As filed with the Securities and Exchange Commission on October 22, 1999
Registration No. 333-
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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
GENERAL DATACOMM INDUSTRIES, INC.
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(Exact name of issuer as specified in its charter)
Delaware 06-0853856
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(State or other jurisdiction of (IRS Employer Identification No,)
incorporation or organization)
Park Road Extension, Middlebury, Connecticut 06762-1299
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(Address of principal executive offices)
1998 STOCK OPTION PLAN
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(Full title of the plan)
HOWARD S. MODLIN, Weisman Celler Spett & Modlin, P.C.
445 Park Avenue, New York, New York 10022 (212) 371-5400
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(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 1,500,000 $2.78(1) $4,170,000 $1,159.26
(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 October 20, 1999,
on the New York Stock Exchange, Inc.
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GENERAL DATACOMM INDUSTRIES, INC.
1998 STOCK OPTION PLAN
Cross Reference Sheet Between Items of Form S-8 and Prospectus
Item Required by Form S-8 Caption in Prospectus
1. Plan Information Cover Page;
1998 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.
Park Road Extension
Middlebury, Connecticut 06762-1299
203-574-1118
1998 Stock Option Plan
1,500,000 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 and directors of the Corporation and its subsidiaries as may be
granted options to purchase shares pursuant to its 1998 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 ("Securities Act"), 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 October 22, 1999
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
PAGE
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REGISTRATION STATEMENT .....................................................2
AVAILABLE INFORMATION ......................................................3
GENERAL INFORMATION ........................................................3
1998 STOCK OPTION PLAN .....................................................4
FEDERAL INCOME TAX CONSEQUENCES ............................................6
DESCRIPTION OF CAPITAL STOCK ...............................................6
LEGAL MATTERS ..............................................................9
EXPERTS ....................................................................9
INDEMNIFICATION ............................................................9
REGISTRATION STATEMENT
General DataComm Industries, Inc. (the "Corporation") has filed with
the Securities and Exchange Commission, Washington, DC, a Registration Statement
(hereinafter, as amended to date, referred to as the "Registration Statement")
on Form S-8 (File No. 333------) under the Securities Act in respect of
1,500,000 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 and
nonemployee directors of the Corporation and its subsidiaries under the
Corporation's 1998 Stock Option Plan (the "1998 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 1998 Plan in this Prospectus are
summaries of certain provisions of the 1998 Plan, a copy of which is an exhibit
to this Registration Statement. Reference is made to the 1998 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 ("Exchange Act") 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: 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 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, 1998.
2. The Corporation's proxy statement dated December 14, 1998 with
respect to its annual meeting of shareholders held on February 4, 1999 and proxy
statement dated May 13, 1999 with respect to its, 1999 and special meeting of
stockholders held on June 18, 1999.
3. The Corporation's quarterly reports on Form 10-Q for the
quarters ended December 31, 1998, March 31, 1999 and June 30, 1999.
4. The Corporation's current report on Form 8-K as amended dated
May 14, 1999.
All documents filed by the Corporation after the date of this
Prospectus pursuant to Sections 13, 14, and 15(d) of the Exchange Act, 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.
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Any optionee who may be deemed an affiliate of the Corporation, as
defined in Rule 405 issued under the 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.
1998 ST0CK OPTION PLAN
Purpose and Eligibility
The 1998 Plan was originally adopted by the directors on April 22,
1998 as a "broad based Stock Option Plan" as permitted by the policy of the New
York Stock Exchange 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 and non-employee
directors, by the grant of non-statutory stock options up to a present maximum
of 1,500,000 shares. At all times a minimum of 20% of the Corporation's
employees must be eligible for grants of options under the 1998 Plan, and less
than 50% of the persons eligible for options shall be officers. The granting of
options is determined by the Chairman of the Board of the Corporation, who
administers the 1998 Plan 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 directors, and reports to the Board of
Directors the names of those granted options, the number of shares covered by
each option and the applicable option prices. The Stock Option Committee of the
Board of Directors reports to the Board of Directors with respect to the names
of employees and non-employee directors subject to Section 16 of the Exchange
Act who are granted stock options, the number of shares covered by each such
option, and the applicable option prices. The Chairman of the Board, or the
Stock Option Committee, as the case may be, subject to the provisions of the
1998 Plan, has sole discretion to determine the persons 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 or non-employee directors, as
the case may be, 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. It is presently expected that approximately 1,100 employees and
all three non-employee directors are eligible to receive options under the 1998
Plan.
Shares Available and Exercise of Options
The 1998 Plan provides for options to purchase an aggregate of
1,500,000 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 1998 Plan are non-statutory stock
options. The 1998 Plan provides 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 as stated in each option granted, commencing one (1) year after the date of
grant of the option; and that the options expire unless exercised on or before
ten (10) years from the date of grant.
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The option price of the 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 non-statutory stock option, such options may be exercised by the
optionee in any order.
Options are exercised by the payment of cash or the delivery of
Common Stock of the Corporation valued at the market price for such shares at
the time of exercise.
As of September 30, 1999, 1,519,625 options have been granted under
the 1998 Plan to 389 employees at an average exercise price of $3.20. Of such
granted options, none have been exercised, 1,260,935 remain outstanding, 258,690
have been canceled and 239,065 options remain available for grant at such date.
Options may not be granted under the 1998 Plan after April 22, 2008.
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
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1 Day 12 months 33%
12 Months 24 months 67%
Over 24 Months 100%
If an optionee ceases to be employed by the Corporation or a
non-employee's directorship terminates 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.
Modification
The Board of Directors may at any time, or from time to time, without
stockholder approval, suspend, terminate or amend the 1998 Plan in such respects
as it shall deem advisable.
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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 taxed to him
or her as compensation 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. If the optionee holds the shares for more than one year, such gain or
loss will be treated as a long-term capital gain or loss, with any such
long-term capital gain taxed at a maximum rate of 20%.
Employee Retirement Income Security Act of 1974
The 1998 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 Internal
Revenue Code of 1986.
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 on its Common Stock, 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.
Upon liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of the Common Stock, ratably with the holders of the
Class B Stock (which are considered for this purpose as one class), are entitled
to 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, if any,
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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 30, 1999 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 declared and paid only as and
when dividends on the Common Stock are declared and paid. Moreover, if a cash
dividend is paid in respect of the Common Stock, a cash dividend must also be
paid on the Class B Stock, equal to 90% of the amount of the cash dividends paid
on each share of Common Stock. Otherwise, however, the Common Stock and the
Class B Stock rank equally as to dividends. 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 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 (the liquidation preference of Preferred
Stock outstanding at September 30, 1999 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.
Special Voting Requirements
The Corporation's Certificate of Incorporation 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; this "fair price" provision may not be amended
except by a four-fifths vote of
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the stockholders and may be considered to have the effect of discouraging tender
offers, takeover attempts, acquisitions or business combinations involving the
Corporation. That 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 Corporation's
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.
Anti-Takeover Statute
Section 203 of the Delaware General Corporation Law ("DGCL") is
applicable to corporate takeovers in Delaware. Subject to certain exceptions set
forth therein, Section 203 of the DGCL provides that a corporation shall not
engage in any business combination with any "interested stockholder" for a
three-year period following the date that such stockholder becomes an interested
stockholder unless (a) prior to such date, the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder; (b) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding certain shares) or (c) on or subsequent to such date, the
business combination is approved by the board of directors of the corporation
and by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder.
Except as specified therein, an interested stockholder is defined to
include any person that is the owner of 15% or more of the outstanding voting
stock of the corporation, or is an affiliate or associate of the corporation and
was the owner of 15% or more of the outstanding voting stock of the corporation
at any time within three years immediately prior to the relevant date, and the
affiliates and associates of such person. Under certain circumstances, Section
203 of the DGCL makes it more difficult for an "interested stockholder" to
effect various business combinations with a corporation for a three-year period
although the stockholders may, by adopting an amendment to the corporation's
certificate of incorporation or by-laws, elect not to be governed by this
section, effective twelve months after adoption. The Certificate of
Incorporation and the By-Laws do not exclude the Corporation from the
restrictions imposed under Section 203 of the DGCL.
Preferred Stock
The Preferred Stock, including the Corporation's 9% Cumulative
Convertible Exchangeable Preferred Stock ("9% 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
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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 September 30, 1999, 800,000 shares of 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. 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.
Registrar and Transfer Agent
Chase Mellon Shareholder Services, L.L.C., is the Registrar and
Transfer Agent for the Common Stock.
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 September 30, 1999, members of the firm of Weisman Celler
Spett & Modlin, P.C. beneficially owned 6,750 shares of the Class B Stock, and
the firm owned 90,535 shares of Common Stock of the Corporation. Howard S.
Modlin, a member of such firm, is Secretary and a director of the Corporation.
EXPERTS
The consolidated balance sheets as of September 30, 1998 and 1997 and
the consolidated statements of operations and accumulated deficit and cash flows
for each of the three years in the period ended September 30, 1998, incorporated
by reference in this Prospectus, have been incorporated herein in reliance upon
the report of PricewaterhouseCoopers LLP, 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 6.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
The consolidated balance sheets as of September 30, 1998 and 1997 and
the consolidated statements of operations and accumulated deficit and cash flows
for each of the three years ended September 30, 1998, incorporated by reference
in this Registration Statement, have been incorporated herein in reliance on the
report of PricewaterhouseCoopers LLP, 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, 1999, 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.
Item 8. List of Exhibits
10. (1) 1998 Stock Option Plan
(2) Non-Statutory Stock Option Agreement form - employee
(3) Non-Statutory Stock Option Agreement form - non-employee directors
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23. Consents
(1) PricewaterhouseCoopers LLP
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.
(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
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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 22nd day of
October, 1999.
GENERAL DATACOMM INDUSTRIES, INC.
By: /S/ CHARLES P. JOHNSON
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 October 22, 1999
Charles P. Johnson and Chief Executive Officer
/S/ WILLIAM G. HENRY Vice President, Finance October 22, 1999
William G. Henry Chief Financial Officer
and Principal Accounting Officer
/S/ HOWARD S. MODLIN Director and Secretary October 22, 1999
Howard S. Modlin
/S/ FREDERICK R. CRONIN Director and Vice President, October 22, 1999
Frederick R. Cronin Corporate Technology
/S/ LEE M. PASCHALL Director October 22, 1999
Lee M. Paschall
/S/ JOHN L. SEGALL Director October 22, 1999
John L. Segall
II-4
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of General DataComm Industries, Inc. of our
report dated October 29, 1998 (except for Note 15 for which the date is December
31, 1998) relating to the consolidated financial statements and financial
statement schedules of General DataComm Industries, Inc. and Subsidiaries as of
September 30, 1998 and 1997 and for the years ended September 30, 1998, 1997 and
1996, which reports are incorporated by reference in the Annual Report on Form
10-K for the year ended September 30, 1998. We also consent to the reference to
us under the heading "Experts" in such Registration Statement.
/S/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Stamford, Connecticut
October 22, 1999
l998 STOCK OPTION PLAN
OF
GENERAL DATACOMM INDUSTRIES, INC.
1. Purpose of the Plan. This Plan (herein called the "Plan") is designed to
provide an incentive to key employees, officers and directors who are employees
and non-employee directors, of GENERAL DATACOMM INDUSTRIES, INC. (herein called
the "Corporation") and its subsidiaries, as defined in Section 425(f) of the
Internal Revenue Code of l986 and to offer an additional inducement in obtaining
and retaining the services of key personnel.
2. Stock Subject to the Plan. "Non-Statutory Stock Options" may be granted
under the Plan to purchase in the aggregate not more than 1,500,000 shares of
Common Stock, $.l0 par value, of the Corporation (herein called "Common Stock"),
which shares may, in the discretion of the Board of Directors, consist either in
whole or in part of authorized but unissued shares of Common Stock or shares of
Common Stock held in the treasury of the Corporation. In the event an option for
any reason expires or terminates unexercised as to all shares, such remaining
shares shall again become available for options under the Plan.
3. Administration of the Plan. The Plan shall be administered by the Chairman
of the Board and a Stock Option Committee, who shall report to the Board of
Directors the names of those granted options, the number of shares covered by
each option and the applicable option prices. The Stock Option Committee shall
consist of two (2) or more members of the Board of Directors appointed by the
Board of Directors who are not employees of the Corporation. The Stock Option
Committee shall have the exclusive right to grant stock options to employees who
are subject to Section l6(a) of the Securities Exchange Act of l934 ("l934
Act"), and the Chairman of the Board shall have the exclusive right to make all
other grants. Except with respect to grants by the Stock Option Committee, the
Chairman of the Board shall have the full power to construe and interpret the
Plan and to establish and amend rules, regulations and forms for its
administration. The Plan may not be amended, however, without the approval of
the Board of Directors which shall also determine which employees are subject to
Section l6(a) of the l934 Act.
<PAGE>
4. Eligibility. The Chairman of the Board and Stock Option Committee may,
consistent with the purposes of the Plan and Paragraph 3, grant options from
time to time, within ten (l0) years from the date of adoption of the Plan by the
Board of Directors of the Corporation, to key employees, officers and directors
who are employees and non-employee directors of the Corporation or of any of its
present subsidiaries or future subsidiary corporations (herein called
"Subsidiaries"), and covering such number of shares of Common Stock as may be
determined, 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. Employees may receive more than one (l) option under the Plan. At all
times (i) a minimum of 20% of the employees of the Corporation shall be eligible
to receive options under the Plan and (ii) less than 50% of the persons eligible
to receive options under the Plan shall be officers and directors of the
Corporation.
5. Option Price. The purchase price of the Common Stock under each option
shall be determined by the Chairman of the Board and the Stock Option Committee,
as the case may be, and shall be the fair market value of the stock at the time
of granting of the option or such lesser price as determined by the Chairman of
the Board or Stock Option Committee, as the case may be. Such fair market value
shall be taken by the Chairman of the Board and Stock Option Committee as the
average between the high and low sale price on the date the option is granted,
or, if there is no such sale on that date, then on the last previous day on
which such a sale was reported.
6. Term of Option. The term of each option granted pursuant to the Plan shall
be for a period not exceeding ten (l0) years from the date of granting thereof.
Options shall be subject to earlier termination as hereinafter provided.
7. Exercise of Option. The option shall be 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 Stock Option Committee, as the case may be, and stated in the
option, provided, however, that unless otherwise authorized by the Board of
Directors as to all options outstanding under the Plan, no option may be
exercised prior to the first anniversary of the date of granting of such option.
The option shall be exercised by giving written notice to the Corporation at its
principal office, Middlebury, Connecticut, specifying the number of shares
purchased and accompanied by payment in full in cash of the aggregate purchase
price therefor, or in the alternative, payment may be made by delivery of Common
Stock of the Corporation valued at the closing price of such Common Stock on the
New York Stock Exchange on the date of exercise. Certificates representing the
shares of stock purchased shall be issued as promptly as practicable thereafter.
The holder of an option shall not have any rights of a stockholder with respect
to the shares covered by his or her option until the date of issuance of a stock
certificate for such shares. In no case may a fraction of a share be purchased
or issued under the Plan. If fractions of a share would result from any
adjustment, the adjustment shall be revised to the next higher whole number of
shares.
8. Termination of Employment. Any option holder whose employment or
directorship if not an employee, has terminated for any reason other than death
or disability may exercise his or her option, to the extent exercisable upon the
effective date of such
2
<PAGE>
termination, at any time within three (3) months after the date of termination,
but in no event after the expiration of the term of the option, provided,
however, that if employment or directorship be terminated either (i) for cause,
or (ii) as to employees only, without the employee giving reasonable notice (not
less than 30 days unless waived in writing by the Chairman of the Board) said
option shall (to the extent not previously exercised) terminate immediately.
9. Death or Disability of Employee or Non-Employee Director. (a) If an option
holder dies while he or she is employed, by or a director of, the Corporation or
any of the Subsidiaries or within three (3) months after termination of the
option holder's employment or directorship [unless such termination was either
(i) for cause, or (ii) without the option holder employee giving reasonable
notice (not less than 30 days unless waived in writing by the Chairman of the
Board)] the option may be exercised by his or her executor, administrator or
other person at the time entitled by law to the option holder's rights under the
option, at any time within one (l) year after death, but in no event after the
expiration of the term of the option, to the extent of the following schedule:
Time From Grant of Option
-------------------------
Percentage
From to the end of Exercisable
---- ------------- -----------
1 Day 12 Months 33%
12 Months 24 Months 67%
Over 24 Months l00%
(b) In the event that an option holder becomes permanently and totally disabled
while in the employ of, or while a director of, the Corporation or any of the
Subsidiaries, the option holder may, but only within one (l) year next
succeeding the day of the commencement of such disability, exercise an option to
the extent of the above schedule, but in no event after the expiration of the
option. For this purpose, an option holder shall be considered permanently and
totally disabled if unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to last for a continuous period of not less than twelve (l2) months. An
option holder shall not be considered to be permanently and totally disabled
unless he or she 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
may require. The committee shall consist of three (3) employees who may be
officers of the Corporation. Said committee's determination of whether the
option holder is permanently and totally disabled shall be final and absolute,
and shall not be subject to question by the option holder, a representative of
the option holder, or the Corporation.
3
<PAGE>
10. Stock Option Contract. Each option shall be evidenced by an appropriate
Stock Option Contract which shall provide, among other things, (a) that with
respect to option holders who are employees the employee agrees that he or she
will remain in the employ of the Corporation or its Subsidiaries, at the
election of the Corporation, for a period of at least one (l) year from the
later of (i) the date the option is granted or (ii) the date to which he or she
is then otherwise obligated to remain in the employ of the Corporation, and (b)
that in the event of exercise of such option, unless the shares have been
registered under the Securities Act of l933, as amended, the shares subject to
option will be acquired for investment and not with a view to distribution
thereof. Nothing in the Plan or in any option contract entered into pursuant
hereto shall confer upon any employee any right to continue in the employ of the
Corporation or the Subsidiaries or interfere in any way with the right of the
Corporation or the Subsidiaries to terminate his or her employment at any time
without liability to the Corporation or the Subsidiaries.
11. Adjustments Upon Changes in Common Stock. If additional shares of Common
Stock are issued by the Corporation pursuant to a stock split or stock dividend
in excess of 5% in any one (l) year, the number of shares of Common Stock then
covered by each outstanding option granted hereunder shall be increased
proportionately with no increase in the total purchase price of the shares then
so covered, and the number of shares of Common Stock of the Corporation reserved
for the purposes of this Plan shall be increased by the same proportion. In the
event that the shares of Common Stock of the Corporation are reduced at any time
by a combination of shares, the number of shares of Common Stock then covered by
each outstanding option granted under the Plan shall be reduced proportionately
with no reduction in the total price of the shares then so covered, and the
number of shares of Common Stock reserved for the purposes of this Plan shall be
reduced proportionately with no reduction in the total price of the shares then
so covered, and the number of shares of Common Stock reserved for the purposes
of this Plan shall be reduced by the same proportion. If the Corporation shall
be reorganized, consolidated or merged with another corporation, or if all or
substantially all of the assets of the Corporation shall be sold or exchanged,
each employee to whom an option has been granted under this Plan shall, at the
time of issuance of the stock under such a corporate event, be entitled to
receive upon the exercise of the option, the same number and kind of shares of
stock or the same amount of property, cash or securities as the employee would
have been entitled to receive upon the happening of any such corporate event as
if the employee had been, immediately prior to such event, the holder of the
number of shares covered by the option. No option adjustment shall be made for
stock dividends which are not in excess of 5% (even though the cumulative 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 Corporation of rights to
subscribe for additional Common Stock or other securities.
12. Amendments and Termination of the Plan. The Plan shall terminate on April
22, 2008, and an option shall not be granted under the Plan after that date. The
Board of Directors may at any time suspend or terminate the Plan or amend it
from time to time
4
<PAGE>
in such respects as it may deem advisable. No termination, suspension or
amendment of the Plan shall, without the consent of the holder of an existing
option, adversely affect the holder's rights under such option.
13. Non-Transferability of Option. No option granted under the Plan shall be
transferable otherwise than by Will or the laws of descent and distribution; and
options may be exercised, during the lifetime of the holder thereof, only by
such holder.
14. Restriction on Issuance of Shares. The Corporation shall not be obligated
to sell or issue any shares pursuant to any stock option agreement unless:
(a) the shares with respect to which the option is being exercised
have been registered under the Securities Act of l933, as amended, or are exempt
from such registration;
(b) the prior approval of such sale or issuance has been obtained
from any State regulatory body having jurisdiction; and
(c) in the event the stock has been listed on any stock exchange, the
shares with respect to which the option is being exercised have been duly listed
on such exchange in accordance with the procedure specified therefor.
AGREEMENT made as of _______________ between GENERAL DATACOMM
INDUSTRIES, INC., a Delaware corporation having offices at Park Road Extension,
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, 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:
l. OPTION. Pursuant to its 1998 Stock Option Plan (Non-Statutory) the
Grantor hereby grants to the Optionee the option to purchase up to ________
shares of common stock, par value l0 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
(c) All or any part of shares may be purchased during the period
commencing and terminating at 5:00 p.m. on
(d) 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.
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.
<PAGE>
(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.
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.
<PAGE>
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.
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.
<PAGE>
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
- --------------------------
First/Middle/Last Name
Total Shares:
----------
AGREEMENT made as of _______________ between GENERAL DATACOMM
INDUSTRIES, INC., a Delaware corporation having offices at Park Road Extension,
Middlebury, Connecticut ("Grantor") and ______________ ("Optionee").
WITNESSETH:
WHEREAS, Grantor is desirous of inducing Optionee to remain a director
of the Grantor,
NOW THEREFORE, the Grantor hereby grants the Optionee Stock Options to
purchase common stock of the Grantor on the following terms and conditions:
l. OPTION. The Grantor hereby grants to the Optionee the option to purchase up
to ________ shares of common stock, par value l0 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
(c) All or any part of shares may be purchased during the period
commencing and terminating at 5:00 p.m. on
(d) 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.
4. OPTION CONDITIONED ON CONTINUED DIRECTORSHIP.
(a) Subject to the provisions of paragraph 5, each of the aforesaid options
shall terminate and be void if the Optionee is not a director of the
Grantor on the date in which such option is first exercisable.
<PAGE>
(b) Subject to the provisions of paragraph 5, the Optionee shall have the right
to purchase the shares as to which the options shall become exercisable
only while Optionee is a director of the Grantor, except if the Optionee's
directorship 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 Optionee is removed as a director
for cause, 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 a director of the Grantor or
within three (3) months of the termination of Optionee's directorship
[unless such removal was for cause 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. 100%
after 12 mos. 100%
(d) In the event of the Optionee's permanent and total disability while a
director of the Grantor, the Optionee shall have the right at any time
within a period of one (1) year after cessation of Optionee's directorship,
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.
(e) In the event the Grantor enters into a merger agreement with an
unaffiliated third party or is merged into or consolidated into or with any
such third party or agrees to sell all or substantially all of its assets
to any such third party, or there is a tender offer by any such third party
seeking to acquire a majority of the Grantor's outstanding shares of
capital stock entitled to vote in the election of directors, or there is a
"Change of Control" of the Grantor, or the Optionee is removed or otherwise
terminated by reason of not being renominated or reelected as a director
upon the expiration of Optionee's term as a director, then the Optionee
shall be entitled to exercise all of the options granted herein. As used
herein the term "Change of Control" shall mean any date when a majority of
the Board of Directors of the Grantor shall not consist of a majority of
the directors of Grantor on the date of this option agreement.
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.
<PAGE>
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,
which are not so listed, 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.
10. 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.
<PAGE>
11. 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.
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
Signed:
--------------------------
First/Middle/Last Name
Total Shares:
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