As filed with the Securities and Exchange Commission on July 30, 1996,
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NATURAL MICROSYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 04-2814586
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
8 Erie Drive
Natick, Massachusetts 01760-1339
(508) 650-1300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
1993 Stock Option Plan
1993 Employee Stock Purchase Plan
1995 Non-Statutory Stock Option Plan
(Full title of plans)
___________
Robert P. Schechter
President and Chief Executive Officer
Natural MicroSystems Corporation
8 Erie Drive
Natick, Massachusetts 01760-1339
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities maximum maximum Amount of
to be Amount to be offering price offering registration
registered registered (1) per share(2) price (2) fee
Common Stock, 790,000
$.01 par value Shares $27.75 $21,922,500 $7,559.49
(1) Plus such additional number of shares as may be required pursuant to the
Plan in the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high and
low prices of the Common Stock as reported on the Nasdaq National Market on
July 24, 1996.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance
with the requirements of Form S-8, as amended. The purpose of
this Registration Statement is to register 790,000 shares of
Common Stock, $.01 par value, of Natural MicroSystems Corporation
(the "Company"); 200,000 of which shares have been reserved for
issuance under the Company's 1995 Non-Statutory Stock Option
Plan, 540,000 of which shares have been reserved for issuance
under the Company's 1993 Stock Option Plan and 50,000 of which
shares have been reserved for issuance under the Company's 1993
Employee Stock Purchase Plan. 190,000 shares issuable under the
1993 Stock Option Plan and 50,000 shares issuable under the
Employee Stock Purchase Plan have previously been registered
pursuant to Registration Statement No. 33-76324.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference
in this Registration Statement:
(a) The Company's Form 10-K for the year ended
December 31, 1995 filed with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(b) The Company's Form 10-Q for the quarter ended
March 31, 1996 filed with the Securities and Exchange
Commission (the "Commission") under the Exchange Act; and
(c) The description of the Company's Common Stock
incorporated by reference in the Company's registration
statement on Form 8-A (SEC File No. 0-23282) filed with the
Commission on January 25, 1994 from the registration
statement on Form S-1 (SEC File No. 33-72596) filed with the
Commission on December 6, 1993.
In addition, all documents filed by the Company after the initial
filing date of this registration statement pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, and prior to the
filing of a post-effective amendment which indicates that all
shares registered hereunder have been sold or which de-registers
all shares then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the shares of Common Stock offered hereby
has been passed upon for the Company by Choate, Hall & Stewart,
(a partnership including professional corporations), 53 State
Street, Exchange Place, Boston, Massachusetts 02109. Richard N.
Hoehn, a partner of the firm, is Secretary of the Company.
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Item 6. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation may indemnify a director,
officer, employee or agent against expenses (including attorneys'
fees), judgments, fines and for amounts paid in settlement in
respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
Article Tenth of the Company's Fourth Restated Certificate
of Incorporation provides that no director of the Company shall
be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law
or (iv) for any transaction from which the director derived an
improper personal benefit. Article Tenth further provides that a
director's personal liability shall be eliminated or limited in
the future to the fullest extent permitted from time to time by
the Delaware General Corporation Law.
Article Eleventh of the Company's Fourth Restated
Certificate of Incorporation provides that the Company shall, to
the fullest extent permitted from time to time under the Delaware
General Corporation Law, indemnify each of its directors and
officers against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in respect of any
action, suit or proceeding in which such director or officer may
be involved or with which he may be threatened, while in office
or thereafter, by reason of his or her actions or omissions in
connection with services to the Company, such indemnification to
include prompt payment of expenses in advance of the final
disposition of any such action, suit or proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
5.1 Opinion of Choate, Hall & Stewart as to the legality of
the shares being registered.
10.1 The Company's 1993 Stock Option Plan (As Amended and
Restated Effective March 8, 1996).
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10.2 Registrant's 1993 Employee Stock Purchase Plan (As
Amended and Restated Effective March 8, 1996).
10.3 Registrant's 1995 Non-Statutory Stock Option Plan.
(As Amended and Restated Effective March 8, 1996).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Choate, Hall & Stewart (included in
Exhibit 5.1).
25.1 Power of Attorney (included in page II-5).
Item 9. Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities
Act"), each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director,
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officer or controlling person of the Company 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 Company will, unless in the
opinion of counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing a Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town
of Natick, Commonwealth of Massachusetts on July 23, 1996.
Natural MicroSystems Corporation
(Issuer and Employer)
By: /s/ Robert P. Schechter
Robert P. Schechter, President
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Robert P.
Schechter, John F. Kennedy and Richard N. Hoehn, jointly and
severally, his true and lawful attorneys-in-fact and agents with
full powers of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below on the dates
indicated by the following persons in the capacities indicated.
Name Capacity Date
/s/ Robert P. Schechter President, Chief Executive 7/23/96
Robert P. Schechter Officer and Director
(Principal Executive Officer)
/s/ John F. Kennedy Chief Financial Officer 7/23/96
John F. Kennedy (Principal Financial Officer)
/s/ David C. Flynn Controller 7/23/96
David C. Flynn (Principal Accounting Officer)
/s/ Charles T. Foskett Director 7/23/96
Charles T. Foskett
/s/ David F. Millet Director 7/23/96
David F. Millet
/s/ Ronald W. White Director 7/23/96
Ronald W. White
/s/ Zenas W. Hutcheson, III Director 7/23/96
Zenas W. Hutcheson, III
/s/ C. William McDaniel Director 7/23/96
C. William McDaniel
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INDEX TO EXHIBITS
Exhibit Number
5.1 Opinion of Choate, Hall & Stewart as to the legality
of the shares being registered.
10.1 The Company's 1993 Stock Option Plan (As Amended
and Restated Effective March 8, 1996).
10.2 Registrant's 1993 Employee Stock Purchase Plan (As
Amended and Restated Effective March 8, 1996).
10.3 Registrant's 1995 Non-Statutory Stock Option Plan
(As Amended and Restated Effective March 8, 1996).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Choate, Hall & Stewart (included in
Exhibit 5.1).
25.1 Power of Attorney (included in page II-5).
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Exhibit 5.1
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617)248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
July 30, 1996
Natural MicroSystems Corporation
8 Erie Drive
Natick, Massachusetts 01760-1339
Gentlemen:
This opinion is delivered to you in connection with the
registration statement on Form S-8 (the "Registration Statement")
to be filed on or about July 30, 1996 by Natural MicroSystems
Corporation (the "Company") under the Securities Act of 1933, as
amended, for registration under said Act of 790,000 shares of
common stock, $.01 par value (the "Common Stock"), of the
Company.
We are familiar with the Company's Certificate of
Incorporation, as amended, its By-Laws, as amended, and the
records of its corporate proceedings. We have also examined such
other documents, records and certificates and made such further
investigation as we have deemed necessary for the purposes of
this opinion.
Based upon and subject to the foregoing, we are of the
opinion that the 790,000 shares of Common Stock to be sold by the
Company under its 1993 Stock Option Plan, its 1993 Employee Stock
Purchase Plan and its 1995 Non-Statutory Stock Option Plan, each
as in effect on the date hereof, when issued against receipt of
the agreed purchase price therefor, will be legally issued, fully
paid and nonassessable.
We understand that this opinion is to be used in connection
with the Registration Statement and consent to the filing of this
opinion as an exhibit to the Registration Statement. We further
consent to the reference to this firm in the section entitled
"Interests of Named Experts and Counsel" in the Registration
Statement.
Very truly yours,
CHOATE, HALL & STEWART
Exhibit 10.1
NATURAL MICROSYSTEMS CORPORATION
1993 STOCK OPTION PLAN
(As Amended and Restated Effective March 8, 1996)
1. PURPOSE
The purpose of this Natural MicroSystems Corporation 1993
Stock Option Plan (the "Plan") is to provide an incentive to
certain key employees of and consultants to Natural MicroSystems
Corporation (the "Company") or any of its subsidiaries by
providing them an opportunity to participate in the ownership of
the Company.
This Plan provides for the grant of incentive stock options,
as defined in Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"), and other ("non-statutory") stock
options to key employees of and consultants to the Company or any
of its subsidiaries. All such incentive stock options and
non-statutory options which may be granted under this Plan are
hereinafter referred to as "Options."
2. ADMINISTRATION OF THE PLAN
This Plan shall be administered by the Board of Directors of
the Company (the "Board"). Subject to the provisions of
Section 15, the Board is authorized to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to
it, and to make all other determinations necessary or advisable
for its administration. The Board shall have the right, at its
discretion, to delegate any and all of its powers hereunder to
the Chief Executive Officer ("CEO") of the Company (excluding, as
to such officer, any power in respect of Options granted or to be
granted to officers of the Company) or to a Committee appointed
by the Board. If the Board delegates its powers to the CEO or a
Committee, in whole or in part, the CEO's or Committee's
determinations with respect thereto shall not be subject to
approval by the Board, and to the extent of such delegation,
references in this Plan to the Board shall be deemed to refer to
the CEO or the Committee.
3. SHARES COVERED BY THE PLAN
Options may be granted under the Plan while the Plan is in
effect for the purchase of not in excess of 730,000 shares of the
Common Stock, $.01 par value ("Common Stock"), of the Company
(subject to adjustment as provided in Section 12 hereof). Shares
covered by unexercised Options which are no longer exercisable
for any reason shall be available for issuance under Options
granted hereunder for purposes of computing the foregoing
limitation unless the Plan has been terminated. Shares delivered
on exercise of Options may be made available from authorized and
unissued Common Stock or from Common Stock held in the Treasury
of the Company. In connection with the grant of any
non-statutory stock option under the Plan, the Board may in its
discretion provide for a cash payment to be made to the person
exercising the Option, at the time of exercise, in such amount as
the Board determines to be appropriate to reimburse such person,
in whole or in part, for any federal or state income taxes
incurred in connection with such exercise. Such payment may be
applied to the satisfaction of any applicable withholding tax
which is incurred in connection with such exercise or with such
payment.
4. ELIGIBILITY
The persons who shall be eligible to receive Options under
the Plan shall be key employees of and consultants to the Company
or any of its subsidiaries. Such persons are hereinafter
referred to as "Eligible Individuals."
5. ALLOTMENT OF OPTIONS AND NUMBER OF SHARES
The allotment of Options among the Eligible Individuals, the
number of shares to be covered by each Option to be granted, and
the designation of Options as either incentive stock options or
non-statutory stock options shall be determined by the Board;
provided, however, that an incentive stock option may be granted
only to an Eligible Individual who is an employee of or
consultant to the Company or a subsidiary.
6. INDIVIDUAL PARTICIPANT LIMITATION
Any other provision of the Plan notwithstanding, the number
of shares of Common Stock for which Options may be granted in any
single fiscal year of the Company to any Eligible Individual
shall not exceed 200,000 shares (the "Individual Limit"). For
purposes of the foregoing limitation, if any Option is cancelled,
the cancelled Option shall continue to be counted against the
Individual Limit; and if after grant the exercise price of an
Option is modified, the transaction shall be treated as the
cancellation of the Option and the grant of a new Option. In any
such case, both the Option that is cancelled and the Option
deemed to be granted shall be counted against the Individual
Limit.
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7. OPTION AGREEMENTS
Each Eligible Individual to whom an Option is granted (an
"Optionee") shall enter into a written agreement with the Company
setting forth the terms and conditions of the Option granted to
him, which agreement may contain such terms, conditions and
restrictions not inconsistent with the terms of the Plan as the
Board shall approve.
8. OPTION PRICE
The price to be paid by an Optionee who exercises an Option
shall be determined by the Board; provided that in no event shall
the price be less than the fair market value of the Common Stock
on the date the Option is granted; and provided that in the case
of an incentive stock option granted to an Eligible Individual
who owns stock representing more than 10% of the voting power of
all classes of stock of the Company or any of its subsidiaries,
the option price shall not be less than 110% of such fair market
value.
9. DURATION AND RATE OF EXERCISE OF OPTIONS
The option period shall be fixed by the Board but in any
event each Option shall by its terms be exercisable no later than
the expiration of ten years from the date the Option is granted;
provided that in the case of an incentive stock option granted to
an Eligible Individual who owns stock representing more than 10%
of the voting power of all classes of stock of the Company or any
of its subsidiaries, the option shall not be exercisable after
the expiration of five years from the date the Option is granted.
The Board shall determine the rate at which each Option
shall be exercisable, provided that in no event shall an Option
be exercisable at a rate greater than 12.50% of the shares under
the Option per quarter.
The Board shall determine the manner in which each Option
shall be exercisable, the timing and form of the purchase price
to be paid by an Optionee upon the exercise of an Option, and any
restrictions to be imposed upon the Common Stock received on
exercise of an Option. To the extent provided in the option
agreement, payment of the purchase price may be entirely in cash,
part in cash and part by personal promissory note or in whole or
in part by the surrender of a whole number of shares of
previously issued Common Stock of the Company. Previously issued
shares of Common Stock shall be accepted as payment in an amount
equal to the then fair market value of the surrendered shares.
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10. NONTRANSFERABILITY OF OPTIONS
Each Option granted under the Plan to any Eligible
Individual shall by its terms not be transferable by him
otherwise than by will or the laws of descent and distribution,
and shall be exercisable during his lifetime only by him.
11. RIGHTS AS A STOCKHOLDER
An Optionee shall have no rights as a stockholder with
respect to any shares covered by his Options until he shall have
become the holder of record of such shares, and no adjustment
shall be made, except adjustments pursuant to Section 12 hereof,
for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights in
respect of such shares for which the record date is prior to the
date on which he shall have become the holder of record thereof.
12. EFFECT OF CHANGE IN STOCK SUBJECT TO THE PLAN
In the event there is any change in the shares of Common
Stock of the Company through the declaration of stock dividends
or through recapitalizations resulting in stock subdivisions or
combinations or exchanges of shares or otherwise, the number of
shares available for Option, the exercise price of outstanding
Options, and the number of shares subject to any Option shall be
appropriately adjusted by the Board.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the
surviving corporation, or if the Company is liquidated or sells
or otherwise disposes of substantially all of its assets to
another corporation while unexercised Options remain outstanding,
(i) subject to the provisions of clauses (iii) and (iv) below,
after the effective date of such merger, consolidation or sale,
as the case may be, each holder of an outstanding Option shall be
entitled, upon exercise of such Option, to receive in lieu of
shares of Common Stock, shares of such stock or other securities
as the holders of shares of Common Stock received pursuant to the
terms of the merger, consolidation or sale; or (ii) the Board may
waive any discretionary limitations imposed pursuant to Section 9
hereof so that all Options from and after a date prior to the
effective date of such merger, consolidation, liquidation or
sale, as the case may be, specified by the Board, shall be
exercisable in full; or (iii) all outstanding Options may be
cancelled by the Board as of the effective date of any such
merger, consolidation, liquidation or sale provided that notice
of such cancellation shall be given to each holder of an Option,
and each holder of an Option shall have the right to exercise
such Option in full (without regard to any discretionary
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limitations imposed pursuant to Section 9 hereof) during a 30-day
period preceding the effective date of such merger,
consolidation, liquidation or sale; or (iv) all outstanding
Options may be cancelled by the Board as of the date of any such
merger, consolidation, liquidation or sale provided that notice
of such cancellation shall be given to each holder of an Option,
and each holder of an Option shall have the right to exercise
such Option but only to the extent exercisable in accordance with
any discretionary limitations imposed pursuant to Section 9 prior
to the effective date of such merger, consolidation, liquidation
or sale.
13. GRANT OF OPTIONS IN CONNECTION WITH CERTAIN ACQUISITIONS
The Board may grant Options under the Plan in substitution
for incentive stock options or non-statutory stock options
granted under plans of other employers, if such grant occurs by
reason of a corporate merger, consolidation, separation,
reorganization, or liquidation to which the Company is a party,
or by reason of the acquisition of property or stock of another
corporation by the Company; provided that, with respect to any
incentive stock option, such transaction is a transaction to
which Section 424(a) of the Code applies. The Board may impose
such terms and conditions upon the grant of any incentive stock
option under this Section 13 as are necessary to ensure that the
substitution will not constitute a modification of the Option
under Section 424(h) of the Code, even though any such term or
condition would otherwise be inconsistent with the provisions of
this Plan. Options granted under the provisions of this
Section 13 may be granted at a price less than the fair market
value of the Common Stock on the date such Option is granted, so
long as the ratio of the option price to the fair market value of
the Common Stock is no more favorable to the Optionee than the
ratio of the option price to the fair market value of the stock
subject to the old option immediately before such substitution.
Except as otherwise specifically provided in the agreement
setting forth the terms and conditions of such an Option, the
provisions of this Plan shall govern any options granted under
this Section 13. Nothing in this Section 13 shall be deemed to
authorize the grant of Options under the Plan for a number of
shares in excess of the number set forth in Section 3, nor to
limit in any way the authority of the Board to grant substituted
options in connection with such transactions other than under the
Plan.
14. USE OF PROCEEDS
The proceeds received by the Company from the sale of Common
Stock pursuant to the Plan may be used for general corporate
purposes.
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15. AMENDMENT AND DISCONTINUANCE
The Board may from time to time alter or suspend and at any
time discontinue the Plan. However, no action of the Board may
alter or impair an Optionee's rights under any outstanding Option
previously granted under the Plan, without the consent of the
holder of the Option.
16. EFFECTIVE DATE AND TERMINATION DATE
The Plan shall become effective and shall be deemed to have
been adopted on October 22, 1993, the date of its adoption by the
Board. The stockholders of the Company approved the Plan on
January 13, 1994. Any amendment to the Plan for which
stockholder approval is sought shall become effective as of the
date of the adoption of such amendment by the Board, subject to
such stockholder approval within 12 months of such date. The
Plan shall remain in effect until terminated by the Board, but
not later than ten years after the date the Plan is initially
adopted by the Board, or is approved by the stockholders,
whichever first occurs.
____________
Adopted by the Board of Directors on October 22, 1993, with
the approval of the stockholders on January 13, 1994. Amended by
the Board of Directors on March 17, 1995, with the approval of
the stockholders on April 21, 1995. Amended by the Board of
Directors on March 8, 1996, with the approval of the stockholders
on May 3, 1996.
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Exhibit 10.2
NATURAL MICROSYSTEMS CORPORATION
1993 EMPLOYEE STOCK PURCHASE PLAN
(As Amended and Restated Effective March 8, 1996)
______________________
l. PURPOSE
The purpose of this Employee Stock Purchase Plan (the
"Plan") is to provide employees of Natural MicroSystems
Corporation, a Delaware corporation (the "Company"), and its
subsidiaries, an opportunity to purchase Common Stock, $.01 par
value, of the Company (the "Shares"). The Plan is intended to
qualify as an "employee stock purchase plan" within the meaning
of Section 423 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. ADMINISTRATION OF THE PLAN
The Board of Directors or any committee or persons to whom
it delegates its authority (the "Administrator") shall
administer, interpret and apply all provisions of the Plan. The
Administrator may waive such provisions of the Plan as it deems
necessary to meet special circumstances not anticipated or
covered expressly by the Plan. Nothing contained in this Section
shall be deemed to authorize the Administrator to alter or
administer the provisions of the Plan in a manner inconsistent
with the provisions of Section 423 of the Code. No member of the
Administrator shall be liable for any action or determination
made in good faith with respect to the Plan or any right granted
under it.
3. ELIGIBLE EMPLOYEES
Subject to the provisions of Sections 8, 9 and 10 below, any
individual who is in the full-time employment (as defined below)
of the Company, or any of its subsidiaries (as defined in Section
424(f) of the Code) the employees of which are designated by the
Board of Directors as eligible to participate in the Plan, is
eligible to participate in any Offering of Shares (as defined in
Section 4 below) made by the Company hereunder. Full-time
employment shall include all employees whose customary employment
is:
(a) in excess of 20 hours per week; and
(b) more than five months in the relevant calendar year.
4. OFFERING DATES
From time to time the Company, by action of the Board of
Directors, will grant rights to purchase Shares to employees
eligible to participate in the Plan pursuant to one or more
offerings (each of which is an "Offering") on a date or series of
dates (each of which is an "Offering Date") designated for this
purpose by the Board of Directors.
5. PRICES
The price per share for each grant of rights hereunder shall
be the lesser of:
(a) eighty-five percent (85%) of the fair market value of a
Share on the Offering Date on which such right was
granted; or
(b) eighty-five percent (85%) of the fair market value of a
Share on the date such right is exercised. At its
discretion, the Board of Directors may determine a
higher price for a grant of rights.
For purposes of this Plan, the term "fair market value" on
any date means shall mean (i) the average (on that date) of
the high and low prices for shares of the Common Stock on
the principal national securities exchange on which the
Common Stock are traded, if the Common Stock is then listed
on a national securities exchange; or (ii) the last reported
sale price (on that date) of shares of the Common Stock on
NASDAQ if the Common Stock is not then listed on a national
securities exchange; or, if not so reported or listed, (iii)
the closing bid price (or average of bid prices) last quoted
(on that date) of shares of the Common Stock on the
over-the-counter market. If the Company's Common Stock is
not publicly traded at the time a right is granted under
this Plan, "fair market value" shall mean the fair market
value of shares of the Common Stock as determined by the
Administrator after taking into consideration all factors
which it deems appropriate, including, without limitation,
recent sale and offer prices of shares of the Common Stock
in private transactions negotiated at arm's length.
6. EXERCISE OF RIGHTS AND METHOD OF PAYMENT
(a) Rights granted under the Plan will be exercisable
periodically on specified dates as determined by the
Board of Directors.
(b) The method of payment for Shares purchased upon
exercise of rights granted hereunder shall be through
regular payroll deductions or by lump sum cash payment,
2
or both, as determined by the Board of Directors. No
interest shall be paid upon payroll deductions unless
specifically provided for by the Board of Directors.
(c) Any payments received by the Company from a
participating employee and not utilized for the
purchase of Shares upon exercise of a right granted
hereunder shall be promptly returned to such employee
by the Company after termination of the right to which
the payment relates.
7. TERM OF RIGHTS
Rights granted on any Offering Date shall be exercisable
upon the expiration of such period ("Offering Period") as shall
be determined by the Board of Directors when it authorizes the
Offering, provided that such Offering Period shall in no event be
longer than twenty-seven (27) months.
8. SHARES COVERED BY THE PLAN
No more than 100,000 Shares may be sold pursuant to rights
granted under the Plan; provided, however, that appropriate
adjustment shall be made in such number, in the number of Shares
covered by outstanding rights granted hereunder, in the exercise
price of the rights and in the maximum number of Shares which an
employee may purchase (pursuant to Section 9 below) to give
effect to any mergers, consolidations, reorganizations,
recapitalizations, stock splits, stock dividends or other
relevant changes in the capitalization of the Company occurring
after the effective date of the Plan, provided that no fractional
Shares shall be subject to a right and each right shall be
adjusted downward to the nearest full Share. Any agreement of
merger or consolidation will include provisions for protection of
the then existing rights of participating employees under the
Plan. Either authorized and unissued Shares or issued Shares
heretofore or hereafter reacquired by the Company may be made
subject to rights under the Plan. If for any reason any right
under the Plan terminates in whole or in part, Shares subject to
such terminated right may again be subjected to a right under the
Plan.
9. LIMITATIONS ON GRANTS
(a) No employee shall be granted a right hereunder if such
employee, immediately after the right is granted, would
own stock or rights to purchase 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
any subsidiary, computed in accordance with Sections
423(b)(3) and 424(d) of the Code.
3
(b) No employee shall be granted a right which permits his
right to purchase shares under all employee stock
purchase plans of the Company and its subsidiaries to
accrue at a rate which exceeds twenty-five thousand
dollars ($25,000) (or such other maximum as may be
prescribed from time to time by the Code) of the fair
market value of such Shares (determined at the time
such right is granted) for each calendar year in which
such right is outstanding at any time in accordance
with the provisions of Section 423(b)(8) of the Code.
(c) No right granted to any participating employee under a
single Offering shall cover more shares than may be
purchased at an exercise price equal to 10% of the
compensation payable to the employee during the
Offering not taking into consideration any changes in
the employee's rate of compensation after the date the
employee elects to participate in the Offering, or such
other percentage as determined by the Board of
Directors from time to time.
10. LIMIT ON PARTICIPATION
Participation in an Offering shall be limited to eligible
employees who elect to participate in such Offering in the
manner, and within the time limitation, established by the Board
of Directors when it authorizes the offering.
11. CANCELLATION OF ELECTION TO PARTICIPATE
An employee who has elected to participate in an Offering
may, unless the employee has waived this cancellation right at
the time of such election in a manner established by the Board of
Directors, cancel such election as to all (but not part) of the
rights granted under such Offering by giving written notice of
such cancellation to the Company before the expiration of the
Offering Period. Any amounts paid by the employee for the Shares
or withheld for the purchase of Shares from the employee's
compensation through payroll deductions shall be paid to the
employee, without interest, upon such cancellation.
12. TERMINATION OF EMPLOYMENT
Upon termination of employment for any reason, including the
death of the employee, before the date on which any rights
granted under the Plan are exercisable, all such rights shall
immediately terminate and amounts paid by the employee for the
Shares or withheld for the purchase of Shares from the employee's
compensation through payroll deductions shall be paid to the
employee or to the employee's estate, without interest.
4
13. EMPLOYEE'S RIGHTS AS STOCKHOLDER
No participating employee shall have any rights as a
stockholder in the Shares covered by a right granted hereunder
until such right has been exercised, full payment has been made
for the corresponding Shares and the Share certificate is
actually issued.
14. RIGHTS NOT TRANSFERABLE
Rights under the Plan are not assignable or transferable by
a participating employee and are exercisable only by the
employee.
15. 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 right showing the number of such shares disposed of.
THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE
PRICE OF THE STOCK.
16. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN
The Board of Directors may at any time terminate or amend
this Plan without notice and without further action on the part
of stockholders of the Company, provided that no such termination
or amendment shall adversely affect the then existing rights of
any participating employee.
17. EFFECTIVE DATE AND APPROVALS
The Plan is being adopted by the Board of Directors on
October 22, 1993 to become effective as of said date. The Plan
was approved by the stockholders on January 13, 1994. The
Company's obligation to offer, sell and deliver its Shares under
the Plan is subject to the approval of any governmental authority
required in connection with the authorized issuance or sale of
such Shares and is further subject to the Company receiving the
opinion of its counsel that all applicable securities laws have
been complied with.
18. TERM OF PLAN. No rights shall be granted under the Plan
after October 22, 2003.
Amended by the Board of Directors on March 8, 1996, with the
approval of the stockholders on May 3, 1996.
5
Exhibit 10.3
NATURAL MICROSYSTEMS CORPORATION
1995 NON-STATUTORY STOCK OPTION PLAN
(As Amended and Restated Effective March 8, 1996)
1. PURPOSE
The purpose of this Natural MicroSystems Corporation 1995
Non-Statutory Stock Option Plan (the "Plan") is to provide an
incentive to certain employees (other than executive officers,
who are not eligible to participate in the Plan) of and
consultants to Natural MicroSystems Corporation (the "Company")
or any of its subsidiaries by providing them an opportunity to
participate in the ownership of the Company.
This Plan provides for the grant of non-statutory stock
options (i.e., stock options which are not intended to qualify as
incentive stock options as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code")) to non-executive
officer employees of and consultants to the Company or any of its
subsidiaries. All such stock options which may be granted under
this Plan are hereinafter referred to as "Options."
2. ADMINISTRATION OF THE PLAN
This Plan shall be administered by the Board of Directors of
the Company (the "Board"). Subject to the provisions of
Section 14, the Board is authorized to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to
it, and to make all other determinations necessary or advisable
for its administration. The Board shall have the right, at its
discretion, to delegate any and all of its powers hereunder to
the Chief Executive Officer ("CEO") of the Company (excluding, as
to such officer, any power in respect of Options granted or to be
granted to officers of the Company) or to a Committee appointed
by the Board. If the Board delegates its powers to the CEO or a
Committee, in whole or in part, the CEO's or Committee's
determinations with respect thereto shall not be subject to
approval by the Board, and to the extent of such delegation,
references in this Plan to the Board shall be deemed to refer to
the CEO or the Committee.
3. SHARES COVERED BY THE PLAN
Options may be granted under the Plan while the Plan is in
effect for the purchase of not in excess of 200,000 shares of the
Common Stock, $.01 par value ("Common Stock"), of the Company
(subject to adjustment as provided in Section 11 hereof). Shares
covered by unexercised Options which are no longer exercisable
for any reason shall be available for issuance under Options
granted hereunder for purposes of computing the foregoing
limitation unless the Plan has been terminated. Shares delivered
on exercise of Options may be made available from authorized and
unissued Common Stock or from Common Stock held in the Treasury
of the Company. In connection with the grant of any Option under
the Plan, the Board may in its discretion provide for a cash
payment to be made to the person exercising the Option, at the
time of exercise, in such amount as the Board determines to be
appropriate to reimburse such person, in whole or in part, for
any federal or state income taxes incurred in connection with
such exercise. Such payment may be applied to the satisfaction
of any applicable withholding tax which is incurred in connection
with such exercise or with such payment.
4. ELIGIBILITY
The persons who shall be eligible to receive Options under
the Plan shall be non-executive officer employees of and
consultants to the Company or any of its subsidiaries. Such
persons are hereinafter referred to as "Eligible Individuals."
5. ALLOTMENT OF OPTIONS AND NUMBER OF SHARES
The allotment of Options among the Eligible Individuals, the
number of shares to be covered by each Option to be granted shall
be determined by the Board.
6. OPTION AGREEMENTS
Each Eligible Individual to whom an Option is granted (an
"Optionee") shall enter into a written agreement with the Company
setting forth the terms and conditions of the Option granted to
him, which agreement may contain such terms, conditions and
restrictions not inconsistent with the terms of the Plan as the
Board shall approve.
7. OPTION PRICE
The price to be paid by an Optionee who exercises an Option
shall be determined by the Board; provided that in no event shall
the price be less than the fair market value of the Common Stock
on the date the Option is granted.
-2-
8. DURATION AND RATE OF EXERCISE OF OPTIONS
The option period shall be fixed by the Board but in any
event each Option shall by its terms be exercisable no later than
the expiration of ten years from the date the Option is granted.
The Board shall determine the rate at which each Option shall be
exercisable, provided that in no event shall an Option be
exercisable at a rate greater than 12.50% of the shares under the
Option per quarter.
The Board shall determine the manner in which each Option
shall be exercisable, the timing and form of the purchase price
to be paid by an Optionee upon the exercise of an Option, and any
restrictions to be imposed upon the Common Stock received on
exercise of an Option. To the extent provided in the option
agreement, payment of the purchase price may be entirely in cash,
part in cash and part by personal promissory note or in whole or
in part by the surrender of a whole number of shares of
previously issued Common Stock of the Company. Previously issued
shares of Common Stock shall be accepted as payment in an amount
equal to the then fair market value of the surrendered shares.
9. NONTRANSFERABILITY OF OPTIONS
Each Option granted under the Plan to any Eligible
Individual shall by its terms not be transferable by him
otherwise than by will or the laws of descent and distribution,
and shall be exercisable during his lifetime only by him.
10. RIGHTS AS A STOCKHOLDER
An Optionee shall have no rights as a stockholder with
respect to any shares covered by his Options until he shall have
become the holder of record of such shares, and no adjustment
shall be made, except adjustments pursuant to Section 11 hereof,
for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights in
respect of such shares for which the record date is prior to the
date on which he shall have become the holder of record thereof.
11. EFFECT OF CHANGE IN STOCK SUBJECT TO THE PLAN
In the event there is any change in the shares of Common
Stock of the Company through the declaration of stock dividends
or through recapitalizations resulting in stock subdivisions or
combinations or exchanges of shares or otherwise, the number of
shares available for Option, the exercise price of outstanding
Options, and the number of shares subject to any Option shall be
appropriately adjusted by the Board.
-3-
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the
surviving corporation, or if the Company is liquidated or sells
or otherwise disposes of substantially all of its assets to
another corporation while unexercised Options remain outstanding,
(i) subject to the provisions of clauses (iii) and (iv) below,
after the effective date of such merger, consolidation or sale,
as the case may be, each holder of an outstanding Option shall be
entitled, upon exercise of such Option, to receive in lieu of
shares of Common Stock, shares of such stock or other securities
as the holders of shares of Common Stock received pursuant to the
terms of the merger, consolidation or sale; or (ii) the Board may
waive any discretionary limitations imposed pursuant to Section 8
hereof so that all Options from and after a date prior to the
effective date of such merger, consolidation, liquidation or
sale, as the case may be, specified by the Board, shall be
exercisable in full; or (iii) all outstanding Options may be
cancelled by the Board as of the effective date of any such
merger, consolidation, liquidation or sale provided that notice
of such cancellation shall be given to each holder of an Option,
and each holder of an Option shall have the right to exercise
such Option in full (without regard to any discretionary
limitations imposed pursuant to Section 8 hereof) during a 30-day
period preceding the effective date of such merger,
consolidation, liquidation or sale; or (iv) all outstanding
Options may be cancelled by the Board as of the date of any such
merger, consolidation, liquidation or sale provided that notice
of such cancellation shall be given to each holder of an Option,
and each holder of an Option shall have the right to exercise
such Option but only to the extent exercisable in accordance with
any discretionary limitations imposed pursuant to Section 8 prior
to the effective date of such merger, consolidation, liquidation
or sale.
12. GRANT OF OPTIONS IN CONNECTION WITH CERTAIN ACQUISITIONS
The Board may grant Options under the Plan in substitution
of stock options granted under plans of other employers, if such
grant occurs by reason of a corporate merger, consolidation,
separation, reorganization, or liquidation to which the Company
is a party, or by reason of the acquisition of property or stock
of another corporation by the Company.
13. USE OF PROCEEDS
The proceeds received by the Company from the sale of Common
Stock pursuant to the Plan may be used for general corporate
purposes.
-4-
14. AMENDMENT AND DISCONTINUANCE
The Board may from time to time alter or suspend and at any
time discontinue the Plan. However, no action of the Board may
alter or impair an Optionee's rights under any outstanding Option
previously granted under the Plan, without the consent of the
holder of the Option.
15. EFFECTIVE DATE AND TERMINATION DATE
The Plan shall become effective and shall be deemed to have
been adopted on October 27, 1995, the date of its adoption by the
Board. The Plan shall remain in effect until terminated by the
Board, but not later than October 26, 2005.
Amended by the Board of Directors on March 8, 1996.
-5-
Exhibit 23.1
AUDITOR'S CONSENT
The Board of Directors
Natural MicroSystems Corporation
We consent to incorporation by reference in this registration
statement on Form S-8 of Natural MicroSystems Corporation of our
report dated January 22, 1996, relating to the consolidated
balance sheets of the Natural MicroSystems Corporation as of
December 31, 1995 and 1994 and the related consolidated
statements of operations, stockholders' equity, and cash flow for
each of the years in the three-year period ended December 31,
1995, and all related schedules, which report appears in the
December 31, 1995 annual report on Form 10-K of Natural
MicroSystems Corporation.
KPMG PEAT MARWICK LLP
Boston, MA
July 24, 1996
