate.
5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTIONS.
(a) The Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of shares included therein.
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by the Optionee.
(c) In the event of the Optionee's death while employed by the Grantor or within
three (3) months of the termination of Optionee's employment [unless such
termination was either for cause or without the Optionee having given reasonable
notice (not less than 30 days unless waived in writing by the Chairman of the
Board)] Optionee's estate, or any person who acquired the right to exercise such
option by bequest or inheritance or by reason of the death of the Optionee,
shall have the right at any time within a period of one (1) year after the
Optionee's death, but not after ten (10) years from the date hereof, to exercise
this option to the extent of the following schedule:
TIME FROM GRANTING OF OPTION PERCENTAGE EXERCISABLE
From To the End of
1 day 12 mos. 33%
12 mos. 24 mos. 67%
after 24 mos. 100%
(d) In the event of the Optionee's permanent and total disability while employed
by the Grantor, the Optionee shall have the right at any time within a period of
one (1) year after cessation of Optionee's employment, but not after ten (10)
years from the date hereof, to exercise this option to the extent of the above
schedule. For this purpose, the Optionee shall be considered permanently and
totally disabled if Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve (12) months. The
Optionee shall not be considered permanently and totally disabled unless
Optionee furnishes proof of the existence thereof in such form and manner and at
such times as a committee appointed by the Chairman of the Board of Grantor may
require. The Optionee agrees that said committee's determination as to whether
the Optionee is permanently and totally disabled shall be final and absolute,
and not subject to question by the Optionee, a representative of the Optionee,
or the Grantor.
<PAGE>
6. STOCK AS INVESTMENT. By accepting this option the Optionee agrees for the
Optionee, Optionee's heirs and legatees that unless the shares have been
registered under the Securities Act of 1933, as amended, any and all shares
purchased hereunder shall be acquired for investment and not for distribution,
and upon the issuance of any or all of the shares subject to the option granted
hereunder, the Optionee, or Optionee's heirs or legatees receiving such shares,
shall deliver to the Grantor a representation in writing that such shares are
being acquired in good faith for investment and not for distribution. Grantor
may place a "stop transfer" order with respect to such shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate
unless such shares are registered.
7. RESTRICTION ON ISSUANCE OF SHARES. The Grantor shall not be required to
issue or deliver any certificate for shares of its capital stock purchased upon
the exercise of this option:
(a) prior to the admission of such shares to listing on any stock exchange on
which the stock may at that time be listed and, in the event of the exercise of
this option with respect to any shares of stock subject hereto, the Grantor
shall make prompt application for such listing;
(b) unless the prior approval of such sale or issuance has been obtained from
any state regulatory body having jurisdiction; or
(c) unless the shares with respect to which the option is being exercised have
been registered under the Securities Act of 1933, as amended, or are exempt from
registration.
8. ADJUSTMENT OF SHARES.
(a) If additional shares of common stock are issued by the Grantor pursuant to a
stock split or stock dividend in excess of 5% in any one fiscal year of the
Grantor, the number of shares of common stock then covered by each option
granted herein shall be increased proportionately with no increase in the total
purchase price of the shares then so covered. In the event that the shares of
common stock of the Grantor are reduced at any time by a combination of shares,
the number of shares of common stock then covered by each option granted herein
shall be reduced proportionately with no reduction in the total price of the
shares then so covered. If the Grantor shall be reorganized, consolidated or
merged with another corporation, or if all or substantially all of the assets of
the Grantor shall be sold or exchanged, the Optionee shall, at the time of
issuance of the stock under such a corporate event, be entitled to receive upon
the exercise of his option, the same number and kind of shares of stock or the
same amount of property, cash or securities as he would have been entitled to
receive upon the happening of any such corporate event as if he had been,
immediately prior to such event, the holder of the number of shares covered by
this option. No option adjustment shall be made for stock dividends or stock
splits which are not in excess of 5% in any one fiscal year (even though the
cumulated total of such stock dividends over the life of an option may be in
excess of 5%), cash dividends or the issuance to stockholders of the Company of
rights to subscribe for additional common stock or other securities.
(b) Any adjustment in the number of shares shall apply proportionately to only
the unexercised portion of an option granted hereunder. If fractions of a share
would result from any such adjustment, the adjustment shall be revised to the
next higher whole number of shares.
9. NO RIGHTS IN OPTION STOCK. Optionee shall have no rights as a stockholder in
respect of shares as to which the option shall not have been exercised and
payment made as herein provided and shall have no rights with respect to such
shares not herein provided.
<PAGE>
10. NO CONTRACT OF EMPLOYMENT. Optionee further represents, covenants and
warrants this Agreement does not constitute a contract of employment with the
Grantor or any of its subsidiaries or affiliates, nor does it give the Optionee
any right to be employed by the Grantor, and that unless Optionee has a written
contract of employment signed by the Grantor, Optionee's employment is
terminable at will by Grantor, with or without cause.
11. BINDING EFFECT. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives and assigns.
12. JURISDICTION OF DISPUTES. The appropriate Federal or State Curts of or
located in the State in which the Grantor has its principal executive offices
shall have exclusive jurisdiction of all disputes arising under this Agreement.
13. COVENANT NOT TO COMPETE AND CANCELLATION AND RESCISSION OF OPTIONS. As a
condition for acceptance of this Agreement, Optionee agrees that during the one
(1) year period following Optionee's termination of employment for any reason
(excluding any such termination by Grantor), Optionee shall not, directly or
indirectly, work for or render any services to any person, firm or business
located within a 150 mile radius of Grantor's Corporate office in Middlebury,
Connecticut which offers products and/or services competitive to the products
and/or services of Grantor. Upon termination, in order to ascertain if future
employment would be deemed to be in non-compliance with this covenant, an
Optionee should notify the Grantor as to Optionee's future employer and make a
request for approval to retain Optionee's rights under this option on the basis
of demonstrating that Optionee is not entering into a competitive situation. If
a non-competitive situation is demonstrated to the Company's satisfaction, then
such approval shall not be unreasonably withheld. In the event Optionee fails to
comply with or otherwise breaches this covenant in any way, (i) all unexercised
options shall immediately be rescinded and be of no further force or effect, and
(ii) during the two year period following any such termination, Grantor may
notify Optionee in writing of the rescission of any options exercised by
Optionee after any such termination and/or within nine (9) months prior to any
such termination of Optionee's employment. Within ten (10) days after receiving
such a notice from Grantor, the Optionee shall pay to Grantor in cash, the
aggregate amount of any gain resulting from the exercise by Optionee of such
rescinded options and the subsequent sales of the shares received on such
exercise or, if no such sale of said shares has occurred, at Grantor's demand,
return the shares received on the exercise of such rescinded options against the
refund by the Grantor of the exercise price therefor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
GENERAL DATACOMM INDUSTRIES, INC.
By: ________________________________
Charles P. Johnson, Chairman of the Board
- --------------------------
Total Shares: _______________
AGREEMENT made as of __________________ between GENERAL DATACOMM INDUSTRIES,
INC., a Delaware corporation having offices at 1579 Straits Turnpike,
Middlebury, Connecticut ("Grantor") and _______________________________
("Optionee").
WITNESSETH:
WHEREAS, Grantor is desirous of inducing Optionee to accept employment by the
Grantor,
NOW THEREFORE, in consideration of the promise of the Optionee to remain in the
continuous service of the Grantor for a period of at least one year from the
date of the granting of this option at the pleasure of the Board of Directors at
such compensation as the Board or the Chairman of the Board shall reasonably
determine, the covenant contained in paragraph 13 of this Agreement and for
other good and valuable consideration, the Grantor hereby grants the Optionee
Incentive Stock Options to purchase common stock of the Grantor on the following
terms and conditions:
1. OPTION. Pursuant to its 1991 Stock Option Plan (Non-Statutory) Grantor hereby
grants to the Optionee the option to purchase up to ____ shares of common stock,
par value 10 cents per share, of the Grantor to be issued upon the exercise
hereof, fully paid and non-assessable, during the following periods.
(a) No shares may be purchased prior to the expiration of twelve (12)
months from the date of this option (unless otherwise authorized by the Board of
Directors) or after ten (10) years from the date thereof.
(b) All or any part of ____ shares may be purchased during the period
commencing _________ and terminating at 5:00 p.m. on ______________.
2. PURCHASE PRICE. The purchase price shall be ______ per share, payable in cash
or by check (subject to collection) to the Grantor, or in the alternative,
payment may be made by delivery of common stock of the Grantor valued at the
closing price of such common stock on the New York Stock Exchange on the date of
exercise. The Grantor shall pay all original issue or transfer taxes on the
exercise of this option and all other fees and expenses necessarily incurred by
the Grantor in connection therewith.
3. EXERCISE OF OPTION. The Optionee shall notify the Grantor by registered mail
addressed to its principal offices as to the number and class of shares which
Optionee desires to purchase under the options herein granted, which notice
shall be accompanied by payment (by cash, check or stock of the Grantor as above
provided) of the option price therefore as specified in paragraph 2 above. As
soon as possible thereafter the Grantor shall, at its principal office, tender
to Optionee certificates issued in the Optionee's name evidencing the shares
purchased by the Optionee.
<PAGE>
4. OPTION CONDITIONED ON CONTINUED EMPLOYMENT.
(a) Each of the aforesaid options shall terminate and be void if the Optionee is
not in the employ of the Grantor on the date in which such option is first
exercisable.
(b) The Optionee shall have the right to purchase the shares as to which the
options shall become exercisable only while Optionee is employed by the Grantor,
except if the Optionee's employment has terminated for any reason other than
death or disability, the options may be exercised to the extent that they are
exercisable upon the effective date of such termination, at any time within
three (3) months after the date of termination but in no event after the
expiration of the last option herein contained, provided if employment is
terminated for cause or without the Optionee having given reasonable written
notice [not less than thirty (30) days unless waived in writing by the Chairman
of the Board] the options shall immediately terminate.
5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTIONS.
(a) The Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of shares included therein.
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by the Optionee.
(c) In the event of the Optionee's death while employed by the Grantor or within
three (3) months of the termination of Optionee's employment [unless such
termination was either for cause or without the Optionee having given reasonable
notice (not less than 30 days unless waived in writing by the Chairman of the
Board)] Optionee's estate, or any person who acquired the right to exercise such
option by bequest or inheritance or by reason of the death of the Optionee,
shall have the right at any time within a period of one (1) year after the
Optionee's death, but not after ten (10) years from the date hereof, to exercise
this option to the extent of the following schedule:
TIME FROM GRANTING OF OPTION PERCENTAGE EXERCISABLE
From To the End of
1 day 12 mos. 33%
12 mos. 24 mos. 67%
after 24 mos. 100%
(d) In the event of the Optionee's permanent and total disability while employed
by the Grantor, the Optionee shall have the right at any time within a period of
one (1) year after cessation of Optionee's employment, but not after ten (10)
years from the date hereof, to exercise this option to the extent of the above
schedule. For this purpose, the Optionee shall be considered permanently and
totally disabled if Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve (12) months. The
Optionee shall not be considered permanently and totally disabled unless
Optionee furnishes proof of the existence thereof in such form and manner and at
such times as a committee appointed by the Chairman of the Board of Grantor may
require. The Optionee agrees that said committee's determination as to whether
the Optionee is permanently and totally disabled shall be final and absolute,
and not subject to question by the Optionee, a representative of the Optionee,
or the Grantor.
<PAGE>
6. STOCK AS INVESTMENT. By accepting this option the Optionee agrees for the
Optionee, Optionee's heirs and legatees that unless the shares have been
registered under the Securities Act of 1933, as amended, any and all shares
purchased hereunder shall be acquired for investment and not for distribution,
and upon the issuance of any or all of the shares subject to the option granted
hereunder, the Optionee, or Optionee's heirs or legatees receiving such shares,
shall deliver to the Grantor a representation in writing that such shares are
being acquired in good faith for investment and not for distribution. Grantor
may place a "stop transfer" order with respect to such shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate
unless such shares are registered.
7. RESTRICTION ON ISSUANCE OF SHARES. The Grantor shall not be required to
issue or deliver any certificate for shares of its capital stock purchased upon
the exercise of this option:
(a) prior to the admission of such shares to listing on any stock exchange on
which the stock may at that time be listed and, in the event of the exercise of
this option with respect to any shares of stock subject hereto, the Grantor
shall make prompt application for such listing;
(b) unless the prior approval of such sale or issuance has been obtained from
any state regulatory body having jurisdiction; or
(c) unless the shares with respect to which the option is being exercised have
been registered under the Securities Act of 1933, as amended, or are exempt from
registration.
8. ADJUSTMENT OF SHARES.
(a) If additional shares of common stock are issued by the Grantor pursuant to a
stock split or stock dividend in excess of 5% in any one fiscal year of the
Grantor, the number of shares of common stock then covered by each option
granted herein shall be increased proportionately with no increase in the total
purchase price of the shares then so covered. In the event that the shares of
common stock of the Grantor are reduced at any time by a combination of shares,
the number of shares of common stock then covered by each option granted herein
shall be reduced proportionately with no reduction in the total price of the
shares then so covered. If the Grantor shall be reorganized, consolidated or
merged with another corporation, or if all or substantially all of the assets of
the Grantor shall be sold or exchanged, the Optionee shall, at the time of
issuance of the stock under such a corporate event, be entitled to receive upon
the exercise of his option, the same number and kind of shares of stock or the
same amount of property, cash or securities as he would have been entitled to
receive upon the happening of any such corporate event as if he had been,
immediately prior to such event, the holder of the number of shares covered by
this option. No option adjustment shall be made for stock dividends or stock
splits which are not in excess of 5% in any one fiscal year (even though the
cumulated total of such stock dividends over the life of an option may be in
excess of 5%), cash dividends or the issuance to stockholders of the Company of
rights to subscribe for additional common stock or other securities.
(b) Any adjustment in the number of shares shall apply proportionately to only
the unexercised portion of an option granted hereunder. If fractions of a share
would result from any such adjustment, the adjustment shall be revised to the
next higher whole number of shares.
9. NO RIGHTS IN OPTION STOCK. Optionee shall have no rights as a stockholder in
respect of shares as to which the option shall not have been exercised and
payment made as herein provided and shall have no rights with respect to such
shares not herein provided.
<PAGE>
10. NO CONTRACT OF EMPLOYMENT. Optionee further represents, covenants and
warrants this Agreement does not constitute a contract of employment with the
Grantor or any of its subsidiaries or affiliates, nor does it give the Optionee
any right to be employed by the Grantor, and that unless Optionee has a written
contract of employment signed by the Grantor, Optionee's employment is
terminable at will by Grantor, with or without cause.
11. BINDING EFFECT. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives and assigns.
12. JURISDICTION OF DISPUTES. The appropriate Federal or State Courts of or
located in the State in which the Grantor has its principal executive offices
shall have exclusive jurisdiction of all disputes arising under this Agreement.
13. COVENANT NOT TO COMPETE AND CANCELLATION AND RESCISSION OF OPTIONS. As a
condition for acceptance of this Agreement, Optionee agrees that during the one
(1) year period following Optionee's termination of employment for any reason
(excluding any such termination by Grantor), Optionee shall not, directly or
indirectly, work for or render any services to any person, firm or business
located within a 150 mile radius of Grantor's Corporate office in Middlebury,
Connecticut which offers products and/or services competitive to the products
and/or services of Grantor. Upon termination, in order to ascertain if future
employment would be deemed to be in non-compliance with this covenant, an
Optionee should notify the Grantor as to Optionee's future employer and make a
request for approval to retain Optionee's rights under this option on the basis
of demonstrating that Optionee is not entering into a competitive situation. If
a non-competitive situation is demonstrated to the Company's satisfaction, then
such approval shall not be unreasonably withheld. In the event Optionee fails to
comply with or otherwise breaches this covenant in any way, (i) all unexercised
options shall immediately be rescinded and be of no further force or effect, and
(ii) during the two year period following any such termination, Grantor may
notify Optionee in writing of the rescission of any options exercised by
Optionee after any such termination and/or within nine (9) months prior to any
such termination of Optionee's employment. Within ten (10) days after receiving
such a notice from Grantor, the Optionee shall pay to Grantor in cash, the
aggregate amount of any gain resulting from the exercise by Optionee of such
rescinded options and the subsequent sales of the shares received on such
exercise or, if no such sale of said shares has occurred, at Grantor's demand,
return the shares received on the exercise of such rescinded options against the
refund by the Grantor of the exercise price therefor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
GENERAL DATACOMM INDUSTRIES, INC.
By: ________________________________
Charles P. Johnson, Chairman of the Board
- --------------------------
Total Shares: _______________
