<PAGE> 1
As filed with the Securities and Exchange Commission on December 19, 1996
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MATHSOFT, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Massachusetts 04-2842217
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
101 Main Street, Cambridge, Massachusetts 02142
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
--------------------
MATHSOFT, INC.
1996 NON-QUALIFIED, NON-OFFICER STOCK OPTION PLAN
(Full title of the plan)
Charles J. Digate
MATHSOFT, INC.
101 Main Street
Cambridge, MA 02142
(Name and address of agent for service)
(617) 577-1017
(Telephone number, including area code, of agent for service)
--------------------
Copy to:
Gordon H. Hayes
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
--------------------
<TABLE>
Calculation of Registration Fee
<CAPTION>
====================================================================================================================
Proposed maximum
Title of Securities Amount to be Proposed maximum offering aggregate offering Amount of registration
to be registered registered price per share(1) price(1) fee(2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 200,000 $4.438 $887,600 $269.00
par value $.01
====================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the
Securities Act of 1933.
(2) Pursuant to Rule 457(c) under the Securities Exchange Act of 1933, the registration fee has been
calculated based upon the average of the high and low prices per share of Common Stock on the Nasdaq National
Market on December 13, 1996.
</TABLE>
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996, as filed on or about September 28, 1996 and Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1996, as filed
on or about November 14, 1996 pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
2
<PAGE> 3
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section
67") provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Amended and
Restated By-laws, the Registrant has elected to commit to provide
indemnification to its directors and officers in specified circumstances.
Generally, Article V, Section 2 of the Registrant's Amended and Restated By-laws
indemnifies directors and officers of the Registrant against liabilities and
expenses arising out of legal proceedings brought against them by reason of
their status as directors or officers or by reason of their agreeing to serve,
at the request of the Registrant, as a director or officer with another
organization. Under this provision, a director or officer of the Registrant
shall be indemnified by the Registrant for all costs and expenses (including
attorneys' fees), judgments, liabilities and amounts paid in settlement of such
proceedings, even if he is not successful on the merits, if he acted in good
faith in the reasonable belief that his action was in the best interests of the
Registrant. The Board of Directors may authorize advancing litigation expenses
to a director or officer at this request upon receipt of an undertaking by such
director or officer to repay such expenses if it is ultimately determined that
he is not entitled to indemnification for such expenses.
Article 6 of the Registrant's Third Restated Articles of Organization
eliminates the personal liability of the Registrant's directors to the
Registrant or its stockholders for monetary damages for breach of a director's
fiduciary duty, except to the extent Chapter 156B of the Massachusetts General
Laws prohibits the elimination or limitation or such liability.
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit No. Description of Exhibit
----------- ----------------------
3
<PAGE> 4
Exhibit 4.1 Specimen Stock Certificate representing the Common
Stock of the Registrant (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1, File
No. 33-55658, and incorporated herein by reference).
Exhibit 4.2 Third Restated Articles of Organization of the
Registrant (filed as Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1, File No.
33-55658, and incorporated herein by reference).
Exhibit 4.3 Amended and Restated By-laws of the Registrant (filed
as Exhibit 3.3 to the Registrant's Registration
Statement on Form S-1, File No. 33-55658, and
incorporated herein by reference).
Exhibit 4.4 1996 Non-Qualified, Non-Officer Stock Option Plan.
Exhibit 4.5 Form of Non-Qualified Stock Option Agreement under
the 1996 Non-Qualified, Non-Officer Stock Option Plan
of the Registrant.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Arthur Andersen LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement
4
<PAGE> 5
or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, 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 of 1933 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 questions whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, MathSoft, Inc., certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, State of Massachusetts, on
this 19th day of December, 1996.
MATHSOFT, INC.
By: /s/ CHARLES J. DIGATE
---------------------------------------
Charles J. Digate
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, Charles
J. Digate, Robert P. Orlando and Gordon H. Hayes 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 (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
<PAGE> 7
<TABLE>
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.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ CHARLES J. DIGATE President, Chief Executive December 19, 1996
- -------------------------------- Officer and Chairman of the
Charles J. Digate Board of Directors (Principal
Executive Officer)
/s/ ROBERT P. ORLANDO Vice President, Finance and December 19, 1996
- -------------------------------- Administration, Chief Financial
Robert P. Orlando Officer, Treasurer and Clerk
/s/ RICHARD A. D'AMORE Director December 19, 1996
- --------------------------------
Richard A. D'Amore
/s/JUNE L. ROKOFF Director December 19, 1996
- --------------------------------
June L. Rokoff
/s/ CHARLES H. FEDERMAN Director December 19, 1996
- --------------------------------
Charles H. Federman
/s/ STEVEN R. VANA-PAXHIA Director December 19, 1996
- --------------------------------
Steven R. Vana-Paxhia
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
Exhibit Description of Exhibit
- ------- ----------------------
Exhibit 4.4 1996 Non-Qualified, Non-Officer Stock Option Plan.
Exhibit 4.5 Form of Non-Qualified Stock Option Agreement under the 1996
Non-Qualified, Non-Officer Stock Option Plan of the Registrant.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Arthur Andersen LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to
this Registration Statement).
<PAGE> 1
EXHIBIT 4.4
MATHSOFT, INC.
1996 NON-QUALIFIED, NON-OFFICER STOCK OPTION PLAN
-------------------------------------------------
1. PURPOSE. This 1996 Non-Qualified, Non-Officer Stock Option Plan
(the "Plan") is intended to provide incentives to employees and consultants of
MathSoft, Inc. (the "Company"), and of any present or future parent or
subsidiary of the Company ("Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options
("Non-Qualified Options" or "Options") granted hereunder which do not qualify as
"incentive stock options" ("ISOs") under Section 422(b) of the Internal Revenue
Code (the "Code"). The Plan is not intended to provide Options to any officers
or directors of the Company or Related Corporations.
2. ADMINISTRATION OF THE PLAN.
A. BOARD OR COMMITTEE ADMINISTRATION. The Plan shall be
administered by the Board of Directors of the Company (the "Board"), or by
a committee appointed by the Board (the "Committee"). Hereinafter, all
references in this Plan to the "Committee" shall mean the Board if no
Committee has been appointed. Subject to ratification of the grant or
authorization of each Option by the Board (if so required by applicable
state law), and subject to the terms of the Plan, the Committee shall have
the authority to (i) determine to whom, from among the class of
individuals and entities eligible under paragraph 3 to receive Options,
Options may be granted; (ii) determine the time or times at which Options
shall be granted; (iii) determine the option price of shares subject to
each Option, which price shall not be less than the minimum price
specified in paragraph 6; (iv) determine (subject to paragraph 7) the time
or times when each Option shall become exercisable and the duration of the
exercise period; (v) determine whether restrictions such as repurchase
options are to be imposed on shares subject to Options and the nature of
such restrictions, if any, and (vi) interpret the Plan and prescribe and
rescind rules and regulations relating to it. The Committee shall take
whatever actions it deems necessary, under Section 422 of the Code and the
regulations promulgated thereunder, to ensure that no Option issued
hereunder is treated as an ISO. The interpretation and construction by the
Committee of any provisions of the Plan or of any Option granted under it
shall be final unless otherwise determined by the Board. The Committee may
from time to time adopt such rules and regulations for carrying out the
Plan as it may deem advisable. No member of the Board or the Committee
shall be liable for any action or determination made in good faith with
respect to the Plan or any Option granted under it.
B. COMMITTEE ACTIONS. The Committee may select one of its members
as its chairman, and shall hold meetings at such time and places as it may
determine. A majority of the Committee shall constitute a quorum and acts
by a majority of the members of the Committee, or acts reduced to or
approved in writing by a majority of the members of the Committee (if
consistent with applicable state law), shall constitute the valid acts of
the
<PAGE> 2
Committee. 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, or remove all members of the Committee and
thereafter directly administer the Plan.
3. ELIGIBLE EMPLOYEES AND OTHERS. Non-Qualified Options may be
granted to any employee or consultant of the Company or any Related Corporation
who is not an officer of the Company. Non-Qualified Options may not be granted
to any officers or directors of the Company or any Related Corporations. The
Committee may take into consideration a recipient's individual circumstances in
determining whether to grant an Option. The granting of any Option to any
individual or entity shall neither entitle such grantee to, nor disqualify such
grantee from, participation in any other grant of Options.
4. STOCK. The stock subject to Options shall be authorized but
unissued shares of Common Stock of the Company, par value $ .01 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company in any
manner. The aggregate number of shares which may be issued pursuant to the Plan
is 200,000, subject to adjustment as provided in paragraph 13. If any Option
granted under the Plan shall expire or terminate for any reason without having
been exercised in full or shall cease for any reason to be exercisable in whole
or in part or shall be repurchased by the Company, the shares of Common Stock
subject to such Option shall again be available for grants of Options under the
Plan.
5. GRANTING OF OPTIONS. Options may be granted under the Plan at any
time on or after November 26, 1996 and prior to November 26, 2006. The date of
grant of an Option under the Plan will be the date specified by the Committee at
the time it grants the Option; provided, however, that such date shall not be
prior to the date on which the Committee acts to approve the grant.
6. MINIMUM OPTION PRICE.
The exercise price per share specified in the agreement relating to each
Non-Qualified Option granted under the Plan (the "Agreement"), may be less than
the fair market value of the Common Stock of the Company on the date of grant,
but shall in no event be less than the minimum legal consideration required
therefor under the laws of Massachusetts or the laws of any jurisdiction in
which the Company or its successors in interest may be organized.
7. OPTION DURATION. Subject to earlier termination as provided in
paragraphs 9 and 10 or as specified in the Agreement relating to such Option,
each Option shall expire on the date specified by the Committee, but not more
than ten years and one day from the date of grant.
8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9
through 12, each Option granted under the Plan shall be exercisable as follows:
A. VESTING. The Option shall either be fully exercisable on
the date of grant or shall become exercisable thereafter in such
installments as the Committee may specify.
<PAGE> 3
B. FULL VESTING OF INSTALLMENTS. Once an installment becomes
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. PARTIAL EXERCISE. Each Option or installment may be
exercised at any time or from time to time, in whole or in part, for up to
the total number of shares with respect to which it is then exercisable.
D. ACCELERATION OF VESTING. The Committee shall have the
right to accelerate the date that any installment of any Option becomes
exercisable.
9. TERMINATION OF BUSINESS RELATIONSHIP. Each Option may provide that
it shall terminate before its stated expiration date, upon terms specified by
the Committee, if the optionee ceases to be an employee or consultant of the
Company, of any Related Corporation, or of the Company and all Related
Corporations (any such relationship hereinafter referred to as a "Business
Relationship with the Company"). Nothing in the Plan or any Option granted
hereunder shall be deemed to give any optionee the right to continue his or her
Business Relationship with the Company for any period of time.
10. DEATH; DISABILITY.
A. DEATH. Unless otherwise specified by the Committee, if an
optionee's Business Relationship with the Company terminates by reason of
death, his or her Option may be exercised, to the extent of the number of
shares with respect to which such optionee could have exercised it on the
date of such optionee's death, by such optionee's estate, personal
representative or beneficiary who has acquired the Option by will or by
the laws of descent and distribution, at any time prior to the earlier of
the specified expiration date of the Option or 180 days from the date of
death.
B. DISABILITY. Unless otherwise specified by the Committee, if
an optionee's Business Relationship with the Company terminates by reason
of such optionee's disability, such optionee shall have the right to
exercise his or her Option, to the extent of the number of shares with
respect to which such optionee could otherwise have exercised it on the
date his or her Business Relationship with the Company terminated, at any
time prior to the earlier of the specified expiration date of the Option
or 180 days from the date of the termination of the optionee's Business
Relationship with the Company. For the purposes of the Plan, the term
"disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code or any successor statute.
11. ASSIGNABILITY. No Option shall be assignable or transferable by
the optionee except by will or by the laws of descent and distribution, and
during the lifetime of the optionee each Option shall be exercisable only by the
optionee.
<PAGE> 4
12. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may specify that any Option
shall be subject to the restrictions set forth herein or, consistent with
paragraph 7, to such other or additional termination and cancellation provisions
as the Committee may determine. The Committee may from time to time confer
authority and responsibility on one or more of its own members and/or one or
more officers of the Company to execute and deliver such instruments. The proper
officers of the Company are authorized and directed to take any and all action
necessary or advisable from time to time to carry out the terms of such
instruments.
13. ADJUSTMENTS. Upon the occurrence of any of the following events,
an optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
A. STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon the exercise of Options shall be appropriately
increased or decreased proportionately, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision,
combination or stock dividend.
B. CONSOLIDATIONS OR MERGERS. If the Company is to be consolidated
with or acquired by another entity in a merger or other reorganization in
which the holders of the outstanding voting stock of the Company
immediately preceding the consummation of such event, shall, immediately
following such event, hold, as a group, less than a majority of the voting
securities of the surviving or successor entity, or in the event of a sale
of all or substantially all of the Company's assets or otherwise (each, an
"Acquisition"), the Committee or the board of directors of any entity
assuming the obligations of the Company hereunder (the "Successor Board"),
shall, as to outstanding Options, either (i) make appropriate provision
for the continuation of such Options by substituting on an equitable basis
for the shares then subject to such Options either (a) the consideration
payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition, (b) shares of stock of the surviving or
successor corporation or (c) such other securities as the Successor Board
deems appropriate, the fair market value of which shall not materially
exceed the fair market value of the shares of Common Stock subject to such
Options immediately preceding the Acquisition; or (ii) upon written notice
to the optionees, provide that all Options must be exercised, to the
extent then exercisable or to be exercisable as a result of the
Acquisition, within a specified number of days of the date of such notice,
at the end of which period the Options shall terminate; or (iii) terminate
all Options in exchange for a cash payment equal to the excess of the fair
market value of the shares subject to such
<PAGE> 5
Options (to the extent then exercisable or to be exercisable as a result
of the Acquisition) over the exercise price thereof.
C. RECAPITALIZATION OR REORGANIZATION. In the event of a
recapitalization or reorganization of the Company (other than a
transaction described in subparagraph B above) pursuant to which
securities of the Company or of another corporation are issued with
respect to the outstanding shares of Common Stock, an optionee upon
exercising an Option shall be entitled to receive for the purchase price
paid upon such exercise the securities such optionee would have received
if such optionee had exercised his or her Option prior to such
recapitalization or reorganization.
D. DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by
the Committee.
E. ISSUANCES OF SECURITIES. 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 Options. No adjustments shall be made
for dividends paid in cash or in property other than securities of the
Company.
F. FRACTIONAL SHARES. No fractional shares shall be issued
under the Plan and the optionee shall receive from the Company cash in
lieu of such fractional shares.
G. ADJUSTMENTS. Upon the happening of any of the events
described in subparagraphs A, B or C above, the class and aggregate number
of shares set forth in paragraph 4 hereof that are subject to Options
which previously have been or subsequently may be granted under the Plan
shall also be appropriately adjusted to reflect the events described in
such subparagraphs. The Committee or the Successor Board shall determine
the specific adjustments to be made under this paragraph 13 and, subject
to paragraph 2, its determination shall be conclusive.
14. MEANS OF EXERCISING OPTIONS. An Option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office address, or to such transfer agent as the Company shall
designate. Such notice shall identify the Option being exercised and specify the
number of shares as to which such Option is being exercised, accompanied by full
payment of the purchase price therefor either (a) in United States dollars in
cash or by check, (b) at the discretion of the Committee, through delivery of
shares of Common Stock having a fair market value equal as of the date of the
exercise to the cash exercise price of the Option, (c) at the discretion of the
Committee, by delivery of the optionee's personal recourse note bearing interest
payable not less than annually at no less than 100% of the lowest applicable
Federal rate, as defined in Section 1274(d) of the Code, (d) at the discretion
of the Committee and consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of
<PAGE> 6
the Option and an authorization to the broker or selling agent to pay that
amount to the Company, which sale shall be at the participant's direction at the
time of exercise, or (e) at the discretion of the Committee, by any combination
of (a), (b), (c) and (d) above. The holder of an Option shall not have the
rights of a shareholder with respect to the shares covered by such Option until
the date of issuance of a stock certificate to such holder for such shares.
Except as expressly provided above in paragraph 13 with respect to changes in
capitalization and stock dividends, no adjustment shall be made for dividends or
similar rights for which the record date is before the date such stock
certificate is issued.
15. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board on
November 26, 1996. The Plan shall expire at the end of the day on November 26,
2006 (except as to Options outstanding on that date). The Board may terminate or
amend the Plan in any respect at any time. Except as otherwise provided in this
paragraph 15, in no event may action of the Board alter or impair the rights of
an optionee, without his or her consent, under any Option previously granted to
such optionee.
16. APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of shares pursuant to Options granted under the Plan shall be used for
general corporate purposes.
17. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the grant or exercise
of an Option, the vesting or transfer of an Option pursuant to an arm's-length
transaction, the vesting or transfer of restricted stock or securities acquired
upon the exercise of an Option hereunder, or the making of a distribution or
other payment with respect to such stock or securities, the Company may withhold
taxes in respect of amounts that constitute compensation includible in gross
income. The Committee in its discretion may condition (i) the grant or exercise
of an Option, (ii) the transfer of an Option or (iii) the vesting or
transferability of restricted stock or securities acquired by exercising an
Option, on the optionee's making satisfactory arrangement for such withholding.
Such arrangement may include payment by the optionee in cash or by check of the
amount of the withholding taxes or, at the discretion of the Committee, by the
optionee's delivery of previously held shares of Common Stock or the withholding
from the shares of Common Stock otherwise deliverable upon exercise of an Option
shares having an aggregate fair market value equal to the amount of such
withholding taxes.
18. DETERMINATION OF FAIR MARKET VALUE OF COMMON STOCK. Whenever,
under the terms of any option agreement or in administering the Plan, it is
necessary or desirable to determine the fair market value of the Company's
Common Stock, the Committee shall make such determination in accordance with
this Section. "Fair Market Value" shall be determined as of the last business
day for which the prices or quotes discussed in this sentence are available
prior to the date such Option is granted and shall mean (i) the average (on that
date) of the high and low prices of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common Stock is
then traded on a national securities exchange; or (ii) the last reported sale
price (on that date) of the Common Stock on the Nasdaq National Market, if the
Common Stock is not then traded on a national securities exchange; or (iii) the
closing bid price (or average of bid prices) last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common
Stock is not reported on the Nasdaq
<PAGE> 7
National Market. However, if the Common Stock is not publicly traded at the time
an Option is granted under the Plan, "fair market value" shall be deemed to be
the fair value of the Common Stock as determined by the Committee after taking
into consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
19. GOVERNMENTAL REGULATION. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
Government regulations may impose reporting or other obligations on the
Company with respect to the Plan. For example, the Company may be required to
file tax information returns reporting the income received by optionees in
connection with the Plan.
20. GOVERNING LAW. The validity and construction of the Plan and the
instruments evidencing Options shall be governed by the laws of Massachusetts,
or the laws of any jurisdiction in which the Company or its successors in
interest may be organized.
<PAGE> 1
EXHIBIT 4.5
MATHSOFT, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
MathSoft, Inc., a Massachusetts corporation (the "Company"), hereby
grants this ___ day of _______ 19__ to __________ (the "Optionee"), an option to
purchase a maximum of _____ shares of its Common Stock, $.01 par value, at the
price of $_____ per share, on the following terms and conditions:
1. GRANT UNDER 1996 NON-QUALIFIED, NON-OFFICER STOCK OPTION PLAN. This
option is granted pursuant to and is governed by the Company's 1996
Non-Qualified, Non-Officer Stock Option Plan (the "Plan") and, unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan. Determinations made in connection with this option pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. GRANT AS NON-QUALIFIED STOCK OPTION; OTHER OPTIONS. This option is
intended to be treated for federal income tax purposes as a non-qualified stock
option. This option is in addition to any other options heretofore or hereafter
granted to the Optionee by the Company, but a duplicate original of this
instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee or consultant (such service is described herein as
maintaining or being involved in a "Business Relationship with the Company") on
the following dates, the Optionee may exercise this option for the number of
shares of Common Stock set opposite the applicable date at any time on or after
such date:
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ___ (___) years from the date this option is
granted. All of the foregoing rights are subject to Sections 4 and 5, as
appropriate, if the Optionee ceases to maintain a Business Relationship with the
Company, dies or becomes disabled while involved in a Business Relationship with
the Company.
<PAGE> 2
4. TERMINATION OF THE BUSINESS RELATIONSHIP. If the Optionee's Business
Relationship with the Company is terminated, other by reason of death or
disability as defined in Article 5, no further installments of this option shall
become exercisable and this option shall terminate after the passage of ninety
(90) days. In such a case, the Optionee's only rights hereunder shall be those
which are properly exercised before the termination of this option.
5. DEATH; DISABILITY. If the Optionee's Business Relationship is
terminated by reason of death, this option may be exercised, to the extent of
the number of shares with respect to which the Optionee could have exercised it
on the date of his death, by his estate, personal representative or beneficiary
to whom this option has been assigned pursuant to Article 10, at any time within
180 days after the date of death, but no later than the scheduled expiration
date. If the Optionee's Business Relationship is terminated by reason of his
disability (as defined in the Plan), this option may be exercised, to the extent
of the number of shares with respect to which he could have exercised it on the
date of the termination of his Business Relationship, at any time within 180
days after such termination, but not later than the scheduled expiration date.
At the expiration of such 180-day period or the scheduled expiration date,
whichever is the earlier, this option shall terminate and the only rights
hereunder shall be those as to which the option was properly exercised before
such termination.
6. PARTIAL EXERCISE. Exercise of this option up to the extent above
stated may be made in part at any time and from time to time within the above
limits, except that this option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of stock subject
to this option and a fractional share (or cash in lieu thereof) must be issued
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE. The option price is payable in United States
dollars and may be paid in cash or by check, or any combination of the
foregoing, equal in amount to the option price.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this option,
the Optionee agrees that a purchase of shares under this option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with the Securities Act of 1933.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company, or to such transfer agent as
the Company shall designate. Such notice shall state the election to exercise
this option and the number of shares in respect of which it is being exercised
and shall be signed by the person or persons so exercising this option. Such
<PAGE> 3
notice shall be accompanied by payment of the full purchase price of such
shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice shall be
received. The certificate or certificates for the shares as to which this
option shall have been so exercised shall be registered in the name of the
person or persons so exercising this option (or, if this option shall be
exercised by the Optionee and if the Optionee shall so request in the notice
exercising this option, shall be registered in the name of the Optionee and
another person jointly, with right of survivorship) and shall be delivered as
provided above to or upon the written order of the person or persons exercising
this option. In the event this option shall be exercised, pursuant to Article 5
hereof, by any person or persons other than the Optionee, such notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise this option. All shares that shall be purchased upon the exercise of
this option as provided herein shall be fully paid and non-assessable.
10. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution. During the
Optionee's lifetime only the Optionee can exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. The Company and
any Related Corporation (as defined in the Plan) are not by the Plan or this
option obligated to continue to maintain a Business Relationship with the
Optionee.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
rights as a stockholder with respect to shares subject to this Agreement until a
stock certificate therefor has been issued to the Optionee and is fully paid
for. Except as is expressly provided in the Plan with respect to certain changes
in the capitalization of the Company, no adjustment shall be made for dividends
or similar rights for which the record date is prior to the date such stock
certificate is issued.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. It is the purpose of this
option to encourage the Optionee to work for the best interests of the Company
and its stockholders. Since, for example, that might require the issuance of a
stock dividend or a merger with another corporation, the purpose of this option
would not be served if such a stock dividend, merger or similar occurrence would
cause the Optionee's rights hereunder to be diluted or terminated and thus be
contrary to the Optionee's interest. The Plan contains extensive provisions
designed to preserve options at full value in a number of contingencies.
Therefore, provisions in the Plan for adjustment with respect to stock subject
to options and the related provisions with respect to successors to the business
of the Company are hereby made applicable hereunder and are incorporated herein
by reference. In particular, without affecting the generality of the foregoing,
it is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, maintenance of a Business Relationship by the Company includes
maintenance of a Business Relationship by a Related Corporation as defined in
the Plan.
<PAGE> 4
15. WITHHOLDING TAXES. If the Company or any Related Corporation
in its discretion determines that it is obligated to withhold any tax in
connection with the exercise of this option, the vesting or transfer of the
shares acquired on the exercise of this option, or the making of a distribution
or other payment with respect to the shares, the Optionee hereby agrees that the
Company or any Related Corporation may withhold from the Optionee's remuneration
the appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. MISCELLANEOUS.
(a) NOTICES. All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given in the
manner provided for herein.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes all proposals, written or oral, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement may be modified, amended or rescinded only by a written agreement
executed by both parties.
(c) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 10
hereof.
(e) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of the conflicts of laws thereof. The
preceding choice of law provision shall apply to all claims, under any theory
whatsoever, arising out of the relationship of the parties contemplated herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 5
IN WITNESS WHEREOF the Company and the Optionee have caused this
instrument to be executed, and the Optionee whose signature appears below
acknowledges receipt of a copy of the Plan and acceptance of an original copy of
this Agreement.
OPTIONEE MATHSOFT, INC.
_____________________________ By:____________________________________
Signature of Optionee Robert P. Orlando
Vice President of Finance, Chief
Financial Officer
<PAGE> 1
EXHIBIT 5.1
[Testa, Hurwitz & Thibeault, LLP Letterhead]
December 19, 1996
MathSoft, Inc.
101 Main Street
Cambridge, MA 02142
Re: Registration Statement on Form S-8 Relating to the 1996
Non-Qualified, Non-Officer Stock Option Plan (the "Plan") of
MathSoft, Inc. (the "Company")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company on or about December 19,
1996 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to an aggregate of 200,000 shares of Common Stock,
$.01 par value per share, of the Company issuable pursuant to the Plan (the
"Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, a copy of the Plan, the Third Restated Articles of
Organization and Amended and Restated By-laws of the Company, the minute books
and stock records of the Company and originals of such other documents,
certificates and proceedings as we have deemed necessary for the purpose of
rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plan, will be validly issued, full paid and nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
/s/ TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated August 9, 1996
included in MathSoft, Inc.'s Annual Report on Form 10-K for the year ended June
30, 1996 and to all references to our Firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
December 19, 1996
