SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DATA SWITCH CORPORATION
_________________________________________________________________
(Exact name of issuer as specified in charter)
Delaware 06-0962862
_________________________________________________________________
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Enterprise Drive, Shelton, CT 06484
_________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
DATA SWITCH CORPORATION
1989 INCENTIVE STOCK OPTION PLAN
(Full title of the Plan)
_________________________________________________________________
Shawn A. Smith, Esq.
Data Switch Corporation
One Enterprise Drive
Shelton, Connecticut 06484
_________________________________________________________________
(Name and Address of Agent for Service)
(203) 926-1801
_________________________________________________________________
(Telephone Number, including area code,
of agent for service)
CALCULATION FOR REGISTRATION FEE
_________________________________________________________________
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registra-
registered registered share price tion fee
___________________________________________________________________
Common Stock, 500,000 shares $2.25 $1,125,000.00 $387.93
$.01 Par Value
___________________________________________________________________
*Offering price per share calculated on the basis of Rule 457(h)
and current practices of option issuance under the Plan.
<PAGE>
The contents of Registration Statement number 33-35835 with
respect to the Data Switch Corporation 1989 Incentive Stock Option
Plan are incorporated herein by reference.
Exhibits
4.1 Copy of the 1989 Incentive Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
[Filed as Exhibit 4.2 to Registration Statement
Number 33-35835]
23.1 Consent of Coopers & Lybrand
24.1 Power of Attorney
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 City
of Shelton, State of Connecticut, on this 24th day of May, 1994.
DATA SWITCH CORPORATION
By:/s/ W. James Whittle
W. James Whittle
Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ William J. Lifka Chairman of the Board, May 24, 1994
William J. Lifka President and Chief
Executive Officer
/s/ W. James Whittle Vice President and May 24, 1994
W. James Whittle Chief Financial Officer
/s/ Brandt R. Allen Director May 24, 1994
Brandt R. Allen
/s/ D. David Cohen Director May 24, 1994
D. David Cohen
/s/ Richard E. Greene Director May 24, 1994
Richard E. Greene
/s/ Norman Rasmussen Director May 24, 1994
Norman Rasmussen
/s/ Irwin J. Sitkin Director May 24, 1994
Irwin J. Sitkin
/s/ Michael D. Stashower Director May 24, 1994
Michael D. Stashower
<PAGE>
DATA SWITCH CORPORATION
1989 INCENTIVE STOCK OPTION PLAN
Section 1: Purpose. The purpose of the 1989 Incentive
Stock Option Plan (the "Plan") is to provide to employees of Data
Switch Corporation (the "Company"), an incentive to remain in the
Company's service and to work for the success of the Company and
its subsidiaries by enabling them to increase their proprietary
interest in the Company through the purchase of shares of Common
Stock of the Company (the "Stock") pursuant to this Plan. It is
further intended that options issued pursuant to the Plan shall
constitute "incentive stock options" within the meaning of Section
422A of the Internal Revenue Code of 1986, as amended from time to
time (the "Code").
Section 2: Administration. The Plan shall be
administered by the Board of Directors of the Company (the
"Board"), or in the alternative, by a Committee of the Board
selected by the Board to administer the Plan. In the event that
the Board selects a Committee to administer the Plan, all rights
and powers reserved to the Board hereunder shall be the sole
province of the Committee. Persons serving as members of the Board
of Directors shall be eligible to participate in the Plan, except
to the extent prohibited by any federal, state or local securities
legislation.
Subject to the provisions of this Plan, the Board of
Directors shall have full and final authority to determine (i) the
employees to whom options shall be granted; (ii) the number of
shares to be covered by options granted to each such employee;
(iii) the price to be paid for the shares upon the exercise of each
option; (iv) the period within which options may be exercised; and
(v) the terms and conditions of each option granted pursuant to the
Plan, which may include, in addition to any conditions imposed
under this Plan, such other conditions as the Board shall determine
and as shall be included in any Incentive Stock Option Agreement
referred to in Section 5 hereof.
The Board may establish from time to time such regulations,
provisions, and procedures, within the terms of the Plan, as, in
its opinion, may be advisable in the administration of the Plan.
Section 3: Eligibility. The persons who shall be
eligible to be granted options to purchase Stock of the Company
under this Plan are the employees, including officers and directors
of the Company or of any subsidiary Company in which the Company
owns, directly or indirectly, stock possessing 50% or more of the
combined voting power thereof, including companies which become
subsidiaries after the adoption of the Plan. From the pool of
eligible employees, the Board shall, from time to time, choose
those employees to whom options shall be granted on the basis of
contribution (or capacity to contribute) in substantial measure to
the successful performance of the Company or such subsidiaries.
Section 4: Shares Available for Options. The Board
shall reserve for purposes of this Plan, out of the
authorized but unissued Stock of the Company or out of shares of
such Stock held in its Treasury, or partly out of each, a total of
1,000,000 shares of Stock of the Company (or the number and kind of
shares of stock or other securities which, in accordance with
Section 13 of this Plan, shall be substituted for such shares or to
which such 1,000,000 shares shall be adjusted). In the event that an
option granted under the Plan expires or is terminated unexercised
as to any shares covered by such option, such shares shall
thereafter be again available for the granting of options under
this Plan.
Section 5: Granting of Options.
(a) Subject to the provisions of this Plan, the Board
shall have full and final authority to determine the persons to
whom options shall be granted and the number of shares to be
covered by each option. Under the provisions of this Plan, the
Board is authorized to grant only options which are "incentive
stock options" pursuant to Section 422A of the Code.
(b) Options may be granted under this Plan at any
time not later than ten (10) years after the earlier of (i) the
date on which the Plan is adopted by the Board, or (ii) the date on
which the Plan is approved by the Stockholders of the Company.
(c) The aggregate fair market value, determined as of
the time an option is granted and as provided in Section 6 of this
Plan, of the Stock for which any employee may be granted incentive
stock options in any calendar year under this Plan (or any other
plan of the Company or a subsidiary which entitles the participants
to acquire stock of the Company or any subsidiary) shall not exceed
$100,000.
(d) Each option granted under this Plan shall be
confirmed by an Incentive Stock Option Agreement which shall be
executed by the Company and by the employee to whom the option is
granted.
Section 6. Option Price.
(a) The Board shall, in its discretion, establish, at
the time at which any option is granted, the purchase price of each
share of Stock covered by such option; provided, however, that the
option price shall not be less than 100% of the fair market value
of the shares covered by the option on the day such option is
granted. The option price will be subject to adjustment in
accordance with the provisions of Section 13 of this Plan. The
option price of each share purchased pursuant to the exercise of an
option shall be paid in full at the time of purchase in cash, or in
shares of stock of the Company equal in value (of which the Board
shall be the sole judge) to the option price.
(b) The fair market value of each share shall be
deemed to be not less than the mean between the highest and lowest
selling prices of a share of Stock of the Company on the market or
exchange on which the stock is principally traded on the day on
which the option is granted, or if there is no sale reported on
that day, on the last preceding date within a reasonable period
preceding the date of grant on which any reported sale occurred.
If no actual sales of the Stock occur during a reasonable period
preceding the date of grant, the fair market value of each share
shall be deemed to be not less than the mean between the bona fide
bid and asked prices on the date of grant, or if none, on the last
preceding date on which such prices were quoted, as reported in
regularly published sources or by the Automated Quotation System of
the National Association of Securities Dealers, Inc.
Section 7: Terms of Options. The Board shall have
full discretion to determine the period during which an option may
be exercised, provided, however, that in no event shall any option
granted under this Plan, by its terms expire more than ten (10)
years from the date on which it is granted. Except as provided in
Section 12 of this Plan, the employee to whom such option is
granted must remain in the continuous employ of the Company or any
of its subsidiaries described in Section 3 hereof at all times
during the period beginning on the date of the granting of the
option and ending not more than three (3) months prior to the date
of exercise.
Section 8: Limits on Options to Certain Stockholders.
Notwithstanding anything else herein, the Board may not grant any
options under this Plan to any stockholder of the Company owning
more than ten (10%) percent of the Company's voting securities,
taken together and not as a separate class, unless such option:
(a) expires in accordance with the terms thereof, not
less than five (5) years from the date on which it is granted; and
(b) has an option price, determined in accordance
with Section 6 hereof, of not less than 110% of the fair market
value of the shares covered by the option.
Section 9: Exercise of Options. Options granted
hereunder shall be exercisable:
(a) As to one-third (1/3) of the total number of
shares subject to each grant, eighteen (18) months after the option
is granted;
(b) As to one-third (1/3) of the total number of
shares subject to each grant, thirty (30) months after the option
is granted; and
(c) As to one-third (1/3) of the total number of
shares subject to each grant, forty-two (42) months after the
option is granted.
Notwithstanding the foregoing, the Board shall have
authority to provide for such other exercise terms, or acceleration
of exercisability of previously granted options, or any class of
options, as the Board may, in its sole discretion, determine to be
appropriate. The right to purchase shares shall be cumulative so
that when the right to purchase any shares has accrued under any
such option, such shares or any part thereof may be purchased at
any time thereafter, until the expiration or termination of the
option.
Section 10. Payment of Option Price. Upon
exercise of any option granted this Plan, each optionee shall pay
for the shares purchased at the time of and together with notice of
exercise of such option. Such payment shall be made by certified
or bank check. Notwithstanding the foregoing, the Board may adopt
provisions implementing this Plan and not otherwise inconsistent
herewith:
(a) permitting the optionee to pay for the shares
with Stock of the Company; or
(b) permitting the optionee to receive property in
lieu of the shares at the time of the exercise of the option;
and/or
(c) conditioning the exercise of any option on the
occurrence of any event not inconsistent with the provisions of
subparagraph (b) of Section 422A of the Internal Revenue Code.
Section 11. Non-Transferability of Options.
Options granted under this plan shall not be transferable by the
optionee otherwise than by will, or if the optionee dies intestate,
by laws of descent and distribution of the jurisdiction of domicile
of the optionee at the time of his or her death, and such options
shall be exercisable during his or her lifetime only by the
optionee. If the optionee is declared legally incompetent, the
optionee's duly appointed personal representative may exercise any
options which the optionee was eligible to exercise at the time at
which the optionee was declared incompetent, to the extent provided
in Section 12(b) of this Plan.
Section 12. Termination of Employment.
(a) If the employment of an optionee by the Company
or by any of its subsidiary companies described in Section 3 hereof
shall terminate for any reason other than by death or total and
permanent disability, any option which the optionee is entitled to
exercise on the date of such termination shall be exercisable by
the optionee at any time on or before the expiration date of the
option or three (3) months after the date of such termination, but
only to the extent of the accrued right to purchase at the date of
such termination.
(b) If the employment of the optionee shall be
terminated because of the total and permanent disability of such
optionee within the meaning of Section 22(e)(3) of the Code, the
option shall be exercisable by the optionee at any time on or
before the earlier of the expiration date of the option or one (1)
year after the date of such termination of employment, but only to
the extent of the accrued right to purchase at the date of such
termination.
(c) If the optionee shall die while employed by the
Company or any of its subsidiary companies described in Section 3
hereof, or within three (3) months after termination of or
retirement from such employment, and if, at the date of death, the
optionee shall be entitled to exercise an option, such option may
be exercised by any person who acquires the option by bequest or
inheritance or by reason of the death of the optionee, but to the
extent of the accrued right to purchase at the date of death.
Section 13. Adjustment of Number of Shares.
In the event that the Company shall distribute a dividend on
Stock of the Company payable in shares of such Stock, the number or
kind of shares of stock or other securities of the Company or of
another corporation, whether through reorganization,
recapitalization, stock split, combination of shares, merger or
consolidation, there shall be substituted for each share of Stock
subject to any option and for each share of Stock reserved for
issuance pursuant to the Plan but not yet covered by an option, the
number and kind of shares of stock or other securities into which
each outstanding share of Stock shall be so changed or for which
each such share shall be exchanged.
In the event there shall be any change, other than as
specified above in this Section 13, in the number of or kind of
outstanding shares of Stock or of any stock or other securities
into which such Stock shall have been changed or for which it shall
have been exchanged, and the Board shall, in its sole discretion,
determine that such change equitably requires an adjustment in the
number or kind of shares theretofore reserved for issuance pursuant
to the Plan but not yet covered by an option and of shares then
subject to any option, such adjustment shall be made by the Board
and shall be effective and binding for all purposes of the Plan and
of each Incentive Stock Option Agreement.
In the case of any such substitution or adjustment as
provided for in this Section, the option price in any Incentive
Stock Option Agreement for each such share covered thereby prior to
such substitution or adjustment will be the option price for all
shares of stock or other securities which shall have been
substituted for such share or to which such share shall have been
adjusted. No adjustment or substitution provided for in this
Section 13 shall require the Company to sell a fractional share,
and the total substitution or adjustment with respect to each
Incentive Stock Option Agreement shall be limited accordingly.
Section 14. Delivery and Registration of Stock.
The Company's obligation to deliver shares of Stock with respect to
an option shall, if the Board so requests, be conditioned upon
receipt of a representation as to the investment intent of the
person to whom such shares are to be issued, in such form as the
Board shall determine to be necessary or advisable to comply with
the Securities Act of 1933 ("Act") or other applicable federal,
state, or local securities legislation. The Board may include a
provision that any representation requirement shall become
inoperative upon a registration of such shares or upon any other
event eliminating the necessity of such registration under the Act.
Section 15. Amendment of Plan. The Board
shall have the right to amend, suspend, or terminate this Plan at
any time, provided that no amendment shall be made which shall (i)
increase the total number of shares which may be issued and sold
pursuant to options granted under this Plan, or (ii) decrease the
minimum option price stated in Section 6 of this Plan, unless such
amendment is made by or with the approval of the Stockholders.
Section 16. Effective Date and Duration of Plan.
The effective date of the Plan shall be March 31, 1989 and it shall
terminate on March 31, 1999. The Board may terminate the Plan at
any earlier time.
In the event of such termination, no additional options may
be granted under the Plan thereafter, provided, however, that any
such termination shall not affect the validity of any prior option.
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this registration
statement on Form S-8, relating to the 1989 Incentive Stock Option
Plan of Data Switch Corporation in the prospectus included therein,
of our report dated February 11, 1994, except for Note 9, as to
which the date is March 22, 1994, on our audits of the consolidated
financial statements and financial statement schedules of Data
Switch Corporation as of December 31, 1993 and 1992 and for the
years ended December 31, 1993, 1992 and 1991, which report is
included in the 1993 Annual Report on Form 10-K. We also consent
to the reference to our firm under the caption "Experts."
Coopers & Lybrand
Stamford, Connecticut
May 11, 1994
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints William J. Lifka
and W. James Whittle, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him in his name, place and stead, in any and
all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission
and any other regulatory authority, granting unto said
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ William J. Lifka Chairman of the Board, May 24, 1994
William J. Lifka President and Chief
Executive Officer
/s/ W. James Whittle Vice President and May 24, 1994
W. James Whittle Chief Financial Officer
/s/ Brandt R. Allen Director May 24, 1994
Brandt R. Allen
/s/ D. David Cohen Director May 24, 1994
D. David Cohen
/s/ Richard E. Greene Director May 24, 1994
Richard E. Greene
/s/ Norman Rasmussen Director May 24, 1994
Norman Rasmussen
/s/ Irwin J. Sitkin Director May 24, 1994
Irwin J. Sitkin
/s/ Michael D. Stashower Director May 24, 1994
Michael D. Stashower
