As filed with the Securities and Exchange Commission on September 14, 1999
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 MathSoft as specified in its charter)
Massachusetts 04-2842217
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 Main Street, Cambridge, Massachusetts 02142
(Address of Principal Executive Offices) (Zip Code)
--------------------
MATHSOFT, INC.
AMENDED AND RESTATED 1992 STOCK PLAN
1992 AMENDED EMPLOYEE STOCK PURCHASE PLAN
1992 NON-EMPLOYEE DIRECTOR 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
--------------------
Calculation of Registration Fee
================================================================================
| | | Proposed |
Title of | | Proposed | maximum |
Securities | Amount | maximum | aggregate | Amount of
to be | to be | offering price | offering | Registration
registered | registered(1) | per share(2) | price(2) | fee(3)
- ----------------|-----------------|----------------|-------------|--------------
Common Stock, | 1,240,000 $ | $2.625 | $3,255,000 | $905
par value $.01 | | | |
================================================================================
(1) Consists of (i) 750,000 shares issuable under the Amended and Restated
1992 Stock Plan, (ii) 250,000 shares issuable under the 1992 Amended Employee
Stock Purchase Plan and (iii) 240,000 shares issuable under the 1992
Non-Employee Director Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(3) 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 SmallCap Market on September 10,
1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE 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 and the instructions to Form S-8, such documents are not being filed
with the Commission as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
Item 2. MathSoft 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 apart 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 (File No. 0-020992):
- MathSoft's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the Commission on March 31, 1999;
- MathSoft's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed with the Commission on May 7, 1999;
- MathSoft's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed with the Commission on August 13, 1999;
- MathSoft's Current Report on Form 8-K, filed with the Commission on
June 15, 1999;
- MathSoft's Current Report on Form 8-K, filed with the Commission on
July 17, 1999; and
- The "Description of Capital Stock" contained in MathSoft's
registration statement on Form 8-A dated February 3, 1993.
All documents subsequently filed with the Commission by MathSoft under
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the filing of
this registration statement are also incorporated by reference in this
Registration statement and deemed to be part of this registration statement from
the date of filing.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
---------------------------------------------
Section 67 of Chapter 156B of the Massachusetts General Laws provides that
a corporation may indemnify its directors and officers to the extent specified
in or authorized by:
- the articles of organization;
- a by-law adopted by the stockholders; or
- 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, MathSoft has elected to commit to
provide indemnification to its directors and officers in specified
circumstances. Generally, Article V, Section 2 of the MathSoft's amended and
restated by-laws indemnifies directors and officers of the MathSoft 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 MathSoft, as a director or officer with
another organization. Under this provision, MathSoft shall indemnify a director
or officer of the MathSoft 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
MathSoft. The Board of Directors may authorize advancing litigation expenses to
a director or officer at his 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 MathSoft's Third Restated Articles of Organization
eliminates the personal liability of the MathSoft's directors to the MathSoft 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 MathSoft maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers.
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<PAGE>
Item 8. Exhibits
--------
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ---------------------------------------------------------------------------
<C> <S>
4.1 Specimen Stock Certificate representing the Common Stock of the
MathSoft (filed as Exhibit 4.1 to the MathSoft's registration statement on
Form S-1, File No. 33-55658, and incorporated herein by reference).
4.2 Third Restated Articles of Organization of the MathSoft (filed as Exhibit
3.2 to the MathSoft's registration statement on Form S-1, File No. 33-
55658, and incorporated herein by reference).
4.3 Amended and Restated By-laws of the MathSoft (filed as Exhibit 3.3 to
the MathSoft's registration statement on Form S-1, File No. 33-55658,
and incorporated herein by reference).
4.4 1992 Amended and Restated Stock Plan.
4.5 Form of Incentive Stock Option Agreement Under the Amended and
Restated 1992 Stock Plan (filed as Exhibit 4.9 to the MathSoft's
registration statement on Form S-8, File No. 33-58560 and incorporated
herein by reference).
4.6 Form of Non-Qualified Stock Option Agreement under the Amended and
Restated 1992 Stock Plan (filed As Exhibit 4.10 to the MathSoft's
registration statement on Form S-8, File No. 33-58560 and incorporated
herein by reference).
4.7 1992 Amended Employee Stock Purchase Plan.
4.8 1992 Employee Stock Purchase Plan Enrollment/Authorization Form
(filed as Exhibit 4.15 to the MathSoft's registration statement on Form S-
8, File No. 233-58560 and incorporated herein by reference).
4.9 1992 Non-Employee Director Stock Option Plan.
4.10 Form of Stock Option Agreement under the 1992 Non-Employee
Director Stock Option Plan.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1 Power of Attorney (contained in pages 7 and 8 of this Registration
statement).
</TABLE>
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<PAGE>
Item 9. Undertakings.
------------
(a) The undersigned MathSoft 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 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, 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 MathSoft hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the MathSoft'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 MathSoft pursuant to the provisions
described in Item 6, or otherwise, the MathSoft 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 MathSoft of expenses incurred or paid by a
- 5 -
<PAGE>
director, officer or controlling person of the MathSoft 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 MathSoft 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
- 6 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
MathSoft certifies that it has reasonable grounds to believe that it meets all
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 Cambridge, Commonwealth of Massachusetts, on the 13th
day of September, 1999.
MATHSOFT, INC.
Date: September 13, 1999 By: /s/ Charles J. Digate
---------------------------------------
Charles J. Digate
President, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of MathSoft, Inc., hereby severally
constitute and appoint Charles J. Digate, Robert P. Orlando and Gordon H. Hayes,
and each of them singly, our true and lawful attorneys, with full power to them
and each of them singly, to sign for us in our names in the capacities indicated
below, all pre-effective and post-effective amendments to this registration
statement and generally do all things in our names and on our behalf in such
capacities to enable MathSoft, Inc., to comply with the provisions of the
Securities Act of 1933, as amended and all requirements of the Securities and
Exchange Commission.
Pursuant to the requirements of the Securities Exchange Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE(S) DATE:
- ----------------------- -------------------------------- ------------------
/s/ Charles J. Digate President, Chief Executive September 13, 1999
- ----------------------- and Chairman of the Board
Charles J. Digate of Directors (Principal
Executive Officer)
/s/ Charles H. Federman Director September 13, 1999
- -----------------------
Charles H. Federman
/s/ David D. Martin Director September 13, 1999
- -----------------------
David D. Martin
/s/ Robert P. Orlando Vice President, Finance and September 13, 1999
- ----------------------- Administration, Chief Financial
Robert P. Orlando Officer, Treasurer and Clerk
(Principal Financial and
Accounting Officer)
/s/ June L. Rokoff Director September 13, 1999
- -----------------------
June L. Rokoff
- 7 -
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- --------------------------------------------------------------------------
<S> <C>
4.1 Specimen Stock Certificate representing the Common Stock of the
MathSoft (filed as Exhibit 4.1 to the MathSoft's registration statement on
Form S-1, File No. 33-55658, and incorporated herein by reference).
4.2 Third Restated Articles of Organization of the MathSoft (filed as Exhibit
3.2 to the MathSoft's registration statement on Form S-1, File No. 33-
55658, and incorporated herein by reference).
4.3 Amended and Restated By-laws of the MathSoft (filed as Exhibit 3.3 to
the MathSoft's registration statement on Form S-1, File No. 33-55658,
and incorporated herein by reference).
4.4 1992 Amended and Restated Stock Plan.
4.5 Form of Incentive Stock Option Agreement Under the Amended and
Restated 1992 Stock Plan (filed as Exhibit 4.9 to the MathSoft's
registration statement on Form S-8, File No. 33-58560 and incorporated
herein by reference).
4.6 Form of Non-Qualified Stock Option Agreement under the Amended and
Restated 1992 Stock Plan (filed As Exhibit 4.10 to the MathSoft's
registration statement on Form S-8, File No. 33-58560 and incorporated
herein by reference).
4.7 1992 Amended Employee Stock Purchase Plan.
4.8 1992 Employee Stock Purchase Plan Enrollment/Authorization Form
(filed as Exhibit 4.15 to the MathSoft's registration statement on Form S-
8, File No. 233-58560 and incorporated herein by reference).
4.9 1992 Non-Employee Director Stock Option Plan.
4.10 Form of Stock Option Agreement under the 1992 Non-Employee
Director Stock Option Plan.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (contained in pages 7 and 8 of this Registration
statement).
</TABLE>
<PAGE>
EXHIBIT 4.4
-----------
MATHSOFT, INC.
AMENDED AND RESTATED
1992 STOCK PLAN
---------------
1. PURPOSE. This 1992 Stock Plan (the "Plan") is intended to provide
-------
incentives: (a) to the officers and other employees of MathSoft, Inc. (the
"Company"), its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISO" or "ISOs"); (b) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereafter individually as an "Option" and collectively as "Options". Options,
Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights". As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation",
respectively, as those terms are defined in Section 424 of the Code.
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").
Subject to paragraph 2D, relating to compliance with Section 162(m) of the
Code, the Board may appoint a Stock Plan Committee (the "Committee") of two
or more of its members to administer this Plan; provided that, to the
extent required by Rule 16b-3 promulgated under the Securities Exchange Act
of 1934 or any successor provision ("Rule 16b-3"), with respect to specific
grants of Stock Rights, the Plan shall be administered by a disinterested
administrator or administrators within the meaning of Rule 16b-3.
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 Stock Right 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 the employees of the Company and
Related Corporations (from among the class of employees eligible under
paragraph 3 to receive ISOs) to whom ISOs may be granted, and to determine
(from among the class of individuals and entities eligible under paragraph
3 to receive Non-Qualified Options and Awards and to make Purchases) to
whom Non-Qualified Options, Awards and authorizations to make Purchases may
be granted; (ii) determine the time or times at which Options or Awards may
be granted or Purchases made; (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, and the purchase price of shares subject to
each Purchase; (iv) determine whether each Option granted shall be an ISO
or a Non-Qualified Option; (v) determine (subject to paragraph 7) the time
or times when each Option shall become exercisable and the duration of the
<PAGE>
exercise period; (vi) determine whether restrictions such as repurchase
options are to be imposed on shares subject to Options, Awards and
Purchases and the nature of such restrictions, if any, and (vii) interpret
the Plan and prescribe and rescind rules and regulations relating to it. If
the Committee determines to issue a Non-Qualified Option, it shall take
whatever actions it deems necessary, under Section 422 of the Code and the
regulations promulgated thereunder, to ensure that such Option is not
treated as an ISO. The interpretation and construction by the Committee of
any provisions of the Plan or of any Stock Right 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 best. 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 Stock Right 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. Acts by a majority of the Committee, or acts reduced to or
approved in writing by a majority of the members of the Committee, shall be
the valid acts of the 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.
C. GRANT OF STOCK RIGHTS TO BOARD MEMBERS. Stock Rights may be
-----------------------------------------
granted to members of the Board consistent with the provisions of the
second sentence of paragraph 2(A) above, if applicable. All grants of Stock
Rights to members of the Board shall in all other respects be made in
accordance with the provisions of this Plan applicable to other eligible
persons. Consistent with the provisions of the second sentence of paragraph
2(A) above, members of the Board who are either (i) eligible for Stock
Rights pursuant to the Plan or (ii) have been granted Stock Rights may vote
on any matters affecting the administration of the Plan or the grant of any
Stock Rights pursuant to the Plan, except that no such member shall act
upon the granting to himself of Stock Rights, but any such member may be
counted in determining the existence of a quorum at any meeting of the
Board during which action is taken with respect to the granting to him of
Stock Rights.
D. PERFORMANCE-BASED COMPENSATION. The Board, in its discretion,
-------------------------------
may take such action as may be necessary to ensure that Stock Rights
granted under the Plan qualify as "qualified performance-based
compensation" within the meaning of Section 162(m) of the Code and
applicable regulations promulgated thereunder ("Performance-Based
Compensation"). Such action may include, in the Board's discretion, some or
all of the following (i) if the Board determines that Stock Rights granted
under the Plan generally shall constitute Performance-Based Compensation,
the Plan shall be administered, to the extent required for such Stock
Rights to constitute Performance-Based Compensation, by a Committee
consisting solely of two or more "outside directors" (as defined in
applicable regulations promulgated under Section 162(m) of the Code), (ii)
if any Non-Qualified Options with an exercise price less than the fair
market value per share of Common Stock are granted under the Plan and the
Board determines that such Options should constitute Performance-Based
Compensation, such options shall be made exercisable only upon the
attainment of a pre-established, objective performance goal established by
the Committee, and such grant shall be submitted for, and shall be
contingent upon shareholder approval and (iii) Stock Rights granted under
the Plan may be subject to such other terms and conditions as are necessary
for compensation recognized in connection with the exercise or disposition
of such Stock Right or the disposition of Common Stock acquired pursuant to
such Stock Right, to constitute Performance-Based Compensation.
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<PAGE>
3. ELIGIBLE EMPLOYEES AND OTHERS. ISOs may be granted to any employee
------------------------------
of the Company or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the Plan.
Non-Qualified Options, Awards and authorizations to make Purchases may be
granted to any employee, officer or director (whether or not also an employee)
or consultant of the Company or any Related Corporation. The Committee may take
into consideration a recipient's individual circumstances in determining whether
to grant an ISO, a Non-Qualified Option, an Award or an authorization to make a
Purchase. Granting of any Stock Right to any individual or entity shall neither
entitle that individual or entity to, nor disqualify him from, participation in
any other grant of Stock Rights.
4. STOCK. The stock subject to Options, Awards and Purchases 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 3,900,000, subject to adjustment as provided in
paragraph 13; provided; that no such adjustment shall be made with respect to
the 1-for-2.5 reverse stock split effected on December 10, 1992. Any such
shares may be issued as ISOs, Non-Qualified Options or Awards, or to persons or
entities making Purchases, so long as the number of shares so issued does not
exceed such number, as adjusted. 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, the
unpurchased shares subject to such Options shall again be available for grants
of Stock Rights under the Plan.
No employee of the Company or any Related Corporation may be granted
Options to acquire, in the aggregate, more than 3,120,000 of shares of Common
Stock under the Plan during any fiscal year of the Company. 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 subject to such
Option shall be included in the determination of the aggregate number of shares
of Common Stock deemed to have been granted to such employee under the Plan.
5. GRANTING OF STOCK RIGHTS. Stock Rights may be granted under the
---------------------------
Plan at any time after January 28, 1992 and prior to January 28, 2002. The date
of grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant. The Committee shall have the right, with the consent of the optionee, to
convert an ISO granted under the Plan to a Non-Qualified Option pursuant to
paragraph 16.
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<PAGE>
6. MINIMUM OPTION PRICE; ISO LIMITATIONS.
-----------------------------------------
A. PRICE FOR NON-QUALIFIED OPTIONS. The exercise price per share
--------------------------------
specified in the agreement relating to each Non-Qualified Option granted
under the Plan shall in no event be less than the lesser of (i) the book
value per share of Common Stock as of the end of the fiscal year of the
Company immediately preceding the date of such grant, or (ii) fifty percent
(50%) of the fair market value per share of Common Stock on the date of
such grant.
B. PRICE FOR ISOS. The exercise price per share specified in the
---------------
agreement relating to each ISO granted under the Plan shall not be less
than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Related Corporation, the
price per share specified in the agreement relating to such ISO shall not
be less than one hundred ten percent (110%) of the fair market value per
share of Common Stock on the date of grant.
C. $100,000 ANNUAL LIMITATION ON ISOS. Each eligible employee may
----------------------------------
be granted ISOs only to the extent that, in the aggregate under this Plan
and all incentive stock option plans of the Company and any Related
Corporation, such ISOs do not become exercisable for the first time by such
employee during any calendar year in a manner which would entitle the
employee to purchase more than $100,000 in fair market value (determined at
the time the ISOs were granted) of Common Stock in that year. Any options
granted to an employee in excess of such amount will be granted as
Non-Qualified Options.
D. DETERMINATION OF FAIR MARKET VALUE. If, at the time an Option
-----------------------------------
is granted under the Plan, the Company's Common Stock is publicly traded,
"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 List, 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 National Market List. 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.
7. OPTION DURATION. Subject to earlier termination as provided in
----------------
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and (iii) five years from the date of grant in the case
of ISOs granted to an employee owning stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Related Corporation. Subject to earlier termination as provided in
paragraphs 9 and 10, the term of each ISO shall be the term set forth in the
original instrument granting such ISO, except with respect to any part of such
ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
-4-
<PAGE>
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.
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 of exercise of any installment of any Option; provided
that the Committee shall not, without the consent of an optionee,
accelerate the exercise date of any installment of any Option granted to
any employee as an ISO (and not previously converted into a Non-Qualified
Option pursuant to paragraph 16) if such acceleration would violate the
annual vesting limitation contained in Section 422(d) of the Code, as
described in paragraph 6(C).
9. TERMINATION OF EMPLOYMENT. If an ISO optionee ceases to be employed by
-------------------------
the Company and all Related Corporations other than by reason of death or
disability as defined in paragraph 10, no further installments of his ISOs shall
become exercisable, and his ISOs shall terminate after the passage of ninety
(90) days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. Employment shall be considered as continuing
uninterrupted during any bona fide leave of absence (such as those attributable
to illness, military obligations or governmental service) provided that the
period of such leave does not exceed 90 days or, if longer, any period during
which such optionee's right to reemployment is guaranteed by statute. A bona
fide leave of absence with the written approval of the Committee shall not be
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the optionee after the approved period of absence.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. Nothing
in the Plan shall be deemed to give any grantee of any Stock Right the right to
be retained in employment or other service by the Company or any Related
Corporation for any period of time.
-5-
<PAGE>
10. DEATH; DISABILITY.
------------------
A. DEATH. If an ISO optionee ceases to be employed by the Company
-----
and all Related Corporations by reason of his death, any ISO of his may be
exercised, to the extent of the number of shares with respect to which he
could have exercised it on the date of his death, by his estate, personal
representative or beneficiary who has acquired the ISO by will or by the
laws of descent and distribution, at any time prior to the earlier of the
specified expiration date of the ISO or 180 days from the date of the
optionee's death.
B. DISABILITY. If an ISO optionee ceases to be employed by the
----------
Company and all Related Corporations by reason of his disability, he shall
have the right to exercise any ISO held by him on the date of termination
of employment, to the extent of the number of shares with respect to which
he could have exercised it on that date, at any time prior to the earlier
of the specified expiration date of the ISO or 180 days from the date of
the termination of the optionee's employment. 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 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
him.
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. In granting any Non-Qualified Option, the
Committee may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to ISOs, or to such other 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 him 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.
-6-
<PAGE>
B. CONSOLIDATIONS OR MERGERS. If the Company is to be
---------------------------
consolidated with or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise (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 the consideration payable with respect
to the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) upon written notice to the optionees, provide that all
Options must be exercised, to the extent then exercisable, 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 Options (to the extent then exercisable) 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 he would have received if he had exercised his Option prior
to such recapitalization or reorganization.
D. MODIFICATION OF ISOS. Notwithstanding the foregoing, any
----------------------
adjustments made pursuant to subparagraphs A, B or C with respect to ISOs
shall be made only after the Committee, after consulting with counsel for
the Company, determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in Section 424 of the
Code) or would cause any adverse tax consequences for the holders of such
ISOs. If the Committee determines that such adjustments made with respect
to ISOs would constitute a modification of such ISOs, it may refrain from
making such adjustments.
E. 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.
F. 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.
G. 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.
-7-
<PAGE>
H. 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 Stock Rights 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.
If any person or entity owning restricted Common Stock obtained by exercise
of a Stock Right made hereunder receives shares or securities or cash in
connection with a corporate transaction described in subparagraphs A, B or C
above as a result of owning such restricted Common Stock, such shares or
securities or cash shall be subject to all of the conditions and restrictions
applicable to the restricted Common Stock with respect to which such shares or
securities or cash were issued, unless otherwise determined by the Committee or
the Successor Board.
14. MEANS OF EXERCISING STOCK RIGHTS. A Stock Right (or any part or
-----------------------------------
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Stock Right
being exercised and specify the number of shares as to which such Stock Right is
being exercised, accompanied by full payment of the purchase price therefor
either (a) in United States dollars in cash or by check, or (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 Stock Right, or (c) at the discretion of the Committee, by delivery
of the grantee'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, or (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 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. If the Committee
exercises its discretion to permit payment of the exercise price of an ISO by
means of the methods set forth in clauses (b), (c), (d) or (e) of the preceding
sentence, such discretion shall be exercised in writing at the time of the grant
of the ISO in question. The holder of a Stock Right shall not have the rights
of a shareholder with respect to the shares covered by his Stock Right until the
date of issuance of a stock certificate to him 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
---------------------------
January 28, 1992, subject (with respect to the validation of ISOs granted under
the Plan) to approval of the Plan by the stockholders of the Company at the next
Meeting of Stockholders or, in lieu thereof, by written consent. If the
approval of stockholders is not obtained prior to January 28, 1993, any grants
of ISOs under the Plan made prior to that date will be rescinded. The Plan
shall expire at the end of the day on January 28, 2002 (except as to Options
outstanding on that date). Subject to the provisions of paragraph 5 above,
Stock Rights may be granted under the Plan prior to the date of stockholder
approval of the Plan. The Board may terminate or amend the Plan in any respect
at any time, except that, without the approval of the stockholders obtained
within 12 months before or after the Board adopts a resolution authorizing any
of the following actions: (a) the total number of shares that may be issued
under the Plan may not be increased (except by adjustment pursuant to paragraph
13); (b) the provisions of paragraph 3 regarding eligibility for grants of ISOs
may not be modified; (c) the provisions of paragraph 6(B) regarding the exercise
price at which shares may be offered pursuant to ISOs may not be modified
(except by adjustment pursuant to paragraph 13); and (d) the expiration date of
the Plan may not be extended. Except as otherwise provided in this paragraph
15, in no event may action of the Board or stockholders alter or impair the
rights of a grantee, without his consent, under any Stock Right previously
granted to him.
-8-
<PAGE>
16. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOS.
--------------------------------------------------------------------
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such ISOs. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. 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.
18. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the exercise of a
------------------------------------------
Non-Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 19) or the vesting of restricted Common
Stock acquired on the exercise of a Stock Right hereunder, the Company, in
accordance with Section 3402(a) of the Code, may require the optionee, Award
recipient or purchaser to pay additional withholding taxes in respect of the
amount that is considered compensation includible in such person's gross income.
The Committee in its discretion may condition (i) the exercise of an Option,
(ii) the grant of an Award, (iii) the making of a Purchase of Common Stock for
less than its fair market value, or (iv) the vesting of restricted Common Stock
acquired by exercising a Stock Right, on the grantee's payment of such
additional withholding taxes.
-9-
<PAGE>
19. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each employee who
-----------------------------------------------
receives an ISO must agree to notify the Company in writing immediately after
the employee makes a Disqualifying Disposition of any Common Stock acquired
pursuant to the exercise of an ISO. A Disqualifying Disposition is any
disposition (including any sale) of such Common Stock before the later of (a)
two years after the date the employee was granted the ISO, or (b) one year after
the date the employee acquired Common Stock by exercising the ISO. If the
employee has died before such stock is sold, these holding period requirements
do not apply and no Disqualifying Disposition can occur thereafter.
20. GOVERNING LAW; CONSTRUCTION. The validity and construction of the
----------------------------
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the Commonwealth of Massachusetts, or the laws of any jurisdiction in which
the Company or its successors in interest may be organized. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
-10-
<PAGE>
EXHIBIT 4.7
-----------
MATHSOFT, INC.
1992 AMENDED EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1 - PURPOSE.
- -----------------------
This 1992 Amended Employee Stock Purchase Plan (the "Plan") is intended to
encourage stock ownership by all eligible employees of MathSoft, Inc., a
Massachusetts corporation (the "Company"), and its participating subsidiaries
(as defined in Article 17) so that they may share in the growth of the Company
by acquiring or increasing their proprietary interest in the Company. The Plan
is designed to encourage eligible employees to remain in the employ of the
Company. It is intended that options issued pursuant to this Plan will
constitute options issued pursuant to an "employee stock purchase plan" within
the meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended
(the "Code").
ARTICLE 2 - ADMINISTRATION OF THE PLAN.
- ---------------------------------------------
The Plan may be administered by a committee appointed by the Board of
Directors of the Company (the "Committee"). The Committee shall consist of not
less than two members of the Company's Board of Directors. The Board of
Directors may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, however caused, shall be filled by the
Board of Directors. The Committee may select one of its members as Chairman,
and shall hold meetings at such times and places as it may determine. Acts by a
majority of the Committee, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee.
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 of Directors. The Committee may from time to time adopt
such rules and regulations for carrying out the Plan as it may deem best,
provided that any such rules and regulations shall be applied on a uniform basis
to all employees under the Plan. No member of the Board of Directors 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.
In the event the Board of Directors fails to appoint or refrains from
appointing a Committee, the Board of Directors shall have all power and
authority to administer the Plan. In such event, the word "Committee" wherever
used herein shall be deemed to mean the Board of Directors.
<PAGE>
ARTICLE 3 - ELIGIBLE EMPLOYEES.
- -----------------------------------
All employees of the Company or any of its participating subsidiaries shall
be eligible to receive options under this Plan to purchase the Company's Common
Stock, and all eligible employees shall have the same rights and privileges
hereunder. Persons who are employed on the first day of any Payment Period (as
defined in Article 5) shall receive their options as of such day. Persons who
are employed after any date on which options are granted under this Plan shall
be granted options on the first day of the next succeeding Payment Period on
which options are granted to all eligible employees. In no event may an
employee be granted an option if such employee, immediately after the option is
granted, owns stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of its parent
corporation or subsidiary corporations, as the terms "parent corporation" and
"subsidiary corporation" are defined in Section 424(e) and (f) of the Code. For
purposes of determining stock ownership under this paragraph, the rules of
Section 424(d) of the Code shall apply, and stock which the employee may
purchase under outstanding options shall be treated as stock owned by the
employee.
For purposes of this Article 3, the term "employee" shall not include an
employee whose customary employment is twenty (20) hours or less per week or
whose customary employment is for not more than five (5) months in any calendar
year.
ARTICLE 4 - STOCK SUBJECT TO THE PLAN.
- ---------------------------------------------
The stock subject to the options under the Plan shall be shares of the
Company's authorized but unissued Common Stock, par value $.01 per share, or
shares of such Common Stock reacquired by the Company, including shares
purchased in the open market. The aggregate number of shares which may be
issued pursuant to the Plan is 450,000, subject to adjustment as provided in
Article 12 provided, however, that such number of shares shall not be subject to
-----------------
adjustment by reason of the 1-for-2.5 reverse stock split declared by the Board
of Directors of the Company at a meeting on December 2, 1992. In the event 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, the unpurchased shares subject thereto shall again be
available under the Plan.
ARTICLE 5 - PAYMENT PERIOD AND STOCK OPTIONS.
- ----------------------------------------------------
The six-month periods, March 1 to August 31 and September 1 to February 28,
are Payment Periods during which payroll deductions will be accumulated under
the Plan. Each Payment Period includes only regular pay days falling within it.
The first Payment Period under the Plan will commence on the first March 1 or
September 1 immediately following the effective date of an initial public
offering of Common Stock of the Company.
- 2 -
<PAGE>
Twice each year, on the first business day of each Payment Period, the
Company will grant to each eligible employee who is then a participant in the
Plan an option to purchase on the last day of such Payment Period, at the Option
Price hereinafter provided for, a maximum of 2,000 shares, on condition that
such employee remains eligible to participate in the Plan throughout such
Payment Period. The participant shall be entitled to exercise such option so
granted only to the extent of the participant's accumulated payroll deductions
on the last day of such Payment Period. In the event that the participant's
accumulated payroll deductions on the last day of the Payment Period would
enable the participant to purchase more than 2,000 shares except for the
2,000-share limitation, the excess of the amount of the accumulated payroll
deductions over the aggregate purchase price of the 2,000 shares shall be
promptly refunded to the participant by the Company, without interest. The
Option Price for each Payment Period shall be the lesser of (i) 85% of the
average market price of the Company's Common Stock on the first business day of
the Payment Period or (ii) 85% of the average market price of the Company's
Common Stock on the last business day of the Payment Period, in either event
rounded up to avoid fractions of a dollar other than 1/4, 1/2 and 3/4. The
foregoing limitation on the number of shares which may be granted in any Payment
Period and the Option Price per share shall be subject to adjustment as provided
in Article 12.
For purposes of this Plan, the term "average market price" on any date
means (i) the average (on that date) of the high and low prices of the Company's
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 List, if the Common Stock is not then traded
on a national securities exchange; or (iii) the average of the closing bid and
asked 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
National Market List. If the Company's Common Stock is not publicly traded at
the time an option is granted under this Plan, "average market price" shall mean
the fair market 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.
For purposes of this Plan, the term "business day" means a day on which
there is trading on the NASDAQ National Market System or on the aforementioned
national securities exchange, whichever is applicable pursuant to the preceding
paragraph.
No employee shall be granted an option which permits the employee's right
to purchase Common Stock under this Plan, and under all other Section 423(b)
employee stock purchase plans of the Company or any parent or subsidiary
corporations, to accrue at a rate which exceeds $25,000 of fair market value of
such stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time. The purpose of the
limitation in the preceding sentence is to comply with Section 423(b)(8) of the
Code.
- 3 -
<PAGE>
ARTICLE 6 - EXERCISE OF OPTION.
- -----------------------------------
Each eligible employee who continues to be a participant in the Plan on the
last business day of a Payment Period shall be deemed to have exercised his/her
option on such date and shall be deemed to have purchased from the Company such
number of full shares of Common Stock reserved for the purpose of the Plan as
his/her accumulated payroll deductions on such date will pay for at the Option
Price, subject to the 2,000-share limit of the option. If a participant is not
an employee on the last business day of a Payment Period, he/she shall not be
entitled to exercise his/her option. Only full shares of Common Stock may be
purchased under the Plan. Unused payroll deductions remaining in an employee's
account at the end of a Payment Period (other than amounts refunded to the
employee pursuant to Article 5) will be carried forward to the succeeding
Payment Period.
ARTICLE 7 - AUTHORIZATION FOR ENTERING THE PLAN.
- ------------------------------------------------------
An employee may enter the Plan by filling out, signing and delivering to
the Company an authorization:
A. Stating the percentage to be deducted regularly from the
employee's pay;
B. Authorizing the purchase of stock for the employee in each
Payment Period in accordance with the terms of the Plan; and
C. Specifying the exact name in which stock purchased for the
employee is to be issued as provided under Article 11 hereof.
Such authorization must be received by the Company at least ten (10) days
before the beginning date of the next succeeding Payment Period.
Unless an employee files a new authorization or withdraws from the Plan,
the deductions and purchases under the authorization the employee has on file
under the Plan will continue from one Payment Period to succeeding Payment
Periods as long as the Plan remains in effect.
The Company will accumulate and hold for the employee's account the amounts
deducted from his/her pay. No interest will be paid on these amounts.
ARTICLE 8 - MAXIMUM AMOUNT OF PAYROLL DEDUCTIONS.
- -------------------------------------------------------
An employee may authorize payroll deductions in an amount (expressed as a
percentage) not less than one percent (1%) but not more than ten percent (10%)
of the employee's total compensation, including base pay or salary and any
bonuses or commissions.
- 4 -
<PAGE>
ARTICLE 9 - CHANGE IN PAYROLL DEDUCTIONS.
- ----------------------------------------------
Deductions may not be increased or decreased during a Payment Period.
However, an employee may withdraw in full from the Plan.
ARTICLE 10 - WITHDRAWAL FROM THE PLAN.
- -------------------------------------------
An employee may withdraw from the Plan in whole but not in part, at any
time prior to the last business day of each Payment Period by delivering a
withdrawal notice to the Company, in which event the Company will promptly
refund the entire balance of the employee's deductions not previously used to
purchase stock under the Plan.
To re-enter the Plan, an employee who has previously withdrawn must file a
new authorization at least ten (10) days before the beginning date of the next
Payment Period. The employee's re-entry into the Plan cannot, however, become
effective before the beginning of the next Payment Period following his/her
withdrawal.
ARTICLE 11 - ISSUANCE OF STOCK.
- -----------------------------------
Certificates for stock issued to participants will be delivered as soon as
practicable after each Payment Period by the Company's transfer agent.
Stock purchased under the Plan will be issued only in the name of the
employee, or if his/her authorization so specifies, in the name of the employee
and another person of legal age as joint tenants with rights of survivorship.
ARTICLE 12 - ADJUSTMENTS.
- ---------------------------
Upon the happening of any of the following described events, an optionee's
rights under options granted under the Plan shall be adjusted as hereinafter
provided:
A. In the event shares of Common Stock of the Company shall be
subdivided or combined into a greater or smaller number of shares or if,
upon a reorganization, split-up, liquidation, recapitalization or the like
of the Company, the shares of the Company's Common Stock shall be exchanged
for other securities of the Company, each optionee shall be entitled,
subject to the conditions herein stated, to purchase such number of shares
of Common Stock or amount of other securities of the Company as were
exchangeable for the number of shares of Common Stock of the Company which
such optionee would have been entitled to purchase except for such action,
and appropriate adjustments shall be made in the purchase price per share
to reflect such subdivision, combination or exchange; and
B. In the event the Company shall issue any of its shares as a stock
dividend upon or with respect to the shares of stock of the class which
shall at the time be subject to option hereunder, each optionee upon
exercising such an option shall be entitled to receive (for the purchase
price paid upon such exercise) the shares as to which he/she is exercising
his/her option and, in addition thereto (at no additional cost), such
number of shares of the class or classes in which such stock dividend or
dividends were declared or paid, and such amount of cash in lieu of
fractional shares, as is equal to the number of shares thereof and the
amount of cash in lieu of fractional shares, respectively, which he/she
would have received if he/she had been the holder of the shares as to which
he/she is exercising his/her option at all times between the date of the
granting of such option and the date of its exercise.
- 5 -
<PAGE>
Upon the happening of any of the foregoing events, the class and aggregate
number of shares set forth in Article 4 hereof which are subject to options
which have been or may be granted under the Plan and the limitations set forth
in the second paragraph of Article 5 shall also be appropriately adjusted to
reflect the events specified in paragraphs A and B above. Notwithstanding the
foregoing, any adjustments made pursuant to paragraphs A or B shall be made only
to the extent that the Committee, based on advice of counsel for the Company,
determines that such adjustments will not constitute a change requiring
stockholder approval under Section 423(b)(2) of the Code.
If the Company is to be consolidated with or acquired by another entity in
a merger, a sale of all or substantially all of the Company's assets or
otherwise (an "Acquisition"), the Committee shall, with respect to options then
outstanding under this Plan, either (i) make appropriate provision for the
continuation of such options by arranging for the substitution on an equitable
basis for the shares then subject to such options the consideration payable with
respect to the outstanding shares of the Company's Common Stock in connection
with the Acquisition; or (ii) terminate all outstanding options in exchange for
a cash payment equal to the excess of the fair market value of the shares
subject to the options (determined as of the date of the Acquisition) over the
Option Price thereof (determined with reference only to the first business day
of the applicable Payment Period).
The Committee or Board of Directors shall determine the adjustments to be
made under this Article 12, and its determination shall be conclusive.
ARTICLE 13 - NO TRANSFER OR ASSIGNMENT OF EMPLOYEE'S RIGHTS.
- --------------------------------------------------------------------
An employee's rights under the Plan are the employee's alone and may not be
transferred or assigned to, or availed of by, any other person other than by
will or the laws of descent and distribution. Any option granted under the Plan
to an employee may be exercised, during the employee's lifetime, only by the
employee.
- 6 -
<PAGE>
ARTICLE 14 - TERMINATION OF EMPLOYEE'S RIGHTS,
- ---------------------------------------------------
An employee's rights under the Plan will terminate when he/she ceases to be
an employee because of retirement, voluntary or involuntary termination,
resignation, lay-off, discharge, death, change of status or for any other
reason, except that if an employee is on a leave of absence from work during the
last three months of any Payment Period, he/she shall be deemed to be a
participant in the Plan on the last day of that Payment Period. A withdrawal
notice will be considered as having been received from the employee on the day
his/her employment ceases, and all payroll deductions not used to purchase stock
will be refunded.
If an employee's payroll deductions are interrupted by any legal process, a
withdrawal notice will be considered as having been received from the employee
on the day the interruption occurs.
ARTICLE 15 - TERMINATION AND AMENDMENTS TO PLAN.
- ------------------------------------------------------
Unless terminated sooner as provided below, the Plan shall terminate on
December 2, 2002. The Plan may be terminated at any time by the Company's Board
of Directors but such termination shall not affect options then outstanding
under the Plan. It will terminate in any case when all or substantially all of
the unissued shares of stock reserved for the purposes of the Plan have been
purchased. If at any time shares of stock reserved for the purpose of the Plan
remain available for purchase but not in sufficient number to satisfy all then
unfilled purchase requirements, the available shares shall be apportioned among
participants in proportion to their options and the Plan shall terminate. Upon
such termination or any other termination of the Plan, all payroll deductions
not used to purchase stock will be refunded.
The Committee or the Board of Directors may from time to time adopt
amendments to the Plan provided that, without the approval of the stockholders
of the Company, no amendment may (i) materially increase the number of shares
that may be issued under the Plan (except pursuant to Article 12) or change the
class of employees eligible to receive options under the Plan or (ii) cause Rule
16b-3 under the Securities Exchange Act of 1934 to become inapplicable to the
Plan.
ARTICLE 16 - LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN.
- ------------------------------------------------------------------------
The Plan is intended to provide shares of Common Stock for investment and
not for resale. The Company does not, however, intend to restrict or influence
any employee in the conduct of his/her own affairs. An employee may, therefore,
sell stock purchased under the Plan at any time the employee chooses, subject to
compliance with any applicable Federal or state securities laws; provided,
however, that because of certain Federal tax requirements, each employee agrees
by entering the Plan, promptly to give the Company notice of any such stock
disposed of within two years after the date of grant of the applicable option
showing the number of such shares disposed of. THE EMPLOYEE ASSUMES THE RISK OF
ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
- 7 -
<PAGE>
ARTICLE 17 - PARTICIPATING SUBSIDIARIES.
- -------------------------------------------
The term "participating subsidiary" shall mean any subsidiary of the
Company, as that term is defined in Section 424(f) of the Code, which is
designated from time to time by the Board of Directors to participate in the
Plan. The Board of Directors shall have the power to make such designation
before or after the Plan is approved by the stockholders.
ARTICLE 18 - OPTIONEES NOT STOCKHOLDERS.
- --------------------------------------------
Neither the granting of an option to an employee nor the deductions from
his/her pay shall constitute such employee a stockholder of the shares covered
by an option until such shares have been actually purchased by the employee.
ARTICLE 19 - APPLICATION OF FUNDS.
- --------------------------------------
The proceeds received by the Company from the sale of Common Stock pursuant
to options granted under the Plan will be used for general corporate purposes.
ARTICLE 20 - GOVERNMENTAL REGULATIONS.
- -----------------------------------------
The Company's obligation to sell and deliver shares of the Company's 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,
including the Securities and Exchange Commission and the Internal Revenue
Service.
ARTICLE 21 - APPROVAL OF BOARD OF DIRECTORS AND STOCKHOLDERS OF THE COMPANY.
- -------------------------------------------------------------------------------
The Plan was adopted by the Board of Directors on December 2, 1992 and the
stockholders of the Company on December 10, 1992.
- 8 -
<PAGE>
EXHIBIT 4.9
-----------
MATHSOFT, INC.
1992 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. This Non-Qualified Stock Option Plan, to be known as the
-------
1992 Non-Employee Director Stock Option Plan (hereinafter, this "Plan") is
intended to promote the interests of MathSoft, Inc. (hereinafter, the "Company")
by providing an inducement to obtain and retain the services of qualified
persons who are not employees or officers of the Company to serve as members of
its Board of Directors (the "Board").
2. Available Shares. The total number of shares of Common Stock, par
-----------------
value $.01 per share, of the Company (the "Common Stock"), for which options may
be granted under this Plan shall not exceed 400,000 shares, subject to
adjustment in accordance with paragraph 10 of this Plan; provided, however, that
-----------------
such number of shares shall not be subject to adjustment by reason of the
1-for-2.5 reverse stock split declared by the Board of Directors of the Company
at a meeting on December 2, 1992. Shares subject to this Plan are authorized
but unissued shares or shares that were once issued and subsequently reacquired
by the Company. If any options granted under this Plan are surrendered before
exercise or lapse without exercise, in whole or in part, the shares reserved
therefor shall continue to be available under this Plan.
3. Administration. This Plan shall be administered by the Board or by
--------------
a committee appointed by the Board (the "Committee"). In the event the Board
fails to appoint or refrains from appointing a Committee, the Board shall have
all power and authority to administer this Plan. In such event, the word
"Committee" wherever used herein shall be deemed to mean the Board. The
Committee shall, subject to the provisions of the Plan, have the power to
construe this Plan, to determine all questions hereunder, and to adopt and amend
such rules and regulations for the administration of this Plan as it may deem
desirable. No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to this Plan or any
option granted under it.
4. Granting of Options.
---------------------
A. Initial Grant. Subject to the availability of shares under
--------------
this Plan, each person who is a member of the Board on the effective date of the
registration statement filed in connection with an initial public offering of
Common Stock of the Company (the "Effective Date"), and who is not an employee
or officer of the Company on such date shall be automatically granted on the
Effective Date, without further action by the Board, an option to purchase 5,000
shares of the Common Stock.
<PAGE>
B. Initial Grant to New Directors. Subject to the availability of
------------------------------
shares under this Plan, each person who is first elected as a member of the
Board after the Effective Date and during the term of this Plan, and who is not
an employee or officer of the Company on the date of such election, shall be
automatically granted an option to purchase 20,000 shares of the Common Stock on
the date of his or her first election as a member of the Board.
C. Automatic Grants. On each anniversary of the Effective Date,
-----------------
each eligible member of the Board who has served for an entire year prior to
such anniversary is automatically granted an option to purchase 10,000 shares of
the Common Stock, subject to the availability of shares under this Plan. Each
person who is elected to the Board after the Effective Date and has served for
less than an entire year on the anniversary of the Effective Date following his
election shall automatically be granted on such anniversary an option to
purchase the number of shares of the Common Stock equal to the number of full
months he has served on the Board for a one-year period immediately preceding
such anniversary, divided by 12 and multiplied by 10,000 and, if the product is
a fraction, rounded to the next highest whole number.
Except for the specific options referred to above, no other options shall
be granted under this Plan.
5. Option Price. The purchase price of the stock covered by an option
-------------
granted pursuant to this Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of paragraph 10 of this Plan. For
purposes of this Plan, if, at the time an option is granted under the Plan, the
Company's Common Stock is publicly traded, "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 List, 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
National Market List. The "fair market value" of the stock issuable upon
exercise of an option granted pursuant to the Plan on the Effective Date shall
be deemed to be equal to the initial per-share purchase price at which the
Company's Common Stock is offered to the public.
6. Period of Option. Unless sooner terminated in accordance with the
------------------
provisions of paragraph 8 of this Plan, an option granted hereunder shall expire
on the date which is ten (10) years after the date of grant of the option.
- 2 -
<PAGE>
7. Vesting of Shares and Non-Transferability of Options.
-----------------------------------------------------------
(a) Vesting. Options granted under this Plan shall not be
-------
exercisable until they become vested. Options granted under this Plan shall
vest in the optionee and thus become exercisable immediately upon the date of
the grant.
(b) Legend on Certificates. The certificates representing such
------------------------
shares shall carry such appropriate legend, and such written instructions shall
be given to the Company's transfer agent, as may be deemed necessary or
advisable by counsel to the Company in order to comply with the requirements of
the Securities Act of 1933 or any state securities laws.
(c) Non-transferability. Any option granted pursuant to this Plan
-------------------
shall not be assignable or transferable other than by will or the laws of
descent and distribution or pursuant to a domestic relations order and shall be
exercisable during the optionee's lifetime only by him or her.
8. Termination of Option Rights.
-------------------------------
(a) In the event an optionee ceases to be a member of the Board
for any reason other than death or permanent disability, any then unexercised
portion of options granted to such optionee shall, to the extent not then
vested, immediately terminate and become void; any portion of an option which is
then vested but has not been exercised at the time the optionee so ceases to be
a member of the Board may be exercised, to the extent it is then vested, by the
optionee within 180 days of the date the optionee ceased to be a member of the
Board; and all options shall terminate after such 180 days have expired.
(b) In the event that an optionee ceases to be a member of the
Board by reason of his or her death or permanent disability, any option granted
to such optionee shall be immediately and automatically accelerated and become
fully vested and all unexercised options shall be exercisable by the optionee
(or by the optionee's personal representative, heir or legatee, in the event of
death) until the scheduled expiration date of the option.
9. Exercise of Option. Subject to the terms and conditions of this
--------------------
Plan and the option agreements, an option granted hereunder shall, to the extent
then exercisable, be exercisable in whole or in part by giving written notice to
the Company by mail or in person addressed to MathSoft, Inc., 101 Main Street,
Cambridge, Massachusetts 02142, at its principal executive offices, stating the
number of shares with respect to which the option is being exercised,
accompanied by payment in full for such shares. Payment may be (a) in United
States dollars in cash or by check, (b) in whole or in part in shares of the
Common Stock of the Company already owned by the person or persons exercising
the option or shares subject to the option being exercised (subject to such
restrictions and guidelines as the Board may adopt from time to time), valued at
fair market value determined in accordance with the provisions of paragraph 5 or
(c) 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 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. There shall be no such
exercise at any one time as to fewer than one hundred (100) shares or all of the
remaining shares then purchasable by the person or persons exercising the
option, if fewer than one hundred (100) shares. The Company's transfer agent
shall, on behalf of the Company, prepare a certificate or certificates
representing such shares acquired pursuant to exercise of the option, shall
register the optionee as the owner of such shares on the books of the Company
and shall cause the fully executed certificate(s) representing such shares to be
delivered to the optionee as soon as practicable after payment of the option
price in full. The holder of an option shall not have any rights of a
stockholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
or her upon the due exercise of the option.
- 3 -
<PAGE>
10. Adjustments Upon Changes in Capitalization and Other Matters. Upon
------------------------------------------------------------
the occurrence of any of the following events, an optionee's rights with respect
to options granted to him or her hereunder shall be adjusted as hereinafter
provided:
(a) Stock Dividends and Stock Splits. If, after December 10, 1992, 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. No such adjustment shall be
made in respect to reflect the 1-for-2.5 reverse stock split effected on
December 10, 1992.
(b) Recapitalization Adjustments. In the event of a reorganization,
-----------------------------
recapitalization, merger, consolidation, or any other change in the
corporate structure or shares of the Company, to the extent permitted by
Rule 16b-3 under the Securities Exchange Act of 1934, adjustments in the
number and kind of shares authorized by this Plan and in the number and
kind of shares covered by, and in the option price of outstanding options
under this Plan necessary to maintain the proportionate interest of the
optionee and preserve, without exceeding, the value of such option shall be
made if, and in the same manner as, such adjustments are made to options
issued under the Company's other stock option plans.
(c) 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.
(d) Adjustments. Upon the happening of any of the foregoing events,
-----------
the class and aggregate number of shares set forth in paragraph 2 of this
Plan that are subject to options which previously have been or subsequently
may be granted under this Plan shall also be appropriately adjusted to
reflect such events. The Board shall determine the specific adjustments to
be made under this paragraph 10 and its determination shall be conclusive.
- 4 -
<PAGE>
11. Restrictions on Issuance of Shares. Notwithstanding the provisions
----------------------------------
of paragraphs 4 and 9 of this Plan, the Company shall have no obligation to
deliver any certificate or certificates upon exercise of an option until one of
the following conditions shall be satisfied:
(i) The shares with respect to which the option has been exercised are
at the time of the issue of such shares effectively registered under
applicable Federal and state securities laws as now in force or hereafter
amended; or
(ii) Counsel for the Company shall have given an opinion that such
shares are exempt from registration under Federal and state securities laws
as now in force or hereafter amended; and the Company has complied with all
applicable laws and regulations with respect thereto, including without
limitation all regulations required by any stock exchange upon which the
Company's outstanding Common Stock is then listed.
12. Representation of Optionee. If requested by the Company, the
----------------------------
optionee shall deliver to the Company written representations and warranties
upon exercise of the option that are necessary to show compliance with Federal
and state securities laws, including representations and warranties to the
effect that a purchase of shares under the option is made for investment and not
with a view to their distribution (as that term is used in the Securities Act of
1933).
13. Option Agreement. Each option granted under the provisions of this
----------------
Plan shall be evidenced by an option agreement, which agreement shall be duly
executed and delivered on behalf of the Company and by the optionee to whom such
option is granted. The option agreement shall contain such terms, provisions
and conditions not inconsistent with this Plan as may be determined by the
officer executing it.
14. Termination and Amendment of Plan. Options may no longer be
-------------------------------------
granted under this Plan after December 2, 2002, and this Plan shall terminate
when all options granted or to be granted hereunder are no longer outstanding.
The Board may at any time terminate this Plan or make such modification or
amendment thereof as it deems advisable; provided, however, that the Board may
-------- -------
not, without approval by the affirmative vote of the holders of a majority of
the shares of Common Stock present in person or by proxy and entitled to vote at
the meeting, (a) increase the maximum number of shares for which options may be
granted under this Plan (except by adjustment pursuant to Section 10), (b)
materially modify the requirements as to eligibility to participate in this
Plan, (c) materially increase benefits accruing to option holders under this
Plan, or (d) amend this Plan in any manner which would cause Rule 16b-3 to
become inapplicable to this Plan; and provided further that the provisions of
-------- -------
this Plan specified in Rule 16b-3(c)(2)(ii)(A) (or any successor or amended
provision thereof) under the Securities Exchange Act of 1934 (including without
limitation, provisions as to eligibility, amount, price and timing of awards)
may not be amended more than once every six months, other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder. Termination or any modification or amendment of
this Plan shall not, without consent of a participant, affect his or her rights
under an option previously granted to him or her.
- 5 -
<PAGE>
15. Withholding of Income Taxes. Upon the exercise of an option, the
-----------------------------
Company, in accordance with Section 3402(a) of the Internal Revenue Code, may
require the optionee to pay withholding taxes in respect of amounts considered
to be compensation includible in the optionee's gross income.
16. Compliance with Regulations. It is the Company's intent that the
-----------------------------
Plan comply in all respects with Rule 16b-3 under the Securities Exchange Act of
1934 (or any successor or amended version thereof) and any applicable Securities
and Exchange Commission interpretations thereof. If any provision of this Plan
is deemed not to be in compliance with Rule 16b-3, the provision shall be null
and void.
17. Governing Law. The validity and construction of this Plan and the
--------------
instruments evidencing options shall be governed by the laws of the Commonwealth
of Massachusetts, without giving effect to the principles of conflicts of law
thereof.
Date Approved by Board of
Directors of the Company: December 2, 1992
Date Approved by Stockholders
of the Company: December 10, 1992
- 6 -
<PAGE>
EXHIBIT 4.10
------------
MATHSOFT, INC.
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
--------------------------------------------
MathSoft, Inc. a Massachusetts corporation (the "Company"), hereby grants
as of the __ day of _____, ____ to ____________ (the "Optionee"), an option to
purchase a maximum of [10][20],000 shares of its Common Stock, $.01 par value,
at the price of $_______ per share (the "Option"), on the following terms and
conditions:
1. GRANT UNDER 1992 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN. The Option is
---------------------------------------------------------
granted pursuant to and is governed by the Company's 1992 Non-Employee Director
Stock Option 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. The Option shall be
---------------------------------------------------
treated for federal income tax purposes as a non-qualified stock option and NOT
as an incentive stock option under Section 422A of the Internal Revenue Code of
1986, as amended. The 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. EXTENT OF OPTION. Subject to the provisions of Article 1, the Option is
-----------------
fully exercisable by the Optionee as of the date hereof. The Option may be
exercised up to and including the date which is ten years from the date the
Option is granted.
4. TERMINATION OF DIRECTORSHIP. In the event the Optionee ceases to be a
-----------------------------
director of the Company other than by reason of death at a time when the
Optionee holds the Option, the Optionee may exercise such Option within the
original term of the Option, as to all or any of the shares covered thereby, at
the time or times such exercise is permitted under the terms of this Agreement.
5. DEATH. If the Optionee dies while the Option is exercisable, the 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 beneficially who acquires the Option by will or by
the laws of descent and distribution, at any time prior to the Option's
expiration date specified in this Agreement.
6. PARTIAL EXERCISE. Exercise of the 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 the Option may not be exercised for a fraction of a share.
7. PAYMENT OF PRICE. The option price is payable in United States dollars
------------------
and shall be paid in cash or by check, or any combination of the foregoing,
equal in amount to the option price.
8. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of this
---------------------------
Agreement, the 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 the
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 the Option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the such shares as soon as practicable after the notice shall be received. The
certificate or the certificates for the shares as to which the Option shall have
been so exercised shall be registered in the name of the person or persons so
exercising the Option (or, if the Option shall be exercised by the Optionee and
if the 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
the Option. In the event the 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 the Option. All shares that shall be purchased upon the exercise of
the Option as provided herein shall be fully paid and non-assessable.
<PAGE>
9. OPTION NOT TRANSFERABLE. The 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 the Option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of the
------------------------------------
Option imposes no obligation on the Optionee to exercise it.
11. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have not
------------------------------------------
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 issues.
12. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. It is the purpose of the
--------------------------------------------
Option to encourage the Optionee to serve 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 the 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.
13. PROVISION OF DOCUMENTATION OF OPTIONEE. By signing this Agreement the
----------------------------------------
Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Company's 1992 Non-Employee Director Stock Option Plan.
14. GOVERNING LAW. This Agreement shall be governed by and interpreted in
--------------
accordance with the internal laws of the Commonwealth of Massachusetts.
<PAGE>
IN WITHNESS 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: __________________________
Title: _______________________
<PAGE>
Exhibit 5.1
-----------
September 14, 1999
MathSoft, Inc.
101 Main Street
Cambridge, MA 02142
RE: Registration statement on Form S-8 Relating to the
Amended and Restated 1992 Stock Plan, the 1992 Amended Employee
Stock Purchase Plan and the 1992 Non-Employee Director Plan
------------------------------------------------------------
(the "Plans")
--------------
Dear Sir or Madam:
Reference is made to the above-captioned registration statement on Form S-8
(the "registration statement") filed by MathSoft, Inc. (the "Company") on the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to an aggregate of 1,240,000 shares of Common
Stock, $.01 par value, of the Company issuable pursuant to the Plans (the
"Shares").
We have examined, are familiar with, and have relied as to factual matters
solely upon, copies of the Plans, 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 Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration statement.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
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 report dated February 24, 1999
included in MathSoft, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
----------------------------
ARTHUR ANDERSEN LLP
Boston, Massachusetts
September 14, 1999
<PAGE>
