<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 6, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
WALL DATA INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
WASHINGTON 91-1189299
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
11332 N.E. 122ND WAY
KIRKLAND, WASHINGTON 98034-6931
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
WALL DATA INCORPORATED
1994 RESTATED NONOFFICER STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
JAMES SIMPSON
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
11332 N.E. 122ND WAY
KIRKLAND, WASHINGTON 98034-6931
(206) 814-9255
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
COPY TO:
L. MICHELLE WILSON
PERKINS COIE
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES NUMBER TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED (1) REGISTERED (2) OFFERING PRICE PER SHARE (3) AGGREGATE OFFERING PRICE (3) REGISTRATION FEE
-------------------- -------------- ---------------------------- ---------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000 $13.6875 $6,843,750 $2,074
</TABLE>
(1) Including the associated Preferred Stock Purchase Rights.
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to the Wall Data Incorporated 1994 Restated Nonofficer Stock Option
Plan as the result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock of the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee.
The price per share is estimated to be $13.6875 based on the average of
the high ($14.125) and low ($13.250) sales prices for the Common
Stock in the over-the-counter market on November 5, 1996 as reported on
the Nasdaq National Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995 filed with the Securities and Exchange Commission (the
"Commission") on April 1, 1996;
(b) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed with the Commission on February
3, 1993 under Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as amended by the Form 8 filed with the Commission on
March 8, 1993, and the description of the Registrant's Preferred Stock Purchase
Rights contained in the Registration Statement on Form 8-A filed with the
Commission on July 20, 1995 under Section 12(g) of the Exchange Act.
(c) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the fiscal year covered by the
Form 10-K referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment, which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby
then remaining unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the Registrant's Bylaws provides for
indemnification of the Registrant's directors, officers, employees and agents to
the maximum extent permitted by Washington law.
Section 23B.08.320 of the Washington Business Corporation Act
authorizes a corporation to limit a director's liability to the corporation or
its shareholders for monetary damages for acts or omissions as a director,
except in certain circumstances involving intentional misconduct, self-dealing
or illegal corporate loans or distributions, or any transactions from which the
director personally receives a benefit in money, property or services to which
the director is not entitled. Article 11 of the Registrant's Restated Articles
of Incorporation contains provisions implementing, to the fullest extent
permitted by Washington law, such limitations on a director's liability to the
Registrant and its shareholders.
The Registrant has also entered into indemnification agreements
pursuant to which it has agreed, among other things, to indemnify its directors
and officers against certain liabilities.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Perkins Coie
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Wall Data Incorporated 1994 Restated Nonofficer Stock Option Plan, as
amended and restated on October 15, 1996
</TABLE>
II-1
<PAGE> 3
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:
(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 thereof) 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 paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Kirkland, State of Washington, on November 5,
1996.
WALL DATA INCORPORATED
By /s/ James Simpson
-------------------------
James Simpson
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
EACH PERSON WHOSE INDIVIDUAL SIGNATURE APPEARS BELOW HEREBY AUTHORIZES
JAMES SIMPSON AND ALEXANDRA A. BROOKSHIRE AND EACH OF THEM AS ATTORNEYS-IN-FACT,
WITH FULL POWER OF SUBSTITUTION, TO EXECUTE IN THE NAME AND ON BEHALF OF SUCH
PERSON, INDIVIDUALLY AND IN EACH CAPACITY STATED BELOW, AND TO FILE, ANY AND ALL
AMENDMENTS TO THIS REGISTRATION STATEMENT, INCLUDING ANY AND ALL POST-EFFECTIVE
AMENDMENTS.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on November 5, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ James Simpson Chairman of the Board and Chief Executive Officer
____________________________ (Principal Executive Officer)
James Simpson
/s/ Richard Van Hoesen Vice President Finance, Chief Financial Officer and
____________________________ Treasurer (Principal Financial Officer and Principal
Richard Van Hoesen Accounting Officer)
/s/ Henry N. Lewis Director
____________________________
Henry N. Lewis
/s/ David F. Millet Director
____________________________
David F. Millet
/s/ Steve Sarich, Jr. Director
____________________________
Steve Sarich, Jr.
/s/ Bettie A. Steiger Director
____________________________
Bettie A. Steiger
/s/ John R. Wall Director and President
____________________________
John R. Wall
</TABLE>
II-3
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Perkins Coie
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Wall Data Incorporated 1994 Restated Nonofficer Stock Option Plan, as amended and
restated on October 15, 1996
</TABLE>
<PAGE> 1
[Perkins Coie Letterhead]
November 6, 1996
Wall Data Incorporated
11332 N.E. 122nd Way
Kirkland, WA 98034-6931
RE: 500,000 SHARES OF COMMON STOCK (NO PAR VALUE) OF
WALL DATA INCORPORATED (THE "COMPANY")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Act"), which you are filing with
the Securities and Exchange Commission with respect to 500,000 shares of Common
Stock, no par value (the "Shares"), of Wall Data Incorporated (the "Company") to
be issued pursuant to the Company's 1994 Restated Nonofficer Stock Option Plan,
as amended and restated (the "Plan").
We have examined the Registration Statement and such other documents
and records of the Company as we have deemed relevant and necessary for the
purposes of this opinion. In giving this opinion we are assuming the
authenticity of all instruments presented to us as originals, the conformity
with originals of all instruments presented to us as copies and the genuineness
of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that will be issued pursuant to the Plan, upon the due execution by the
Company and the registration by its registrar of the Shares and the issuance
thereof by the Company in accordance with the terms of the Plan, and the receipt
of consideration therefor in accordance with the terms of the Plan, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
PERKINS COIE
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Wall Data Incorporated 1994 Restated Nonofficer Stock
Option Plan of our report dated January 26, 1996 with respect to the
consolidated financial statements of Wall Data Incorporated incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1995
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
November 5, 1996
<PAGE> 1
EXHIBIT 99.1
<PAGE> 2
WALL DATA INCORPORATED
1994 NONOFFICER STOCK OPTION PLAN
AS AMENDED AND RESTATED ON OCTOBER 15, 1996
SECTION 1. PURPOSE
The purpose of the 1994 Nonofficer Stock Option Plan (this "Plan") is
to provide a means whereby selected employees, agents, consultants, advisors and
independent contractors of Wall Data Incorporated (the "Company"), or of any
parent or subsidiary (as defined in subsection 5.7 and referred to hereinafter
as "related corporations") thereof, who are not officers or directors of the
Company may be granted nonqualified (not intended to qualify as incentive stock
options under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code")) stock options to purchase the Common Stock (as defined in Section 3) of
the Company, in order to attract and retain the services or advice of such
employees, agents, consultants, advisors and independent contractors and to
provide added incentive to such persons by encouraging stock ownership in the
Company.
SECTION 2. ADMINISTRATION
This Plan shall be administered by the Board of Directors of the
Company (the "Board") or, in the event the Board shall appoint and/or authorize
a committee or senior executive officer to administer this Plan, by such
committee or senior executive officer. The administrator of this Plan shall
hereinafter be referred to as the "Plan Administrator."
The senior executive officer or members of any committee serving as
Plan Administrator shall be appointed by the Board for such term as the Board
may determine. The Board may from time to time remove members from, or add
members to, the Plan Administrator. Vacancies on the Plan Administrator, however
caused, may be filled by the Board.
2.1 PROCEDURES
The Board shall designate one of the members of any committee serving
as the Plan Administrator as chairman. The Plan Administrator may hold meetings
at such times and places as it shall determine. The acts of a majority of the
members of the Plan Administrator present at meetings at which a quorum exists,
or acts reduced to or approved in writing by all Plan Administrator members,
shall be valid acts of the Plan Administrator.
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 1
1994 NOE Plan
<PAGE> 3
2.2 RESPONSIBILITIES
Except for the terms and conditions explicitly set forth in this Plan,
the Plan Administrator shall have the authority, in its discretion, to determine
all matters relating to the options to be granted under this Plan, including
selection of the individuals to be granted options, the number of shares to be
subject to each option, the exercise price, and all other terms and conditions
of the options. Grants under this Plan need not be identical in any respect,
even when made simultaneously. The interpretation and construction by the Plan
Administrator of any terms or provisions of this Plan or any option issued
hereunder, or of any rule or regulation promulgated in connection herewith,
shall be conclusive and binding on all interested parties.
SECTION 3. STOCK SUBJECT TO THIS PLAN
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock") presently authorized but unissued or subsequently acquired by
the Company. Subject to adjustment as provided in Section 6, the aggregate
amount of Common Stock to be delivered upon the exercise of all options granted
under this Plan shall not exceed 1,000,000 shares of Common Stock. If any option
granted under this Plan shall expire or be surrendered, exchanged for another
option, cancelled or terminated for any reason without having been exercised in
full, the unpurchased shares subject thereto shall thereupon again be available
for purposes of this Plan, including for replacement options which may be
granted in exchange for such expired, surrendered, exchanged, cancelled or
terminated options.
SECTION 4. ELIGIBILITY
An option may be granted only to an individual who, at the time the
option is granted, is an employee, agent, consultant, advisor or independent
contractor of the Company or any related corporation, whether an individual or
an entity, who at the time the option is granted is not an officer or director
of the Company. Any party to whom an option is granted under this Plan shall be
referred to hereinafter as an "Optionee."
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted under this Plan shall be evidenced by written
agreements which shall contain such terms, conditions, limitations and
restrictions as the Plan Administrator shall deem advisable and which are not
inconsistent with this Plan. Notwithstanding the foregoing, options shall
include or incorporate by reference the following terms and conditions:
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 2
1994 NOE Plan
<PAGE> 4
5.1 NUMBER OF SHARES AND PRICE
The maximum number of shares that may be purchased pursuant to the
exercise of each option and the price per share at which such option is
exercisable (the "exercise price") shall be as established by the Plan
Administrator, provided that the Plan Administrator shall act in good faith to
establish the exercise price.
5.2 TERM AND MATURITY
The term of each option shall be as established by the Plan
Administrator and, if not so established, shall be 10 years from the date it is
granted. To ensure that the Company or related corporation will achieve the
purpose and receive the benefits contemplated in this Plan, any option granted
to any Optionee hereunder shall, unless the condition of this sentence is waived
or modified in the agreement evidencing the option or by resolution adopted at
any time by the Plan Administrator, be exercisable according to the following
schedule:
<TABLE>
<CAPTION>
Period of Optionee's Continuous
Relationship With the Company or
Related Corporation From the Date Portion of Total Option Which Is
the Option Is Granted Exercisable
--------------------- -----------
<S> <C>
after one year 25%
each completed month thereafter an additional
2.0833%
</TABLE>
5.3 EXERCISE
Subject to the vesting schedule described in subsection 5.2, each
option may be exercised in whole or in part at any time and from time to time;
provided, however, that no fewer than 100 shares (or the remaining shares then
purchasable under the option, if less than 100 shares) may be purchased upon any
exercise of option rights hereunder and that only whole shares will be issued
pursuant to the exercise of any option. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee. Options shall be exercised by delivery to the Company
of notice of the number of shares with respect to which the option is exercised,
together with payment of the exercise price.
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 3
1994 NOE Plan
<PAGE> 5
5.4 PAYMENT OF EXERCISE PRICE
Payment of the option exercise price shall be made in full at the time
the notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. To the extent permitted by the
Plan Administrator and applicable laws and regulations (including, but not
limited to, federal tax and securities laws and regulations and state corporate
law), an option may be exercised either singularly or in combination with one or
more of the alternative forms of payment authorized by this Section 5.4 by:
(a) tendering (either actually or by attestation) shares of
stock of the Company held by an Optionee having a fair market value equal to the
exercise price, such fair market value to be determined in good faith by the
Plan Administrator; provided, however, that payment in stock held by an Optionee
shall not be made unless the stock shall have been owned by the Optionee for a
period of at least six months (or any shorter period necessary to avoid a charge
to the Company's earnings for financial accounting purposes);
(b) delivery of a full-recourse promissory note executed by
the Optionee; provided that (i) such note delivered in connection with a stock
option may, in the sole discretion of the Plan Administrator, bear interest at a
rate specified by the Plan Administrator but in no case less than the rate
required to avoid imputation of interest (taking into account any exceptions to
the imputed interest rules) for federal income tax purposes, and (ii) the Plan
Administrator in its sole discretion shall specify the term and other provisions
of such note at any time prior to exercise of an option, and (iii) the Plan
Administrator may require that the Optionee pledge the Optionee's shares to the
Company for the purpose of securing the payment of such note and may require
that the certificate representing such shares be held in escrow in order to
perfect the Company's security interest, and (iv) the Plan Administrator in its
sole discretion may at any time restrict or rescind this right upon notification
to the Optionee; or
(c) delivery of a properly executed exercise notice, together
with irrevocable instructions to a broker, all in accordance with the
regulations of the Federal Reserve Board, to promptly deliver to the Company the
amount of sale or loan proceeds to pay the exercise price and any federal, state
or local withholding tax obligations that may arise in connection with the
exercise.
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 4
1994 NOE Plan
<PAGE> 6
5.5 WITHHOLDING TAX REQUIREMENT
The Company or any related corporation shall have the right to retain
and withhold from any payment of cash or Common Stock under this Plan the amount
of taxes required by any government to be withheld or otherwise deducted and
paid with respect to such payment. At its discretion, the Company may require an
Optionee receiving shares of Common Stock to reimburse the Company for any such
taxes required to be withheld by the Company and withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu thereof, the
Company shall have the right to withhold from any other cash amounts due or to
become due from the Company to the Optionee an amount equal to such taxes. The
Company may also retain and withhold or the Optionee may elect, subject to
approval by the Company at its sole discretion, to have the Company retain and
withhold a number of shares having a market value not less than the amount of
such taxes required to be withheld by the Company to reimburse the Company for
any such taxes and cancel (in whole or in part) any such shares so withheld.
5.6 NONTRANSFERABILITY OF OPTIONS
Options granted under this Plan and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by the
applicable laws of descent and distribution and shall not be subject to
execution, attachment or similar process. Any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any option under this Plan or of any
right or privilege conferred hereby, contrary to the Code or to the provisions
of this Plan, or the sale or levy or any attachment or similar process upon the
rights and privileges conferred hereby shall be null and void. Notwithstanding
the foregoing, if the Company permits, an Optionee may, during the Optionee's
lifetime, designate a person who may exercise the option after the Optionee's
death by giving written notice of such designation to the Plan Administrator.
Such designation may be changed from time to time by the Optionee by giving
written notice to the Plan Administrator revoking any earlier designation and
making a new designation.
5.7 TERMINATION OF RELATIONSHIP
If the Optionee's relationship with the Company or any related
corporation ceases for any reason other than termination for cause, death or
total disability, and unless by its terms the option sooner terminates or
expires, then the portion of the option which is not exercisable at the time of
such cessation shall terminate immediately upon such cessation, unless the Plan
Administrator determines otherwise, and the portion of the option which is
exercisable at the time of such cessation (i) may
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 5
1994 NOE Plan
<PAGE> 7
be exercised for a three-month period after such cessation and (ii) shall
terminate at the end of such period following cessation as to all shares for
which it has not theretofore been exercised, unless the Plan Administrator
determines otherwise. The Plan Administrator shall have sole discretion in a
particular circumstance to extend the exercise period following such cessation
to any date up to the termination or expiration of the option.
If an Optionee is terminated for cause, any option granted hereunder
shall automatically terminate as of the first discovery by the Company of any
reason for termination for cause, and such Optionee shall thereupon have no
right to purchase any shares pursuant to such option. "Termination for cause"
shall mean dismissal for dishonesty, conviction or confession of a crime
punishable by law (except minor violations), fraud, misconduct or disclosure of
confidential information. If an Optionee's relationship with the Company or any
related corporation is suspended pending an investigation of whether or not the
Optionee shall be terminated for cause, all the Optionee's rights under any
option granted hereunder likewise shall be suspended during the period of
investigation.
If an Optionee's relationship with the Company or any related
corporation ceases because of a total disability, the portion of the Optionee's
option which is exercisable at the time of such cessation shall not terminate
until the end of the 12-month period following such cessation (unless by its
terms it sooner terminates and expires). As used in this Plan, the term "total
disability" refers to a mental or physical impairment of the Optionee which is
expected to result in death or which has lasted or is expected to last for a
continuous period of 12 months or more and which causes the Optionee to be
unable, in the opinion of the Company and two independent physicians, to perform
his or her duties for the Company and to be engaged in any substantial gainful
activity. Total disability shall be deemed to have occurred on the first day
after the Company and the two independent physicians have furnished their
opinion of total disability to the Plan Administrator.
Options granted under the Plan shall not be affected by any change of
relationship with the Company so long as the Optionee continues to be a
nonofficer employee, agent, consultant, advisor or independent contractor of the
Company or of a related corporation. The Plan Administrator, in its absolute
discretion, may determine all questions of whether particular leaves of absence
constitute a termination of services.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option, an unbroken chain of corporations
ending with the Company, if stock possessing 50% or more of the total combined
voting power of all
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 6
1994 NOE Plan
<PAGE> 8
classes of stock of each of the corporations other than the Company is owned by
one of the other corporations in such chain. When referring to a parent
corporation, the term "related corporation" shall mean any corporation in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the option, each of the corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
5.8 DEATH OF OPTIONEE
If an Optionee dies while he or she has a relationship with the Company
or any related corporation or within the three-month period (or 12-month period
in the case of totally disabled Optionees) following cessation of such
relationship, any option held by such Optionee to the extent that the Optionee
would have been entitled to exercise such option, may be exercised within one
year after his or her death by the personal representative of his or her estate
or by the person or persons to whom the Optionee's rights under the option shall
pass by will or by the applicable laws of descent and distribution.
5.9 NO STATUS AS SHAREHOLDER
Neither the Optionee nor any party to which the Optionee's rights and
privileges under the option may pass shall be, or have any of the rights or
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.10 CONTINUATION OF RELATIONSHIP
Nothing in this Plan or in any option granted pursuant to this Plan
shall confer upon any Optionee any right to continue in the employ or other
relationship of the Company or of a related corporation, or to interfere in any
way with the right of the Company or of any such related corporation to
terminate his or her employment or other relationship with the Company at any
time.
5.11 MODIFICATION AND AMENDMENT OF OPTION
Subject to the terms and conditions and within the limitations of this
Plan, the Plan Administrator may modify or amend outstanding options granted
under this Plan. The modification or amendment of an outstanding option shall
not, without the consent of the Optionee, impair or diminish any of his or her
rights or any of the obligations of the Company under such option. Except as
otherwise provided in this Plan, no outstanding option shall be terminated
without the consent of the Optionee.
- --------------------------------------------------------------------------------
Wall Data Incorporated Page 7
1994 NOE Plan
<PAGE> 9
SECTION 6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
The aggregate number and class of shares for which options may be
granted under this Plan, the number and class of shares covered by each
outstanding option and the exercise price per share thereof (but not the total
price), shall all be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock of the Company resulting from a
split-up or consolidation of shares or any like capital adjustment, or the
payment of any stock dividend.
6.1 EFFECT OF LIQUIDATION OR REORGANIZATION
6.1.1 CASH, STOCK OR OTHER PROPERTY FOR STOCK
Except as provided in subsection 6.1.2, upon a merger (other than a
merger of the Company in which the holders of Common Stock immediately prior to
the merger have the same proportionate ownership of Common Stock in the
surviving corporation immediately after the merger), consolidation, acquisition
of property or stock, separation, reorganization (other than a mere
reincorporation or the creation of a holding company) or liquidation of the
Company, as a result of which the shareholders of the Company receive cash,
stock or other property in exchange for or in connection with their shares of
Common Stock, any option granted hereunder shall terminate, but the Optionee
shall have the right immediately prior to any such merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation to
exercise such Optionee's option in whole or in part whether or not the vesting
requirements set forth in the option agreement have been satisfied.
Notwithstanding the foregoing, the Plan Administrator may determine that such
acceleration of vesting will not occur if it would render unavailable "pooling
of interest" accounting treatment for any reorganization, merger or
consolidation of the Company.
6.1.2 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE
If the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation
or reorganization(other than a mere reincorporation or the creation of a holding
company), all options granted hereunder shall be converted into options to
purchase shares of Exchange Stock unless the Company and the corporation issuing
the Exchange Stock, in their sole discretion, determine that any or all such
options
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granted hereunder shall not be converted into options to purchase shares of
Exchange Stock but instead shall terminate in accordance with the provisions of
subsection 6.1.1. The amount and price of converted options shall be determined
by adjusting the amount and price of the options granted hereunder in the same
proportion as used for determining the number of shares of Exchange Stock the
holders of the Common Stock receive in such merger, consolidation, acquisition
of property or stock, separation or reorganization. The converted options shall
be fully vested whether or not the vesting requirements set forth in the option
agreement have been satisfied.
Upon a merger of the Company in which the holders of the Common Stock
immediately prior to the merger have the same proportionate ownership of common
stock in the surviving corporation immediately after the merger or a mere
reincorporation or the creation of a holding company, each option outstanding
under the Plan shall be assumed or an equivalent option shall be substituted by
the successor corporation or a parent or subsidiary of such corporation, and the
vesting schedule set forth in the instrument evidencing the option shall
continue to apply to such assumed or equivalent option.
6.2 FRACTIONAL SHARES
In the event of any adjustment in the number of shares covered by any
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
6.3 DETERMINATION OF BOARD TO BE FINAL
All Section 6 adjustments shall be made by the Board, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
SECTION 7. SECURITIES REGULATION
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability of an exemption from registration for the issuance and sale of any
shares hereunder. Inability of the Company to obtain from any regulatory body
having jurisdiction, the authority deemed by the Company's
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counsel to be necessary for the lawful issuance and sale of any shares hereunder
or the unavailability of an exemption from registration for the issuance and
sale of any shares hereunder shall relieve the Company of any liability in
respect of the nonissuance or sale of such shares as to which such requisite
authority shall not have been obtained.
As a condition to the exercise of an option, the Company may require
the Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any relevant provision of the
aforementioned laws. At the option of the Company, a stop-transfer order against
any shares of stock may be placed on the official stock books and records of the
Company, and a legend indicating that the stock may not be pledged, sold or
otherwise transferred unless an opinion of counsel is provided (concurred in by
counsel for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require such
other action or agreement by the Optionees as may from time to time be necessary
to comply with the federal and state securities laws. THIS PROVISION SHALL NOT
OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
Should any of the Company's capital stock of the same class as the
stock subject to options granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
shall be authorized by that exchange for listing thereon prior to the issuance
thereof.
SECTION 8. AMENDMENT AND TERMINATION
The Board may at any time suspend, amend or terminate this Plan. The
amendment or termination of this Plan shall not, without the consent of the
option holder, diminish or impair any rights or obligations under any option
theretofore granted under this Plan. Unless sooner terminated by the Board, this
Plan shall terminate 10 years from the date on which this Plan is adopted by the
Board. No option may be granted after such termination or during any suspension
of this Plan.
SECTION 9. EFFECTIVENESS OF THIS PLAN
This Plan shall become effective upon adoption by the Board.
* * * * *
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Plan adopted by the Board of Directors on January 20, 1994. Plan
restated on July 20, 1994 to include Amendment No. 1 adopted by the Board of
Directors on July 20, 1994 (amending Section 3 to increase the number of
available shares hereunder to 300,000). Plan restated on July 7, 1995 to reflect
an amendment adopted by the Board of Directors on May 25, 1995 (amending
Sections 1 and 4 to permit officers of related corporations to participate in
the Plan so long as they are not officers of the Company), and an amendment
adopted by the Board of Directors on July 7, 1995 (amending Section 3 to
increase the number of available shares hereunder to 500,000). Amendments
adopted by the Board of Directors effective as of April 18, 1995 (amending
Section 3 to increase the number of available shares hereunder to 800,000. Plan
restated on May 21, 1996 to reflect an amendment adopted by the Board of
Directors on May 21, 1996 (amending Section 3 to increase the number of
available shares hereunder to 1,000,000). Amended and Restated by the Board on
October 15, 1996.
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