As filed with the Securities and Exchange Commission on April 1, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMPUTONE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 23-2472952
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1060 Windward Ridge Parkway
Suite 100
Alpharetta, Georgia 30005-3992
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
--------------------
COMPUTONE CORPORATION
AMENDED AND RESTATED EQUITY INCENTIVE PLAN
1997 EQUITY INCENTIVE PLAN
1998 EQUITY INCENTIVE PLAN
--------------------------
(Full titles of plans)
--------------------
Perry J. Pickerign, President and Chief Executive Officer
Computone Corporation
1060 Windward Ridge Parkway
Suite 100
Alpharetta, Georgia 30005-3992
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(Name and address of agent for service)
(770) 625-0000
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(Telephone number, including area code,
of agent for service)
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Copy to:
Frederick W. Dreher, Esquire
Duane, Morris & Heckscher LLP
4200 One Liberty Place
Philadelphia, Pennsylvania 19103-7396
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered(1) price per share(2) offering price(2) registration fee
------------------- ------------- ------------------ ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 1,090,390 shares $1.7837 $1,944,929 $541.00
==================== ================ ======= ========== =======
</TABLE>
(1) Pursuant to paragraph (h) of Rule 457, the proposed maximum offering price
per share and the proposed maximum aggregate offering price have been
computed as follows: (a) with respect to the 533,723 shares for which
options have been granted but not exercised as of the date hereof,
computed on the basis of exercise prices ranging from $1.125 to $6.000 per
share and (b) with respect to the 556,667 shares for which options have
not been granted, computed on the basis of $1.875 per share, the average
of the bid and asked prices of the Common Stock of the Company on the OTC
Bulletin Board on March 29, 1999, the last day on which the Common Stock
traded prior to the date of filing.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following material is incorporated herein by reference:
(i) The Annual Report on Form 10-KSB of Computone Corporation (the
"Company") for the fiscal year ended April 3, 1998 as filed by the Company
with the Securities and Exchange Commission (the "Commission") on September
4, 1998;
(ii) The Company's Form 10-QSB Report for the quarter ended July 3,
1998 as filed by the Company with the Commission on September 11, 1998;
(iii) The Company's Form 10-QSB Report for the quarter ended October
2, 1998 as filed by the Company with the Commission on November 16, 1998;
(iv) The Company's Form 10-QSB Report for the quarter ended January 1,
1999 as filed by the Company with the Commission on February 12, 1999;
(v) The Company's Form 8-K Current Report dated April 30, 1998 as
filed by the Company with the Commission on May 18, 1998;
(vi) The Company's Form 8-K Current Report dated July 17, 1998 as
filed by the Company with the Commission on August 4, 1998;
(vii) The Company's Form 8-K Current Report dated November 17, 1998 as
filed by the Company with the Commission on November 25, 1998; and
(viii) The description of the Company's Common Stock set forth in the
Company's Prospectus dated August 15, 1994 as filed by the Company with the
Commission on August 25, 1994 under Rule 424(b) under the caption
"Description of Capital Stock."
All reports or other documents filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") subsequent to the date of this Registration Statement, in each case filed
by the Company prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or that 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
reports and documents. Any statement contained in a document incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document, which
also is or is deemed to be incorporated herein by reference, modifies or
supersedes such statement. Any statement so modified or superseded shall not be
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deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
No answer to this item is required because the class of securities to be
offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules of the Company incorporated by
reference in this Registration Statement have been audited by BDO Seidman, LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane, Morris & Heckscher LLP,
Philadelphia, Pennsylvania. As of March 31, 1999, the law firm of Duane, Morris
& Heckscher LLP owned 55,000 shares of the Company's Common Stock and partners
of such firm owned an aggregate of approximately 1,000 shares of the Company's
Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
In the case of an action or suit by or in the right of the corporation to
procure a judgment in its favor, Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by reason of the fact that the
person is or was acting in any of the capacities set forth above against
expenses (including attorneys' fees) actually and reasonably incurred by the
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<PAGE>
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation, except that
indemnification is not permitted in respect of any claim, issue or matter as to
which such person is adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court deems proper.
Section 145 further provides that a Delaware corporation is required to
indemnify a director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with any action, suit or proceeding or in defense of any claim, issue or matter
therein as to which such person has been successful on the merits or otherwise;
that indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; that
indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such liability
under Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standard of conduct. Such determination is to be
made (i) by the board of directors by a majority vote of a quorum consisting of
directors who were not party to such action, suit or proceeding, even though
less than a quorum, (ii) if there are no such directors or if such directors so
direct, by independent legal counsel in a written opinion or (iii) by the
stockholders.
Article VI of the Company's By-laws provides for indemnification of
directors and officers of the Company to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as presently or hereafter in
effect.
Additionally, as permitted by the General Corporation Law of the State of
Delaware, Article VI of the Company's Certificate of Incorporation provides that
no director of the Company shall incur personal liability to the Company or its
stockholders for monetary damages for breach of his or her fiduciary duty as a
director; provided, however, that this provision does not eliminate or limit the
liability of a director for (i) any breach of the director's duty of loyalty to
the Company or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) the
unlawful payment of dividends or unlawful purchase or redemption of stock under
Section 174 of the General Corporation Law of the State of Delaware or (iv) any
transaction from which the director derived an improper personal benefit.
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<PAGE>
Item 7. Exemption from Registration Claimed.
No answer to this item is required because no restricted securities are to
be reoffered or resold pursuant to this Registration Statement.
Item 8. Exhibits.
4.1 Computone Corporation Amended and Restated Equity Incentive Plan.
4.2 Computone Corporation 1997 Equity Incentive Plan.
4.3 Computone Corporation 1998 Equity Incentive Plan.
5 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion filed
as Exhibit 5).
23.2 Consent of BDO Seidman, LLP.
24 Power of Attorney (included on the signature pages hereto).
Item 9. Undertakings.
The registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(2) 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
decrease 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 end 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 a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(3) 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;
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<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Item 9
do not apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) that for the purpose of determining any liability under the 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 offer thereof; and
(c) 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.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 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.
The undersigned registrant hereby further undertakes that, insofar as
indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Alpharetta, Georgia on March 31, 1999.
COMPUTONE CORPORATION
By: /s/ Perry J. Pickerign
---------------------------------
Perry J. Pickerign, President and
Chief Executive Officer
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Perry J. Pickerign and Keith H. Daniel, and each
or either of them, as such person's true and lawful attorneys-in-fact and
agents, with full power of substitution, for such person, and in such person's
name, place and stead, in any and all capacities to sign any or all amendments
or 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, granting unto said
attorneys-in-fact and agents 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 said attorneys-in-fact and
agents, or any of them or their substitutes, may lawfully do or cause to be done
by virtue hereof.
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 and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Richard A. Hansen Chairman of the Board and Director March 31, 1999
- ----------------------
Richard A. Hansen
/s/ Perry J. Pickerign President, Chief Executive Officer March 31, 1999
- ---------------------- and Director (principal executive officer)
Perry J. Pickerign
/s/ Keith H. Daniel Chief Financial Officer (principal March 31, 1999
- ---------------------- financial and accounting officer)
Keith H. Daniel
/s/ John D. Freitag Director March 31, 1999
- ----------------------
John D. Freitag
</TABLE>
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<PAGE>
EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
<TABLE>
<CAPTION>
Exhibit No. Exhibit Reference
<S> <C> <C>
4.1 Computone Corporation Amended and Restated Equity
Incentive Plan. Filed herewith
4.2 Computone Corporation 1997 Equity Incentive Plan. Filed herewith
4.3 Computone Corporation 1998 Equity Incentive Plan. Filed herewith
5 Opinion of Duane, Morris & Heckscher LLP. Filed herewith
23.1 Consent of Duane, Morris & Heckscher LLP (included in their
opinion filed as Exhibit 5).
23.2 Consent of BDO Seidman, LLP. Filed herewith
24 Power of Attorney (see page II-7 of this Registration
Statement).
</TABLE>
II-8
EXHIBIT 4.1
COMPUTONE CORPORATION
AMENDED AND RESTATED
EQUITY INCENTIVE PLAN
I - PURPOSE
The purpose of the Computone Corporation Amended and Restated Equity
Incentive Plan (the "Plan") is to further the growth, development and financial
success of Computone Corporation (the "Company") by providing additional
incentives to those officers and key employees of the Company who are
responsible for the management of the Company's business affairs and to enable
them to participate directly in the growth of the Company. The Company intends
that the Plan will facilitate securing, retaining and motivating management
employees of high caliber and potential.
II - ADMINISTRATION
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board of Directors"). The
Committee shall consist of two or more persons selected by the Board of
Directors who are ineligible and who have been ineligible for the one year
period prior to appointment thereto for selection as a person to whom stock may
be allocated or to whom stock options, stock appreciation rights or restricted
stock may be granted pursuant to this Plan or any other similar plan of the
Company. Without limiting the foregoing, the Committee shall have full and final
authority in its discretion to interpret the provisions of the Plan and to
decide all questions of fact arising in its application, to determine the
employees to whom awards shall be made under the Plan, to determine the type of
awards to be made and the amount, size and terms of each such award, to
determine the time when awards shall be granted and to make all other
determinations necessary or advisable for the administration of the Plan.
III - STOCK SUBJECT TO THE PLAN
The shares that may be issued under the Plan shall not exceed in the
aggregate 500,000 shares of Common Stock of the Company. Such shares may be
authorized and unissued shares or treasury shares. Except as otherwise provided
herein, any shares subject to an option or right which for any reason expires or
is terminated unexercised as to such shares shall again be available under the
Plan.
<PAGE>
IV - ELIGIBILITY TO RECEIVE AWARDS
Persons eligible to receive awards under the Plan shall be limited to those
officers and other key employees of the Company as defined in Section 423 of the
Internal Revenue Code of 1986, or any amendment or substitute thereto (the
"Code") who are in positions in which their decisions, actions and counsel
significantly impact upon the profitability and success of the Company. In no
event shall the persons eligible to receive awards under the Plan include
members of the Committee.
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V - FORM OF AWARDS
Awards may be made from time to time by the Committee in the form of stock
options to purchase shares of Common Stock of the Company, stock appreciation
rights, restricted stock or any combination of the above. Stock options shall be
options which are not intended to qualify as incentive stock options within the
meaning of Section 422 of the Code ("Non-Qualified Stock Options").
VI - STOCK OPTIONS
Stock options for the purchase of Common Stock of the Company shall be
evidenced by written agreements in such form not inconsistent with the Plan as
the Committee shall approve from time to time, which shall contain in substance
the following terms and conditions:
(A) Type of Option: Each option agreement shall identify the options
represented thereby as Non-Qualified Stock Options.
(B) Option Price: The purchase price of stock subject to an option shall
not be less than 85% of the fair market value of such stock on the date the
option is granted, as determined by the Committee, but in no event less than the
par value of such stock.
(C) Exercise Term: Each option agreement shall state the period or periods
of time within which the option may be exercised, in whole or in part, which
shall be such period or periods of time as may be determined by the Committee,
provided that no option shall be exercisable prior to six months nor after ten
years from the date of grant thereof. The Committee shall have the power to
permit an acceleration of previously established exercise terms, subject to the
requirements set forth herein, upon such circumstances and subject to such terms
and conditions as the Committee deems appropriate.
(D) Payment for Shares: The purchase price of the shares with respect to
which an option is exercised shall be payable in full at the time of exercise in
cash, Common Stock of the Company at the fair market value thereof on the date
tendered to the Company as payment or a combination thereof, as the Committee
may determine and subject to such terms and conditions prescribed by the
Committee for such purpose.
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<PAGE>
(E) Rights Upon Termination of Employment: In the event that an
optionee ceases to be an employee of the Company for any reason other than death
or disability, the optionee shall have the right to exercise the option during
its term for a period of three months following such termination to the extent
that the option was exercisable at the time of termination, or within such other
period, and subject to such terms and conditions, as may be specified by the
Committee. In the event that an optionee dies or becomes disabled prior to the
expiration of his option and without having fully exercised his option, the
optionee or his successor shall have the right to exercise the option during its
term for a period of one year following termination of the optionee's employment
due to death or disability to the extent that the option was exercisable at the
time of termination, or within such other period, and subject to such terms and
conditions, as may be specified by the Committee.
(F) Nontransferability: Each option agreement shall state that the option
is not transferable other than by will or by the laws of descent and
distribution, and that during the lifetime of the optionee, the option is
exercisable only by him.
VII - STOCK APPRECIATION RIGHTS
Stock appreciation rights may be granted in connection with a previously or
contemporaneously granted stock option and shall be evidenced by a written stock
appreciation rights agreement in such form not inconsistent with this Plan as
the Committee shall approve from time to time, which agreement shall contain in
substance the following terms and conditions:
(A) Award: Stock appreciation rights shall entitle the grantee, subject to
such terms and conditions as are determined by the Committee, to receive upon
exercise thereof all or a portion of the excess of (i) the fair market value of
a specified number of shares of the Company's Common Stock at the time of
exercise, as determined by the Committee, over (ii) a specified price which may
be less than 100% of the fair market value of the stock at the time the right is
granted, or, if granted in connection with a previously issued stock option, the
fair market value of the stock at the time such option was granted.
(B) Term: Each agreement shall state the period or periods of time within
which the stock appreciation rights may be exercised, in whole or in part, as
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<PAGE>
determined by the Committee and subject to such terms and conditions prescribed
for such purpose by the Committee, provided that no stock appreciation rights
shall be exercisable prior to six months nor after ten years from the date
thereof. The Committee shall have the power to permit an acceleration of
previously established exercise terms, subject to the requirements set forth
herein, upon such circumstances and subject to such terms and conditions as the
Committee deems appropriate.
(C) Termination of Employment: Stock appreciation rights will be
exercisable only during the grantee's employment by the Company, except that in
the discretion of the Committee stock appreciation rights may be made
exercisable for up to three months after the grantee's employment is terminated
for any reason other than death or disability, in which event stock appreciation
rights may be made exercisable for up to one year after the grantee's employment
is terminated.
(D) Payment: Upon exercise of stock appreciation rights, payments shall be
made in cash.
(E) Other Terms: Stock appreciation rights shall be granted in such manner
and such form, and subject to such additional terms and conditions as the
Committee in its sole discretion deems necessary or desirable, including,
without limitation, in order to avoid any insider-trading liability in
connection with stock appreciation rights under Section 16(b) of the Securities
Exchange Act of 1934, as amended.
VIII - RESTRICTED STOCK AWARDS
Restricted stock awards under the Plan shall consist of shares of Common
Stock of the Company free of any purchase price or for such purchase price
established by the Committee, restricted against transfer, subject to
forfeiture, and subject to other terms and conditions intended to further the
purpose of the Plan, and shall be evidenced by a written restricted stock
agreement in such form not inconsistent with this Plan as the Committee shall
approve from time to time, which agreement shall contain in substance the
following terms and conditions:
(A) Restriction Period: Shares awarded pursuant to this Plan shall be
subject to such terms, conditions and restrictions, including, without
limitation, prohibitions against transfer, substantial risks of forfeiture and
attainment of performance objectives for such period or periods as shall be
determined by the Committee. The Committee shall have the power to permit, in
its discretion, an acceleration of the expiration of the applicable restriction
period with respect to any part or all of the shares awarded to the participant.
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<PAGE>
(B) Restriction Upon Transfer: Restricted stock and the right to vote such
shares and to receive dividends thereon may not be sold, assigned, transferred,
exchanged, pledged, hypothecated or otherwise encumbered, except as herein
provided, during the restriction period applicable to such shares.
Notwithstanding the foregoing, and except as otherwise provided in the Plan, the
participant shall have all the other rights of a stockholder including, but not
limited to, the right to receive dividends and the right to vote such shares.
(C) Certificates: Each certificate issued in respect of shares awarded to a
participant shall be deposited with the Company or its designee and shall bear
the following legend:
"This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including forfeiture provisions
and restrictions against transfer) contained in the Computone
Corporation Amended and Restated Equity Incentive Plan and an agreement
entered into between the registered owner and Computone Corporation.
Release from such terms and conditions shall be obtained only in
accordance with the provisions of such plan and agreement, a copy of
each of which is on file in the office of the Secretary of Computone
Corporation."
(D) Lapse of Restrictions: The Agreement shall specify the terms and
conditions upon which any restrictions upon shares awarded under the Plan shall
lapse, as determined by the Committee. Upon the lapse of such restrictions,
shares of Common Stock free of the restrictive legend shall be issued to the
participant or his legal representative.
(E) Termination Prior to Lapse of Restrictions: In the event that a
participant is no longer employed by the Company prior to the lapse of
restrictions as determined pursuant to the provisions of preceding subparagraph
(D), all shares as to which there still remain unlapsed restrictions shall be
forfeited by such participant to the Company without payment of any
consideration by the Company, and neither the participant nor any successors,
heirs, assigns, or personal representatives of such participant shall thereafter
have any further rights or interest in such shares or certificates.
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<PAGE>
IX - GENERAL PROVISIONS
Each award under the Plan shall be subject to the requirement that if at
any time the Committee shall determine that (i) the listings, registrations or
qualifications of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or federal law, (ii) the consent or
approval of any government regulatory body or (iii) an agreement by the
recipient of an award with respect to the disposition of shares of Common Stock
is necessary or desirable as a condition of or in connection with the granting
of such award or the issuance or purchase of shares of Common Stock thereunder,
such award shall not be consummated in whole or in part unless such listing,
registration, qualification, consent, approval or agreement shall have been
effected or obtained free of any conditions not acceptable to the Committee.
X - SINGLE OR MULTIPLE AGREEMENTS
Multiple forms of awards or combinations thereof may be evidenced by a
single agreement or multiple agreements, as determined by the Committee.
XI - RIGHTS OF A STOCKHOLDER
The recipient of any award under the Plan, unless otherwise provided by the
Plan, shall have no rights as a stockholder with respect thereto unless and
until certificates for shares of Common Stock are issued to him.
XII - RIGHTS TO TERMINATE EMPLOYMENT
Nothing in the Plan or in any agreement entered into pursuant to the Plan
shall confer upon any participant the right to continue as an employee of the
Company, or affect any right that the Company may have to terminate the
employment of such participant.
XIII - WITHHOLDING
Whenever the Company proposes or is required to issue or transfer shares of
Common Stock under the Plan, the Company shall have the right to require the
recipient to remit to the Company an amount sufficient to satisfy any federal,
state or local withholding tax requirements prior to the delivery of any
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<PAGE>
certificate or certificates for such shares. Whenever, under the Plan, payments
are to be made in cash, such payments shall be net of an amount sufficient to
satisfy any federal, state or local withholding tax requirements.
XIV - NON-ASSIGNABILITY
No award under the Plan shall be assignable or transferable by the
recipient thereof except by will or by the laws of descent and distribution or
by such other means as the Committee may approve. During the life of the
recipient, such award shall be exercisable only by such person or by such
person's guardian or legal representative.
XV - NON-UNIFORM DETERMINATIONS
The Committee's determinations under the Plan including, without
limitation, determinations of the persons to receive awards, the form, amount
and timing of such awards, the terms and provisions of such awards and the
agreements evidencing same need not be uniform and may be made selectively among
persons who receive, or are eligible to receive, awards under the Plan whether
or not such persons are similarly situated.
XVI - ADJUSTMENTS
In the event of any change in the outstanding Common Stock of the Company,
by reason of a stock dividend or distribution, recapitalization, merger,
consolidation, split-up, combination, exchange of shares or the like, the
Committee may, in its discretion, adjust the number of shares of Common Stock
which may be issued under the Plan. In such event, the Committee shall make an
appropriate and equitable adjustment (subject to approval of the Board of
Directors if necessary) in outstanding stock options, stock appreciation rights
and restricted stock awards.
XVII - AMENDMENT
The Committee may terminate or amend the Plan at any time, except that
without stockholder approval the Committee may not increase the maximum number
of shares which may be issued under the Plan (other than increases pursuant to
paragraph XVI hereof), extend the period during which any award may be
exercised, extend the term of the Plan or change the minimum option price. The
termination or any modification or amendment of the Plan shall not, without the
consent of a participant, affect his rights under an award previously granted.
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XVIII - EFFECT ON OTHER PLANS
Participation in this Plan shall not affect an employee's eligibility to
participate in any other benefit or incentive plan of the Company. Any awards
made pursuant to this Plan shall not be used in determining the benefits
provided under any other plan of the Company unless specifically provided.
XIX - DURATION OF THE PLAN
The Plan shall remain in effect until all awards under the Plan have been
satisfied by the issuance of shares or the payment of cash, but no award shall
be granted more than ten years after the earlier of the date the Plan is adopted
by the Company or is approved by the Company's stockholders.
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EXHIBIT 4.2
COMPUTONE CORPORATION
1997 EQUITY INCENTIVE PLAN
Computone Corporation, a Delaware corporation (the "Company"), hereby sets
forth the Computone Corporation 1997 Equity Incentive Plan (the "Plan"). The
Plan provides for the grant of non-qualified stock options ("Options") to
officers, directors, employees and consultants of the Company.
1. Purpose. The purpose of the Plan is to further the growth, development
and financial success of the Company by providing additional incentives to
officers, directors, employees and consultants of the Company, which will enable
them to participate directly in the growth of the value of the capital stock of
the Company. The Company intends that the Plan will facilitate securing,
retaining and motivating officers, directors, employees and consultants of high
caliber and potential. To accomplish these purposes, the Plan provides a means
whereby officers, directors, employees and consultants of the Company may
receive Options to purchase shares of the Company's Common Stock, par value $.01
per share (the "Common Stock").
2. Administration.
(a) Administration by the Board. The Plan shall be administered by the
Board of Directors of the Company (the "Board"), which, in its discretion, may
appoint a committee (the "Committee") consisting solely of two or more
non-employee directors of the Company, as that term is defined in Rule
16b-3(b)(3)(i) of the Securities Exchange Act of 1934 (the "1934 Act"), to
administer the Plan in lieu of the Board, subject to the ultimate authority of
the Board to administer the Plan. If the Board appoints a Committee, the Board,
from time to time, may increase the size of the Committee and appoint additional
members thereof, remove members with or without cause and appoint new members in
substitution therefor, fill vacancies, however caused, or remove all members of
the Committee and thereafter directly administer the Plan.
(b) Authority of the Board. The Board or the Committee, if such is
appointed, shall have full and final authority, in its sole discretion, to
interpret the provisions of the Plan and to decide all questions of fact arising
in its application and to make all other determinations necessary or advisable
for the administration of the Plan. As used herein the "Board" shall be deemed
to refer to the "Committee," as such is appointed, subject to the ultimate
authority of the Board as set forth in Section 2(a) hereof. All decisions,
determinations and interpretations of the Board shall be final and binding on
all holders of Options granted under the Plan and their successors in interest.
The Board shall determine the officers, directors, employees or consultants to
whom Options are to be granted; the type, amount, size and terms of each such
grant; and the time(s) when Options are to be exercisable. Members of the Board
shall not receive any compensation for their services in administering the Plan,
but all expenses and liabilities they incur in connection with the
administration of the Plan shall be borne by the Company. No member of the Board
or of the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, and all members of
the Board and of the Committee shall be fully protected and indemnified by the
Company in respect to any such action, determination or interpretation.
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3. Grant of Options.
(a) Limitations. The number of shares of Common Stock available under the
Plan for issuance pursuant to Options is 250,000 shares of Common Stock in the
aggregate. Such shares may be authorized and unissued shares or shares issued
and subsequently reacquired by the Company. Except as otherwise provided herein,
any shares subject to an Option that for any reason expires or is terminated
unexercised as to such shares shall again be available under the Plan.
(b) Eligibility To Receive Options. Officers, directors, employees and
consultants of the Company shall be eligible to receive Options under the Plan
as determined by the Board or the Committee, if such is appointed, in its sole
discretion.
(c) Type of Options. Grants may be made at any time and from time to time
by the Board or the Committee, if such is appointed, in the form of Options to
purchase shares of Common Stock. Options granted hereunder are not intended to
qualify as incentive stock options within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") or any amendment or
substitute thereto.
(d) Option Agreements. Options for the purchase of Common Stock shall be
evidenced by written agreements in such form not inconsistent with the Plan as
the Board or the Committee, if such is appointed, shall approve from time to
time. The Options granted hereunder may be evidenced by a single agreement or by
multiple agreements, as determined by the Board or the Committee, if such is
appointed, in its sole discretion. Each option agreement shall contain in
substance the following terms and conditions:
(i) Exercise Price. Each option agreement shall set forth the exercise
price of the Common Stock purchasable upon the exercise of the Option
evidenced thereby. The exercise price of the Common Stock subject to an
Option shall be not less than 100% of the fair market value of such stock
on the date the Option is granted, as determined by the Board or the
Committee, if such is appointed, but in no event less than the par value of
such stock. For this purpose, fair market value on any date shall mean the
closing price of the Common Stock as reported in The Wall Street Journal
or, if not so reported, as otherwise reported by the National Association
of Securities Dealers Automated Quotation System ("Nasdaq"), or if the
price of the Common Stock is not reported by Nasdaq, the fair market value
shall be as determined by the Board or the Committee, if such is appointed.
(ii) Exercise Term. Each Option shall state the period or periods of
time within which the Option may be exercised, in whole or in part, as
determined by the Board, provided that no Option shall be exercisable after
ten years from the date of grant thereof. The Board shall have the power to
permit an acceleration of exercise terms upon such circumstances and
subject to such terms and conditions as the Board deems appropriate in its
sole discretion.
(iii) Substitution of Options. Options may be granted under the Plan
from time to time in substitution for stock options held by officers,
directors, employees or consultants of other corporations who are about to
become, and who do concurrently with the grant of such options become,
officers, directors, employees or consultants of the Company as a result of
a merger or consolidation of such corporation with the Company, or the
acquisition by the Company of the assets of such corporation or the
acquisition by the Company of stock of such corporation. The terms and
conditions of the substitute Options so granted may vary from the terms and
conditions set forth in this Section 3 to such extent as the Board or the
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Committee, if such is appointed, at the time of grant may deem appropriate
to conform, in whole or in part, to the provisions of the stock options in
substitution for which Options are granted.
4. Date of Grant. The date on which an Option shall be deemed to have been
granted under the Plan shall be the date of the Board's authorization of the
Option or such later date as may be determined by the Board at the time the
Option is authorized. Notice of the determination shall be given to each
individual to whom an Option is so granted within a reasonable time after the
date of such grant.
5. Manner of Exercise. Options may be exercised in whole or in part, from
time to time, by giving written notice of exercise to the President of the
Company, specifying the number of shares to be purchased. The purchase price of
the shares with respect to which an Option is exercised shall be payable in full
with the notice of exercise in cash, Common Stock of the Company at fair market
value or a combination thereof, as the Board may determine from time to time and
subject to such terms and conditions as may be prescribed by the Board for such
purpose. The Board may also, in its discretion and subject to prior notification
to the Company by an optionee, permit an optionee to enter into an agreement
with the Company's transfer agent or a brokerage firm of national standing
whereby the optionee will simultaneously exercise the Option and sell the shares
acquired thereby through the Company's transfer agent or such a brokerage firm
and either the Company's transfer agent or the brokerage firm executing the sale
will remit to the Company from the proceeds of sale the exercise price of the
shares as to which the Option has been exercised. The Company shall not be
required to issue fractional shares on exercise of an Option.
6. Rights upon Termination of Service. In the event an optionee ceases to
be an officer, director, employee or consultant of the Company for any reason
other than death, total disability (within the meaning of Section 22(e)(3) of
the Code) or retirement, the optionee shall have the right to exercise the
Option during its term within a period of three months after such termination to
the extent that the Option was exercisable at the time of termination, or within
such other period, and subject to such other or different terms and conditions,
as may be specified by the Board in a written agreement evidencing an Option. In
the event that an optionee dies, retires or becomes totally disabled prior to
the expiration of his or her Option and without having fully exercised such
Option, the optionee or the optionee's successor in interest shall have the
right to exercise the Option during its term within a period of one year after
such termination due to death, retirement or total disability to the extent that
the Option was exercisable at the time of such termination or within such other
period, and subject to such other or different terms and conditions, as may be
specified by the Board in a written agreement evidencing an Option. As used in
this Section 6, "retirement" means a termination of employment by reason of an
optionee's retirement at or after the optionee's earliest permissible retirement
date pursuant to and in accordance with the Company's regular retirement plan or
personnel practices.
7. General Restrictions. Each Option granted under the Plan shall be
subject to the requirement that if at any time the Board shall determine that
(i) the listing, registration or qualification of the shares of Common Stock
subject or related thereto upon any securities exchange or under any state or
federal law, or (ii) the consent or approval of any government regulatory body,
or (iii) the satisfaction of any tax withholding obligation or (iv) an agreement
by the recipient of an Option with respect to the disposition of shares of
Common Stock is necessary or desirable as a condition of or in connection with
the granting of such Option or the issuance or purchase of shares of Common
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Stock thereunder, such Option shall not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval or agreement
shall have been effected or obtained free of any conditions not acceptable to
the Board.
8. Rights of a Stockholder. The recipient of any Option under the Plan,
unless otherwise provided by the Plan, shall have no rights as a stockholder
unless and until certificates for shares of Common Stock are issued and
delivered to such recipient.
9. Right to Terminate Employment. Nothing contained in the Plan or in any
option agreement entered into pursuant to the Plan shall confer upon any
optionee the right to continue in the employment or service of the Company or
affect any right that the Company may have to terminate the service or
employment of such optionee.
10. Withholding. Whenever the Company proposes or is required to issue or
transfer shares of Common Stock under the Plan, the Company shall have the right
to require the recipient to remit to the Company an amount sufficient to satisfy
any federal, state or local withholding tax requirements prior to the delivery
of any certificate or certificates for such shares. If and to the extent
authorized by the Board, in its sole discretion, an optionee may make an
election, by means of a form of election to be prescribed by the Board, to have
shares of Common Stock that are acquired upon exercise of an Option withheld by
the Company or to tender other shares of Common Stock of the Company owned by
the optionee to the Company at the time of exercise of an Option to pay the
amount of tax that would otherwise be required by law to be withheld by the
Company as a result of any exercise of an Option. Any such election shall be
irrevocable and shall be subject to termination by the Company, in its sole
discretion, at any time. Any securities so withheld or tendered will be valued
by the Board at the fair market value thereof as of the date of exercise.
11. Assignability. Options under the Plan shall be assignable and
transferable by the recipient thereof to the extent that the agreement
evidencing such Option expressly so indicates. The Company shall not be required
to recognize any such transfer or assignment until written notice thereof,
signed by the holder of the Option, is delivered to the secretary of the
Company. Unless otherwise transferred or assigned, the Option shall be
exercisable only by the recipient or by the recipient's guardian or legal
representative during the life of the recipient.
12. Non-Uniform Determinations. Determinations by the Board and the
Committee, if such is appointed, under the Plan (including, without limitation,
recommendations and determinations of the persons to receive Options, the form,
amount and timing of such grants, the terms and provisions of Options, and the
agreements evidencing same) need not be uniform and may be made selectively
among persons who receive, or are eligible to receive, grants of Options under
the Plan whether or not such persons are similarly situated.
13. Adjustments.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option, as well as the price per share of
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Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
securities convertible into or exchangeable for Common Stock of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board or the Committee, if such is
appointed, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein or in an agreement evidencing an
Option, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number of shares
of Common Stock subject to an Option or the exercise price thereof.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, all outstanding Options will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board. The Board may, in the exercise of its discretion in such instances,
declare that any Option shall terminate as of a date fixed by the Board and give
each Option holder the right to exercise his or her Option as to all or any part
of the shares of Common Stock covered by the Option, including shares as to
which the Option would not otherwise then be exercisable.
(c) Sale or Merger. In the event of a proposed sale of all or substantially
all of the assets of the Company, or the merger of the Company with or into
another corporation, the Board, in the exercise of its sole discretion, may take
such action as it deems desirable, including, but not limited to: (i) causing an
Option to be assumed or an equivalent option to be substituted by the successor
corporation or a parent or subsidiary of such successor corporation, (ii)
providing that each Option holder shall have the right to exercise his or her
Option as to all of the shares of Common Stock covered by the Option, including
shares as to which the Option would not otherwise then be exercisable or (iii)
declaring that an Option shall terminate at a date fixed by the Board, provided
that the Option holder is given notice thereof and opportunity to exercise the
then exercisable portion of his or her Option prior to such date.
14. Rights Upon Change in Control. In the event of a Change of Control of
the Company, the Board may, in its absolute discretion and upon such terms and
conditions as it deems appropriate, provide, by resolution adopted prior to such
Change in Control, that at some time prior to the effective date of such Change
in Control, that all Options granted pursuant to the Plan shall become
immediately exercisable as to all of the shares covered thereby, notwithstanding
any other provision contained herein or in the option agreements. As used
herein, "Change of Control" shall mean (a) the acquisition of shares of the
Company by any "person" or "group" (as such terms are used in Rule 13d-3 under
the 1934 Act as now or hereafter amended) in a transaction or series of
transactions, that result in such person or group directly or indirectly first
owning beneficially more than 35% of the Company's Common Stock, (b) the
consummation of a merger or other business combination after which the holders
of voting capital stock of the Company do not collectively own 50% or more of
the voting capital stock of the entity surviving such merger or other business
combination or the sale, lease, exchange or other transfer in a transaction or
series of transactions of all or substantially all of the assets of the Company
or (c) as the result of or in connection with any cash tender offer or exchange
offer, merger or other business combination, sale of assets or contested
election of directors or any combination of the foregoing transactions (a
"Transaction"), the persons who constituted a majority of the members of the
Boards of Directors of the Company on July 30, 1997 and persons whose election
as members of the Boards of Directors of the Company was approved by such
members then still in office or whose election was previously so approved after
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July 30, 1997, but before the event that constitutes a Change of Control, no
longer constitute such a majority of the members of the Boards of Directors of
the Company then in office. A Transaction constituting a Change in Control shall
only be deemed to have occurred upon the closing of the Transaction.
15. Amendment, Suspension or Termination of the Plan. The Plan may be
wholly or partially amended or otherwise modified, suspended or terminated at
any time or from time to time by the Board, subject to any required stockholder
approval or any stockholder approval that the Board may deem advisable for any
reason, such as for the purpose of obtaining or retaining any statutory or
regulatory benefits under tax, securities or other laws or satisfying any
applicable stock exchange or automated quotation system listing requirements.
The Board may not, without the consent of the holder of an Option, alter or
impair any Option previously granted under the Plan, except as specifically
authorized herein.
16. Reservation of Shares. The Company, during the term of the Plan, will
at all times reserve and keep available such number of shares of Common Stock as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any shares hereunder, shall relieve the Company of any
liability for the failure to issue or sell such shares as to which such
requisite authority shall not have been obtained.
17. Effect on Other Plans. Participation in the Plan shall not affect an
optionee's eligibility to participate in any other benefit or incentive plan of
the Company. Any Options granted pursuant to the Plan shall not be used in
determining the benefits provided under any other plan of the Company unless
specifically provided.
18. Duration of the Plan. The Plan shall remain in effect until all Options
granted under the Plan have been satisfied by the issuance of shares or expired,
but no Option shall be granted after July 29, 2007.
19. Forfeiture for Dishonesty. Notwithstanding anything to the contrary in
the Plan, if the Board or the Committee, if such is appointed, finds, by a
majority vote, after full consideration of the facts presented on behalf of both
the Company and any optionee, that an optionee has been engaged in fraud,
embezzlement, theft, commission of a felony or dishonest conduct in the course
of such optionee's employment, service or retention by the Company or any
subsidiary of the Company that damaged the Company or that the optionee has
disclosed confidential information of the Company or any subsidiary of the
Company, such optionee shall forfeit all unexercised Options and all exercised
Options under which the Company has not yet delivered the certificates, provided
that the Company shall return to the optionee any exercise price theretofore
paid by the optionee to the Company. The decision of the Board or the Committee,
if such is appointed, in interpreting and applying the provisions of this
Section 19 shall be final. No decision of the Board, however, shall affect the
finality of the discharge or termination of such optionee by the Company or any
subsidiary of the Company in any manner.
20. No Prohibition on Corporate Action. No provision of the Plan shall be
construed to prevent the Company, or any officer or director of the Company,
from taking any action deemed by the Company, or such officer or director, to be
appropriate or in the best interest of the Company, whether or not such action
could have an adverse effect on the Plan or any Options granted hereunder, and
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no optionee or optionee's successor in interest shall have any claim against the
Company or any officer or director of the Company or member of the Committee, as
a result of the taking of such action.
21. Indemnification. With respect to the administration of the Plan, the
Company shall indemnify each present and future member of the Board and the
Committee against, and each member of the Board and the Committee shall be
entitled, without further action on such member's part, to indemnity from the
Company for all expenses, including the amount of judgments and the amount of
approved settlements made with a view to the curtailment of costs of litigation,
other than amounts paid to the Company itself, reasonably incurred by the member
in connection with or arising out of any action, suit or proceeding in which the
member may be involved by reason of his or her being or having been a member of
the Board or of the Committee, whether or not he or she continues to be such
member at the time of incurring such expenses; provided, however, that such
indemnity shall not include any expenses incurred by any such member of the
Board or of the Committee (a) in respect of matters as to which he or she shall
be finally adjudged in any such action, suit or proceeding to have been guilty
of gross negligence or willful misconduct in the performance of his or her duty
as such member of the Board or such Committee or (b) in respect of any matter in
which any settlement is effected for an amount in excess of the amount approved
by the Company on the advice of its legal counsel; and provided further that no
right of indemnification under the provisions set forth herein shall be
available to or enforceable by any such member of the Board or of the Committee
unless, within 60 days after institution of any such action, suit or proceeding,
he or she shall have offered the Company in writing the opportunity to defend
such action, suit or proceeding at its own expense. The foregoing right of
indemnification shall inure to the benefit of the heirs, executors or
administrators of each such member of the Board and of the Committee and shall
be in addition to all other rights to which such member may be entitled as a
matter of law, contract or otherwise.
22. Miscellaneous Provisions.
(a) Compliance with Plan Provisions. No optionee or other person shall have
any right with respect to the Plan, the Common Stock reserved for issuance under
the Plan or in any Option until a written option agreement shall have been
executed on behalf of the Company and by the optionee and all the terms,
conditions and provisions of the Plan and the Option applicable to such
optionee, and each person claiming under or through such optionee, have been
met.
(b) Approval of Counsel. In the discretion of the Board, no shares of
Common Stock, other securities or property of the Company or other forms of
payment shall be issued hereunder with respect to any Option unless counsel for
the Company shall be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal, securities exchange and
other applicable requirements.
(c) Effects of Acceptance. By accepting any Option under the Plan, each
optionee and each person claiming under or through such optionee shall be
conclusively deemed to have indicated his or her acceptance and ratification of,
and consent to, any action taken under the Plan by the Company or its officers,
the Board or the Committee.
(d) Compliance with Rule 16b-3. To the extent that Rule 16b-3 under the
1934 Act applies to Options granted under the Plan, it is the intention of the
Company that the Plan comply in all respects with the requirements of Rule
16b-3, that any ambiguities or inconsistencies in construction of the Plan be
interpreted to give effect to such intention and that, if the Plan shall not so
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comply, whether on the date of adoption or by reason of any later amendment to
or interpretation of Rule 16b-3, the provisions of the Plan shall be deemed to
have been automatically amended so as to bring the provisions of the Plan into
full compliance with such Rule.
23. Stockholder Approval. No Option may be exercised until the Plan shall
have been approved by the affirmative vote of the holders of a majority of the
shares of the Company's outstanding Common Stock present or represented and
entitled to vote at a duly convened meeting of stockholders.
24. Titles. Titles are provided herein for convenience of reference only
and are not to serve as a basis for interpretation or construction of the Plan.
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EXHIBIT 4.3
COMPUTONE CORPORATION
1998 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the Computone Corporation 1998 Equity Incentive
Plan (the "Plan") is to further the growth, development and financial success of
Computone Corporation (the "Company") by providing additional incentives to
those officers and key employees who are responsible for the management of the
Company's business, which incentives will enable them to participate directly in
the growth of the value of the capital stock of the Company. To accomplish these
purposes, the Plan provides a means whereby key employees and officers may
receive stock options ("Options") to purchase the Company's Common Stock, $.01
par value (the "Common Stock").
2. Administration.
(a) Composition of the Committee. The Plan shall be administered by a
committee (the "Committee"), which shall be appointed by and serve at the
pleasure of the Company's Board of Directors (the "Board") or by the Board in
the absence of the appointment of the Committee. The Committee shall be
comprised of two or more members of the Board, each of whom shall be (i) a
"non-employee director" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (ii) an "outside
director" within the meaning of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"). Subject to the foregoing, from time to time the
Board may increase or decrease the size of the Committee, appoint additional
members thereof, remove members with or without cause, appoint new members in
substitution therefor, fill vacancies or remove all members of the Committee and
thereafter directly administer the Plan.
(b) Authority of the Committee. The Committee shall have full and final
authority, in its sole discretion, to interpret the provisions of the Plan and
to decide all questions of fact arising in its application; to determine the
officers and other key employees to whom awards shall be made and the type,
amount, size and terms of each such award; to determine the time when awards
shall be granted and to make all other determinations necessary or advisable for
the administration of the Plan. The Committee shall have the authority to adopt,
amend and rescind such rules, regulations and procedures as, in its opinion, may
be advisable in the administration of the Plan, including, without limitation,
rules, regulations and procedures that: (i) deal with satisfaction of an
optionee's tax withholding obligations pursuant to Section 13 hereof, (ii)
include arrangements to facilitate an optionee's ability to borrow funds for the
payment of the exercise price of an Option, if applicable, from securities
brokers and dealers and (iii) include arrangements that provide for the payment
of some or all of an Option's exercise price by delivery of previously owned
shares of Common Stock or other property and/or by withholding some of the
shares of Common Stock being acquired upon exercise of an Option. All decisions,
determinations and interpretations of the Committee shall be final and binding
on all optionees and all other holders of Options granted under the Plan.
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(c) Authority of the Board. Notwithstanding anything to the contrary set
forth in the Plan, all authority granted hereunder to the Committee may be
exercised at any time and from time to time by the Board. All decisions,
determinations and interpretations of the Board shall be final and binding on
all optionees and all other holders of Options granted under the Plan.
3. Stock Subject to the Plan. Subject to Section 16 hereof, the shares that
may be issued under the Plan shall not exceed in the aggregate 500,000 shares of
Common Stock. Such shares may be authorized and unissued shares or shares issued
and subsequently reacquired by the Company. Except as otherwise provided herein,
any shares subject to an Option that for any reason expires or is terminated
unexercised as to such shares shall again be available under the Plan.
4. Eligibility To Receive Options. Persons eligible to receive Options
under the Plan shall be limited to those officers and other key employees of the
Company and any subsidiary (as defined in Section 425 of the Code or any
amendment or substitute thereto) who are in positions in which their decisions,
actions and counsel significantly impact upon the profitability and success of
the Company or a subsidiary of the Company; provided, however, that directors of
the Company who are not also officers or employees of the Company shall not be
eligible to participate in the Plan.
5. Types of Options. Grants may be made at any time and from time to time
by the Committee in the form of stock options to purchase shares of Common
Stock. Options granted hereunder may be Options that are intended to qualify as
incentive stock options within the meaning of Section 422 of the Code or any
amendment or substitute thereto ("Incentive Stock Options") or Options that are
not intended to so qualify ("Nonqualified Stock Options").
6. Option Agreements. Each Option for the purchase of Common Stock shall be
evidenced by a written option agreement in such form not inconsistent with the
Plan as the Committee or the Board shall approve from time to time. The Options
granted hereunder may be evidenced by a single agreement or by multiple
agreements, as determined by the Committee in its sole discretion. Each option
agreement shall contain in substance the following terms and conditions:
(a) Type of Option. Each option agreement shall identify the Options
represented thereby either as Incentive Stock Options or Nonqualified Stock
Options, as the case may be.
(b) Option Price. Each option agreement shall set forth the purchase
price of the Common Stock purchasable upon the exercise of the Option
evidenced thereby. Subject to the limitation set forth in Section 6(d)(ii)
hereof, the purchase price of the Common Stock subject to an Incentive
Stock Option shall be not less than 100% of the fair market value of such
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stock on the date the Option is granted, as determined by the Committee or
the Board, but in no event less than the par value of such stock. The
purchase price of the Common Stock subject to a Nonqualified Stock Option
shall be not less than 85% of the fair market value of such stock on the
date the Option is granted, as determined by the Committee or the Board.
For this purpose, fair market value on any date shall mean the closing
price of the Common Stock, as reported in The Wall Street Journal, or if
not so reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation System ("Nasdaq"), or if the Common
Stock is not reported by Nasdaq, the fair market value shall be as
determined by the Committee or the Board pursuant to Section 422 of the
Code.
(c) Exercise Term. Each option agreement shall state the period or
periods of time within which the Option may be exercised, in whole or in
part, as determined by the Committee or the Board, provided that no Option
shall be exercisable after ten years from the date of grant thereof. The
Committee shall have the power to permit an acceleration of previously
established exercise terms, subject to the requirements set forth herein,
upon such circumstances and subject to such terms and conditions as the
Committee deems appropriate.
(d) Incentive Stock Options. In the case of an Incentive Stock Option,
each option agreement shall contain such other terms, conditions and
provisions as the Committee determines necessary or desirable in order to
qualify the Option granted thereunder as a tax-favored Option (within the
meaning of Section 422 of the Code or any amendment or substitute thereto
or regulation thereunder) including without limitation, each of the
following, except that any of these provisions may be omitted or modified
if it is no longer required in order to have an Option qualify as a
tax-favored Option within the meaning of Section 422 of the Code or any
amendment or substitute therefor:
(i) The aggregate fair market value, determined as of the date
the Option is granted, of the Common Stock with respect to which
Incentive Stock Options are first exercisable by any employee during
any calendar year under all plans of the Company shall not exceed
$100,000.
(ii) No Incentive Stock Options shall be granted to any employee
if at the time the Option is granted such employee owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or its subsidiaries unless at the time
such Option is granted the Option price is at least 110% of the fair
market value of the stock subject to the Option and, by its terms, the
Option is not exercisable after the expiration of five years from the
date of grant.
(iii) No Incentive Stock Options shall be exercisable more than
three months, or one year in the case of an employee who dies or
becomes disabled within the meaning of Section 72(m)(7) of the Code or
any substitute therefor, after termination of employment with the
Company.
(e) Substitution of Options. Options may be granted under the Plan
from time to time in substitution for stock options held by employees of
other corporations who are about to become, and who do concurrently with
the grant of such options become, employees of the Company or a subsidiary
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of the Company as a result of a merger or consolidation of the employing
corporation with the Company or a subsidiary of the Company, or the
acquisition by the Company or a subsidiary of the Company of the assets of
the employing corporation or the acquisition by the Company or a subsidiary
of the Company of stock of the employing corporation. The terms and
conditions of the substitute Options so granted may vary from the terms and
conditions set forth in this Section 6 to such extent as the Committee at
the time of grant may deem appropriate to conform, in whole or in part, to
the provisions of the stock options in substitution for which they are
granted.
7. Date of Grant. The date on which an Option shall be deemed to have been
granted under the Plan shall be the date of the Committee's authorization of the
Option or such later date as may be determined by the Committee at the time the
Option is authorized. Notice of the determination shall be given to each
individual to whom an Option is so granted within a reasonable time after the
date of such grant.
8. Exercise and Payment for Shares. Options may be exercised in whole or in
part, from time to time, by giving written notice of exercise to the Secretary
of the Company, specifying the number of shares to be purchased. The purchase
price of the shares with respect to which an Option is exercised shall be
payable in full with the notice of exercise in cash, Common Stock at fair market
value or a combination thereof, as the Committee may determine from time to time
and subject to such terms and conditions as may be prescribed by the Committee
for such purpose. The Committee may also, in its discretion and subject to prior
notification to the Company by an optionee, permit an optionee to enter into an
agreement with the Company's transfer agent or a brokerage firm of national
standing whereby the optionee will simultaneously exercise the Option and sell
the shares acquired thereby through the Company's transfer agent or such a
brokerage firm and either the Company's transfer agent or the brokerage firm
executing the sale will remit to the Company from the proceeds of sale the
exercise price of the shares as to which the Option has been exercised.
9. Rights upon Termination of Service. In the event that an optionee ceases
to be an employee of the Company or any subsidiary of the Company for any reason
other than death, retirement (as hereinafter defined) or disability (within the
meaning of Section 72(m)(7) of the Code or any substitute therefor), the
optionee shall have the right to exercise the Option during its term within a
period of three months after such termination to the extent that the Option was
exercisable at the time of termination or within such other period and subject
to such terms and conditions as may be specified by the Committee. In the event
that an optionee dies, retires or becomes disabled prior to the expiration of
his Option and without having fully exercised his Option, the optionee or his
successor shall have the right to exercise the Option during its term within a
period of one year after termination of employment due to death, retirement or
disability to the extent that the Option was exercisable at the time of
termination or within such other period and subject to such terms and
conditions, as may be specified by the Committee. As used in this Section 9,
"retirement" means a termination of employment by reason of an optionee's
retirement at or after his earliest permissible retirement date pursuant to and
in accordance with his employer's regular retirement plan or personnel
practices. Notwithstanding the provisions of Section 6(d)(iii) hereof, if the
term of an Incentive Stock Option continues for more than three months after
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termination of employment due to retirement or more than one year after
termination of employment due to death or disability, such Option shall
thereupon lose its status as an Incentive Stock Option and shall be treated as a
Nonqualified Stock Option.
10. General Restrictions. Each Option granted under the Plan shall be
subject to the requirement that if at any time the Committee shall determine
that (i) the listing, registration or qualification of the shares of Common
Stock subject or related thereto upon any securities exchange or under any state
or federal law, (ii) the consent or approval of any government regulatory body,
(iii) the satisfaction of any tax payment or withholding obligation or (iv) an
agreement by the recipient of an Option with respect to the disposition of
shares of Common Stock is necessary or desirable as a condition of or in
connection with the granting of such Option or the issuance or purchase of
shares of Common Stock thereunder, such Option shall not be consummated in whole
or in part unless such listing, registration, qualification, consent, approval
or agreement shall have been effected or obtained free of any conditions not
acceptable to the Committee or the Board.
11. Rights of a Stockholder. The recipient of any Option under the Plan,
unless otherwise provided by the Plan, shall have no rights as a stockholder
unless and until a certificate for shares of Common Stock is issued and
delivered to him.
12. Right to Terminate Employment. Nothing contained in the Plan or in any
agreement entered into pursuant to the Plan shall confer upon any optionee the
right to continue in the employment of the Company or any subsidiary of the
Company or affect any right that the Company or any subsidiary of the Company
may have to terminate the employment of such optionee.
13. Withholding. Whenever the Company proposes or is required to issue or
transfer shares of Common Stock under the Plan, the Company shall have the right
to require the recipient to remit to the Company an amount sufficient to satisfy
any federal, state or local withholding tax requirements prior to the delivery
of any certificate or certificates for such shares. If and to the extent
authorized by the Committee, in its sole discretion, an optionee may make an
election, by means of a form of election to be prescribed by the Committee, to
have shares of Common Stock that are acquired upon exercise of an Option
withheld by the Company or to tender other shares of Common Stock or other
securities of the Company owned by the optionee to the Company at the time of
exercise of an Option to pay the amount of tax that would otherwise be required
by law to be withheld by the Company as a result of any exercise of an Option.
Any such election shall be irrevocable and shall be subject to termination by
the Committee or the Board at any time. Any securities so withheld or tendered
will be valued by the Committee or the Board as of the date of exercise.
14. Non-Assignability. No Option under the Plan shall be assignable or
transferable by the recipient thereof except by will or by the laws of descent
and distribution or by such other means as the Committee or the Board may
approve. During the life of the recipient, such Option shall be exercisable only
by such person or by such person's guardian or legal representative.
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15. Non-Uniform Determinations. The Committee's determinations under the
Plan, including, without limitation, determinations of the persons to receive
Options, the form, amount and timing of such grants, the terms and provisions of
Options and the agreements evidencing same, need not be uniform and may be made
selectively among persons who receive, or are eligible to receive, grants of
Options under the Plan whether or not such persons are similarly situated.
16. Adjustments.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option, as well as the price per share of Common Stock covered by each
such outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Committee or the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, all outstanding Options will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee or the Board. The Committee or the Board may, in the exercise of
its sole discretion in such instances, declare that any Option shall terminate
as of a date fixed by the Committee or the Board and give each Option holder the
right to exercise his Option as to all or any part of the shares of Common Stock
covered by the Option, including shares as to which the Option would not
otherwise be exercisable.
(c) Sale or Merger. In the event of a proposed sale of all or substantially
all of the assets of the Company, or the merger of the Company with or into
another corporation, the Committee or the Board, in the exercise of its sole
discretion, may take such action as it deems desirable, including, but not
limited to: (i) causing an Option to be assumed or an equivalent option to be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, (ii) providing that an Option holder shall have the right
to exercise his Option as to all of the shares of Common Stock covered by the
Option, including shares as to which the Option would not otherwise be
exercisable or (iii) declaring that an Option shall terminate at a date fixed by
the Committee or the Board provided that the Option holder is given notice and
opportunity prior to such date to exercise that portion of his Option that is
currently exercisable.
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<PAGE>
17. Amendment. The Committee or the Board may terminate or amend the Plan
at any time with respect to shares as to which Options have not been granted,
subject to any required stockholder approval or any stockholder approval that
the Committee or the Board may deem to be advisable for any reason, such as for
the purpose of obtaining or retaining any statutory or regulatory benefits under
tax, securities or other laws or satisfying any applicable stock exchange
listing requirements. Neither the Board nor the Committee may, without the
consent of the holder of an Option, alter or impair any Option previously
granted under the Plan, except as specifically authorized herein.
18. Conditions upon Issuance of Shares.
(a) Compliance with Securities Laws. Shares of Common Stock shall not be
issued pursuant to the exercise of an Option 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, 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 Common
Stock may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option, the Company may require the person exercising such Option to represent
and warrant at the time of any such exercise that the shares of Common Stock 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
representation is required by any of the aforementioned relevant provisions of
law.
19. Reservation of Shares. The Company, during the term of the Plan, will
at all times reserve and keep available such number of shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained.
20. Effect on Other Plans. Participation in the Plan shall not affect an
employee's eligibility to participate in any other benefit or incentive plan of
the Company or any subsidiary of the Company. Any Options granted pursuant to
the Plan shall not be used in determining the benefits provided under any other
plan of the Company or any subsidiary of the Company unless specifically
provided.
21. Duration of the Plan. The Plan shall remain in effect until all Options
granted under the Plan have been satisfied by the issuance of shares, but no
Option shall be granted more than ten years after the earlier of the date the
Plan is adopted by the Board or is approved by the Company's stockholders.
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<PAGE>
22. Forfeiture for Dishonesty. Notwithstanding anything to the contrary in
the Plan, if the Committee or the Board finds, by a majority vote, after full
consideration of the facts presented on behalf of both the Company and any
optionee, that the optionee has been engaged in fraud, embezzlement, theft,
commission of a felony or dishonest conduct in the course of his employment or
retention by the Company or any subsidiary of the Company that damaged the
Company or any subsidiary of the Company or that the optionee has disclosed
trade secrets of the Company or any subsidiary of the Company, the optionee
shall forfeit all unexercised Options and all exercised Options with respect to
which the Company has not yet delivered the certificates. The decision of the
Committee or the board in interpreting and applying the provisions of this
Section 22 shall be final. No decision of the Committee or the Board shall
affect the finality of the discharge or termination of such optionee by the
Company or any subsidiary of the Company in any manner.
23. No Prohibition on Corporate Action. No provision of the Plan shall be
construed to prevent the Company or any officer or director thereof from taking
any corporate action deemed by the Company or such officer or director to be
appropriate or in the Company's best interest, whether or not such action could
have an adverse effect on the Plan or any Options granted hereunder, and no
optionee or optionee's estate, personal representative or beneficiary shall have
any claim against the Company or any officer or director thereof as a result of
the taking of such action.
24. Indemnification. With respect to the administration of the Plan, the
Company shall indemnify each present and future member of the Committee and the
Board against, and each member of the Committee and the Board shall be entitled
without further action on his part to indemnity from the Company for all
expenses (including the amount of judgments and the amount of approved
settlements made with a view to the curtailment of costs of litigation, other
than amounts paid to the Company itself) reasonably incurred by him in
connection with or arising out of, any action, suit or proceeding in which he
may be involved by reason of his being or having been a member of the Committee
or the Board, whether or not he continues to be such member at the time of
incurring such expenses; provided, however, that such indemnity shall not
include any expenses incurred by any such member of the Committee or the Board
(i) in respect of matters as to which he shall be finally adjudged in any such
action, suit or proceeding to have been guilty of gross negligence or willful
misconduct in the performance of his duty as such member of the Committee or the
Board or (ii) in respect of any matter in which any settlement is effected for
an amount in excess of the amount approved by the Company on the advice of its
legal counsel; and provided further that no right of indemnification under the
provisions set forth herein shall be available to or enforceable by any such
member of the Committee or the Board unless, within 60 days after institution of
any such action, suit or proceeding, he shall have offered the Company in
writing the opportunity to handle and defend such action at its own expense. The
foregoing right of indemnification shall inure to the benefit of the heirs,
executors and administrators of each such member of the Committee and the Board
and shall be in addition to all other rights to which such member may be
entitled as a matter of law, contract or otherwise.
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<PAGE>
25. Miscellaneous Provisions.
(a) Compliance with Plan Provisions. No optionee or other person shall have
any right with respect to the Plan, the Common Stock reserved for issuance under
the Plan or any Option until a written option agreement shall have been executed
by the Company and the optionee and all the terms, conditions and provisions of
the Plan and the Option applicable to such optionee and each person claiming
under or through him have been met.
(b) Approval of Counsel. In the discretion of the Committee and the Board,
no shares of Common Stock, other securities or property of the Company or other
forms of payment shall be issued hereunder with respect to any Option unless
counsel for the Company shall be satisfied that such issuance will be in
compliance with applicable federal, state, local and foreign legal, securities
exchange and other applicable requirements.
(c) Compliance with Rule 16b-3. To the extent that Rule 16b-3 under the
Exchange Act applies to Options granted under the Plan, it is the intention of
the Company that the Plan comply in all respects with the requirements of Rule
16b-3, that any ambiguities or inconsistencies in construction of the Plan be
interpreted to give effect to such intention and that, if the Plan shall not so
comply, whether on the date of adoption or by reason of any later amendment to
or interpretation of Rule 16b-3, the provisions of the Plan shall be deemed to
be automatically amended so as to bring them into full compliance with such
rule.
(d) Unfunded Plan. The Plan shall be unfunded. The Company shall not be
required to establish any special or separate fund or to make any other
segregation of assets under the Plan.
(e) Effects of Acceptance of Option. By accepting any Option or other
benefit under the Plan, each optionee and each person claiming under or through
him shall be conclusively deemed to have indicated his acceptance and
ratification of, and consent to, any action taken under the Plan by the Company,
the Board or the Committee or its delegates.
(f) Construction. The masculine pronoun shall include the feminine and
neuter, and the singular shall include the plural, where the context so
indicates.
26. Stockholder Approval. The Company shall submit the Plan to the
stockholders entitled to vote hereon for approval within twelve months after the
date of adoption by the Board in order to meet the requirements of Section 422
of the Code and the regulations thereunder. The exercise of any Option granted
under the Plan shall be subject to the approval of the Plan by the affirmative
vote of the holders of a majority of the outstanding shares of the Common Stock
present, or represented, and entitled to vote at a duly convened meeting of
stockholders.
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EXHIBIT 5
[Duane, Morris & Heckscher LLP letterhead]
March 31, 1999
The Board of Directors
Computone Corporation
1060 Windward Ridge Parkway, Suite 100
Alpharetta, Georgia 30005-3992
Gentlemen:
We have acted as counsel to Computone Corporation (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-8 (the "Registration Statement") relating to the offer and
sale by the Company of up to 1,090,390 shares (the "Shares") of Common Stock,
$.01 par value, of the Company, pursuant to the Company's Amended and Restated
Equity Incentive Plan, the Company's 1997 Equity Incentive Plan and the
Company's 1998 Equity Incentive Plan (the "Plans").
As counsel to the Company, we have supervised all corporate proceedings in
connection with the preparation and filing of the Registration Statement. We
have also examined the Company's Certificate of Incorporation and By-laws, as
amended to date, the corporate minutes and other proceedings and the records
relating to the authorization, sale and issuance of the Shares, and such other
documents and matters of law as we have deemed necessary or appropriate in order
to render this opinion.
Based upon the foregoing, it is our opinion that each of the Shares, when
issued in accordance with the terms and conditions of the respective Plans, will
be duly authorized, legally and validly issued and outstanding and fully paid
and nonassessable.
We hereby consent to the use of this opinion in the Registration Statement,
and we further consent to the reference to us under the heading "Interests of
Named Experts and Counsel" in the Registration Statement.
Sincerely,
DUANE, MORRIS & HECKSCHER LLP
By: /s/ Frederick W. Dreher
-----------------------
A Partner
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Computone Corporation
Alpharetta, Georgia
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Computone Corporation Amended and
Restated Equity Incentive Plan, 1997 Equity Incentive Plan, and 1998 Equity
Incentive Plan of our report dated August 6, 1998 relating to the consolidated
financial statements of Computone Corporation included in the Company's Annual
Report on Form 10-KSB for the year ended April 3, 1998. Our report contains an
explanatory paragraph regarding the Company's ability to continue as a going
concern.
We also consent to the reference to us under the caption "Interests of
Named Experts and Counsel" in the Registration Statement.
/s/ BDO Seidman, LLP
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BDO Seidman, LLP
Atlanta, Georgia
March 31, 1999
