CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
Price Per Offering
Share(1) Price(1)
_____________ __________ _________ _________ ____________
Common Stock,
no par value 450,000 $12.9375 $5,821,875 $2,008
(1) Estimated solely for the purpose of calculating the
amount of the registration fee on the basis of the
average of the high and low prices of the Common Stock
reported in the NASDAQ National Market System on
December 29, 1994.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with
the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994, and amending Form 10-K/A, filed pursuant to
Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1994, filed pursuant to Section 13 of the Exchange
Act.
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement filed pursuant to the Exchange
Act, including any amendment or report filed for the purpose of updating
such description.
(d) The description of the Registrant's Common Share Purchase
Rights contained in the Registrant's registration statement on Form 8-A
dated December 18, 1990, filed pursuant to Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sec-
tions 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be
part hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code ("Section 317")
authorizes a corporation to indemnify a person against expenses and
liabilities arising from third party or derivative actions to which the
person is or is threatened to be made a party by reason of the fact that
such person is or was an agent of the corporation, so long as such
person acted in good faith and in a manner the person reasonably
believed to be in the best interest of the corporation and, in the case
of a criminal proceeding, had no reasonable cause to believe the conduct
of the person was unlawful. Section 317 requires a corporation to
indemnify an agent who has been successful on the merits in defense of
any third party or derivative action against expenses actually and
reasonably incurred in connection therewith. The indemnification
authorized by Section 317 is not exclusive of additional indemnification
rights which an agent may have.
In accordance with Section 204 of the California Corporations Code,
the Registrant's Articles of Incorporation eliminate the liability of
directors for monetary damages to the fullest extent permissible under
California law. The Registrant's Articles of Incorporation also
authorize the Registrant to indemnify the directors and officers to the
fullest extent permissible under California law.
The Registrant's Bylaws require the Registrant to indemnify directors
and officers of the Registrant, and authorize the Registrant to
indemnify other agents, to the maximum extent permitted under the
California Corporations Code. Such provisions also apply to former
directors, officers and agents of the Registrant, and persons serving as
directors, officers or agents of another entity at the request of the
Registrant.
The Registrant has entered into indemnification agreements with its
directors and officers providing for indemnification of such directors
and officers to the maximum extent permitted by law, including future
changes to the law permitting broader indemnification than that
currently permitted. These agreements also resolve certain procedural
and substantive matters that are not covered, or are covered in less
detail, in the California Corporations Code or the Registrant's Bylaws.
The Registrant currently maintains liability insurance for its
directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number
4.1 Symmetricom, Inc. Employee Stock Purchase Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Independent Auditors' Consent
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registra-tion
statement to include any material information with respect to the plan
of distribution not previously disclosed in the registra-tion statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities Act"),
each such post-effec-tive amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Sec-tion 13(a) or
Section 15(d) of the Exchange Act (and, where appli-cable, 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
state-ment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemni-fication is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the pay-ment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Jose, State
of California, on January 4, 1995.
SYMMETRICOM, INC.
By: /s/ William D. Rasdal
_____________________
William D. Rasdal,
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William D. Rasdal and J. Scott
Kamsler, jointly and severally, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any
amendments to this registration statement on Form S-8, and to file the
same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ William D. Rasdal Chairman of the January 4, 1995
(William D. Rasdal) Board and Chief
Executive Officer
(Principal Executive
Officer)
/s/ J. Scott Kamsler Vice President, January 4, 1995
(J. Scott Kamsler) Finance, Chief
Financial Officer and
Secretary
(Principal Financial
and Accounting
Officer)
/s/ Paul N. Risinger Vice Chairman of January 4, 1995
(Paul N. Risinger) the Board
/s/ Howard Anderson Director January 4, 1995
(Howard Anderson)
/s/ Robert M. Wolfe Director January 4, 1995
(Robert M. Wolfe)
SYMMETRICOM, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1 Symmetricom, Inc. Employee Stock Purchase Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Independent Auditors' Consent
23.2 Consent of Counsel Contained in Exhibit 5.1
24.1 Power of Attorney Signature Page of
Registration Statement
EXHIBIT 5.1
January 4, 1995
Symmetricom, Inc.
85 West Tasman Drive
San Jose, CA 95134-1703
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on
Form S-8 to be filed by you with the Securities and
Exchange Commission on or about January 4, 1995 (the
"Registration Statement"), in connection with the
registration under the Securities Act of 1933, as
amended, of 450,000 shares of your Common Stock (the
"Shares") reserved for issuance under the Symmetricom,
Inc. Employee Stock Purchase Plan (the "Plan").
As your legal counsel in connection with this
transaction, we have examined the proceedings taken and
proposed to be taken in connection with the issuance,
sale and payment of consideration for the Shares to be
issued under the Plan.
It is our opinion that, when issued and sold in
compliance with applicable prospectus delivery
requirements and in the manner referred to in the Plan
and pursuant to the agreement which accompanies the
Plan, the Shares will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an
exhibit to the Registration Statement and further
consent to the use of our name wherever appearing in
the Registration Statement and any amendments thereto.
Sincerely,
/s/ WILSON, SONSINI, GOODRICH & ROSATI
______________________________________
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Symmetricom, Inc. on Form S-8
of our reports dated July 28, 1994, appearing in and
incorporated by reference in the Annual Report on Form
10-K of Symmetricom, Inc. for the year ended June 30,
1994.
/S/ DELOITTE & TOUCHE LLP
_________________________
DELOITTE & TOUCHE LLP
San Jose, California
January 4, 1995
SYMMETRICOM, INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Employee Stock Purchase
Plan of SymmetriCom, Inc.
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Company through accumulated payroll deductions. It
is the intention of the company to have the Plan qualify as an "Employee
Stock Purchase Plan" under Section 423 of the Internal Revenue Code of
1986, as amended. The provisions of the Plan, accordingly, shall be
construed so as to extend and limit participation in a manner consistent
with the requirements of that section of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean SymmetriCom, Inc. and any Designated
Subsidiary of the Company.
(e) "Compensation" shall mean all base straight time gross earnings
and sales commissions, including all payments for overtime, shift
premium, incentive compensation, incentive payments, profit sharing,
bonuses and other compensation.
(f) "Designated Subsidiaries" shall mean the Subsidiaries which
have been designated by the Board from time to time in its sole
discretion as eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an Employee of the
Company for tax purposes whose customary employment with the Company is
at least twenty (20) hours per week and more than five (5) months in any
calendar year. For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick
leave or other leave of absence approved by the Company. Where the
period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the
employment relationship will be deemed to have terminated on the
91st day of such leave.
(h) "Enrollment Date" shall mean the first day of each Offering
Period.
(i) "Exercise Date" shall mean the last day of each Offering
Period.
(j) "Fair Market Value" shall mean, as of any date, the value of
Common Stock determined as follows:
(1) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the
Nasdaq National Market of the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") System, its Fair Market
Value shall be the closing sale price for the Common Stock (or the mean
of the closing bid and asked prices, if no sales were reported), as
quoted on such exchange (or the exchange with the greatest volume of
trading in Common Stock) or system on the date of such determination, as
reported in The Wall Street Journal or such other source as the
Board deems reliable, or;
(2) If the Common Stock is quoted on the NASDAQ System (but
not on the Nasdaq National Market thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, its
Fair Market Value shall be the mean of the closing bid and asked prices
for the Common Stock on the date of such determination, as reported in
The Wall Street Journal or such other source as the Board deems
reliable, or;
(3) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith
by the
Board.
(k) "Offering Period" shall mean a period of approximately six (6)
months, commencing on the first Trading Day on or after February 1 and
terminating on the last Trading Day in the period ending the following
July 31, or commencing on the first Trading Day on or after August 1 and
terminating on the last Trading Day in the period ending the following
January 31, during which an option granted pursuant to the Plan may be
exercised, provided that the first Offering Period under this Plan shall
be the period of approximately four (4) months, commencing with the
first Trading Day on or after October 17, 1994 and terminating on the
last Trading Day in the period ending the following January 31, 1995.
The duration of Offering Periods may be changed pursuant to
Section 4 of this Plan.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
(m) "Purchase Price" shall mean an amount equal to 85% of the Fair
Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(n) "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised
and the number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option.
(o) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or
a Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(p) "Trading Day" shall mean a day on which national stock
exchanges and the NASDAQ System are open for trading.
3. Eligibility.
(a) Any Employee (as defined in Section 2(g)), who shall
be employed by the Company on a given Enrollment Date shall be eligible
to participate in the Plan.
(b) Any provisions of the Plan to the contrary notwith-
standing, no Employee shall be granted an option under the Plan (i) to
the extent, immediately after the grant, such Employee (or any other
person whose stock would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own capital stock of the Company
and/or hold outstanding options to purchase such stock possessing five
percent (5%) or more of the total combined voting power or value of all
classes of the capital stock of the Company or of any Subsidiary, or
(ii) to the extent his or her rights to purchase stock under all
employee stock purchase plans of the Company and its subsidiaries to
accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000)
worth of stock (determined at the fair market value of the shares at the
time such option is granted) for each calendar year in which such option
is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing on the first
Trading Day on or after February 1 and August 1 each year, or, in the
case of the first Offering Period under the Plan, on the first Trading
Day on or after October 17, 1994, or on such other date as the Board
shall determine, and continuing thereafter until terminated in
accordance with Section 19 hereof. The Board shall have the power to
change the duration of Offering Periods (including the commencement
dates thereof) with respect to future offerings without shareholder
approval if such change is announced at least fifteen (15) days prior to
the scheduled beginning of the first Offering Period to be affected
thereafter.
5. Participation.
(a) An eligible Employee may become a participant in the
Plan by completing a subscription agreement authorizing payroll
deductions in the form of Exhibit A to this Plan and filing it with the
Company's payroll office prior to the applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on
the first payroll following the Enrollment Date and shall end on the
last payroll in the Offering Period to which such authorization is
applicable, unless sooner terminated by the participant as provided in
Section 10 hereof.
6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on
each pay day during the Offering Period in an amount not exceeding ten
percent (10%) of the Compensation which he or she receives on each pay
day during the Offering Period.
(b) All payroll deductions made for a participant shall be
credited to his or her account under the Plan and will be withheld in
whole percentages only. A participant may not make any additional
payments into such account.
(c) A participant may discontinue his or her participation in the
Plan as provided in Section 10 hereof, or may decrease the rate of his
or her payroll deductions one time during the Offering Period by
completing or filing with the Company a new subscription agreement
authorizing a change in payroll deduction rate. The Board may, in its
discretion, limit the number of or eliminate participation rate changes
during any Offering Period. The change in rate shall be effective with
the first full payroll period following five (5) business days after the
Company's receipt of the new subscription agreement unless the Company
elects to process a given change in participation more quickly. A
participant's subscription agreement shall remain in effect for
successive Offering Periods unless terminated as provided in Section 10
hereof.
(d) Notwithstanding the foregoing, to the extent necessary
or advisable to comply with the limitations on contributions and Share
purchases under this Plan, including but not limited to the limitations
imposed pursuant to Section 423(b)(8) of the Code and Section 3(b)
hereof, a participant's payroll deductions may be reduced by the
Company. For purposes of complying with Section 423(b)(8) of the Code
and Section 3(b) hereof, payroll deductions shall be decreased to 0% at
such time during any Offering Period which is scheduled to end during
the current calendar year (the "Current Offering Period") that the
aggregate of all payroll deductions which were previously used to
purchase stock under the Plan in a prior Offering Period which ended
during that calendar year plus all payroll deductions accumulated with
respect to the Current Offering Period equal $21,250. Payroll
deductions shall recommence at the rate provided in such participant's
subscription agreement at the beginning of the first Offering Period
which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10 hereof.
(e) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan
is disposed of, the participant must make adequate provision for the
Company's federal, state, or other tax withholding obligations, if any,
which arise upon the exercise of the option or the disposition of the
Common Stock. At any time, the Company may, but will not be obligated
to, withhold from the participant's compensation the amount necessary
for the Company to meet applicable withholding obligations, including
any withholding required to make available to the Company any tax
deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. Grant of Option. On the Enrollment Date of each Offering
Period, each eligible Employee participating in such Offering Period
shall be granted an option to purchase on the Exercise Date of such
Offering Period (at the applicable Purchase Price) up to a number of
shares of the Company's Common Stock determined by dividing such
Employee's payroll deductions accumulated prior to such Exercise Date
and retained in the Participant's account as of the Exercise Date by the
applicable Purchase Price; provided that in no event shall an Employee
be permitted to purchase during each Offering Period more than a number
of Shares determined by dividing $12,500 by the Fair Market Value of a
share of the Company's Common Stock on the Enrollment Date, and provided
further that such purchase shall be subject to the limitations set forth
in Sections 3(b) and 12 hereof. Exercise of the option shall occur as
provided in Section 8 hereof, unless the participant has withdrawn
pursuant to Section 10 hereof, and shall expire on the last day of the
Offering Period.
8. Exercise of Option. Unless a participant withdraws from the
Plan as provided in Section 10 hereof, his or her option for the
purchase of shares shall be exercised automatically on the Exercise
Date, and the maximum number of full shares subject to option shall be
purchased for such participant at the applicable Purchase Price with the
accumulated payroll deductions in his or her account. No fractional
shares shall be purchased; any payroll deductions accumulated in a
participant's account which are not sufficient to purchase a full share
shall be retained in the participant's account for the subsequent
Offering Period, subject to earlier withdrawal by the participant as
provided in Section 10 hereof. Any other monies left over in a
participant's account after the Exercise Date shall be returned to the
participant. During a participant's lifetime, a participant's option to
purchase shares hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after each Exercise
Date on which a purchase of shares occurs, the Company shall arrange the
delivery to each participant, as appropriate, of a certificate
representing the shares purchased upon exercise of his or her option.
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the
payroll deductions credited to his or her account and not yet used to
exercise his or her option under the Plan at any time up to four days
before the Exercise Date by giving written notice to the Company in the
form of Exhibit B to this Plan. All of the participant's payroll
deductions credited to his or her account will be paid to such
participant promptly after receipt of notice of withdrawal and such
participant's option for the Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of shares
will be made during the Offering Period. If a participant withdraws
from an Offering Period, payroll deductions will not resume at the
beginning of the succeeding Offering Period unless the participant
delivers to the Company a new subscription agreement.
(b) Upon a participant's ceasing to be an Employee (as defined in
Section 2(g) hereof) for any reason, he or she will be deemed to have
elected to withdraw from the Plan and the payroll deductions credited to
such participant's account during the Offering Period but not yet used
to exercise the option will be returned to such participant or, in the
case of his or her death, to the person or persons entitled thereto
under Section 14 hereof, and such participant's option will be
automatically terminated. The preceding sentence notwithstanding, a
participant who receives payment in lieu of notice of termination of
employment shall be treated as continuing to be an Employee for
the participant's customary number of hours per week of employment
during the period in which the participant is subject to such payment in
lieu of notice.
(c) A participant's withdrawal from an Offering Period will not
have any effect upon his or her eligibility to participate in any
similar plan which may hereafter be adopted by the Company or in
succeeding Offering Periods which commence after the termination of the
Offering Period from which the participant withdraws.
11. Interest. No interest shall accrue on the payroll deductions of a
participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall 450,000
shares, subject to adjustment upon changes in capitalization of the
Company as provided in Section 18 hereof. If on a given Exercise Date
the number of shares with respect to which options are to be exercised
exceeds the number of shares then available under the Plan, the Company
shall make a pro rata allocation of the shares remaining available for
purchase in as uniform a manner as shall be practicable and as it shall
determine to be equitable.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the
participant and his or her spouse.
13. Administration.
(a) Administrative Body. The Plan shall be administered by the
Board or a committee of members of the Board appointed by the Board.
The Board or its committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the Plan, to
determine eligibility and to adjudicate all disputed claims filed under
the Plan. Every finding, decision and determination made by the Board
or its committee shall, to the full extent permitted by law, be final
and binding upon all parties.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
Subsection (a) of this Section 13, in the event that Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any successor provision ("Rule 16b-3") provides
specific requirements for the administrators of plans of this type, the
Plan shall be administered only by such a body and in such a manner as
shall comply with the applicable requirements of Rule 16b-3. Unless
permitted by Rule 16b-3, no discretion concerning decisions regarding
the Plan shall be afforded to any committee or person that is not
"disinterested" as that term is used in Rule 16b-3.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the participant's
account under the Plan in the event of such participant's death
subsequent to an Exercise Date on which the option is exercised but
prior to delivery to such participant of such shares and cash. In
addition, a participant may file a written designation of a beneficiary
who is to receive any cash from the participant's account under the Plan
in the event of such participant's death prior to exercise of the
option. If a participant is married and the designated beneficiary is
not the spouse, spousal consent shall be required for such designation
to be effective.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of
a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's death,
the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such executor
or administrator has been appointed to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to
the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an
option or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will, the
laws of descent and distribution or as provided in Section 14 hereof) by
the participant. Any such attempt at assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds from an Offering Period
in accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such
payroll deductions.
17. Reports. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to
participating Employees at least annually, which statements will set
forth the amounts of payroll deductions, the Purchase Price, the number
of shares purchased and the remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization.
(a) Changes in Capitalization. Subject to any required action by
the shareholders of the Company, the Reserves as well as the price per
share of Common Stock covered by each option under the Plan which has
not yet been exercised 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 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 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, the Offering Period will
terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Board.
(c) Merger or Asset Sale. 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 Offering Period during
which such event occurs shall be cancelled and participants shall
receive a refund of all amounts contributed to the Plan during such
Offering Period, unless the Board determines, in the exercise of its
sole discretion and in lieu of cancelling such Offering Period, to
shorten the Offering Period then in progress by setting a new Exercise
Date (the "New Exercise Date"). If the Board shortens the Offering
Period then in progress in lieu of cancelling the Offering Period, the
Board shall notify each participant in writing, at least ten (10)
business days prior to the New Exercise Date, that the Exercise Date for
his option has been changed to the New Exercise Date and that his option
will be exercised automatically on the New Exercise Date, unless prior
to such date he has withdrawn from the Offering Period as provided in
Section 10 hereof.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as
the price per share of Common Stock covered by each outstanding option,
in the event the Company effects one or more reorganizations,
recapitalization, rights offerings or other increases or reductions of
shares of its outstanding Common Stock, and in the event of the Company
being consolidated with or merged into any other corporation.
19. Amendment or Termination.
(a) The Board of Directors of the Company may at any time and for
any reason terminate or amend the Plan. Except as provided in
Section 18 hereof, no such termination can affect options previously
granted, provided that an Offering Period may be terminated by the Board
of Directors on any Exercise Date if the Board determines that the
termination of the Plan is in the best interests of the Company and its
shareholders. Except as provided in Section 18 hereof, no amendment may
make any change in any option theretofore granted which adversely
affects the rights of any participant. To the extent necessary to
comply with Rule 16b-3 or under Section 423 of the Code (or any
successor rule or provision or any other applicable law or regulation),
the Company shall obtain shareholder approval in such a manner and to
such a degree as required.
(b) Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected,"
the Board (or its committee) shall be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amount
withheld during an Offering Period, establish the exchange ratio
applicable to amounts withheld in a currency other than U.S. dollars,
permit payroll withholding in excess of the amount designated by a
participant in order to adjust for delays or mistakes in the
Company's processing of properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each participant properly correspond with
amounts withheld from the participant's Compensation, and establish such
other limitations or procedures as the Board (or its committee)
determines in its sole discretion advisable which are consistent with
the Plan.
20. Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at
the location, or by the person, designated by the Company for the
receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
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 are being purchased only
for investment and without any present intention to sell or distribute
such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned
applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 19 hereof.
EXHIBIT A
SYMMETRICOM, INC.
EMPLOYEE STOCK PURCHASE PLAN -- SUBSCRIPTION AGREEMENT
Enrollment Date: _____________________
Check One: New Enrollment _____ Change of Beneficiary(ies) _____
Change in Payroll Deduction Rate (Limited to one reduction per
offering period) _____
1. ________________________hereby elects to participate in the
SymmetriCom, Inc. Employee Stock Purchase Plan (the "Employee
Stock Purchase Plan") and subscribes to purchase shares of the
Company's Common Stock in accordance with this Subscription
Agreement and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the
amount of _______% of my gross Compensation on each payday
(not to exceed 10%) during the Offering Period in accordance with
the Employee Stock Purchase Plan. (Please note that no fractional
percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for
the purchase of shares of Common Stock at the applicable Purchase
Price determined in accordance with the Employee Stock Purchase
Plan. I understand that if I do not withdraw from an Offering
Period, any accumulated payroll deductions will be used to
automatically exercise my option.
4. I have received a copy of the "Employee Stock Purchase Plan." I
understand that my participation in the Employee Stock Purchase
Plan is in all respects subject to the terms of the Plan. I
understand that the grant of the option by the Company under this
Subscription Agreement is subject to obtaining shareholder
approval of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan
should be issued in the name(s) of (Employee or Employee and
Spouse Only):
Employee:_____________________________________________
Spouse________________________________________________
6. I understand that if I dispose of any shares received by me
pursuant to the Plan within 2 years after the Enrollment Date (the
first day of the Offering Period during which I purchased such
shares), I will be treated for federal income tax purposes as
having received ordinary income at the time of such disposition in
an amount equal to the excess of the fair market value of the
shares at the time such shares were purchased by me over the price
which I paid for the shares. I hereby agree to notify the Company
in writing within 30 days after the date of any disposition of
shares and I will make adequate provision for Federal, state or
other tax withholding obligations, if any, which arise upon the
disposition of the Common Stock. The Company may, but will not
be obligated to, withhold from my compensation the amount
necessary to meet any applicable withholding obligation including
any withholding necessary to make available to the Company any tax
deductions or benefits attributable to sale or early disposition
of Common Stock by me. If I dispose of such shares at any time
after the expiration of the 2-year holding period, I understand
that I will be treated for federal income tax purposes as having
received income only at the time of such disposition, and that
such income will be taxed as ordinary income only to the extent of
an amount equal to the lesser of (1) the excess of the fair market
value of the shares at the time of such disposition over the
purchase price which I paid for the shares, or (2) 15% of the fair
market value of the shares on the first day of the Offering
Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Employee Stock
Purchase Plan. The effectiveness of this Subscription Agreement
is dependent upon my eligibility to participate in the Employee
Stock Purchase Plan.
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT
THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Under no circumstances shall the terms of employment of any
participant be modified or in any way affected by participation in
this Plan. The maintenance of the Plan shall not constitute a
contract of employment. Participating in the Plan will not give any
participant a right to be retained in the employ of the company.
By choosing to participate in the Plan, I understand and agree that
shares purchased for me under the Employee Stock Purchase Plan will
be issued and held, for my account, by Smith Barney, Inc., and that
the Company assumes no responsibility in connection with such shares
or such account or in connection with any subsequent disposition of
such shares. I understand that Smith Barney will charge a commission
of 6 1/4 cents per share sold, subject to a minimum commission charge
of $25.00, plus a $4.00 service fee for each transaction. I
understand that I must comply with Symmetricom's Policy Statement
Regarding Transactions in Company Securities and the related
statements specifying open and closed trading periods.
Dated:______________
Signature of Employee:___________________
Return completed form and direct any questions to Jane Williamson,
Stock Administrator, at (408) 428-7804, or fax (408) 428-7896.
White - Payroll Blue - Stock Administration Green - Human
Resources Yellow - Employee
SYMMETRICOM, INC.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL FROM PLAN
The undersigned participant of the Symmetricom, Inc. Employee
Stock Purchase Plan hereby notifies the Company that he or she hereby
withdraws from the Plan. The participant hereby directs the Company
to pay to the undersigned as promptly as practicable all the payroll
deductions credited to his or her account. The undersigned
understands and agrees that his or her option will be automatically
terminated. The undersigned understands that no further payroll
deductions will be made. The undersigned shall be eligible to
participate in succeeding Offering Periods only by delivering to the
Company a new Subscription Agreement.
The undersigned understands that this form must be submitted no
later than four days before the Exercise Date of the current offering
period.
Name and Address of Participant:
(Please Print)
Signature:
Date:
Return completed form to Jane Williamson, Stock Administrator.
Any questions may be directed to Jane Williamson, Stock
Administrator, at (408) 428-7804, or fax (408) 428-7896.
White - Payroll Blue - Stock Administration
Green - Human Resources Yellow - Employee
