As filed with the Securities and Exchange Commission on April 13, 1998
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
PREMISYS COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3153847
(State of incorporation) (I.R.S. employer
identification no.)
48664 Milmont Drive
Fremont, California 94538
(Address, including zip code, of principal executive offices)
1994 Stock Option Plan
(Full title of the plan)
Riley R. Willcox
Chief Financial Officer
Premisys Communications, Inc.
48664 Milmont Drive
Fremont, California 94538
(510) 353-7600
(Name, address and telephone number of agent for service)
Copies to:
Eileen Duffy Robinett, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
(415) 494-0600
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
============================================ =============== ======================= ========================= ==================
Amount Proposed Maximum Proposed Maximum Amount of
to be Offering Price Per Aggregate Offering Registration
Title of Securities to be Registered Registered Share Price Fee
- -------------------------------------------- --------------- ----------------------- ------------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 1,200,000 (1) $26.9375 (2) $32,325,000 (2) $9,535.88
- -------------------------------------------- --------------- ----------------------- ------------------------- ------------------
============================================ =============== ======================= ========================= ==================
<FN>
(1) Additional shares registered pursuant to this Registration Statement as of April 13, 1998 under the 1994 Stock
Option Plan.
(2) Estimated as of April 7, 1998 pursuant to Rule 457(c) solely for the purpose of calculating the registration fee.
</FN>
</TABLE>
<PAGE>
PREMISYS COMMUNICATIONS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, as amended
by its Form 10-K/A, Amendment No. 1, for the fiscal
year ended June 27, 1997 filed pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act"), which Annual Report contains audited
financial statements for the year ended June 27, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 26, 1997 filed pursuant to
Section 13(a) of the Exchange Act.
(c) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 26, 1997 filed pursuant to
Section 13 (a) of the Exchange Act.
(d) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on
Form 8-A filed on March 14, 1995 with the Commission
under Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock
offered hereby will be passed upon for the Company by Fenwick & West LLP, Palo
Alto, California. Certain partners of Fenwick & West LLP own an aggregate of
approximately 4,500 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation
Law, the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant 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 to the
corporation or its stockholders, (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
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<PAGE>
General Corporation Law or (iv) for any transaction from which the director
derived an improper personal benefit. In addition, as permitted by Section 145
of the Delaware General Corporation Law, the Bylaws of the Registrant provide
that: (i) the Registrant is required to indemnify its directors and executive
officers to the fullest extent permitted by the Delaware General Corporation
Law; (ii) the Registrant may, in its discretion, indemnify other officers,
employees and agents as set forth in the Delaware General Corporation Law; (iii)
upon receipt of an undertaking to repay such advances if indemnification is
determined to be unavailable, the Registrant is required to advance expenses, as
incurred, to its directors and executive officers to the fullest extent
permitted by the Delaware General Corporation Law in connection with a
proceeding (except if a determination is reasonably and promptly made by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the proceeding or, in certain circumstances, by independent
legal counsel in a written opinion that the facts known to the decision-making
party demonstrate clearly and convincingly that such person acted in bad faith
or in a manner that such person did not believe to be in or not opposed to the
best interests of the corporation); (iv) the rights conferred in the Bylaws are
not exclusive and the Registrant is authorized to enter into indemnification
agreements with its directors, officers and employees and agents; (v) the
Registrant may not retroactively amend the Bylaw provisions relating to
indemnity; and (vi) to the fullest extent permitted by the Delaware General
Corporation Law, a director or executive officer will be deemed to have acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Registrant, and, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe that his or her
conduct was unlawful, if his or her action is based on the records or books of
account of the corporation or on information supplied to him or her by officers
of the corporation in the course of their duties or on the advice of legal
counsel for the corporation or on information or records given or reports made
to the corporation by independent certified public accountants or appraisers or
other experts. This provision does not affect the availability of equitable
remedies such as injunctive relief or rescission. Further, such limitation of
liability also does not affect a director's responsibilities under any other
laws, including federal securities laws or state or federal environmental laws.
The Registrant's policy is to enter into indemnity agreements
with each of its directors and executive officers. The indemnity agreements
provide that directors and executive officers will be indemnified and held
harmless to the fullest possible extent permitted by law including against all
expenses (including attorneys' fees), judgments, fines and settlement amounts
paid or reasonably incurred by them in any action, suit or proceeding, including
any derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
(i) initiated by the indemnified party and not by way of defense, except with
respect to a proceeding authorized by the Board of Directors and successful
proceedings brought to enforce a right to indemnification under the Indemnity
Agreement; (ii) for any amounts paid in settlement of a proceeding unless the
Registrant consents to such settlement; (iii) on account of any suit in which
judgment is rendered against the indemnified party for an accounting of profits
made from the purchase or sale by the indemnified party of securities of the
Registrant pursuant to the provisions of 16(b) of the Securities Exchange Act of
1934 and related laws; (iv) on account of conduct by the indemnified party which
is finally adjudged to have been in bad faith; (v) on account of any criminal
action or proceeding arising out of conduct that the indemnified party
3
<PAGE>
had reasonable cause to believe was unlawful; or (vi) if a final decision by a
court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
The indemnity agreement requires a director or executive officer
to reimburse the Registrant for all expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, the indemnity agreement or otherwise to be
indemnified for such expenses. The indemnity agreement provides that it is not
exclusive of any rights a director or executive officer may have under the
Certificate of Incorporation, Bylaws, other agreements, any majority-in-interest
vote of the stockholders or vote of disinterested directors, the Delaware law or
otherwise.
The indemnification provision in the Bylaws, and the indemnity
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's executive officers and directors for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act").
As authorized by the Registrant's Bylaws, the Registrant, with
approval by the Board, has purchased director and officer liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 Registrant's Amended and Restated Certificate of
Incorporation filed with the Secretary of State of
Delaware on April 12, 1995 (incorporated herein by
reference to Exhibit 3.01 of the Registrant's Form 10-Q
for the Quarter ended March 31, 1995).
4.02 Registrant's Certificate of Amendment to Registrant's
Amended and Restated Certificate of Incorporation filed
with the Secretary of State of Delaware on December 15,
1995 (incorporated herein by reference to Exhibit 3.05
of the Registrant's Form 10-Q for the Quarter ended
December 29, 1995 (the "December 1995 Form 10-Q")).
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 3.04 of the Registrant's
Registration Statement on Form S-1 (No. 33-89598)
originally filed on February 21, 1995 and as
subsequently amended (the "Form S-1")).
4.04 Registrant's 1994 Stock Option Plan and related
documents.
4.05 Form of specimen certificate for Registrant's Common
Stock (incorporated herein by reference to Exhibit 4.01
of the Form S-1).
4.06 Investors' Rights Agreement, dated as of March 12,
1992, as amended June 15, 1992, October 22, 1993,
December 14, 1993, February 18, 1994 and May 9, 1994
among Registrant and various investors (incorporated by
reference to Exhibit 4.02 of the Form S-1).
4
<PAGE>
4.07 Waiver Relating to and Amendment of Investors' Rights
Agreement dated as of July 24, 1995 among Registrant
and various investors (incorporated herein by reference
to Exhibit 4.03 of the Registrant's Registration
Statement on Form S-1 (No. 33-95266) filed August 1,
1995).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of Price Waterhouse LLP, Independent
Accountants.
24.01 Power of Attorney (see page 8).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statements;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act)
5
<PAGE>
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.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions discussed in Item 6 hereof,
or otherwise, the Registrant 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereby, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
[The rest of this page has been intentionally left blank.]
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on the 13th day of
April, 1998.
PREMISYS COMMUNICATIONS, INC.
By: /s/ Riley R. Willcox
--------------------------------------------------
Riley R. Willcox
Senior Vice President, Finance and Administration,
Chief Financial Officer and Secretary
7
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Raymond C. Lin and Riley R. Willcox, and
each of them, his true and lawful attorneys-in-fact and agents with full power
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 on Form S-8, 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 done in and about the premises, as fully to
all intents and purposes as he or it might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<CAPTION>
Signature Title Date
- ------------------------ ----------- ----------
<S> <C> <C>
Principal Executive Officer:
/s/ Raymond C. Lin Chief Executive Officer April 13 , 1998
- ------------------------------------ and a Director
Raymond C. Lin
Principal Financial Officer:
/s/ Riley R Willcox Senior Vice President, Finance and April 13 , 1998
- ------------------------------------ Administration, Chief Financial
Riley R. Willcox Officer and Secretary
Principal Accounting Officer:
/s/ Robert W. Dilfer Vice President and Controller April 13 , 1998
- ------------------------------------
Robert W. Dilfer
8
<PAGE>
Additional Directors:
/s/ Boris J. Auerbuch Director April 13 , 1998
- ------------------------------------
Boris J. Auerbuch
/s/ Lip-Bu Tan Director April 13 , 1998
- ------------------------------------
Lip-Bu Tan
/s/ Gary J. Morgenthaler Director April 13 , 1998
- ------------------------------------
Gary J. Morgenthaler
/s/ Marino R. Polestra Director April 13 , 1998
- ------------------------------------
Marino R. Polestra
/s/ Edward A, Keible Director April 13 , 1998
- ------------------------------------
Edward A. Keible
/s/ Robert C. Hawk Director April 13 , 1998
- ------------------------------------
Robert C. Hawk
</TABLE>
9
<PAGE>
Exhibit Index
Exhibit No. Description
- ----------- -----------
4.01 Registrant's Amended and Restated Certificate of Incorporation
filed with the Secretary of State of Delaware on April 12, 1995
(incorporated herein by reference to Exhibit 3.01 of the
Registrant's Form 10-Q for the Quarter Ended March 31, 1995).
4.02 Registrant's Certificate of Amendment to Registrant's Amended and
Restated Certificate of Incorporation filed with the Secretary of
State of Delaware on December 15, 1995 (incorporated herein by
reference to Exhibit 3.05 of the Registrant's Form 10-Q for the
Quarter ended December 29, 1995 (the "December 1995 Form 10-Q").
4.03 Registrant's Bylaws, as amended (incorporated herein by reference
to Exhibit 3.04 of the Registrant's Registration Statement on Form
S-1 (No. 33-89598) originally filed on February 21, 1995 and as
subsequently amended (the "Form S-1")).
4.04 Registrant's 1994 Stock Option Plan and related documents.
4.05 Form of specimen certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the Form
S-1).
4.06 Investors' Rights Agreement, dated as of March 12, 1992, as
amended June 15, 1992, October 22, 1993, December 14, 1993,
February 18, 1994 and May 9 , 1994 among Registrant and various
investors (incorporated by reference to Exhibits 4.02 of the Form
S-1).
4.07 Waiver Relating to and Amendment of Investors' Rights Agreement
dated as of July 24, 1995 among Registrant and various investors
(incorporated hereby by reference to Exhibit 4.03 of the
Registrant's Registration Statement on Form S-1 (No. 33-95266)
filed August 1, 1995).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Price Waterhouse LLP, Independent Accountants.
24.01 Power of Attorney (see page 8).
10
Exhibit 4.04
Registrant's 1994 Stock Option Plan and related documents
<PAGE>
PREMISYS COMMUNICATIONS, INC.
1994 STOCK OPTION PLAN
As Adopted November 16, 1994
As Amended September 13, 1995
As Amended September 18, 1997
As Amended October 13, 1997
1. PURPOSE. This 1994 Stock Option Plan (this "Plan") is
established as a compensatory plan to attract, retain and provide equity
incentives to selected persons to promote the financial success of Premisys
Communications, Inc., a Delaware corporation, (the "Company"). Capitalized terms
not previously defined herein are defined in Section 21 of this Plan.
2. TYPES OF OPTIONS AND SHARES. Options granted under this Plan
(the "Options") may be either (a) incentive stock options ("ISOs") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Revenue Code"), or (b) nonqualified stock options ("NQSOs"), as designated at
the time of grant. The shares of stock that may be purchased upon exercise of
Options granted under this Plan (the "Shares") are shares of the common stock of
the Company $0.01 par value per share.
3. NUMBER OF SHARES. The aggregate number of Shares that may be
issued pursuant to Options granted under this Plan is 5,200,000.* Shares,
subject to adjustment as provided in this Plan. If any Option expires or is
terminated without being exercised in whole or in part, the unexercised or
released Shares from such Options shall be available for future grant and
purchase under this Plan. At all times during the term of this Plan, the Company
shall reserve and keep available such number of Shares as shall be required to
satisfy the requirements of outstanding Options under this Plan.
4. ELIGIBILITY. Options may be granted to employees, officers,
directors, consultants and advisers (provided such consultants and advisers
render bona fide services not in connection with the offer and sale of
securities in a capital-raising transaction) of the Company or any Parent,
Subsidiary or Affiliate of the Company. ISOs may be granted only to employees
(including officers and directors who are also employees) of the Company or a
Parent or Subsidiary of the Company. The Committee (as defined in Section 16) in
its sole discretion shall select the recipients of Options ("Optionees"). An
Optionee may be granted more than one Option under this Plan. No Optionee shall
be eligible to receive more than 1,000,000** Shares at any time during the term
of this Plan pursuant to the grant of Options hereunder. The Company may also,
from time to time, assume outstanding options granted by another company,
whether in connection with an acquisition of such other company or otherwise, by
either (i) granting an Option under this Plan in replacement of the option
assumed by the Company, or (ii) treating the assumed option as if it had been
granted under this Plan if the terms of such assumed option could be applied to
an Option granted under this Plan. Such assumption shall be permissible if the
holder of the assumed option would have been eligible to be granted an Option
hereunder if the other company had applied the rules of this Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall
determine whether each Option is to be an ISO or an NQSO, the number of Shares
subject to the Option, the exercise price of the Option, the period during which
the Option may be exercised, and all other terms and conditions of the Option,
subject to the following:
- ---------------
* On March 13, 1995 a one-for-four reverse split of the Company's outstanding
Common Stock (the "Reverse Split") was effected, reducing the number of
shares reserved for issuance under the Plan to 1,000,000. On September 13,
1995, the Board approved an increase in the number of shares reserved for
issuance under the Plan to 2,000,000, which increase was later approved by
the Company's stockholders. On December 12, 1995, a two-for-one stock split
in the form of a 100% stock dividend was paid to the Company's stockholders
of record as of November 22, 1995, increasing the number of shares reserved
for issuance under the Plan to 4,000,000. On September 18, 1997, the Board
approved an increase in the number of shares reserved for issuance under
the Plan to 5,200,000, which increase was later approved by the Company's
stockholders.
** Due to the one-for-four Reverse Split and the 100% Stock Dividend, the
number of shares an Optionee shall be eligible to receive is no more than
1,000,000.
<PAGE>
(a) Form of Option Grant. Each Option granted under
this Plan shall be evidenced by a written Stock Option Grant (the "Grant") in
such form (which need not be the same for each Optionee) as the Committee shall
from time to time approve, which Grant shall comply with and be subject to the
terms and conditions of this Plan.
(b) Date of Grant. The date of grant of an Option shall
be the date on which the Committee makes the determination to grant such Option
unless otherwise specified by the Committee. The Grant representing the Option
will be delivered to each Optionee with a copy of this Plan within a reasonable
time after the granting of the Option.
(c) Exercise Price. The exercise price of an NQSO shall
be not less than 85% of the Fair Market Value of the Shares on the date the
Option is granted. The exercise price of an ISO shall be not less than 100% of
the Fair Market Value of the Shares on the date the Option is granted. The
exercise price of any Option granted to a person owning more than l0% of the
total combined voting power of all classes of stock of the Company or any Parent
or Subsidiary of the Company ("Ten Percent Stockholder") shall not be less than
110% of the Fair Market Value of the Shares on the date the Option is granted.
Notwithstanding any section of this Plan, the exercise price of an Option shall
not be less than the par value of the Shares.
(d) Exercise Period. Options shall be exercisable
within the times or upon the events determined by the Committee as set forth in
the Grant; provided, however, that no Option shall be exercisable after the
expiration of ten (10) years from the date the Option is granted, and provided
further that no Option granted to a Ten Percent Stockholder shall be exercisable
after the expiration of five (5) years from the date the Option is granted. The
Committee also may provide for the exercise of Options to become exercisable at
one time or from time to time, periodically or otherwise, in such number or
percentage as the Committee determines.
(e) Limitations on ISOs. The aggregate Fair Market
Value (determined as of the time an Option is granted) of stock with respect to
which ISOs are exercisable for the first time by an Optionee during any calendar
year (under this Plan or under any other incentive stock option plan of the
Company or any Parent or Subsidiary of the Company) shall not exceed $100,000.
If the Fair Market Value of Shares with respect to which ISOs are exercisable
for the first time by an Optionee during any calendar year exceeds $100,000, the
Options for the first $100,000 worth of Shares to become exercisable in such
year shall be ISOs and the Options for the amount in excess of $100,000 that
becomes exercisable in that year shall be NQSOs. In the event that the Revenue
Code or the regulations promulgated thereunder are amended after the effective
date of this Plan to provide for a different limit on the Fair Market Value of
Shares permitted to be subject to ISOs, such different limit shall be
incorporated herein and shall apply to any Options granted after the effective
date of such amendment.
(f) Options Non-Transferable. Options granted under
this Plan, and any interest therein, shall not be transferable or assignable by
Optionee, and may not be made subject to execution, attachment or similar
process, otherwise than by will or by the laws of descent and distribution, or
as consistent with the specific Plan and Grant provisions relating thereto.
During the lifetime of the Optionee an Option shall be exercisable only by
Optionee and any elections with respect to an Option, may be made only by the
Optionee.
(g) Assumed Options. In the event the Company assumes
an option granted by another company, the terms and conditions of such option
shall remain unchanged (except the exercise price and the number and nature of
shares issuable upon exercise, which will be adjusted appropriately pursuant to
Section 424(c) of the Revenue Code). In the event the Company elects to grant a
new option rather than assuming an existing option (as specified in Section 4),
such new option need not be granted at Fair Market Value on the date of grant
and may instead be granted with a similarly adjusted exercise price.
6. EXERCISE OF OPTIONS.
<PAGE>
(a) Notice. Options may be exercised only by delivery
to the Company of a written stock option exercise agreement (the "Exercise
Agreement") in a form approved by the Committee (which need not be the same for
each Optionee), stating the number of Shares being purchased, the restrictions
imposed on the Shares, if any, and such representations and agreements regarding
Optionee's investment intent and access to information, if any, as may be
required by the Company to comply with applicable securities laws, together with
payment in full of the exercise price for the number of Shares being purchased.
(b) Payment. Payment for the Shares may be made in cash
(by check) or, where approved by the Committee in its sole discretion at the
time of grant and where permitted by law: (i) by cancellation of indebtedness of
the Company to the Optionee; (ii) by surrender of shares of common stock of the
Company having a Fair Market Value equal to the applicable exercise price of the
Options, that have been owned by Optionee for more than six (6) months (and
which have been paid for within the meaning of the Securities and Exchange
Commission ("SEC") Rule 144 and, if such shares were purchased from the Company
by use of a promissory note, such note has been fully paid with respect to such
shares), or were obtained by Optionee in the open public market; (iii) by tender
of a full recourse promissory note having such terms as may be approved by the
Committee and bearing interest at a rate sufficient to avoid imputation of
income under Sections 483 and 1274 of the Revenue Code; provided, however, that
Optionees who are not employees of the Company shall not be entitled to purchase
Shares with a promissory note unless the note is adequately secured by
collateral other than the Shares; provided, further, that the portion of the
Purchase Price equal to the par value of the Shares must be paid in cash; (iv)
by waiver of compensation due or accrued to Optionee for services rendered; (v)
provided that a public market for the Company's stock exists, through a "same
day sale" commitment from Optionee and a broker-dealer that is a member of the
National Association of Securities Dealers (an "NASD Dealer") whereby Optionee
irrevocably elects to exercise the Option and to sell a portion of the Shares so
purchased to pay for the exercise price and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the exercise price directly to
the Company; (vi) provided that a public market for the Company's stock exists,
through a "margin" commitment from Optionee and an NASD Dealer whereby Optionee
irrevocably elects to exercise the Option and to pledge the Shares so purchased
to the NASD Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the exercise price
directly to the Company; or (vii) by any combination of the foregoing. Optionees
who are not employees or directors of the Company shall not be entitled to
purchase Shares with a promissory note unless the note is adequately secured by
collateral other than the Shares.
(c) Withholding Taxes. Prior to issuance of the Shares
upon exercise of an Option, Optionee shall pay or make adequate provision for
any federal or state withholding obligations of the Company, if applicable.
Where approved by the Committee in its sole discretion, Optionee may provide for
payment of withholding taxes upon exercise of the Option by requesting that the
Company retain Shares with a Fair Market Value equal to the minimum amount of
taxes required to be withheld. In such case, the Company shall issue the net
number of Shares to Optionee by deducting the Shares retained from the Shares
exercised. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be determined
in accordance with Section 83 of the Revenue Code (the "Tax Date"). All
elections by Optionees to have Shares withheld for this purpose shall be made in
writing in a form acceptable to the Committee.
(d) Limitations on Exercise. Notwithstanding the
exercise periods set forth in the Grant, exercise of an Option shall always be
subject to the following:
(i) If Optionee is Terminated for any
reason except death or permanent, partial or total disability, as determined by
the Committee ("Disability"), Optionee may exercise such Optionee's Options to
the extent (and only to the extent) that such Options would have been
exercisable upon the Termination Date, within three (3) months after the
Termination Date (or such shorter time period as may be specified in the Grant),
but in any event no later than the expiration date of the Options.
(ii) If Optionee is Terminated because of
the death of Optionee or Disability of Optionee (or the Optionee dies within
three (3) months of such Termination), then Optionee's Options may be exercised
to the extent (and only to the extent) that such Options would have been
exercisable
<PAGE>
by Optionee on the Termination Date, by Optionee (or Optionee's legal
representative) within twelve (12) months after the Termination Date (or such
shorter time period as may be specified in the Grant), but in any event no later
than the expiration date of the Options; provided, however, that in the event of
Termination due to Disability other than as defined in Section 22(e)(3) of the
Revenue Code, any ISO, or portion thereof, that remains exercisable after three
(3) months after the Termination Date shall be deemed an NQSO.
(iii) The Committee shall have discretion
to determine whether Optionee has ceased to be employed by the Company or any
Parent, Subsidiary or Affiliate of the Company and the effective date on which
such employment terminated.
(iv) In the case of an Optionee who is a
director, independent consultant, contractor or adviser, the Committee will have
the discretion to determine whether Optionee is "employed by the Company or any
Parent, Subsidiary or Affiliate of the Company" pursuant to the foregoing
Sections.
(v) The Committee may specify a
reasonable minimum number of Shares that may be purchased on any exercise of an
Option, provided that such minimum number will not prevent Optionee from
exercising the full number of Shares as to which the Option is then exercisable.
(vi) An Option shall not be exercisable
unless such exercise is in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), all applicable state securities laws and the
requirements of any stock exchange or national market system upon which the
Shares may then be listed, as they are in effect on the date of grant or on the
date of exercise or other issuance. Notwithstanding any other provision in the
Plan, the Company shall have no obligation to issue or deliver certificates for
Shares under the Plan prior to (a) obtaining any approvals from governmental
agencies that the Company determines are necessary or advisable, and/or (b)
completion of any registration or other qualification of such shares under any
state or federal law or ruling of any governmental body that the Company
determines to be necessary or advisable. The Company shall be under no
obligation to register the Shares with the SEC or to effect compliance with the
registration, qualification or listing requirements of any state securities
laws, stock exchange or national market system, and the Company shall have no
liability for any inability or failure to do so.
7. CERTIFICATES. All certificates for Shares or other securities
delivered under the Plan shall be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed.
8. RESTRICTIONS ON SHARES. At the discretion of the Committee,
the Company may reserve to itself and/or its assignee(s) in the Grant a right to
repurchase a portion of or all Shares that are not "vested" (as defined in the
Grant) held by an Optionee following such Optionee's Termination at any time
within ninety (90) days after the later of Optionee's Termination Date and the
date Optionee purchases Shares under the Plan, for cash or cancellation of
purchase money indebtedness, at the Optionee's original purchase price.
9. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on an
Optionee's Shares, the Committee may require the Optionee to deposit all
certificates representing Shares, together with stock powers or other
instruments of transfer approved by the Committee, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the Committee may cause a
legend or legends referencing such restrictions to be placed on the
certificates. Any Optionee who is permitted to execute a promissory note as
partial or full consideration for the purchase of Shares under the Plan shall be
required to pledge and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Optionee's obligation to the
Company under the promissory note; provided, however, that the Committee may
require or accept other or additional forms of collateral to secure the payment
of such obligation and, in any event, the Company shall have full recourse
against the Optionee under the promissory note notwithstanding any pledge of the
Optionee's Shares or other collateral. In connection with any pledge of the
Shares, Optionee shall be required to execute and deliver a
<PAGE>
written pledge agreement in such form as the Committee shall from time to time
approve. The Shares purchased with the promissory note may be released from the
pledge on a prorata basis as the promissory note is paid.
10. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The
Committee shall have the power to modify, extend or renew outstanding Options
and to authorize the grant of new Options in substitution therefor, provided
that any such action may not, without the written consent of Optionee, impair
any rights under any Option previously granted. Any outstanding ISO that is
modified, extended, renewed or otherwise altered shall be treated in accordance
with Section 424(h) of the Revenue Code. The Committee shall have the power to
reduce the exercise price of outstanding Options without the consent of
Optionees by a written notice to the Optionees affected; provided, however, that
the exercise price per Share may not be reduced below the minimum exercise price
that would be permitted under Section 5(c) of this Plan for Options granted on
the date the action is taken to reduce the exercise price.
11. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of
the rights of a stockholder with respect to any Shares subject to an Option
until such Option is properly exercised. After Shares are issued to the
Optionee, the Optionee shall be a stockholder and have all the rights of a
stockholder with respect to such Shares, including the rights to vote and
receive all dividends made or paid with respect to such Shares; provided, that
the Optionee shall have no right to retain such stock dividends on stock
distributions with respect to Shares that are repurchased at the Optionee's
original Purchase Price pursuant to Section 8. No adjustment shall be made for
dividends or distributions or other rights for which the record date is prior to
such date of exercise, except as provided in this Plan. The Company shall
provide to each Optionee a copy of the annual financial statements of the
Company at such time after the close of each fiscal year of the Company as such
statements are released by the Company to its common stockholders generally.
12. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Option
granted under this Plan shall confer on any Optionee any right to continue in
the employ of, or other relationship with, the Company or any Parent, Subsidiary
or Affiliate of the Company or limit in any way the right of the Company or any
Parent, Subsidiary or Affiliate of the Company to terminate Optionee's
employment or other relationship at any time, with or without cause.
13. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding shares of common stock of the Company is changed by a stock
dividend, stock split, reverse stock split, combination, reclassification or
similar change in the capital structure of the Company without consideration, or
if a substantial portion of the assets of the Company are distributed, without
consideration in a spin-off or similar transaction, to the stockholders of the
Company, the number of Shares available under this Plan and the number of Shares
subject to outstanding Options and the exercise price per Share of such Options
shall be proportionately adjusted, subject to any required action by the Board
of Directors of the Company (the "Board") or stockholders of the Company and
compliance with applicable securities laws; provided, however, that a fractional
share shall not be issued upon exercise of any Option and any fractions of a
Share that would have resulted shall either be cashed out at Fair Market Value
or the number of Shares issuable under the Option shall be rounded up to the
nearest whole number, as determined by the Committee; and provided further that
the exercise price may not be decreased to below the par value for the Shares.
14. ASSUMPTION OF OPTIONS BY SUCCESSORS.
(a) In the event of (i) a merger or consolidation
in which the Company is not the surviving corporation (other than a merger or
consolidation with a wholly owned subsidiary, a reincorporation, or other
transaction in which there is no substantial change in the stockholders of the
corporation and the Options granted under this Plan are assumed by the successor
corporation, which assumption shall be binding on all Optionees), (ii) a
dissolution or liquidation of the Company, (iii) the sale of substantially all
of the assets of the Company, or (iv) any other transaction which qualifies as a
"corporate transaction" under Section 424(a) of the Revenue Code wherein the
stockholders of the Company give up all of their equity interest in the Company
(except for the acquisition of all or substantially all of the outstanding
shares of the Company), any or all outstanding Options may be assumed by the
successor corporation, which assumption shall be binding on all Optionees. In
the alternative, the successor corporation may substitute an equivalent option
or provide
<PAGE>
substantially similar consideration to Optionees as was provided to stockholders
(after taking into account the existing provisions of Optionee's options, such
as the exercise price and the vesting schedule). The successor corporation may
also issue, in place of outstanding shares of the Company held by Optionee as a
result of the exercise of an Option that is subject to repurchase, substantially
similar shares or other property subject to similar repurchase restrictions no
less favorable to Optionee.
(b) In the event such successor corporation, if
any, refuses to assume or substitute Options, as provided above, pursuant to a
transaction described in Subsections 14(a)(ii), (iii) or (iv) above, or there is
no successor corporation, and if the Company is ceasing to exist as a separate
corporate entity, the Options shall, notwithstanding any contrary terms in the
Grant, expire on a date at least twenty (20) days after the Board gives written
notice to Optionees specifying the terms and conditions of such termination.
(c) In the event such successor corporation
refuses to assume or substitute Options, as provided above, pursuant to a
transaction described in Subsection 14(a)(i) above, such Options shall expire on
(and, if the Company has reserved to itself a right to repurchase Shares issued
on exercise of Options at the original purchase price of such Shares, such right
shall terminate on), the consummation of such transaction at such time and on
such conditions as the Board shall determine.
(d) Subject the foregoing provisions of this
Section 14, in the event of the occurrence of any transaction described in
Section 14(a), any outstanding Option shall be treated as provided in the
applicable agreement or plan of merger, consolidation, dissolution, liquidation,
sale of assets or other "corporate transaction," provided that under no
circumstances shall unvested options be accelerated.
15. ADOPTION AND STOCKHOLDER APPROVAL. This Plan shall become
effective on the date that it is adopted by the Board. This Plan shall be
approved by the stockholders of the Company, in any manner permitted by
applicable corporate law, within twelve (12) months before or after the date
this Plan is adopted by the Board. Upon the effective date of the Plan, the
Board may grant Options pursuant to this Plan; provided that, in the event that
stockholder approval is not obtained within the time period provided herein, all
Options granted hereunder shall terminate. No Option that is issued as a result
of any increase in the number of shares authorized to be issued under this Plan
shall be exercised prior to the time such increase has been approved by the
stockholders of the Company and all such Options granted pursuant to such
increase shall similarly terminate if such stockholder approval is not obtained.
16. ADMINISTRATION. This Plan may be administered by the Board
or a committee appointed by the Board (the "Committee"). As used in this Plan,
references to the "Committee" shall mean either the committee appointed by the
Board to administer this Plan or the Board if no committee has been established.
If, at the time the Company registers under the Securities Exchange Act of 1934,
as amended, two or more members of the Board are Outside Directors, the
Committee shall be comprised of at least two members of the Board, all of whom
are Outside Directors. The interpretation by the Committee of any of the
provisions of this Plan or any Option granted under this Plan shall be final and
binding upon the Company and all persons having an interest in any Option or any
Shares purchased pursuant to an Option. The Committee may delegate to officers
of the Company the authority to grant Options under this Plan to Optionees who
are not Insiders of the Company.
17. TERM OF PLAN. Options may be granted pursuant to this Plan
from time to time within a period of ten (10) years from the date on which this
Plan is adopted by the Board.
18. AMENDMENT OR TERMINATION OF PLAN. The Committee may at any
time terminate or amend this Plan in any respect including (but not limited to)
amendment of any form of Grant, Exercise Agreement or instrument to be executed
pursuant to this Plan; provided, however, that the Committee shall not, without
the approval of the stockholders of the Company, amend this Plan in any manner
that requires such stockholder approval pursuant to the Revenue Code or the
regulations promulgated thereunder as such provisions apply to ISO plans.
19. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan
by the Board, the submission of the Plan to the stockholders of the Company for
approval, nor any provision of the Plan
<PAGE>
shall be construed as creating any limitations on the power of the Board to
adopt such additional compensation arrangements as it may deem desirable,
including, without limitation, the granting of stock options and bonuses
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
20. GOVERNING LAW. The Plan and all agreements, documents and
instruments entered into pursuant to the Plan shall be governed by and construed
in accordance with the internal laws of the State of California, excluding that
body of law pertaining to conflict of laws.
21. CERTAIN DEFINITIONS. As used in this Plan, the following
terms shall have the following meanings:
(a) "Parent" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the Company if, at the
time of the granting of the Option, each of such corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than
the Company) in an unbroken chain of corporations beginning with the Company if,
at the time of granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(c) "Affiliate" means any corporation that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, another corporation, where
"control" (including the terms "controlled by" and "under common control with")
means the possession, direct or indirect, of the power to cause the direction of
the management and policies of the corporation, whether through the ownership of
voting securities, by contract or otherwise.
(d) "Fair Market Value" shall mean the fair market
value of the Shares as determined by the Committee from time to time in good
faith. If a public market exists for the Shares, the Fair Market Value shall be
the average of the last reported bid and asked prices for common stock of the
Company on the last trading day prior to the date of determination (or the
average closing price over the number of consecutive working days preceding the
date of determination as the Committee shall deem appropriate) or, in the event
the common stock of the Company is listed on a stock exchange or on the Nasdaq
National Market, the Fair Market Value shall be the closing price on such
exchange or quotation system on the last trading day prior to the date of
determination (or the average closing price over the number of consecutive
working days preceding the date of determination as the Committee shall deem
appropriate).
(e) "Outside Director" shall mean any director who
is not (i) a current employee of the Company or any Parent, Subsidiary or
Affiliate of the Company, (ii) a former employee of the Company or any Parent,
Subsidiary or Affiliate of the Company who is receiving compensation for prior
services (other than benefits under a tax-qualified pension plan), (iii) a
current or former officer of the Company or any Parent, Subsidiary or Affiliate
of the Company or (iv) currently receiving compensation for personal services in
any capacity, other than as a director, from the Company or any Parent,
Subsidiary or Affiliate of the Company; provided, however, that at such time as
the term "Outside Director", as used in Section 162(m) of the Revenue Code, is
defined in regulations promulgated under Section 162(m), "Outside Director"
shall have the meaning set forth in such regulations, as amended from time to
time and as interpreted by the Internal Revenue Service.
(f) "Termination" or "Terminated" shall mean, for
purposes of the Plan with respect to an Optionee, that the Optionee ceased to
provide services as an employee, officer, director, consultant, independent
contractor or adviser to the Company or a Parent, Subsidiary or Affiliate of the
Company, except in the case of sick leave, military leave, or any other leave of
absence approved by the Committee, provided, that such leave is for a period of
not more than ninety (90) days, or reinstatement upon the expiration of such
leave is guaranteed by contract or statute. The Committee
<PAGE>
shall have the sole discretion to determine whether an Optionee has ceased to
provide services and the effective date on which the Optionee ceased to provide
services (the "Termination Date").
Exhibit 5.01
Opinion of Fenwick & West LLP
<PAGE>
EXHIBIT 5.01
April 8, 1998
Premisys Communications, Inc.
48664 Milmont Drive
Fremont, CA 94538
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission (the "Commission") on or about April 13, 1998 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
1,200,000 shares of your Common Stock (the "Stock"), subject to issuance by you
upon the exercise of stock options granted by you under your 1994 Stock Option
Plan, as amended (the "1994 Plan"). In rendering this opinion, we have examined
the following:
(1) your registration statement on Form 8-A (File Number 0-25684)
filed with the Commission on March 14, 1995, together with the
order of effectiveness issued by the Commission therefor on
April 5, 1995;
(2) the Registration Statement, together with the Exhibits filed
as a part thereof, including the 1994 Plan and related stock
option grant and exercise agreement;
(3) the Prospectus prepared in connection with the Registration
Statement;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and the minute books of your predecessor,
Premisys Communications Holdings, Inc., a California
corporation ("Premisys California"), that are in our
possession;
(5) the stock records that you have provided to us (consisting of
a summary of shares outstanding issued by your transfer agent,
Chase Mellon Shareholder Services dated as of April 8, 1998,
and a summary of options outstanding that was prepared by you
and dated April 7, 1998); and
(6) a Management Certificate addressed to us and dated of even
date herewith executed by the Company containing certain
factual and other representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records included in the documents referred to
<PAGE>
above. We have made no independent investigation or other attempt to verify the
accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based upon the foregoing, it is our opinion that the 1,200,000 shares of Stock
that may be issued and sold by you upon the exercise of stock options granted or
to be granted under the 1994 Plan, when issued and sold in accordance with the
1994 Plan and stock option agreements to be entered into thereunder, and in the
manner referred to in the Prospectus associated with the Registration Statement,
will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Eileen Duffy Robinett
--------------------------------
Eileen Duffy Robinett, a Partner
Exhibit 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated July 24, 1997, which
appears on page 28 of Premisys Communications, Inc.'s Annual Report on Form 10-K
for the year ended June 27, 1997.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
San Jose California
April 8, 1998
Exhibit 23.02
Consent of Price Waterhouse LLP
