<PAGE> 1
As filed with the Securities and Exchange Commission on September 4, 1998
Registration Statement No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
BROOKTROUT TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2184792
(State of Organization) (I.R.S. Employer Identification No.)
410 FIRST AVENUE
NEEDHAM, MASSACHUSETTS 02494
(Address of Principal Executive Offices)
BROOKTROUT TECHNOLOGY, INC.
1992 STOCK INCENTIVE PLAN, AS AMENDED
AND
BROOKTROUT TECHNOLOGY, INC.
AMENDED AND RESTATED 1992 STOCK PURCHASE PLAN
(Full Title of the Plans)
------------------------------------
ERIC R. GILER
President
Brooktrout Technology, Inc.
410 First Avenue
Needham, Massachusetts 02494
(781) 449-4100
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
------------------------------------
With copy to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Securities To Be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share(4) Aggregate Offering Price(4) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 850,000 shares (2) $11.375 $9,668,750 $2,852.28
$.01 par value 100,000 shares (3) $ 9.669 $ 966,900 $ 285.24
---------
$3,137.52
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee benefit
plans described herein.
(2) Shares being registered under the Brooktrout Technology, Inc. 1992 Stock
Incentive Plan, as amended.
(3) Shares being registered under the Brooktrout Technology, Inc. Amended and
Restated 1992 Stock Purchase Plan.
(4) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act solely for the purposes of determining the amount of the registration
fee. The registration fee is based upon the average of the high and low
prices for the Registrant's Common Stock, par value $.01 per share, as
reported on the Nasdaq National Market on August 24, 1998.
================================================================================
<PAGE> 2
This registration statement relates to 950,000 shares of common stock, par
value $.01 per share, of Brooktrout Technology, Inc. (the "Registrant")
representing those additional shares under the Registrant's 1992 Stock Incentive
Plan, as amended (the "1992 Plan"), and Amended and Restated 1992 Stock Purchase
Plan (the "Purchase Plan") which may be issued pursuant to amendments to the
1992 Plan and the Purchase Plan adopted by the Board of Directors of the
Registrant on February 19, 1998 and approved by the stockholders of the
Registrant on May 14, 1998, which increased the size of the 1992 Plan from
2,325,000 shares to 3,175,000 shares and the Purchase Plan from 112,500 shares
to 212,500 shares (all share amounts have been adjusted to reflect two
three-for-two stock splits effected through 50% stock dividends paid by the
Company on February 27, 1996 and June 20, 1996). Pursuant to Instruction E to
Form S-8, Registration of Additional Securities, since the additional securities
to be registered are of the same class as other securities for which a
registration statement filed on this form relating to an employee benefit plan
is effective, this registration statement consists only of the following: the
facing page; a statement that the contents of the earlier registration
statements, identified by file number, are incorporated by reference; required
opinions and consents; the signature page; and any information required in this
registration statement that is not in the earlier registration statements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference the documents listed in (a)
through (d) below, which have previously been filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10/K and Form 10K/A for the
fiscal year ended December 31, 1997, filed with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998
and June 30, 1998, each filed with the Commission pursuant to the
Exchange Act;
(c) the Registrant's Registration Statement on Form S-8 dated December 10,
1992 as filed with the Commission on December 17, 1992, File
No. 33-55900, pursuant to Section 12(g) of the Securities Exchange Act
of 1934; and
(d) the Registrant's Registration Statement on Form S-8 dated October 14,
1994 as filed with the Commission on October 17, 1994, File No.
33-85264, pursuant to Section 12(g) of the Securities Exchange Act of
1934.
In addition, all documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment hereto which indicates that
all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any subsequently
filed document which also is incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
<PAGE> 3
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibits
- --------
4.1 Brooktrout Technology, Inc. 1992 Stock Incentive Plan, previously
filed as Exhibit 10.1 to Brooktrout Technology, Inc.'s Registration
Statement on Form S-8 filed with the commission on September 19, 1996,
File No. 333-12313
4.2 Second Amendment to Brooktrout Technology, Inc. 1992 Stock Incentive
Plan
4.3 Brooktrout Technology, Inc. Amended and Restated 1992 Stock Purchase
Plan
4.4 First Amendment to Brooktrout Technology, Inc. Amended and Restated
1992 Stock Purchase Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, Independent Auditors
24.1 Powers of Attorney (included on signature page to this registration
statement)
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein 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 undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities
3
<PAGE> 4
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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and will be governed by the final adjudication of
such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Brooktrout
Technology, Inc. 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 Boston, Commonwealth of Massachusetts on this
4th day of September, 1998.
BROOKTROUT TECHNOLOGY, INC.
By: /s/ Eric R. Giler
----------------------------------------
Eric R. Giler
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Eric R. Giler, David W. Duehren
and Robert C. Leahy, and each of them acting singly, such person's true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person's 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 all documents in connection therewith, with the Securities
and Exchange Commission, granting unto each 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 such person might or could do in person, hereby ratifying and
confirming all that any said attorney-in-fact and agent, or any substitute or
substitutes of any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Eric R. Giler President and Director September 4, 1998
- ---------------------------------------- (Principal Executive Officer)
Eric R. Giler
/s/ David W. Duehren Vice President of Research and September 4, 1998
- ---------------------------------------- Development, Clerk and Director
David W. Duehren
/s/ Robert C. Leahy Vice President of Finance and Operations, September 4, 1998
- ---------------------------------------- and Treasurer (Principal Financial and
Robert C. Leahy Accounting Officer)
/s/ Patrick T. Hynes Vice President of Advanced Product September 4, 1998
- ---------------------------------------- Engineering and Director
Patrick T. Hynes
Director September 4, 1998
- ----------------------------------------
Robert G. Barrett
/s/ David L. Chapman Director September 4, 1998
- ----------------------------------------
David L. Chapman
/s/ W. Brooke Tunstall Director September 4, 1998
- ----------------------------------------
W. Brooke Tunstall
</TABLE>
5
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EXHIBIT INDEX
Exhibit No. Description Page No.*
- ----------- ----------- ---------
4.2 Second Amendment to Brooktrout Technology, Inc.
1992 Stock Incentive Plan 7
4.3 Brooktrout Technology, Inc. Amended and Restated
1992 Stock Purchase Plan, as amended 8
4.4 First Amendment to Brooktrout Technology, Inc.
Amended and Restated 1992 Stock Purchase Plan 13
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered 14
23.1 Consent of Goodwin, Procter & Hoar LLP (included
in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP 16
24.1 Powers of Attorney (included on signature pages
to this Registration Statement)
- ------------
* Refers to sequentially numbered copy.
6
<PAGE> 1
EXHIBIT 4.2
SECOND AMENDMENT
TO BROOKTROUT TECHNOLOGY, INC.
1992 STOCK INCENTIVE PLAN
This Second Amendment (the "Second Amendment") to the Brooktrout
Technology, Inc. ("Brooktrout" or the "Company") 1992 Stock Incentive Plan,
dated August 17, 1992, as amended (the "Plan"), was adopted by the Board of
Directors (the "Board") of the Company on February 19, 1998.
WHEREAS, the Board believes that the availability of an adequate number of
shares of common stock, $.01 par value per share (the "Stock"), under the Plan
has been, and in the future will be, an important factor in attracting and
retaining the highest caliber directors, executives and employees of the
Company;
WHEREAS, the Board further believes that the number of shares of Stock,
available for issuance under the Plan is currently insufficient;
WHEREAS, the Board adopted, subject to stockholder approval, an increase of
eight hundred and fifty thousand (850,000) shares of Stock available for
issuance under the Plan; and
WHEREAS, on May 14, 1998, the stockholders of the Company approved the
Amendments at the annual meeting of stockholders;
NOW, THEREFORE, the Plan is hereby amended in the following manner:
The first sentence of Section 3 clause (a) is amended to increase the
maximum number of shares of Stock reserved and available for issuance under the
Plan from two million three hundred and twenty-five thousand (2,325,000) to
three million one hundred and seventy-five thousand (3,175,000).
7
<PAGE> 1
EXHIBIT 4.3
BROOKTROUT TECHNOLOGY, INC.
AMENDED AND RESTATED
1992 STOCK PURCHASE PLAN
The purpose of this Plan is to provide eligible employees of Brooktrout
Technology, Inc. (the "Company") with opportunities to purchase shares of the
Company's common stock, $.01 par value (the "Common Stock"). One Hundred and
Twelve Thousand Five Hundred (112,500) shares of Common Stock in the aggregate
have been approved for this purpose.
1. ADMINISTRATION. The Plan shall be administered by the Company's Board
of Directors or by a Committee appointed by the Board of Directors (the
"Committee"). The Board of Directors or the Committee has authority to make
rules and regulations for the administration of the Plan and its interpretations
and decisions with regard thereto shall be final and conclusive.
2. ELIGIBILITY. All employees of the Company, including Directors who are
employees, are eligible to participate in any one or more of the offerings of
Options (as defined in Section 9) to purchase Common Stock under the Plan
provided that:
(a) they are regularly employed by the Company more than 20 hours a
week; and
(b) they are employees of the Company on the first day of the
applicable Plan Period (as defined below).
Participation in the Plan will be neither permitted nor denied contrary to
the requirements of the Internal Revenue Code of 1986, as amended (the "Code").
No employee may be granted an option hereunder if such employee, immediately
after the option is granted, owns 5% or more of the total combined voting power
or value of the stock of the Company. For purposes of the preceding sentence,
the attribution rules of Section 424(d) of the Code shall apply in determining
the stock ownership of an employee, and all stock which the employee has a
contractual right to purchase shall be treated as stock owned by the employee.
3. OFFERINGS. The Company will make one or more offerings ("Offerings")
to employees to purchase Common Stock under this Plan. The initial Offering will
begin on the effective date of the Company's initial public offering and end on
the following December 31 (the "Initial Offering"). All subsequent Offerings
shall begin on each January 1 or July 1, or the first business day thereafter.
The first day of each Offering shall be known as the "Offering Date". Except for
the Initial Offering, each Offering Date will begin a six-month period (a "Plan
Period").
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<PAGE> 2
4. PARTICIPATION. An employee eligible on the Offering Date of any
Offering may participate in such Offering by completing and forwarding an
enrollment form to the employee's appropriate payroll location. The form will
(a) state the amount to be deducted from his Compensation per pay period, (b)
authorize the purchase of Common Stock for him in each Offering in accordance
with the terms of the Plan and (c) specify the exact name or names in which
shares of Common Stock purchased for him are to be issued pursuant to Section 10
hereof. Unless an employee files a new form or withdraws from the Plan, his
deductions and purchases will continue at the same dollar amount for future
Offerings under the Plan as long as the Plan remains in effect.
5. EMPLOYEE CONTRIBUTIONS. Each eligible employee may authorize payroll
deductions at a minimum of $6.00 for each weekly pay period or $25.00 for each
monthly pay period up to a maximum of 10% of such employee's Compensation for
each such pay period. The Company shall maintain book accounts showing the
amount of payroll deductions made by each eligible employee for each Plan
Period.
6. DEDUCTION CHANGES. An employee may not increase or decrease his or her
payroll deduction during any Plan Period, but may increase or decrease his or
her payroll deduction with respect to the next Plan Period by filing a new
payroll deduction authorization form in advance of the next Offering Date.
7. INTEREST. No interest will be paid on employee accounts; however, the
Board of Directors or its Committee may, in its sole discretion, elect to credit
employee accounts with interest at such per annum rate as the Board of Directors
or the Committee may from time to time determine.
8. WITHDRAWAL OF FUNDS. An employee may at any time prior to the close of
business on the last business day in a Plan Period, and for any reason,
permanently withdraw the entire balance accumulated in the employee's account
and thereby withdraw from participation in an Offering. Partial withdrawals are
not permitted. The employee may not begin participation again during the
remainder of the Plan Period. The employee may participate in any subsequent
Offering in accordance with terms and conditions established by the Board of
Directors or the Committee.
9. GRANT OF OPTIONS. On each Offering Date, the Company will grant to
each eligible employee who is then a participant in the Plan an option
("Option") to purchase on the last day of such Offering (the "Exercise Date"),
at the Option Price hereinafter provided for, a maximum of one thousand (1000)
shares of Common Stock reserved for the purposes of the Plan, or such other
maximum number of shares as shall have been established by the Board or the
Committee in advance of the offering. The purchase price for each share
purchased under such Option (the "Option Price") will be 85% of the Fair Market
Value of the Common Stock on the Offering Date or the Exercise Date, whichever
is less.
9
<PAGE> 3
Notwithstanding the foregoing, no employee may be granted an option
hereunder if such employee, immediately after the option was granted, would be
treated as owning stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any
Parent or Subsidiary (as defined in Section 12). For purposes of the preceding
sentence, the attribution rules of Section 424(d) of the Code shall apply in
determining the stock ownership of an employee, and all stock which the employee
has a contractual right to purchase shall be treated as stock owned by the
employee. In addition, no employee may be granted an Option which permits his or
her rights to purchase stock under the Plan, and any other employee stock
purchase plan of the Company and its Parents and Subsidiaries, to accrue at a
rate which exceeds $25,000 of the fair market value of such stock (determined on
the option grant date or dates) for each calendar year in which the Option is
outstanding at any time. The purpose of the limitation in the preceding sentence
is to comply with Section 423(b)(8) of the Code.
10. EXERCISE OF OPTION AND PURCHASE OF SHARES. Each employee who continues
to be a participant in the Plan on the Exercise Date shall be deemed to have
exercised his or her Option on such date and shall acquire from the Company such
number of whole shares of Common Stock reserved for the purpose of the Plan as
his or her accumulated payroll deductions on such date will purchase at the
Option Price, subject to any other limitations contained in the Plan. Any amount
remaining in an employee's account at the end of an Offering will be refunded to
the employee promptly.
11. ISSUANCE OF CERTIFICATES. Certificates representing shares of Common
Stock purchased under the Plan may be issued only in the name of the employee,
or in the name of the employee and another person of legal age as joint tenants
with rights of survivorship.
12. DEFINITIONS. The phrase "last reported sale price" means the last
reported sale price of the Common Stock on the Exchange on a given day or, if no
sales of Common Stock were made on that day, the last reported sale price of the
Common Stock on the next preceding day on which the sales were made.
The term "Compensation" means the amount of base pay reportable on the
employee's Federal Income Tax Withholding Statement, excluding overtime,
incentive or bonus awards, allowances and reimbursements for expenses such as
relocation allowances for travel expenses, income or gains on the exercise of
Company stock options, and similar items, whether or not shown on the employee's
Federal Income Tax Withholding Statement.
The term "Fair Market Value of the Common Stock" means (i) if the Common
Stock is admitted to trading on a national securities exchange or the National
Association of Securities Dealers National Market System, the closing price
reported for the Common Stock on such exchange or system for such date or, if no
sales were reported for such date, for the last date preceding such date for
which a sale was reported, or (ii) if clause (i) does not apply but the Common
Stock is admitted to quotation on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), the average of the highest bid and lowest
asked prices of the Common Stock reported on NASDAQ for such date or, if no bid
and asked prices
10
<PAGE> 4
were reported for such date, for the last day preceding such date for which such
prices were reported.
The term "Parent" means a "parent corporation" with respect to the Company,
as defined in Section 424(e) of the Code.
The term "Subsidiary" means a "subsidiary corporation" with respect to the
Company, as defined in Section 424(f) of the Code.
13. RIGHTS ON RETIREMENT, DEATH, OR TERMINATION OF EMPLOYMENT. In the
event of a participating employee's termination of employment prior to the last
business day of a Plan Period, no payroll deduction shall be taken from any pay
due and owing to the employee and the balance in the employee's account shall be
paid to the employee or, in the event of the employee's death, to the employee's
designated beneficiary. If, prior to the last business day of the Plan Period,
the Subsidiary by which an employee is employed shall cease to be a Designated
Subsidiary of the Company, or if the employee is transferred to a Subsidiary of
the Company that is not a Designated Subsidiary, it shall be deemed that the
employee has terminated employment for the purposes of this Plan.
14. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to an
employee nor the deductions from an employee's pay shall constitute such
employee a stockholder of the shares of Common Stock covered by an Option under
this Plan until such shares have been purchased by and issued to such employee.
15. RIGHTS NOT TRANSFERABLE. Rights under this Plan are not transferable
by a participating employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime only by the
employee.
16. APPLICATION OF FUNDS. All funds received or held by the Company under
this Plan may be combined with other corporate funds and may be used for any
corporate purpose.
17. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. In the event of
a subdivision of outstanding shares of Common Stock, or the payment of a
dividend in Common Stock, the number of shares approved for this Plan, and the
share limitation set forth in Section 9, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the Board of
Directors or the Committee. In the event of any other change affecting the
Common Stock, such adjustment shall be made as may be deemed equitable by the
Board of Directors or the Committee to give proper effect to such event.
18. AMENDMENT OF THE PLAN. The Board of Directors may at any time and from
time to time, amend this Plan in any respect, except that without approval by a
majority of the votes cast at a duly held stockholders' meeting at which a
quorum representing a majority of all outstanding Common Stock is, either in
person or by proxy, present, no amendment shall be made (a) increasing or
decreasing the number of shares approved for this Plan, (b) changing the class
of
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<PAGE> 5
employees eligible to receive Options under the Plan or (c) making any other
change that would require stockholder approval in order for the Plan, as
amended, to qualify as an "employee stock purchase plan" under Section 423(b) of
the Code.
18. INSUFFICIENT SHARES. In the event that the total number of shares of
Common Stock specified in elections to be purchased under any Offering plus the
number of shares purchased under previous Offerings under this Plan exceeds the
maximum number of shares issuable under this Plan, the Board of Directors or the
Committee shall allot, in such manner as it may determine, the shares then
available.
19. TERMINATION OF THE PLAN. This Plan may be terminated at any time by
the Company's Board of Directors. Upon termination of this Plan all amounts in
the accounts of participating employees shall be promptly refunded.
20. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and deliver
Common Stock under this Plan is subject to listing on the NMS and obtaining all
governmental approvals required in connection with the authorization, issuance,
or sale of such stock.
The Plan shall be governed by Massachusetts law except to the extent that
such law is preempted by federal law.
The Plan is intended to comply with the provisions of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended. Any provision
inconsistent with such Rule shall be inoperative and shall not affect the
validity of the Plan.
21. ISSUANCE OF SHARES. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares held in the treasury of
the Company, or from any other proper source.
22. NOTIFICATION UPON SALE OF SHARES. Each employee agrees, by entering
the Plan, to give the Company prompt notice of any disposition of shares
purchased under the Plan where such disposition occurs within two years after
the date of grant of the Option pursuant to which such shares were purchased.
23. EFFECTIVE DATE AND APPROVAL OF SHAREHOLDERS. The Plan shall take
effect on the first day of the Company's initial public offering (the "Effective
Date") subject to closing of the offering and approval by a majority of the
votes cast at a duly held shareholders' meeting at which a quorum representing a
majority of all outstanding Common Stock is, either in person or by proxy,
present, which approval must occur within twelve months of the adoption of the
Plan by the Board of Directors.
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<PAGE> 1
EXHIBIT 4.4
FIRST AMENDMENT TO
BROOKTROUT TECHNOLOGY, INC.
AMENDED AND RESTATED
1992 STOCK PURCHASE PLAN
This Amendment (the "Amendment") to the Brooktrout Technology, Inc.
("Brooktrout" or the "Company") Amended and Restated 1992 Stock Purchase Plan,
dated August 17, 1992 (the "Plan"), was adopted by the Board of Directors (the
"Board") of the Company on February 19, 1998.
WHEREAS, the Board believes that it is desirable for the Company to continue to
provide the opportunity for employees to acquire common stock, $.01 par value
(the "Stock"), through the Plan;
WHEREAS, a total of one hundred and twenty-five thousand (125,000) shares of
Stock have been reserved for issuance under the plan and, as of January 1, 1998,
only thirty-nine thousand six hundred and fourteen (39,614) shares of Stock
remained available for issuance under the Plan;
WHEREAS, the Board further believes that the number of shares of Stock available
for purchase under the Plan is currently insufficient;
WHEREAS, the Board adopted, subject to stockholder approval, an increase of one
hundred thousand (100,000) shares of Stock reserved for issuance under the Plan;
and
WHEREAS, on May 14, 1998, the stockholders of the Company approved the Amendment
at the annual meeting of stockholders;
NOW, THEREFORE, the Plan is hereby amended in the following manner:
The second sentence of the first paragraph is amended to increase the
number of shares of Stock reserved and available for purchase under the Plan
from one hundred and twelve thousand five hundred (112,500) to two hundred and
twelve thousand (212,500).
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<PAGE> 1
EXHIBIT 5.1
September 1, 1998
Brooktrout Technology, Inc.
410 First Avenue
Needham, Massachusetts 02494
Re: BROOKTROUT TECHNOLOGY, INC. 1992 STOCK INCENTIVE PLAN, AS AMENDED, AND
BROOKTROUT TECHNOLOGY, INC. AMENDED AND RESTATED 1992 STOCK PURCHASE PLAN
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Brooktrout
Technology, Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act") of a Registration Statement on Form S-8 (the
"Registration Statement") relating to 950,000 shares of the Company's common
stock, par value $.01 per share (the "Registered Shares"), which may be issued
pursuant to the Brooktrout Technology, Inc. 1992 Stock Incentive Plan, as
amended and Brooktrout Technology, Inc. Amended and Restated 1992 Stock Purchase
Plan (together, the "Plans").
As counsel for the Company, we have examined copies of each of the Plans,
the Registration Statement, and the Company's Restated Articles of Organization
and Amended and Restated By-laws, each as presently in effect, such records of
the corporate proceedings of the Company as deemed to be material and such other
certificates, receipts, records, and other documents as we have deemed necessary
or appropriate for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America and the Commonwealth of Massachusetts, and
also express no opinion with respect to the blue sky or securities laws of any
state, including Massachusetts.
Based on the foregoing, we are of the opinion that, when the Registered
Shares are sold and paid for pursuant to the terms of the Plans, the Registered
Shares will be duly authorized, validly issued, fully paid and non-assessable by
the Company under the Business Corporation Law of the Commonwealth of
Massachusetts.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
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We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 11, 1998 appearing in and
incorporated by reference in the Annual Report on Form 10-K of Brooktrout
Technology, Inc. for the year ended December 31, 1997.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Boston, Massachusetts
September 1, 1998
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