As filed with the Securities and Exchange Commission on September 15, 1998.
Registration No. 333-
- --------------------------------------------------------------------------------
SECUR1TIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MICRO-INTEGRATION CORP.
(Exact name of registrant as specified in its charter)
Delaware 06-1204847
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Science Park
Frostburg, Maryland 21532
(Address of Principal (Zip Code)
Executive Offices)
Amended and Restated 1994 Stock Plan of Micro-Integration Corp.
(Full title of the plan) Copy to:
JOHN A. PARSONS KEITH J. MENDELSON, ESQ.
President and Chairman Pillsbury Madison & Sutro LLP
of the Board of Directors 1100 New York Avenue, NW
Micro-Integration Corp. Ninth Floor East Tower
One Science Park Washington, DC 20005
Frostburg, Maryland 21532 (202) 861-3000
(301) 689-0800
(Name, address and telephone
number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Amount of
securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered Per Share(2) Offering Price(1) Fee(3)
<S> <C> <C> <C> <C>
Common Stock 150,000 $.625 $93,750 $27.66
</TABLE>
(1) Consists of 150,000 additional shares being registered pursuant to the
Amended and Restated 1994 Stock Plan of Micro Integration Corp.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices as reported on the Nasdaq
National Market on September 10, 1998.
(3) The Registration Fee has been calculated pursuant to Rule 457(h) under the
Securities Act of 1933.
----------
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
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<PAGE>
INFORMATION REQUIRED PURSUANT TO
GENERAL INSTRUCTION E TO FORM S-8
General Instruction E Information
This Registration Statement is being filed for the purpose of increasing
the number of securities of the same class as other securities for which a
Registration Statement of the Registrant on Form S-8 relating to the same
employee benefit plan is effective.
The Registrant's Form S-8 Registration Statements filed with the Securities
and Exchange Commission on April 28, 1995, File No. 33-91724, is hereby
incorporated by reference.
Incorporation of Documents by Reference
The following documents filed by Registrant with the Securities and Exchange
Commission are incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-KSB (File No. 000-23710) for the
fiscal year ended March 31, 1998, which contains, among other things, the
consolidated financial statements of Registrant and certain supplementary data
for the fiscal year ended March 31, 1998 together with the report thereon of
Ernst & Young LLP, independent auditors.
(2) The Registrant's Quarterly Report on Form 10-QSB (File No. 000-23710) for
the quarter ended June 30, 1998.
(3) The Registrant's Current Report on Form 8-K filed April 15, 1998.
(4) The description of Registrant's common stock contained in the Registrant's
Registration Statement on Form 8-A, filed on March 23, 1994.
In addition, all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
INDEX TO EXHIBITS
Exhibit
Number Exhibit
4.1 Amended and Restated 1994 Stock Plan (filed herewith).
5.1 Opinion of Pillsbury Madison & Sutro LLP (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
2
<PAGE>
24.1 Power of Attorney (included on page 3).
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, "hereunto duly
authorized, in the City of Frostburg, State of Maryland, on September 15, 1998.
MICRO-INTEGRATION CORP.
By /s/ JOHN A. PARSONS
-------------------
John A. Parsons
President and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John A. Parsons, his true and lawful
attorney-in-fact and agents with full power of substitution and resubstitution,
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 exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JOHN A. PARSONS President, Chairman of the Board of September 15, 1998
---------------------------
John A. Parsons Directors and Director
/s/ TERRY D. FROST Vice President and Chief Financial September 15, 1998
---------------------------
Terry D. Frost Officer
/s/ MAXWELL F. EVELETH Director September 15, 1998
---------------------------
Maxwell F. Eveleth, Jr.
/s/ W. BRAUN JONES, JR. Director September 15, 1998
---------------------------
W. Braun Jones, Jr.
/s/ WAYNE M. LEE Director September 15, 1998
</TABLE>
4
<PAGE>
Wayne M. Lee
---------------------------
5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
4.1 Amended and Restated 1994 Stock Plan (filed herewith).
5.1 Opinion of Pillsbury Madison & Sutro LLP (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 3).
6
EXHIBIT 4.1
AMENDED AND RESTATED
1994 STOCK PLAN
OF
MICRO-INTEGRATION CORP.
SECTION 1. ESTABLISHMENT AND PURPOSE.
The Plan was established on March 21, 1994, effective April 1, 1994, to
offer directors and selected employees, advisors and consultants an opportunity
to acquire a proprietary interest in the success of the Company, or to increase
such interest, by purchasing Shares of the Company's Common Stock. The Plan
provides both for the direct award or sale of Shares and for the grant of
Options to purchase Shares. Options granted under the Plan may include
Nonstatutory Options as well as ISOs intended to qualify under section 422 of
the Code.
The Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act and shall be construed accordingly.
SECTION 2. DEFINITIONS.
(a) "Board of Directors" shall mean the Board of Directors of the Company,
as constituted from time to time.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean a committee of the Board of Directors, as
described in Section 3(a).
(d) "Company" shall mean Micro-Integration Corp., a Delaware corporation.
(e) "Employee" shall mean (i) any individual who is a common-law employee
of the Company or of a Subsidiary, (ii) an Outside Director and (iii) an
independent contractor who performs services for the Company or a Subsidiary and
who is not a member of the Board of Directors. Service as an Outside Director or
independent contractor shall be considered employment for all purposes of the
Plan, except as provided in Subsections (a) and (b) of Section 4.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(h) "Fair Market Value" shall mean the market price of Stock, determined by
the Committee as follows:
(i) If Stock was traded on a stock exchange on the date in question, then
the Fair Market Value shall be equal to the closing price reported for such date
by the applicable composite-transactions report;
7
<PAGE>
(ii) If Stock was traded over-the-counter on the date in question and was
traded on the Nasdaq system or the Nasdaq National Market, then the Fair Market
Value shall be equal to the last-transaction price quoted for such date by the
Nasdaq system or the Nasdaq National Market;
(iii) If Stock was traded over-the-counter on the date in question but was
not traded on the Nasdaq system or the Nasdaq National Market, then the Fair
Market Value shall be equal to the mean between the last reported representative
bid and asked prices quoted for such date by the principal automated
inter-dealer quotation system on which Stock is quoted or, if the Stock is not
quoted on any such system, by the "Pink Sheets" published by the National
Quotation Bureau, Inc.; and
(iv) If none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on such basis as
it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall
be conclusive and binding on all persons.
(i) "ISO" shall mean an employee incentive stock option described in
section 422(b) of the Code.
(j) "Nonstatutory Option" shall mean an employee stock option not described
in sections 422(b) or 423(b) of the Code.
(k) "Offeree" shall mean an individual to whom the Committee has offered
the right to acquire Shares under the Plan (other than upon exercise of an
Option).
(l) "Option" shall mean an ISO or Nonstatutory Option granted under the
Plan and entitling the holder to purchase Shares.
(m) "Optionee" shall mean an individual who holds an Option.
(n) "Outside Director" shall mean a member of the Board of Directors who is
not a common-law employee of the Company or of a Subsidiary.
(o) "Plan" shall mean this Amended and Restated 1994 Stock Plan of
Micro-Integration Corp.
(p) "Purchase Price" shall mean the consideration for which one Share may
be acquired under the Plan (other than upon exercise of an Option), as specified
by the Committee.
(q) "Service" shall mean service as an Employee.
(r) "Share" shall mean one share of Stock, as adjusted in accordance with
Section 9 (if applicable).
(s) "Stock" shall mean the Common Stock of the Company.
(t) "Stock Option Agreement" shall mean the agreement between the Company
and an Optionee which contains the terms, conditions and restrictions pertaining
to his or her Option.
(u) "Stock Purchase Agreement" shall mean the agreement between the Company
and an Offeree who acquires Shares under the Plan which contains the terms,
conditions and restrictions pertaining to the acquisition of such Shares.
8
<PAGE>
(v) "Subsidiary" shall mean any corporation, if the Company and/or one or
more other Subsidiaries own not less than 50 percent of the total combined
voting power of all classes of outstanding stock of such corporation. A
corporation that attains the status of a Subsidiary on a date after the adoption
of the Plan shall be considered a Subsidiary commencing as of such date.
(w) "Total and Permanent Disability" shall mean that the Optionee is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than one year.
SECTION 3. ADMINISTRATION.
(a) Committee Membership. The Plan shall be administered by the Committee.
The "Committee" shall mean the full Board of Directors and/or a committee
designated by the Board of Directors, which is authorized to administer the Plan
under this Section. The Committee's membership shall enable the Plan to qualify
under Rule 16b-3 with regard to the grant of Shares and Options under the Plan
to persons who are subject to Section 16 of the Exchange Act. Subject to the
requirements of applicable law, the Committee may designate persons other than
members of the Committee to carry out its responsibilities and may prescribe
such conditions and limitations as it may deem appropriate, except that the
Committee may not delegate its authority with regard to the selection for
participation of or the granting of Shares or Options under the Plan to persons
subject to Section 16 of the Exchange Act.
(b) Committee Procedures. The Committee shall designate one of its members
as chairman. The Committee may hold meetings at such times and places as it
shall determine. The acts of a majority of the Committee members present at
meetings at which a quorum exists, or acts reduced to or approved in writing by
all Committee members, shall be valid acts of the Committee.
(c) Committee Responsibilities. Subject to the provisions of the Plan, the
Committee shall have full authority and discretion to take the following
actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating to the
Plan;
(iii) To authorize any person to execute, on behalf of the Company, any
instrument required to carry out the purposes of the Plan;
(iv) To determine when Shares are to be awarded or offered for sale and
when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each Offeree or to
be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or sale of
Shares, including (without limitation) the Purchase Price, and to specify the
provisions of the Stock Purchase Agreement relating to such award or sale;
9
<PAGE>
(viii) To prescribe the terms and conditions of each Option, including
(without limitation) the Exercise Price, to determine whether such Option is to
be classified as an ISO or as a Nonstatutory Option, and to specify the
provisions of the Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or Stock Option
Agreement, subject to applicable legal restrictions and, to the extent such
amendments adverse to the Offeree's or Optionee's interest, to the consent of
the Offeree or Optionee who entered into such agreement;
(x) To prescribe the consideration for the grant of each Option or other
right under the Plan and to determine the sufficiency of such consideration; and
(xi) To take any other actions deemed necessary or advisable for the
administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Offerees, all Optionees, and all persons deriving their
rights from an Offeree or Optionee. No member of the Committee shall be liable
for any action that he or she has taken or has failed to take in good faith with
respect to the Plan, any Option, or any right to acquire Shares under the Plan.
SECTION 4. ELIGIBILITY.
(a) General Rules. Only Employees (including, without limitation,
independent contractors who are not members of the Board of Directors) shall be
eligible for designation as Optionees or Offerees by the Committee. In addition,
only Employees who are common-law employees of the Company or a Subsidiary shall
be eligible for the grant of ISOs. Employees who are Outside Directors shall
only be eligible for the grant of the Nonstatutory Options described in
Subsection (b) below.
(b) Outside Directors. Any other provision of the Plan notwithstanding, the
participation of Outside Directors in the Plan shall be subject to the following
restrictions:
(i) Outside Directors shall receive no grants other than the Nonstatutory
Options described in this Subsection (b).
(ii) Each Outside Director who first becomes a member of the Board of
Directors after the effective date of the Company's registration statement on
Form 8-A under the Exchange Act shall receive a one-time grant of a Nonstatutory
Option covering 3,000 Shares (subject to adjustment under Article 9). Such
Nonstatutory Option shall be granted on the date when such Outside Director
first joins the Board of Directors and shall become exercisable ratably over a
four-year period.
(iii) Upon the conclusion of each regular annual meeting of the Company's
stockholders, each Outside Director who will continue serving as a member of the
Board of Directors thereafter shall receive a Nonstatutory Option covering 1,000
Shares (subject to adjustment under Article 9), except that such Nonstatutory
Option shall not be granted in the calendar year in which the same Outside
Director received the Nonstatutory Option described in Paragraph (ii) above.
Nonstatutory Options granted under this Paragraph (iii) shall become exercisable
in full on the first anniversary of the date of grant.
(iv) All Nonstatutory Options granted to an Outside Director under this
Subsection (b) shall also become exercisable in full in the event of the
termination of such Outside Director's service because of death, Total and
Permanent Disability or voluntary retirement at or after age 65.
10
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(v) The Exercise Price under all Nonstatutory Options granted to an Outside
Director under this Subsection (b) shall be equal to 100 percent of the Fair
Market Value of a Share on the date of grant, payable in one of the forms
described in Subsection (a), (b), (c) or (d) of Section 8.
(vi) All Nonstatutory Options granted to an Outside Director under this
Subsection (b) shall terminate on the earliest of (A) the 10th anniversary of
the date of grant, (B) the date three months after the termination of such
Outside Director's service for any reason other than death or Total and
Permanent Disability or (C) the date 12 months after the termination of such
Outside Director's service because of death or Total and Permanent Disability.
The Committee may provide that the Nonstatutory Options that otherwise would be
granted to an Outside Director under this Subsection (b) shall instead be
granted to an affiliate of such Outside Director. Such affiliate shall then be
deemed to be an Outside Director for purposes of the Plan, provided that the
service-related vesting and termination provisions pertaining to the
Nonstatutory Options shall be applied with regard to the service of the Outside
Director.
(c) Ten-Percent Stockholders. An Employee who owns more than 10 percent of
the total combined voting power of all classes of outstanding stock of the
Company or any of its Subsidiaries shall not be eligible for the grant of an ISO
unless (i) the Exercise Price is at least 110 percent of the Fair Market Value
of a Share on the date of grant and (ii) such ISO by its terms is not
exercisable after the expiration of five years from the date of grant.
(d) Attribution Rules. For purposes of Subsection (c) above, in determining
stock ownership, an Employee shall be deemed to own the stock owned, directly or
indirectly, by or for such Employee's brothers, sisters, spouse, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(e) Outstanding Stock. For purposes of Subsection (c) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant. "Outstanding stock" shall not include shares authorized for issuance
under outstanding options held by the Employee or by any other person.
SECTION 5. STOCK SUBJECT TO PLAN.
(a) Basic Limitation. Shares offered under the Plan shall be authorized but
unissued Shares or treasury Shares. The aggregate number of Shares which may be
issued under the Plan (upon exercise of Options or other rights to acquire
Shares) shall not exceed 300,000 Shares, subject to adjustment pursuant to
Section 9. The number of Shares which are subject to Options or other rights
outstanding at any time under the Plan shall not exceed the number of Shares
which then remain available for issuance under the Plan. The Company, during the
term of the Plan, shall at all times reserve and keep available sufficient
Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option or other
right for any reason expires or is canceled or otherwise terminated, the Shares
allocable to the unexercised portion of such Option or other right shall again
be available for the purposes of the Plan. In the event that Shares issued under
the Plan are reacquired by the Company pursuant to a forfeiture provision, a
right of repurchase or a right of first refusal, such Shares shall again be
available for the purposes of the Plan.
11
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SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
(a) Stock Purchase Agreement. Each award or sale of Shares under the Plan
(other than upon exercise of an Option) shall be evidenced by a Stock Purchase
Agreement between the Offeree and the Company. Such award or sale shall be
subject to all applicable terms and conditions of the Plan and may be subject to
any other terms and conditions which are not inconsistent with the Plan and
which the Committee deems appropriate for inclusion in a Stock Purchase
Agreement. The provisions of the various Stock Purchase Agreements entered into
under the Plan need not be identical.
(b) Duration of Offers and Nontransferability of Rights. Any right to
acquire Shares under the Plan (other than an Option) shall automatically expire
if not exercised by the Offeree within 30 days after the grant of such right was
communicated to the Offeree by the Committee. Such right shall not be
transferable and shall be exercisable only by the Offeree to whom such right was
granted.
(c) Purchase Price. The Purchase Price of Shares to be offered under the
Plan shall not be less than 85 percent of the Fair Market Value of such Shares.
Subject to the preceding sentence, the Purchase Price shall be determined by the
Committee at its sole discretion. The Purchase Price shall be payable in a form
described in Section 8.
(d) Withholding Taxes. As a condition to the award, sale or vesting of
Shares, the Offeree shall make such arrangements as the Committee may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that arise in connection with such Shares. The Committee may permit
the Offeree to satisfy all or part of his or her tax obligations related to such
Shares by having the Company withhold a portion of any Shares that otherwise
would be issued to him or her or by surrendering any Shares that previously were
acquired by him or her. The Shares withheld or surrendered shall be valued at
their Fair Market Value on the date when taxes otherwise would be withheld in
cash. The payment of taxes by assigning Shares to the Company, if permitted by
the Committee, shall be subject to such restrictions as the Committee may
impose, including any restrictions required by rules of the Securities and
Exchange Commission.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold under
the Plan shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreement. Each grant of an Option under the Plan shall be
evidenced by a Stock Option Agreement between the Optionee and the Company. Such
Option shall be subject to all applicable terms and conditions of the Plan and
may be subject to any other terms and conditions which are not inconsistent with
the Plan and which the Committee deems appropriate for inclusion in a Stock
Option Agreement. The provisions of the various Stock Option Agreements entered
into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the number
of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 9. Options granted to any Optionee in a
single calendar year shall in no event cover more than 15,000 Shares, subject to
adjustment in accordance with Section 9. The Stock Option Agreement shall also
specify whether the Option is an ISO or a Nonstatutory Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the Exercise
Price. The Exercise Price of an ISO shall not be less than 100 percent of the
Fair Market Value of a Share on the date of grant, except as otherwise provided
in Section 4(c). The Exercise Price of a Nonstatutory Option shall not be less
than 85
12
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percent of the Fair Market Value of a Share on the date of grant. Subject to the
preceding two sentences, the Exercise Price under any Option shall be determined
by the Committee at its sole discretion. The Exercise Price shall be payable in
a form described in Section 8.
(d) Withholding Taxes. As a condition to the exercise of an Option, the
Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may arise in connection
with the disposition of Shares acquired by exercising an Option. The Committee
may permit the Optionee to satisfy all or part of his or her tax obligations
related to the Option by having the Company withhold a portion of any Shares
that otherwise would be issued to him or her or by surrendering any Shares that
previously were acquired by him or her. Such Shares shall be valued at their
Fair Market Value on the date when taxes otherwise would be withheld in cash.
The payment of taxes by assigning Shares to the Company, if permitted by the
Committee, shall be subject to such restrictions as the Committee may impose,
including any restrictions required by rules of the Securities and Exchange
Commission.
(e) Exercisability and Term. Each Stock Option Agreement shall specify the
date when all or any installment of the Option is to become exercisable. The
vesting of any Option shall be determined by the Committee at its sole
discretion. A Stock Option Agreement may provide for accelerated exercisability
in the event of the Optionee's death, Total and Permanent Disability or
retirement or other events. The Stock Option Agreement shall also specify the
term of the Option. The term shall not exceed 10 years from the date of grant,
except as otherwise provided in Section 4(c). Subject to the preceding sentence,
the Committee at its sole discretion shall determine when an Option is to
expire.
(f) Nontransferability. During an Optionee's lifetime, such Optionee's
Option(s) shall be exercisable only by him or her and shall not be transferable,
unless permitted by the Stock Option Agreement. In the event of an Optionee's
death, such Optionee's Option(s) shall not be transferable other than by will,
by a beneficiary designation executed by the Optionee and delivered to the
Company, or by the laws of descent and distribution.
(g) Termination of Service (Except by Death). If an Optionee's Service
terminates for any reason other than the Optionee's death, then such Optionee's
Option(s) shall expire on the earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (e) above;
(ii) The date 90 days after the termination of the Optionee's Service for
any reason other than Total and Permanent Disability; or
(iii) The date six months after the termination of the Optionee's Service
by reason of Total and Permanent Disability.
The Optionee may exercise all or part of his or her Option(s) at any time before
the expiration of such Option(s) under the preceding sentence, but only to the
extent that such Option(s) had become exercisable before the Optionee's Service
terminated or became exercisable as a result of the termination. The balance of
such Option(s) shall lapse when the Optionee's Service terminates. In the event
that the Optionee dies after the termination of the Optionee's Service but
before the expiration of the Optionee's Option(s), all or part of such Option(s)
may be exercised (prior to expiration) by his or her designated beneficiary (if
applicable), by the executors or administrators of the Optionee's estate or by
any person who has acquired such Option(s) directly from the Optionee by bequest
or inheritance, but only to the extent that such Option(s) had become
exercisable before the Optionee's Service terminated or became exercisable as a
result of the termination.
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(h) Leaves of Absence. For purposes of Subsection (g) above, Service shall
be deemed to continue while the Optionee is on military leave, sick leave or
other bona fide leave of absence (as determined by the Committee). The foregoing
notwithstanding, in the case of an ISO granted under the Plan, Service shall not
be deemed to continue beyond the first 90 days of such leave, unless the
Optionee's reemployment rights are guaranteed by statute or by contract.
(i) Death of Optionee. If an Optionee dies while he or she is in Service,
then such Optionee's Option(s) shall expire on the earlier of the following
dates:
(i) The expiration date determined pursuant to Subsection (e) above; or
(ii) The date six months after the Optionee's death.
All or part of the Optionee's Option(s) may be exercised at any time before the
expiration of such Option(s) under the preceding sentence by his or her
designated beneficiary (if applicable), by the executors or administrators of
the Optionee's estate or by any person who has acquired such Option(s) directly
from the Optionee by bequest or inheritance, but only to the extent that such
Option(s) had become exercisable before the Optionee's death or became
exercisable as a result of the Optionee's death. The balance of such Option(s)
shall lapse when the Optionee dies.
(j) No Rights as a Stockholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided in
Section 9.
(k) Modification, Extension and Renewal of Options. Within the limitations
of the Plan, the Committee may modify, extend or renew outstanding Options or
may accept the cancellation of outstanding Options (to the extent not previously
exercised) in return for the grant of new Options at the same or a different
price. The foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, impair such Optionee's rights or increase
his or her obligations under such Option.
(l) Restrictions on Transfer of Shares. Any Shares issued upon exercise of
an Option shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Option Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 8. PAYMENT FOR SHARES.
(a) General Rule. The entire Purchase Price or Exercise Price of Shares
issued under the Plan shall be payable in lawful money of the United States of
America at the time when such Shares are purchased, except as follows:
(i) In the case of Shares sold under the terms of a Stock Purchase
Agreement subject to the Plan, payment shall be made only pursuant to the
express provisions of such Stock Purchase Agreement. However, the Committee (at
its sole discretion) may specify in the Stock Purchase Agreement that payment
may be made in one or all of the forms described in Subsections (e), (f) and (g)
below.
(ii) In the case of an ISO granted under the Plan, payment shall be made
only pursuant to the express provisions of the applicable Stock Option
Agreement. However, the Committee (at its sole discretion) may specify in the
Stock Option Agreement that payment may be made pursuant to Subsections (b),
(c), (d), (f) or (g) below.
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(iii) In the case of a Nonstatutory Option granted under the Plan, the
Committee (at its sole discretion) may accept payment pursuant to Subsections
(b), (c), (d), (f) or (g) below.
(b) Surrender of Stock. To the extent that this Subsection (b) is
applicable, payment may be made all or in part with Shares which have already
been owned by the Optionee or his or her representative for more than 12 months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) Exercise/Sale. To the extent that this Subsection (c) is applicable,
payment may be made by the delivery (on a form prescribed by the Company) of an
irrevocable direction to a securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds to the Company in
payment of all or part of the Exercise Price and any withholding taxes.
(d) Exercise/Pledge. To the extent that this Subsection (d) is applicable,
payment may be made by the delivery (on a form prescribed by the Company) of an
irrevocable direction to pledge Shares to a securities broker or lender approved
by the Company, as security for a loan, and to deliver all or part of the loan
proceeds to the Company in payment of all or part of the Exercise Price and any
withholding taxes.
(e) Services Rendered. To the extent that this Subsection (e) is
applicable, Shares may be awarded under the Plan in consideration of services
rendered to the Company or a Subsidiary prior to the award. If Shares are
awarded without the payment of a Purchase Price in cash, the Committee shall
make a determination (at the time of the award) of the value of the services
rendered by the Offeree and the sufficiency of the consideration to meet the
requirements of Section 6(c).
(f) Promissory Note. To the extent that this Subsection (f) is applicable,
a portion of the Purchase Price or Exercise Price, as the case may be, of Shares
issued under the Plan may be payable by a full-recourse promissory note,
provided that (i) the par value of such Shares must be paid in lawful money of
the United States of America at the time when such Shares are purchased, (ii)
the Shares are security for payment of the principal amount of the promissory
note and interest thereon and (iii) the interest rate payable under the terms of
the promissory note shall be no less than the minimum rate (if any) required to
avoid the imputation of additional interest under the Code. Subject to the
foregoing, the Committee (at its sole discretion) shall specify the term,
interest rate, amortization requirements (if any) and other provisions of such
note.
(g) Other Forms of Payment. To the extent that this Subsection (g) is
applicable, payment may be made in any other form approved by the Committee,
consistent with applicable laws, regulations and rules.
SECTION 9. ADJUSTMENT OF SHARES.
(a) General. In the event of a subdivision of the outstanding Stock, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization, a spinoff or a similar occurrence, the Committee shall make
appropriate adjustments in one or more of (i) the number of Shares available for
future grants under Section 5, (ii) the number of Nonstatutory Options to be
granted to Outside Directors under Section 4(b), (iii) the number of Shares
covered by each outstanding Option or (iv) the Exercise Price under each
outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a merger
or other reorganization, outstanding Options shall be subject to the agreement
of merger or reorganization. Such agreement may provide, without limitation, for
the assumption of outstanding Options by the surviving corporation or its
parent, for their continuation by the Company (if the Company is a surviving
corporation), for payment of a
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cash settlement equal to the difference between the amount to be paid for one
Share under such agreement and the Exercise Price, or for the acceleration of
their exercisability followed by the cancellation of Options not exercised, in
all cases without the Optionees' consent. Any cancellation shall not occur until
after such acceleration is effective and Optionees have been notified of such
acceleration. In the case of Options that have been outstanding for less than 12
months, a cancellation need not be preceded by an acceleration.
(c) Reservation of Rights. Except as provided in this Section 9, an
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
SECTION 10. SECURITIES LAWS.
Shares shall not be issued under the Plan unless the issuance and delivery
of such Shares complies with (or is exempt from) all applicable requirements of
law, including (without limitation) the Securities Act of 1933, as amended, the
rules and regulations promulgated thereunder, state securities laws and
regulations, and the regulations of any stock exchange on which the Company's
securities may then be listed.
SECTION 11. NO RETENTION RIGHTS.
Neither the Plan nor any Option shall be deemed to give any individual a
right to remain an employee, consultant or director of the Company or a
Subsidiary. The Company and its Subsidiaries reserve the right to terminate the
service of any employee, consultant or director at any time, with or without
cause, subject to applicable laws, the Company's certificate of incorporation
and by-laws and a written employment agreement (if any).
SECTION 12. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, shall become effective
as of April 1, 1994. The Plan shall terminate automatically 10 years after its
initial adoption by the Board of Directors on March 31, 1994, and may be
terminated on any earlier date pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may,
subject to applicable law, amend, suspend or terminate the Plan at any time and
for any reason. An amendment to the Plan shall require stockholder approval only
to the extent required by applicable law.
(c) Effect of Amendment or Termination. No Shares shall be issued or sold
under the Plan after the termination thereof, except upon exercise of an Option
granted prior to such termination. The termination of the Plan, or any amendment
thereof, shall not affect any Share previously issued or any Option previously
granted under the Plan.
SECTION 13. EXECUTION.
To record the adoption of the Plan by the Board of Directors on May 7, 1998
and by the Company's stockholders on July 28, 1998, the Company has caused its
authorized officer to execute the same.
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MICRO-INTEGRATION CORP.
By /s/ John A. Parsons
Its CEO
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EXHIBIT 5.1
PILLSBURY MADISON & SUTRO LLP
1100 New York Avenue, NW
Ninth Floor East Tower
Washington, DC 20005
Tel: (202) 861-3000
September 15, 1998
Micro-Integration Corp.
One Science Park
Frostburg, Maryland 21532
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Micro-Integration Corp., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, relating to
150,000 shares of the Company's Common Stock issuable pursuant to the Amended
and Restated 1994 Stock Plan of Micro-Integration Corp. (the "Plan"), it is our
opinion that such shares of the Common Stock of the Company, when issued and
sold in accordance with the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33---) pertaining to the Amended and Restated 1994 Stock Plan of
Micro-Integration Corp. of our report dated June 1, 1998, with respect to the
consolidated financial statements and schedule of Micro-Integration Corp.
included in its Annual Report (Form 10-KSB) for the year ended March 31, 1998
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Baltimore, Maryland
September 15, 1998
