As filed with the Securities and Exchange Commission on January 19, 1996
Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYMMETRICOM, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-1906306
(State of incorporation) (I.R.S. Employer Identification No.)
85 West Tasman Drive
San Jose, California 95134-1703
(Address, including zip code, of principal executive offices)
1990 EMPLOYEE STOCK PLAN
1990 DIRECTOR OPTION PLAN
(Full Titles of the Plans)
William D. Rasdal
SymmetriCom, Inc.
85 West Tasman Drive
San Jose, California 95134-1703
(Name and address of agent for service)
(408) 943-9403
(Telephone number, including area code, of agent for service)
Copies to:
FRANCIS S. CURRIE, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
(1) Price Per Offering
Share (2) Price (2)
Common Stock,
no par value 650,000 $ 10.0625 $6,540,625 $2,255.39
(1) Includes 500,000 shares to be registered under the 1990
Employee Stock Plan (the "1990 Plan") and 150,000 shares to be
registered under the 1990 Director Option Plan (the "Director
Plan").
(2) 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 on January 18, 1996.
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, 1995, 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, 1995, 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 Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 1990 Employee Stock Plan
4.2* Forms of Stock Option Agreement, Restricted Stock
Purchase Agreement, Tandem Stock Option/SAR
Agreement, and Stock Appreciation Right Agreement for use with 1990
Employee Stock Plan
4.3 1990 Director Option Plan
4.4* Form of Director Option Agreement for use with 1990
Director Option 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)
___________
* Incorporated by reference to the exhibit filed with the Registrant's
registration statement on Form S-8 (File No. 33-38384) filed with the
Securities and Exchange Commission on December 24, 1990.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(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 indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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 19, 1996.
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 Board and January 19, 1996
(William D. Rasdal) Chief Executive Officer
(Principal Executive Officer)
/s/ J. Scott Kamsler Vice President, Finance and January 19, 1996
(J. Scott Kamsler) Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Paul N. Risinger Vice Chairman of the Board January 19, 1996
(Paul N. Risinger)
/s/ Howard Anderson Director January 19, 1996
(Howard Anderson)
/s/ Roger A. Strauch Director January 19, 1996
(Roger A. Strauch)
/s/ Robert M. Wolfe Director January 19, 1996
(Robert M Wolfe)
SYMMETRICOM, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1 1990 Employee Stock Plan
4.2* Forms of Stock Option Agreement, Restricted Stock Purchase Agreement,
Tandem Stock Option/SAR Agreement, and Stock Appreciation Right Agreement
for use with 1990 Employee Stock Plan
4.3 1990 Director Option Plan
4.4* Form of Director Option Agreement for use with 1990 Director Option
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).
___________
* Incorporated by reference to the exhibit filed with the Registrant's
registration statement on Form S-8 (File No. 33-38384) filed with the
Securities and Exchange Commission on December 24, 1990.
Exhibit 4.1
SYMMETRICOM, INC.
1990 EMPLOYEE STOCK PLAN
(as amended through October 25, 1995)
1. Purposes of the Plan. The purposes of this Employee Stock
Plan are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional
incentive to Employees and Consultants of the Company and its
Subsidiaries and to promote the success of the Company's business.
Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or non-statutory stock
options, as determined by the Administrator at the time of grant of
an option and subject to the applicable provisions of Section 422
of the Code, as amended, and the regulations promulgated thereunder.
Stock appreciation rights ("SARs") and stock purchase rights may
also be granted under the Plan.
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Administrator" means the Board or any of its
Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(d) "Common Stock" means the Common Stock of the Company.
(e) "Company" means Symmetricom, Inc., a California
corporation.
(f) "Committee" means a Committee, if any, appointed by
the Board in accordance with paragraph (a) of Section 4 of the Plan.
(g) "Consultant" means any person, including an advisor,
who is engaged by the Company or any Parent or Subsidiary to render
services and is compensated for such services, provided the term
Consultant shall not include directors who are not compensated for
their services or are paid only a director's fee by the Company.
(h) "Continuous Status as an Employee or Consultant"
means the absence of any interruption or termination of the employ-
ment or consulting relationship by the Company or any Subsidiary.
Continuous Status as an Employee or Consultant shall not be consid-
ered interrupted in the case of: (i) sick leave; (ii) military
leave; (iii) any other leave of absence approved by the Board,
provided that such leave is for a period of not more than ninety
(90) days, unless reemployment upon the expiration of such leave is
guaranteed by contract or statute, or unless provided otherwise
pursuant to Company policy adopted from time to time; or (iv) in the
case of transfers between locations of the Company or between the
Company, its Subsidiaries or its successor.
(i) "Disability" means total and permanent disability, as
defined in Section 22(e)(3) of the Code.
(j) "Employee" means any person, including officers and
directors, employed by the Company or any Subsidiary. The payment
of directors' fees by the Company shall not be sufficient to
constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(l) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any estab-
lished stock exchange or a national market system, including without
limitation the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ") System, the
Fair Market Value of a Share of Common Stock shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such system or exchange (or the exchange with
the greatest volume of trading in Common Stock) on the day of
determination, as reported in the Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ
System (but not on the National Market System thereof) or regularly
quoted by a recognized securities dealer but selling prices are not
reported, the Fair Market Value of a Share of Common Stock shall be
the mean between the high and low asked prices for the Common Stock
on the day of determination, as reported in the Wall Street Journal
or such other source as the Administrator deems reliable;
(iii) In the absence of an established market for
the Common Stock, the Fair Market Value thereof shall be determined
in good faith by the Administrator.
(m) "Incentive Stock Option" means an Option that
satisfies the provisions of Section 422A of the Code.
(n) "Nonstatutory Stock Option" means an Option that is
not an Incentive Stock Option.
(o) "Option" means an Option granted pursuant to the
Plan.
(p) "Optioned Stock" means the Common Stock subject to an
Option or Right.
(q) "Optionee" means an Employee or Consultant who
receives an Option or Right.
(r) "Parent" corporation shall have the meaning defined
in Section 425(e) of the Code.
(s) "Plan" means this 1990 Employee Stock Plan.
(t) "Restricted Stock" means shares of Common Stock
acquired pursuant to a grant of Stock Purchase Rights under
Section 8 below.
(u) "Right" means and includes SARs and Stock Purchase
Rights granted pursuant to the Plan.
(v) "SAR" means a stock appreciation right granted
pursuant to Section 7 below.
(w) "Share" means the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(x) "Stock Purchase Right" means the right to purchase
Common Stock pursuant to Section 8.
(y) "Subsidiary" corporation shall have the meaning
defined in Section 425(f) of the Code.
In addition, the terms "Rule 16b-3" and "Applicable Laws," the
term "Insiders," the term "Tax Date," and the terms "Change of Con-
trol" and "Change of Control Price," shall have the meanings set
forth, respectively, in Sections 4, 7, 9 and 11 below.
3. Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the total number of Shares reserved and
available for distribution pursuant to awards made under the Plan
shall be two million, two hundred thousand (2,200,000), increased on
the first day of each fiscal year of the Company, beginning with the
fiscal year commencing July 1, 1996, by a number equal to 3.0% of
the number of shares outstanding as of the last trading day of the
Company's immediately preceding fiscal year. The maximum number of
Shares reserved and available for issuance pursuant to Incentive
Stock Options is 2,200,000. The Shares may be authorized but
unissued, or reacquired stock.
If an Option or Right should expire or become unexer-
cisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan
shall have been terminated, become available for other Options or
Rights under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Administration With Respect to Directors and
Officers. With respect to grants of Options or Rights to Employees
who are also officers or directors of the Company, the Plan shall be
administered by (A) the Board if the Board may administer the Plan
in compliance with Rule 16b-3 promulgated under the Exchange Act or
any successor rule ("Rule 16b-3") with respect to a plan intended to
qualify thereunder as a discretionary plan, or (B) a Committee
designated by the Board to administer the Plan, which Committee
shall be constituted in such a manner as to permit the Plan to
comply with Rule 16b-3 with respect to a plan intended to qualify
thereunder as a discretionary plan. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove
members (with or without cause) and appoint new members in substitu-
tion therefor, fill vacancies, however caused, and remove all
members of the Committee and thereafter directly administer the
Plan, all to the extent permitted by Rule 16b-3 with respect to a
plan intended to qualify thereunder as a discretionary plan.
(ii) Administration With Respect to Consultants and
Other Employees. With respect to grants of Options or Rights to
Employees or Consultants who are neither directors nor officers of
the Company, the Plan shall be administered by (A) the Board or
(B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the legal requirements,
if any, relating to the administration of incentive stock option
plans under California corporate and securities laws and under the
Code (the "Applicable Laws"). Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise direc-
ted by the Board. From time to time the Board 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, and remove
all members of the Committee and thereafter directly administer the
Plan, all to the extent permitted by the Applicable Laws.
(iii) Multiple Administrative Bodies. If permitted
by Rule 16b-3, the Plan may be administered by different bodies with
respect to directors, non-director officers and Employees who are
neither directors nor officers and Consultants who are not
directors.
(b) Powers of the Administrator. Subject to the provi-
sions of the Plan and in the case of a Committee, the specific
duties delegated by the Board to such Committee, the Administrator
shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the
Common Stock, in accordance with Section 2(l) of the Plan;
(ii) to select the officers, Consultants and
Employees to whom Options and Rights may from time to time be
granted hereunder;
(iii) to determine whether and to what extent
Options and Rights or any combination thereof, are granted
hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each such award granted hereunder;
(v) to approve forms of agreement for use under
the Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder (including, but not limited to, the share price and
any restriction or limitation, or any vesting acceleration or
waiver of forfeiture restrictions regarding any Option or other
award and/or the shares of Common Stock relating thereto, based
in each case on such factors as the Administrator shall
determine, in its sole discretion);
(vii) to determine whether and under what circum-
stances an Option may be settled in cash under subsection
7(a)(vii) instead of Common Stock;
(viii) to determine whether, to what extent and under
what circumstances Common Stock and other amounts payable with
respect to an award under this Plan shall be deferred either
automatically or at the election of the participant (including
providing for and determining the amount (if any) of any deemed
earnings on any deferred amount during any deferral period);
(ix) to reduce the exercise price of any Option to
the then current Fair Market Value if the Fair Market Value of
the Common Stock covered by such Option shall have declined
since the date the Option was granted; and
(x) to determine the terms and restrictions appli-
cable to Options and Rights and any Restricted Stock acquired
pursuant to Rights.
(c) Effect of Committee's Decision. All decisions,
determinations and interpretations of the Administrator shall be
final and binding.
5. Eligibility.
(a) Nonstatutory Stock Options and Rights may be granted
only to Employees and Consultants. Incentive Stock Options may be
granted only to Employees. An Employee who has been granted an
Option or Right may, if he or she is otherwise eligible, be granted
additional Options or Rights. Each Option shall be evidenced by a
written Option agreement, which shall expressly identify the Options
as Incentive Stock Options or as Nonstatutory Stock Options, and
which shall be in such form and contain such provisions as the
Administrator shall from time to time deem appropriate. Without
limiting the foregoing, the Administrator may, at any time, or from
time to time, authorize the Company, with the consent of the
respective recipients, to issue Options in exchange for the
surrender and cancellation of any or all outstanding Options, other
options, or Rights.
(b) Neither the Plan nor any Option or Right agreement
shall confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in
any way with the Optionee's right or the Company's right to
terminate the Optionee's employment at any time.
(c) The following limitations shall apply to grants of
Options and Rights to Employees:
(i) No Employee shall be granted, in any fiscal year
of the Company, Options and Rights to purchase more than an
aggregate of 250,000 Shares.
(ii) In connection with his or her initial
employment, an Employee may be granted Options and Rights to
purchase up to an additional 250,000 Shares in the aggregate which
shall not count against the limit set forth in subsection (i) above.
(iii)The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's
capitalization as described in Section 11.
(iv) If an Option or Right is cancelled in the same
fiscal year of the Company in which it was granted (other than in
connection with a transaction described in
Section 11), the cancelled Option or Right will be counted against
the limits set forth in subsections (i) and (ii) above. For this
purpose, if the exercise price of an Option or Right is reduced, the
transaction will be treated as a cancellation of the Option or Right
and the grant of a new Option or Right.
6. Term of Plan. Subject to Section 17 of the Plan, the Plan
shall become effective upon the earlier to occur of its adoption by
the Board or its approval by the shareholders of the Company as
described in Section 17. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 13 of the
Plan.
7. Options and SARs.
(a) Options. The Administrator, in its discretion, may
grant Options to eligible participants and shall determine whether
such Options shall be Incentive Stock Options or Nonstatutory Stock
Options. Each Option shall be evidenced by a written Option agree-
ment which shall expressly identify the Options as Incentive Stock
Options or as Nonstatutory Stock Options, and be in such form and
contain such provisions as the Administrator shall from time to time
deem appropriate. Without limiting the foregoing, the Administrator
may, at any time, or from time to time, authorize the Company, with
the consent of the respective recipients, to issue Options or Rights
in exchange for the surrender and cancellation of any or all
outstanding Options or Rights. Option agreements shall contain the
following terms and conditions:
(i) Option Price; Number of Shares. The per Share
exercise price for the Shares issuable pursuant to an Option shall
be such price as is determined by the Administrator, but shall in no
event be less than 85% of the Fair Market Value of Common Stock,
determined as of the date of grant of the Option. In the event that
the Administrator shall reduce the exercise price, the exercise
price shall be no less than 85% of the Fair Market Value as of the
date of that reduction.
The Option agreement shall specify the number of
Shares to which it pertains.
(ii) Waiting Period and Exercise Dates. At the
time an Option is granted, the Administrator will determine the
terms and conditions to be satisfied before Shares may be purchased,
including the dates on which Shares subject to the Option may first
be purchased. The Administrator may specify that an Option may not
be exercised until the completion of the service period specified at
the time of grant. (Any such period is referred to herein as the
"waiting period.") At the time an Option is granted, the Admin-
istrator shall fix the period within which the Option may be exer-
cised, which shall not be less than the waiting period, if any, nor,
in the case of an Incentive Stock Option, more than ten (10) years,
from the date of grant.
(iii) Form of Payment. The consideration to be paid
for the Shares to be issued upon exercise of an Option, including
the method of payment, shall be determined by the Administrator
(and, in the case of an Incentive Stock Option, shall be determined
at the time of grant) and may consist entirely of (1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the
case of Shares acquired upon exercise of an Option either have been
owned by the Optionee for more than six months on the date of sur-
render or were not acquired, directly or indirectly, from the
Company, and (y) have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised, (5) delivery of a properly executed
exercise notice together with irrevocable instructions to a broker
to promptly deliver to the Company the amount of sale or loan pro-
ceeds required to pay the exercise price, (6) delivery of an irre-
vocable subscription agreement for the Shares which irrevocably
obligates the Optionee to take and pay for the Shares not more than
twelve months after the date of delivery of the subscription agree-
ment, (7) any combination of the foregoing methods of payment, or
(8) such other consideration and method of payment for the issuance
of Shares to the extent permitted under Applicable Laws.
(iv) Termination of Employment or Consulting
Relationship. In the event an Optionee's Continuous Status as an
Employee or Consultant terminates (other than upon the Optionee's
death or Disability), the Optionee may exercise his or her Option,
but only within such period of time as is determined by the Admin-
istrator at the time of grant, not to exceed six (6) months (three
(3) months in the case of an Incentive Stock Option) from the date
of such termination, and only to the extent that the Optionee was
entitled to exercise it at the date of such termination (but in no
event later than the expiration of the term of such Option as set
forth in the Option Agreement). To the extent that Optionee was not
entitled to exercise an Option at the date of such termination, and
to the extent that the Optionee does not exercise such Option (to
the extent otherwise so entitled) within the time specified herein,
the Option shall terminate.
(v) Special Incentive Stock Option Provisions. In
addition to the foregoing, Options granted under the Plan which are
intended to be Incentive Stock Options under Section 422A of the
Code shall be subject to the following terms and conditions:
(A) Exercise Price. The per share exercise
price of an Incentive Stock Option shall be no less than 100% of the
Fair Market Value per Share on the date of grant.
(B) Dollar Limitation. To the extent that the
aggregate Fair Market Value of (i) the Shares with respect to which
Options designated as Incentive Stock Options plus (ii) the shares
of stock of the Company, Parent and any Subsidiary with respect to
which other incentive stock options are exercisable for the first
time by an Optionee during any calendar year under all plans of the
Company and any Parent and Subsidiary exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For
purposes of the preceding sentence, (i) Options shall be taken
into account in the order in which they were granted, and (ii) the
Fair Market Value of the Shares shall be determined as of the time
the Option or other incentive stock option is granted.
(C) 10% Shareholder. If any Optionee to whom
an Incentive Stock Option is to be granted pursuant to the pro-
visions of the Plan is, on the date of grant, the owner of Common
Stock (as determined under Section 425(d) of the Code) possessing
more than 10% of the total combined voting power of all classes of
stock of the Company or any Subsidiary, then the following special
provisions shall be applicable to the Option granted to such
individual:
(1) The per Share Option price of Shares
subject to such Incentive Stock Option shall not be less than 110%
of the Fair Market Value of Common Stock on the date of grant; and
(2) The Option shall not have a term in excess of five (5)
years from the date of grant.
Except as modified by the preceding provisions of this subsec-
tion 7(a)(v) and except as otherwise limited by Section 422A of the
Code, all of the provisions of the Plan shall be applicable to the
Incentive Stock Options granted hereunder.
(vi) Other Provisions. Each Option granted under
the Plan may contain such other terms, provisions, and conditions
not inconsistent with the Plan as may be determined by the
Administrator.
(vii) Buyout Provisions. The Administrator may at
any time offer to buy out for a payment in cash or Shares, an Option
previously granted, based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at the
time that such offer is made.
(b) SARs.
(i) In Connection with Options. At the sole
discretion of the Administrator, SARs may be granted in connection
with all or any part of an Option, either concurrently with the
grant of the Option or at any time thereafter during the term of the
Option. The following provisions apply to SARs that are granted in
connection with Options:
(A) The SAR shall entitle the Optionee to exer-
cise the SAR by surrendering to the Company unexercised a portion of
the related Option. The Optionee shall receive in exchange from the
Company an amount equal to the excess of (x) the Fair Market Value
on the date of exercise of the SAR of the Common Stock covered by
the surrendered portion of the related Option over (y) the exercise
price of the Common Stock covered by the surrendered portion of the
related Option. Notwithstanding the foregoing, the Administrator
may place limits on the amount that may be paid upon exercise of an
SAR; provided, however, that such limit shall not restrict the
exercisability of the related Option.
(B) When an SAR is exercised, the related
Option, to the extent surrendered, shall cease to be exercisable.
(C) An SAR shall be exercisable only when and
to the extent that the related Option is exercisable and shall
expire no later than the date on which the related Option expires.
(D) An SAR may only be exercised at a time when
the Fair Market Value of the Common Stock covered by the related
Option exceeds the exercise price of the Common Stock covered by the
related Option.
(ii) Independent of Options. At the sole
discretion of the Administrator, SARs may be granted without related
Options. The following provisions apply to SARs that are not
granted in connection with Options:
(A) The SAR shall entitle the Optionee, by
exercising the SAR, to receive from the Company an amount equal to
the excess of (x) the Fair Market Value of the Common Stock covered
by the exercised portion of the SAR, as of the date of such exer-
cise, over (y) the Fair Market Value of the Common Stock covered by
the exercised portion of the SAR, as of the last market trading date
prior to the date on which the SAR was granted; provided, however,
that the Administrator may place limits on the aggregate amount that
may be paid upon exercise of an SAR.
(B) SARs shall be exercisable, in whole or in
part, at such times as the Administrator shall specify in the
Optionee's SAR agreement.
(iii) Form of Payment. The Company's obligation
arising upon the exercise of an SAR may be paid in Common Stock or
in cash, or in any combination of Common Stock and cash, as the
Administrator, in its sole discretion, may determine. Shares issued
upon the exercise of an SAR shall be valued at their Fair Market
Value as of the date of exercise.
(iv) Section 16 Restrictions. SARs granted to per-
sons who are subject to Section 16 of the Exchange Act ("Insiders")
shall be subject to any additional restrictions applicable to SARs
granted to such persons in compliance with Rule 16b-3. An Insider
may only exercise an SAR during such time or times as are permitted
by Rule 16b-3.
(c) Method of Exercise.
(i) Procedure for Exercise; Rights as a Share-
holder. Any Option or SAR granted hereunder shall be exercisable at
such times and under such conditions as determined by the
Administrator and as shall be permissible under the terms of the
Plan.
An Option may not be exercised for a fraction of a
Share.
An Option or SAR shall be deemed to be exercised when
written notice of such exercise has been given to the Company in
accordance with the terms of the Option or SAR by the person
entitled to exercise the Option or SAR and full payment for the
Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the
Administrator (and, in the case of an Incentive Stock Option,
determined at the time of grant) and permitted by the Option Agree-
ment consist of any consideration and method of payment allowable
under subsection 7(a)(iii) of the Plan. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of
a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the
Option. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter shall be avail-
able, both for purposes of the Plan and for sale under the Option,
by the number of Shares as to which the Option is exercised.
Exercise of an SAR in any manner shall, to the extent the SAR is
exercised, result in a decrease in the number of Shares which
thereafter shall be available for purposes of the Plan, and the SAR
shall cease to be exercisable to the extent it has been exercised.
(ii) Rule 16b-3. Options and SARs granted to
Insiders must comply with the applicable provisions of Rule 16b-3
and shall contain such additional conditions or restrictions as may
be required thereunder to qualify for the maximum exemption from
Section 16 of the Exchange Act with respect to Plan transactions.
(iii) Termination of Employment or Consulting
Relationship. In the event an Optionee's Continuous Status as an
Employee or Consultant terminates (other than upon the Optionee's
death or Disability), the Optionee may exercise his or her Option or
SAR, but only within such period of time as is determined by the
Administrator at the time of grant, not to exceed six (6) months
(three (3) months in the case of an Incentive Stock Option) from the
date of such termination, and only to the extent that the Optionee
was entitled to exercise it at the date of such termination (but in
no event later than the expiration of the term of such Option or SAR
as set forth in the Option or SAR Agreement). To the extent that
Optionee was not entitled to exercise an Option or SAR at the date
of such termination, and to the extent that the Optionee does not
exercise such Option or SAR (to the extent otherwise so entitled)
within the time specified herein, the Option or SAR shall terminate.
(iv) Disability of Optionee. In the event an
Optionee's Continuous Status as an Employee or Consultant terminates
as a result of the Optionee's Disability, the Optionee may exercise
his or her Option or SAR, but only within six (6) months from the
date of such termination, and only to the extent that the Optionee
was entitled to exercise it at the date of such termination (but in
no event later than the expiration of the term of such Option or SAR
as set forth in the Option or SAR Agreement). To the extent that
Optionee was not entitled to exercise an Option or SAR at the date
of such termination, and to the extent that the Optionee does not
exercise such Option or SAR (to the extent otherwise so entitled)
within the time specified herein, the Option or SAR shall terminate.
(v) Death of Optionee. In the event of an
Optionee's death, the Optionee's estate or a person who acquired the
right to exercise the deceased Optionee's Option or SAR by bequest
or inheritance may exercise the Option or SAR, but only within six
(6) months following the date of death, and only to the extent that
the Optionee was entitled to exercise it at the date of death (but
in no event later than the expiration of the term of such Option or
SAR as set forth in the Option or SAR Agreement). To the extent
that Optionee was not entitled to exercise an Option or SAR at the
date of death, and to the extent that the Optionee's estate or a
person who acquired the right to exercise such Option does not
exercise such Option or SAR (to the extent otherwise so entitled)
within the time specified herein, the Option or SAR shall terminate.
8. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be
issued either alone, in addition to, or in tandem with other awards
granted under the Plan and/or cash awards made outside of the Plan.
After the Administrator determines that it will offer Stock Purchase
Rights under the Plan, it shall advise the offeree in writing of the
terms, conditions and restrictions related to the offer, including
the number of Shares that the offeree shall be entitled to purchase,
the price to be paid (which price shall not be less than 50% of the
Fair Market Value of the Shares as of the date of the offer), and
the time within which the offeree must accept such offer, which
shall in no event exceed thirty (30) days from the date upon which
the Administrator made the determination to grant the Stock Purchase
Right. The offer shall be accepted by execution of a Restricted
Stock purchase agreement in the form determined by the
Administrator. Shares purchased pursuant to the grant of a Stock
Purchase Right shall be referred to herein as "Restricted Stock."
(b) Repurchase Option. Unless the Administrator deter-
mines otherwise, the Restricted Stock purchase agreement shall grant
the Company a repurchase option exercisable upon the voluntary or
involuntary termination of the purchaser's employment with the
Company for any reason (including death or Disability). The pur-
chase price for Shares repurchased pursuant to the Restricted Stock
purchase agreement shall be the original price paid by the purchaser
and may be paid by cancellation of any indebtedness of the purchaser
to the Company. The repurchase option shall lapse at such rate as
the Administrator may determine.
(c) Other Provisions. The Restricted Stock purchase
agreement shall contain such other terms, provisions and conditions
not inconsistent with the Plan as may be determined by the Admin-
istrator in its sole discretion. In addition, the provisions of
Restricted Stock purchase agreements need not be the same with
respect to each purchaser.
(d) Section 16 Restrictions. Stock Purchase Rights
granted to Insiders, and Shares purchased by Insiders in connection
with Stock Purchase Rights, shall be subject to any restrictions
applicable thereto in compliance with Rule 16b-3. An Insider may
only purchase Shares pursuant to the grant of a Stock Purchase
Right, and may only sell Shares purchased pursuant to the grant of a
Stock Purchase Right, during such time or times as are permitted by
Rule 16b-3.
(e) Rights as a Shareholder. Once the Stock Purchase
Right is exercised, the purchaser shall have the rights equivalent
to those of a shareholder, and shall be a shareholder when his or
her purchase is entered upon the records of the duly authorized
transfer agent of the Company. No adjustment will be made for a
dividend or other right for which the record date is prior to the
date the Stock Purchase Right is exercised, except as provided in
Section 11 of the Plan.
9. Stock Withholding to Satisfy Withholding Tax Obligations.
At the discretion of the Administrator, Optionees may satisfy
withholding obligations as provided in this Section 9. When an
Optionee incurs tax liability in connection with the an Option or
Right, which tax liability is subject to tax withholding under
applicable tax laws, and the Optionee is obligated to pay the
Company an amount required to be withheld under applicable tax laws,
the Optionee may satisfy the withholding tax obligation by electing
to have the Company withhold from the Shares to be issued upon
exercise of the Option, or the Shares to be issued in connection
with the Right, if any, that number of Shares having a Fair Market
Value equal to the amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined on the date
that the amount of tax to be withheld is to be determined (the "Tax
Date").
All elections by an Optionee to have Shares withheld for this
purpose shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(a) the election must be made on or prior to the
applicable Tax Date;
(b) once made, the election shall be irrevocable as to
the particular Shares of the Option or Right as to which the
election is made;
(c) all elections shall be subject to the consent or
disapproval of the Administrator;
(d) if the Optionee is an Insider, the election must
comply with the applicable provisions of Rule 16b-3 and shall
be subject to such additional conditions or restrictions as may
be required thereunder to qualify for the maximum exemption
from Section 16 of the Exchange Act with respect to Plan
transactions.
In the event the election to have Shares withheld is made by an
Optionee and the Tax Date is deferred under Section 83 of the Code
because no election is filed under Section 83(b) of the Code, the
Optionee shall receive the full number of Shares with respect to
which the Option or Right is exercised but such Optionee shall be
unconditionally obligated to tender back to the Company the proper
number of Shares on the Tax Date.
10. Non-Transferability of Options. Options and Rights may
not be sold, pledged, assigned, hypothecated, transferred or dis-
posed of in any manner other than by will or by the laws of descent
or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Subject to any required action by the shareholders of
the Company, the number of Shares covered by each outstanding Option
and Right, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options or Rights have
yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option or Right, as well as the
price per Share covered by each such outstanding Option or Right,
shall be proportionately adjusted for any increase or decrease in
the number of issued Shares 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 aggregate
number of issued Shares 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 subject to an Option or
Right.
In the event of the proposed dissolution or liqui-
dation of the Company, all outstanding Options and Rights 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 sole discretion in such instances, declare that
any Option or Right shall terminate as of a date fixed by the Board
and give each Optionee the right to exercise his Option or Right as
to all or any part of the Optioned Stock or Right, including Shares
as to which the Option or Right would not otherwise be exercisable.
Subject to the provisions of paragraph (b) hereof, 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, each outstanding Option and Right shall be
assumed or an equivalent option or Right shall be substituted by
such successor corporation or a parent or subsidiary of such suc-
cessor corporation, unless the Board determines, in the exercise of
its sole discretion and in lieu of such assumption or substitution,
that the Optionee shall have the right to exercise the Option or
Right as to all of the Optioned Stock, including Shares as to which
the Option or Right would not otherwise be exercisable. If the
Board makes an Option or Right fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of
assets, the Company shall notify the Optionee that the Option or
Right shall be fully exercisable for a period of fifteen (15) days
from the date of such notice, and the Option or Right will terminate
upon the expiration of such period. For purposes of this paragraph,
an Option granted under the Plan shall be deemed to be assumed if,
following the sale of assets or merger, the Option confers the right
to purchase, for each Share of Optioned Stock subject to the Option
immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in
the sale of assets or merger by holders of Common Stock for each
Share held on the effective date of the transaction (and if such
holders were offered a choice of consideration, the type of
consideration chosen by the holders if a majority of the outstanding
Shares); provided, however, that if such consideration received in
the sale of assets or merger was not solely Common Stock of the
successor corporation or its parent, the Board may, with the consent
of the successor corporation and the participant, provide for the
consideration to be received upon exercise of the Option or Right to
be solely Common Stock of the successor corporation or its parent
equal in Fair Market Value to the per share consideration received
by holders of Common Stock in the sale of assets or merger.
(b) In the event of a "Change in Control" of the Company,
as defined in paragraph (c) below, any or all or none of the
following acceleration and valuation provisions shall apply, as the
Board, in its discretion, shall determine prior to such Change of
Control:
(i) Any Options and Rights outstanding as of the
date such Change in Control is determined to have occurred that
are not yet exercisable and vested on such date shall become
fully exercisable and vested;
(ii) To the extent they are exercisable and vested,
the value of all outstanding Options and Rights shall, unless
otherwise determined by the Board at or after grant, shall be
cashed out at the Change in Control Price, reduced by the
exercise price applicable to such Options or Rights. The cash
out proceeds shall be paid to the Optionee or, in the event of
death of an Optionee prior to payment, to the estate of the
Optionee or to a person who acquired the right to exercise the
Option or Right by bequest or inheritance.
(c) Definition of "Change in Control". For purposes of
this Section 11, a "Change in Control" means the happening of any of
the following:
(i) When any "person," as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than the
Company, a Subsidiary or a Company employee benefit plan,
including any trustee of such plan acting as trustee) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding
securities; or
(ii) The occurrence of a transaction requiring
shareholder approval, and involving the sale of all or
substantially all of the assets of the Company or the merger of
the Company with or into another corporation.
(d) Change in Control Price. For purposes of this
Section 11, "Change in Control Price" shall be, as determined by the
Board, (i) the highest closing sale price of a Share of Common Stock
as reported by the NASDAQ System and as appearing in the Wall Street
Journal (or, in the event the Common Stock is listed on a stock
exchange, the highest closing price on such exchange as reported on
the Composite Transaction Reporting System), at any time within the
60 day period immediately preceding the date of determination of the
Change in Control Price by the Board (the "60-Day Period"), or
(ii) the highest price paid or offered, as determined by the Board,
in any bona fide transaction or bona fide offer related to the
Change in Control of the Company, at any time within the 60-Day
Period, or (iii) some lower price as the Board, in its discretion,
determines to be a reasonable estimate of the fair market value of a
share of Common Stock.
12. Time of Granting Options and Rights. The date of grant of
an Option or Right shall, for all purposes, be the date on which the
Administrator makes the determination granting such Option or Right.
Notice of the determination shall be given to each Employee or
Consultant to whom an Option or Right is so granted within a
reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend, or discontinue the Plan, but no amendment,
alteration, suspension, or discontinuation shall be made which would
impair the rights of any Optionee under any grant theretofore made,
without his or her consent. In addition, to the extent necessary
and desirable to comply with Rule 16b-3 under the Exchange Act or
under Section 422A of the Code (or any other applicable law or
regulation), the Company shall obtain shareholder approval of any
Plan amendment in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amend-
ment or termination of the Plan shall not affect Options or Rights
already granted and such Options and Rights shall remain in full
force and effect as if this Plan had not been amended or terminated.
14. Conditions Upon Issuance of Shares. Shares shall not be
issued with respect to an Option or Right unless the exercise of
such Option or Right 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 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 or the
issuance of Shares on exercise of an Option or Right, the Company
may require the person exercising such Option or Right 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 relevant provisions of law.
15. Reservation of Shares. The Company, during the term of
this 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 non-issuance or sale of such Shares as
to which such requisite authority shall not have been obtained.
16. Agreements. Options and Rights shall be evidenced by
written agreements in such form as the Board shall approve from time
to time.
17. Shareholder Approval. Continuance of the Plan shall be
subject to approval by the shareholders of the Company within twelve
(12) months before or after the date the Plan is adopted as provided
in Section 6. Such shareholder approval shall be obtained in the
degree and manner required under applicable state and federal law.
Exhibit 4.3
SYMMETRICOM, INC.
1990 DIRECTOR OPTION PLAN
(as amended through October 25, 1995)
1. Purposes of the Plan. The purposes of this 1990 Director
Option Plan are to attract and retain the best available personnel
for service as Directors of the Company, to provide additional
incentive to the Outside Directors of the Company to serve as
Directors, and to encourage their continued service on the Board.
All options granted hereunder shall be "non-statutory
stock options".
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" means the Common Stock of the Company.
(d) "Company" means Symmetricom, Inc., a California
corporation.
(e) "Continuous Status as a Director" means the absence
of any interruption or termination of service as a Director.
(f) "Director" means a member of the Board.
(g) "Employee" means any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of
the Company. The payment of a Director's fee by the Company shall
not be sufficient in and of itself to constitute "employment" by the
Company.
(h) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(i) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without
limitation the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ") System, the
Fair Market Value of a Share of Common Stock shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such system or exchange (or the exchange with
the greatest volume of trading in Common Stock) on the last market
trading day prior to the day of determination, as reported in the
Wall Street Journal or such other source as the Board deems
reliable;
(ii)If the Common Stock is quoted on the NASDAQ
System (but not on the National Market System thereof) or regularly
quoted by a recognized securities dealer but selling prices are not
reported, the Fair Market Value of a Share of Common Stock shall be
the mean between the high and low asked prices for the Common Stock
on the last market trading day prior to the day of determination, as
reported in the Wall Street Journal or such other source as the
Board deems reliable, or;
(iii)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.
(j) "Option" means a stock option granted pursuant to the
Plan.
(k) "Optioned Stock" means the Common Stock subject to an
Option.
(l) "Optionee" means an Outside Director who receives an
Option.
(m) "Outside Director" means a Director who is not an
Employee.
(n) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 425(e) of the Internal
Revenue Code of 1986.
(o) "Plan" means this 1990 Director Option Plan.
(p) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 10 of the Plan.
(q) "Subsidiary" means a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 425(f) of
the Internal Revenue Code of 1986.
3. Stock Subject to the Plan. Subject to the provisions of
Section 10 of the Plan, the maximum aggregate number of Shares which
may be optioned and sold under the Plan is three hundred thousand
(300,000) Shares (the "Pool") of Common Stock. The Shares may be
authorized but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares
which were subject thereto shall, unless the Plan shall have been
terminated, become available for future grant under the Plan.
4. Administration of and Grants of Options under the Plan.
(a) Administrator. Except as otherwise required herein,
the Plan shall be administered by the Board. No discretion con-
cerning decisions regarding the Plan shall be afforded to any person
who is not a "disinterested person" (as defined in Rule 16b-3 under
the Exchange Act).
(b) Procedure for Grants. All grants of Options
hereunder shall be automatic and non-discretionary and shall be made
strictly in accordance with the following provisions:
(i) No person shall have any discretion to select
which Outside Directors shall be granted Options or to determine the
number of Shares to be covered by Options granted to Outside
Directors.
(ii)Each Outside Director shall be automa-
tically granted an Option to purchase 10,000 Shares (the "First
Option") on the date on which such person first becomes an Outside
Director, whether through election by the shareholders of the
Company or appointment by the Board to fill a vacancy; provided,
however, that no First Option shall be granted to an Outside
Director who, immediately prior to becoming an Outside Director, was
a Director. After the First Option has been granted to an Outside
Director, such Outside Director shall thereafter be automatically
granted an Option to purchase 10,000 Shares on January 1 of each
year, if on such date, he or she shall have served on the Board for
at least six (6) months.
(iii)The terms of each Option granted hereunder
shall be as follows:
(A) the term of the Option shall be ten (10) years.
(B) the Option shall be exercisable only while
the Outside Director remains a Director of the Company, except as
set forth in Section 8 hereof.
(C) the exercise price per Share shall be 100%
of the Fair Market Value per Share on the date of grant of the
Option.
(D) the Option shall become exercisable in
installments cumulatively as to twenty-five percent (25%) of the
Optioned Stock one year after the date of grant and as to an addi-
tional twenty-five percent (25%) of the Optioned Stock two years
after the date of grant and as to an additional fifty percent (50%)
of the Optioned Stock three years after the date of grant, so that
100% of the Optioned Stock granted under an individual Option shall
be exercisable three years after the date of grant of the Option.
(iv)In the event that any Option granted under
the Plan would cause the number of Shares subject to outstanding
Options plus the number of Shares previously purchased upon exercise
of Options to exceed the Pool, then each such automatic grant shall
be for that number of Shares determined by dividing the total number
of Shares remaining available for grant by the number of Outside
Directors on the automatic grant date. No further grants shall be
made until such time, if any, as additional Shares become available
for grant under the Plan through action of the shareholders to
increase the number of Shares which may be issued under the Plan or
through cancellation or expiration of Options previously granted
hereunder.
(c) Powers of the Board. Subject to the provisions and
restrictions of the Plan, the Board shall have the authority, in its
discretion: (i) to determine, upon review of relevant information
and in accordance with Section 2(i) of the Plan, the Fair Market
Value of the Common Stock; (ii) to interpret the Plan; (iii) to
prescribe, amend and rescind rules and regulations relating to the
Plan; (iv) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option
previously granted hereunder; and (v) to make all other
determinations deemed necessary or advisable for the administration
of the Plan.
(d) Effect of Board's Decision. All decisions, deter-
minations and interpretations of the Board shall be final.
5. Eligibility. Options may be granted only to Outside
Directors. All Options shall be automatically granted in accordance
with the terms set forth in Section 4(b) hereof. An Outside
Director who has been granted an Option may, if he is otherwise
eligible, be granted an additional Option or Options in accordance
with such provisions.
The Plan shall not confer upon any Optionee any right with
respect to continuation of service as a Director or nomination to
serve as a Director, nor shall it interfere in any way with any
rights which the Director or the Company may have to terminate his
directorship at any time.
6. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
shareholders of the Company as described in Section 16 of the Plan.
It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 11 of the Plan.
7. Exercise Price and Consideration.
(a) Exercise Price. The per Share exercise price for
Optioned Stock shall be 100% of the Fair Market Value per Share on
the date of grant of the Option.
(b) Form of Consideration. The consideration to be paid
for the Shares to be issued upon exercise of an Option, including
the method of payment, shall be determined by the Board and may
consist entirely of (i) cash, (ii) check, (iii) promissory note,
(iv) other shares which (x) in the case of Shares acquired upon
exercise of an Option either have been owned by the Optionee for
more than six (6) months on the date of surrender or were not
acquired, directly or indirectly, from the Company, and (y) have a
Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which said Option shall be
exercised, (v) delivery of a properly executed exercise notice
together with irrevocable instructions to a broker to promptly
deliver to the Company the amount of sale or loan proceeds required
to pay the exercise price, (vi) delivery of an irrevocable subscrip-
tion agreement for the Shares which irrevocably obligates the
Optionee to take and pay for the Shares not more than twelve (12)
months after the date of delivery of the subscription agreement,
(vii) any combination of the foregoing methods of payment, or
(viii) such other consideration and method of payment for the
issuance of Shares to the extent permitted under applicable law.
8. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times as are
set forth in Section 4(b) hereof; provided, however, that no Options
shall be exercisable until shareholder approval of the Plan in
accordance with Section 16 hereof has been obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the
Option and full payment for the Shares with respect to which the
Option is exercised has been received by the Company. Full payment
may consist of any consideration and method of payment allowable
under Section 7(b) of the Plan. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. A share
certificate for the number of Shares so acquired shall be issued to
the Optionee as soon as practicable after exercise of the Option. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued,
except as provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available,
both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
(b) Rule 16b-3. Options granted to Outside Directors
must comply with the applicable provisions of Rule 16b-3 promulgated
under the Exchange Act or any successor thereto and shall contain
such additional conditions or restrictions as may be required
thereunder to qualify for the maximum exemption from Section 16 of
the Exchange Act with respect to Plan transactions.
(c) Termination of Continuous Status as a Director. In
the event an Optionee's Continuous Status as a Director terminates
(other than upon the Optionee's death or total and permanent dis-
ability (as defined in Section 22(e)(3) of the Code)), the Optionee
may exercise his or her Option, but only within three (3) months
from the date of such termination, and only to the extent that the
Optionee was entitled to exercise it at the date of such termination
(but in no event later than the expiration of its ten (10) year
term). To the extent that the Optionee was not entitled to exercise
an Option at the date of such termination, and to the extent that
the Optionee does not exercise such Option (to the extent otherwise
so entitled) within the time specified herein, the Option shall
terminate.
(d) Disability of Optionee. In the event Optionee's
Continuous Status as a Director terminates as a result of total and
permanent disability (as defined in Section 22(e)(3) of the Code),
the Optionee may exercise his or her Option, but only within six (6)
months from the date of such termination, and only to the extent
that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of its ten
(10) year term). To the extent that the Optionee was not entitled
to exercise an Option at the date of termination, or if he or she
does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
(e) Death of Optionee. In the event of an Optionee's
death, the Optionee's estate or a person who acquired the right to
exercise the Option by bequest or inheritance may exercise the
Option, but only within six (6) months following the date of death,
and only to the extent that the Optionee was entitled to exercise it
at the date of death (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option at the date of death, and to the
extent that the Optionee's estate or a person who acquired the right
to exercise such Option does not exercise such Option (to the extent
otherwise so entitled) within the time specified herein, the Option
shall terminate.
9. Non-Transferability of Options. The Option may not be
sold, pledged, assigned, hypothecated, transferred, or disposed of
in any manner other than by will or by the laws of descent or dis-
tribution and may be exercised, during the lifetime of the Optionee,
only by the Optionee.
10. Adjustments Upon Changes in Capitalization or Merger.
(a) Subject to any required action by the shareholders of
the Company, the number of Shares covered by each outstanding
Option, and the number of Shares which 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 covered by
each such outstanding Option, shall be proportionately adjusted for
any increase or decrease in the number of issued Shares 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 aggregate number of issued Shares 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 subject
to an Option.
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 sole
discretion in such instances, declare that any Option shall termi-
nate as of a date fixed by the Board and give each Optionee the
right to exercise his Option as to all or any part of the Optioned
Stock, including Shares as to which the Option would not otherwise
be exercisable.
Subject to the provisions of paragraph (b) hereof, 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, each outstanding Option shall be assumed or an equiv-
alent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation. In the event
that the successor corporation does not agree to assume the Option
or to substitute an equivalent option, each outstanding Option shall
become fully vested and exercisable, including as to Shares as to
which it would not otherwise be exercisable. If an Option becomes
fully vested and exercisable in the event of a merger or sale of
assets, the Company shall notify the Optionee that the Option shall
be fully exercisable for a period of fifteen (15) days from the date
of such notice, and the Option shall terminate upon the expiration
of such period. For purposes of this paragraph, an Option granted
under the Plan shall be deemed to be assumed if, following the sale
of assets or merger, the Option confers the right to purchase, for
each Share of Optioned Stock subject to the Option immediately prior
to the sale of assets or merger, the consideration (whether stock,
cash or other securities or property) received in the sale of assets
or merger by holders of Common Stock for each Share held on the
effective date of the transaction (and if such holders were offered
a choice of consideration, the type of consideration chosen by the
holders if a majority of the outstanding Shares).
(b) In the event of a "Change in Control" of the Company,
as defined in paragraph (c) below, any Options outstanding as of the
date such Change in Control is determined to have occurred that are
not yet exercisable and vested on such date shall become fully
exercisable and vested.
(c) Definition of "Change in Control". For purposes of
this Section 10, a "Change in Control" means when any "person," as
such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, a Subsidiary or a Company employee benefit
plan, including any trustee of such plan acting as trustee) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities.
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend, or discontinue the Plan, but no amendment,
alteration, suspension, or discontinuation shall be made which would
impair the rights of any Optionee under any grant theretofore made,
without his or her consent. In addition, to the extent necessary
and desirable to comply with Rule 16b-3 under the Exchange Act (or
any other applicable law or regulation), the Company shall obtain
shareholder approval of any Plan amendment in such a manner and to
such a degree as required.
(b) Effect of Amendment or Termination. Any such amend-
ment or termination of the Plan shall not affect Options already
granted and such Options shall remain in full force and effect as if
this Plan had not been amended or terminated.
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date determined in accordance with
Section 4(b) hereof. Notice of the determination shall be given to
each Outside Director to whom an Option is so granted within a
reasonable time after the date of such grant.
13. Conditions Upon Issuance of Shares. Shares 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,
state securities laws, 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 afore-
mentioned relevant provisions of law.
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 lia-
bility in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
14. Reservation of Shares. The Company, during the term of
this Plan, will at all times reserve and keep available such number
of Shares as shall be sufficient to satisfy the requirements of the
Plan.
15. Option Agreement. Options shall be evidenced by written
option agreements in such form as the Board shall approve.
16. Shareholder Approval. Continuance of the Plan shall be
subject to approval by the shareholders of the Company at or prior
to the first annual meeting of shareholders held subsequent to the
granting of an Option hereunder. Such shareholder approval shall be
obtained in the degree and manner required under applicable state
and federal law.
EXHIBIT 5.1
January 19, 1996
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 19,
1996 (the "Registration Statement"), in connection with the registration
under the Securities Act of 1933, as amended, of (i) 500,000 shares of your
Common Stock reserved for issuance under the 1990 Employee Stock Plan (the
"Employee Plan") and (ii) 150,000 shares of your Common Stock reserved for
issuance under the 1990 Director Option Plan (the "Director Plan"). The
500,000 shares of Common Stock reserved under the Employee Plan and the
150,000 shares reserved under the Director Plan are referred to
collectively hereinafter as the "Shares," and the Employee Plan and the
Director Plan are referred to hereinafter collectively as the "Plans." As
your legal counsel, 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 Plans.
It is our opinion that, when issued and sold in compliance with
applicable prospectus delivery requirements and in the manner referred to
in the Plans and pursuant to the agreements which accompany the Plans, 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 25, 1995,
appearing in and incorporated by reference in the Annual Report on Form 10-
K of SymmetriCom, Inc. for the year ended June 30, 1995.
/s/DELOITTE & TOUCHE LLP
________________________
DELOITTE & TOUCHE LLP
San Jose, California
January 19, 1996
