-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IElkO+N61/WPce59XuwlSF8aFFoGsw2Q96dZl7kpCa5XH+9qylDk4ONQt7iFsAOi dJE3oLaS6ZF6bbQ73mhr1g== 0000922409-95-000033.txt : 19951130 0000922409-95-000033.hdr.sgml : 19951130 ACCESSION NUMBER: 0000922409-95-000033 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19951127 EFFECTIVENESS DATE: 19951216 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MICROCOM INC CENTRAL INDEX KEY: 0000795571 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 042710644 STATE OF INCORPORATION: MA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64579 FILM NUMBER: 95596353 BUSINESS ADDRESS: STREET 1: 500 RIVER RIDGE DR CITY: NORWOOD STATE: MA ZIP: 02062 BUSINESS PHONE: 6175511000 S-8 1 As filed with the Securities and Exchange Commission on November 27, 1995 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MICROCOM, INC. (Exact name of registrant as specified in its charter) Massachusetts No. 04-2710644 (State or other jurisdiction (IRS Employer of incorproation or oganization) Identification No.) 500 River Ridge Drive Norwood, Massachusetts 02062-5028 (617) 551-1000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Long Term Performance Plan 1993 Non-Employee Director Stock Option Plan (Full title of plans) Roland D. Pampel President and Chief Executive Officer MICROCOM, INC. 500 River Ridge Drive Norwood, Massachusetts 02062-5028 (617) 551-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Proposed Title of Proposed Maximum Securities Maximum Aggregate Amount of to be Amount to be Offering Price Offering Registration Registered Registered(1) Per Share(2) Price(2) Fee ___________ _____________ ______________ _________ _____________ Common Stock, $.01 450,000 $23.9375 $10,771,875 $3,714.44 par value shares (1) Plus such additional number of shares as may be required pursuant to the Plan in the event of a stock dividend, split-up of shares, recapitalization or other similar change in the Common Stock. (2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1), on the basis of the average of the high and low prices of Microcom, Inc. Common Stock as reported on the Nasdaq National Market on November 17, 1995. EXPLANATORY NOTE This Registration Statement has been prepared in accordance with the requirements of General Instruction E to Form S-8, as amended, and relates to (i) 400,000 shares of Common Stock, $.01 par value per share (the "Common Stock"), of Microcom, Inc. (the "Company") which represents an increase in the number of shares reserved for issuance under the Company's Long Term Performance Plan (the "Performance Plan"), and (ii) 50,000 shares of the Common Stock, which represents an increase in the number of shares reserved for issuance under the Company's 1993 Non-Employee Director Stock Option Plan (the "1993 Plan"). 300,000 shares have been previously registered for issuance under the Performance Plan, pursuant to a Registration Statement on Form S-8 (File No. 33-84572). 100,000 shares have previously been registered for issuance under the 1993 Plan pursuant to a Registration Statement on Form S-8 (File No. 33-71588). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The contents of the Company's previously filed Registration Statements on Form S-8 (Nos. 33-84572 and 33-71588) relating to shares issuable under the Performance Plan and the 1993 Plan are hereby incorporated by reference. Item 8. Exhibits 5.1 Opinion of Choate, Hall & Stewart 10.1 Registrant's 1993 Non-Employee Director Stock Option Plan (As Amended and Restated Effective as of March 17, 1995) 10.2 Registrant's Long Term Performance Plan (As Amended and Restated Effective as of April 13, 1995) 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1) 24.1 Power of Attorney (included in page II-3) II-1 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Norwood, The Commonwealth of Massachusetts on November 17, 1995. Microcom, Inc. (Issuer and Employer) By: Roland D. Pampel, President and Chief Executive Officer II-2 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Roland D. Pampel, Peter J. Minihane and William C. Rogers, jointly and severally, his true and lawful attorneys-in-fact and agents with full powers of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on November 17, 1995 by the following persons in the capacities indicated. Signature Capacity Roland D. Pampel President, Chief Executive Officer and Director (Principal Executive Officer) Peter J. Minihane Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) James M. Dow Chairman of the Board Donald G. Kennedy Director John C. Rutherford Director Michael I. Schneider Director II-3 INDEX TO EXHIBITS Exhibit Number Page 5.1 Opinion of Choate, Hall & Stewart 10.1 Registrant's 1993 Non-Employee Director Stock Option Plan (As Amended and Restated Effective as of March 17, 1995) 10.2 Registrant's Long Term Performance Plan (As Amended and Restated Effective as of April 13, 1995) 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1) 24.1 Power of Attorney (included in page II-3) II-4 EX-5 2 Exhibit 5.1 Choate, Hall & Stewart A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Exchange Place 53 State Street Boston, Massachusetts 02109-2891 Telephone (617)248-5000 Facsimile (617) 248-4000 Telex 49615860 November 27, 1995 Microcom, Inc. 500 River Ridge Drive Norwood, Massachusetts 02062-5028 Gentlemen: This opinion is delivered to you in connection with the registration statement on Form S-8 (the "Registration Statement") to be filed on November 27, 1995 by Microcom, Inc. (the "Company") under the Securities Act of 1933, as amended, for registration under said Act of 450,000 shares of common stock, $.01 par value (the "Common Stock"), of the Company. We are familiar with the Company's Articles of Organization, as amended, its By-Laws, as amended, and its corporate minute book as well as the Registration Statement. We have also examined such other documents, records and certificates and made such further investigation as we have deemed necessary for the purposes of this opinion. Based upon and subject to the foregoing, we are of the opinion that the 400,000 shares of Common Stock to be sold by the Company under its Long Term Performance Plan and the 50,000 shares of Common Stock to be sold under its 1993 Non-Employee Director Stock Option Plan, each as in effect on the date hereof, when issued against receipt of the agreed purchase price therefor, will be legally issued, fully paid and nonassessable. We understand that this opinion is to be used in connection with the Registration Statement and consent to the filing of this opinion as an exhibit to the Registration Statement. We further consent to the reference to this firm in the section entitled "Interests of Named Experts and Counsel". Very truly yours, CHOATE, HALL & STEWART EX-10 3 Exhibit 10.1 MICROCOM, INC. 1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (As Amended and Restated Effective March 17, 1995) ______________ Section 1. Purpose of Plan The purpose of this Microcom, Inc. 1993 Non-Employee Director Stock Option Plan ("Plan") is to enable Microcom, Inc. (the "Company") to attract and retain non-employee directors and further align their interests with those of the shareholders by providing for or increasing their equity interests in the Company. Section 2. Administration This Plan shall be administered by the Board of Directors of the Company (the "Board") or by the Compensation Committee appointed by the Board (the "Committee"). In the event the Board refrains from delegating administration of this Plan to the Committee, the Board shall have all power and authority to administer this Plan. In such event, the word "Committee" wherever used herein shall be deemed to mean the Board. The Committee shall, subject to the provisions of the Plan, have the power to construe this Plan, to determine all questions hereunder, and to adopt and amend such rules and regulations for the administration of this Plan as it may deem desirable. Section 3. Persons Eligible Under Plan Each member of the Board who is not an employee of the Company or any of its subsidiaries (a "Non-Employee Director") shall be eligible for the grant of Options (as hereinafter defined) under this Plan. Section 4. Available Shares The total number of shares of Common Stock, par value $.01 per share, of the Company ("Common Shares"), for which options may be granted under this Plan shall not exceed 150,000 shares, subject to adjustment as provided in Section 6 hereof. Shares subject to this Plan are authorized but unissued Common Shares or Common Shares that were once issued and subsequently reacquired by the Company. If any Options (as hereinafter defined) granted under this Plan are surrendered before exercise or lapse without exercise, in whole or in part, the Common Shares reserved therefor shall continue to be available under this Plan. Section 5. Options (a) Initial Grants. Each person who is a Non-Employee Director shall, on March 17, 1995 without further action by the Board or the Committee, automatically be granted an option ("Option") to purchase 16,000 Common Shares, subject to adjustment as provided in Section 6 hereof. In addition, each person who first becomes a Non-Employee Director after March 17, 1995 shall, on the date such person becomes a Non-Employee Director, without further action by the Board or Committee, automatically be granted an Option to purchase 16,000 Common Shares, subject to adjustment as provided in Section 6 hereof. (b) Annual Grants. On April 15, 1996 and on April 15 of each succeeding year during the term of this Plan, or, if April 15 shall not be a business day, the business day immediately preceding such date, each person who is a Non- Employee Director shall without further action by the Board or Committee automatically be granted an Option to purchase 4,000 Common Shares, subject to adjustment as provided in Section 6 hereof. (c) Insufficient Shares. Notwithstanding the foregoing, if, on any date upon which Options are to be granted under Section 5(a) or (b) hereof, the number of Common Shares remaining available for issuance under this Plan is insufficient for the grant of Options to purchase the total number of Common Shares specified in such section, then each Non-Employee Director entitled to receive an Option on such date shall be granted an Option to purchase a proportionate amount of the available number of Common Shares (rounded down to the greatest number of whole shares). Except for the specific Options referred to in Section 5(a) and (b) above, no other Options shall be granted under this Plan. (d) Option Price and Terms. Each Option shall be evidenced by a written option agreement that shall contain the following terms and provisions: (i) The exercise price per Common Share shall be equal to the Fair Market Value (as hereinafter defined) of one Common Share on the date of grant of such Option. If, at the time an Option is granted the Company's Common Shares are publicly traded, "Fair Market Value" shall be determined as of the last business day for which the prices or quotes discussed in this sentence are available prior to the date such Option is granted and shall mean (i) the average (on that date) of the high and low prices of the Common Shares on the principal national securities exchange on which the Common Shares are traded, if the Common Shares are then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Shares on the Nasdaq National Market System, if the Common Shares are not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Shares are not then reported on the Nasdaq National Market System or on a national securities exchange. If, at the time an Option is granted under the Plan, the Company's Common Shares are not publicly traded, "Fair Market Value" shall be the fair market value on the date the Option is granted as determined by the Committee in good faith. (ii) Payment of the exercise price of the Option shall be made in full in cash or by check concurrently with the exercise of the Option. (iii) The Option shall be nontransferable by the optionee other than by will or the laws of descent and distribution, and shall be exercisable during the optionee's life time only by the optionee or the optionee's guardian or legal representative. (iv) Options granted pursuant to this Section 5 shall be immediately exercisable and shall expire upon the first to occur of the following: (A) the third anniversary of the date upon which the optionee shall cease to be Non-Employee Director, or (B) the tenth anniversary of the date of grant. (v) Shares issued upon exercise of an Option granted hereunder which are unvested shall be subject to repurchase by the Company, at the Company's election, at a price equal to the exercise price of the Option if the optionee either (A) ceases to be a Non-Employee Director for any reason whatsoever other than death or permanent disability or (B) proposes to sell or otherwise transfer such shares. Shares shall vest and become free of the Company's repurchase right in accordance with the following: (a) shares issued upon exercise of an Option granted pursuant to Section 5(a) shall vest in three annual installments of 32%, 33% and 35% on the first, second and third anniversaries, respectively, of the date of grant; (b) shares issued upon exercise of an Option granted pursuant to Section 5(b) shall vest in full on the first anniversary of the date of grant; and (c) shares issued upon exercise of any Option granted under the Plan to an optionee who ceases to be a Non- Employee Director due to death of permanent disability shall be fully vested upon such cessation of service. Within 30 days of the date of notice from the Company of exercise of its repurchase rights, the shares to be repurchased shall be transferred by the optionee to the Company against payment by the Company of the purchase price specified above. If the Company shall fail to exercise its repurchase rights within 120 days of the date the optionee ceases to serve as a Non-Employee Director, the repurchase rights with respect to the shares imposed by this Section 5(v) shall terminate and the optionee may thereafter transfer the shares, subject, however, to such other restrictions on transfer as may then exist thereon. If an optionee fails to comply with any of the provisions of this Section 5(v), the Company, at its option, and in addition to its other remedies, may suspend the rights of the optionee to vote or receive dividends on the shares or may refuse to register on its books any transfer of the shares or otherwise recognize any transfer or change in the ownership of the shares or in the right to vote thereon, until the provisions of this Section are complied with to the satisfaction of the Company. (vi) Such other terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall include in the written option agreement. Section 6. Adjustments (a) Stock Dividends, Recapitalization, Etc. If the outstanding securities of the class then subject to this Plan are increased, decreased or exchanged for or converted into a different number or kind of securities of the Company, or if cash, property or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, restructuring, reclassification, dividend (other than a regular cash dividend) or other distribution, stock split, reverse stock split or the like, then, unless the terms of such transaction shall provide otherwise, the Committee shall make appropriate and proportionate adjustments in (i) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Options theretofore granted under this Plan, and (ii) the maximum number and type of shares or other securities that may be issued pursuant to Options thereafter granted under this Plan. (b) Merger, Sale of Assets, Etc. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation or if the Company is liquidated or sells or otherwise disposes of all or substantially all of its assets while unexercised Options remain outstanding under the Plan, as of the date thirty (30) days prior to such transaction (i) all outstanding Options shall become fully vested and exercisable in full, and (ii) any Options which remain unexercised as of the day prior to the effective date of the transaction shall be cancelled as of such day and shall not thereafter be exercisable by anyone; provided that the accelerated exercisability of Options shall be contingent on completion of the transaction and shall be null and void if the transaction is not consummated; and provided, further, that accelerated exercisability pursuant to this provision shall not extend the expiration date for any Option determined pursuant to Section 5. Section 7. Amendment and Termination of Plan The Board may amend or terminate this Plan at any time and in any manner, subject to the following: (a) no such amendment or termination shall deprive the recipient of any Option theretofore granted under this Plan, without the consent of such recipient, of any of his or her rights thereunder or with respect thereto; and (b) Section 5 hereof shall not be amended more than once every six months other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act of 1974, or the rules thereunder. Section 8. Effective Date and Duration of Plan The Plan became effective on April 21, 1993, the date it was originally adopted by the Board, and was approved by stockholders on July 15, 1993. This amendment and restatement of the Plan was approved by the Board effective March 17, 1995 and was approved by stockholders on July 20, 1995. This Plan shall terminate and no Options shall be granted hereunder after April 15, 2003. EX-10 4 Exhibit 10.2 MICROCOM, INC. LONG TERM PERFORMANCE PLAN (As Amended and Restated Effective as of April 13, 1995) ______________ 1. PURPOSE The purpose of this Microcom, Inc. Long Term Performance Plan (the "Plan") is to advance the interests of Microcom, Inc. (the "Company") by enabling the Company to attract and retain officers, executives and other key employees, and reward them for making major contributions to the success of the Company. This purpose is accomplished by making stock and cash awards under the Plan, thereby providing Participants with a proprietary interest in the growth and performance of the Company and cash bonuses to recognize and reward their performance. 2. DEFINITIONS (a) "Award" shall mean the grant of any form of stock option, stock appreciation right, stock, or cash award, whether granted singly, in combination or in tandem, to a Participant pursuant to such terms, conditions, performance requirements, restrictions and limitations as the Committee may establish in order to fulfill the purpose of the Plan. (b) "Award Agreement" shall mean a written plan document adopted by the Company or a written agreement between the Company and a Participant that sets forth the terms, conditions, performance requirements, restrictions and limitations applicable to an Award. (c) "Board" shall mean the Board of Directors of the Company. (d) "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. (e) "Committee" shall mean the committee designated by the Board to administer the Plan. The Committee shall consist solely of two or more outside directors, within the meaning of Section 162(m) of the Code, and shall be constituted to permit the Plan to comply with Rule 16b-3 promulgated under the Securities Exchange Act of 1934 or any successor rule. No member of the Committee may receive Awards under the Plan. (f) "Common Stock" or "Stock" shall mean authorized and issued or unissued $0.01 par value Common Stock of the Company. (g) "Company" shall mean Microcom, Inc. and its subsidiaries including subsidiaries of subsidiaries and partnerships and other business ventures in which Microcom, Inc. has a significant equity interest, as determined in the sole discretion of the Committee. (h) "Fair Market Value" shall mean the value of Common Stock as determined in accordance with procedures established in good faith by the Committee and, with regard to incentive stock options, in conformity with the Code and regulations with regard to incentive stock options. (i) "Participant" shall mean an employee of the Company to whom an Award has been made under the Plan. 3. ELIGIBILITY Awards may be granted to such officers, executives and key employees of the Company who hold positions of responsibility and who in the judgment of the Committee or the management of the Company can have a significant effect on the success of the Company. 4. STOCK AVAILABLE FOR AWARDS The number of shares that may be issued under the Plan for Awards granted wholly or partly in Stock is 700,000 (the "Share Limit"). Included in the Share Limit are Awards denominated in units of Stock that may be redeemed or exercised for cash as well as for Stock. Also included in the Share Limit are shares of Stock withheld by the Company in connection with the exercise of any stock option or other Award to satisfy tax withholding requirements or to pay the exercise price of such stock options or Awards. Stock related to Awards that are forfeited, terminated, expire unexercised, or settled in such manner that all or some of the shares covered by an Award are not issued to a Participant, or are exchanged for Awards that do not involve Stock, shall immediately become available for Awards and will not be included within the Share Limit; provided, in the case of shares reacquired by the Company pursuant to a repurchase right, the holder thereof did not receive any benefits with respect to the ownership thereof other than voting rights. 5. ADMINISTRATION The Plan shall be administered by the Committee, which shall have full and exclusive power to interpret the Plan, and to adopt such rules, regulations and guidelines for carrying out the Plan as it may deem necessary or proper, all of which powers shall be executed in the best interests of the Company and in keeping with the purpose of the Plan. These powers include, but are not limited to, designating the Participants, designating the Awards made to each Participant, establishing performance goals and subplans, establishing vesting and exercisability restrictions, and waiving any or all restrictions previously attached to any Award. These powers include the adoption of modifications, amendments, procedures, subplans and the like as are necessary to comply with provisions of the laws and regulations of the countries in which the Company operates in order to assure the viability of Awards granted under the Plan and to enable Participants regardless of where employed to receive advantages and benefits under the Plan and such laws and regulations. 6. DELEGATION OF AUTHORITY The Committee may delegate to the chief executive officer and to other senior officers of the Company its duties under the Plan pursuant to such conditions or limitations as the Committee may establish, except that only the Committee may select, and grant Awards to, Participants who are subject to Section 16 of the Securities Exchange Act of 1934 ("Section 16 Persons"). 7. AWARDS The Committee shall determine the type or types of Award(s) to be made to each Participant and shall set forth in the related Award Agreement the terms, conditions, performance requirements, and limitations applicable to each Award. Awards may include but are not limited to those listed in this Section 7. Awards may be granted singly, in combination or in tandem. Awards may also be made in combination or in tandem with, in replacement of, or as alternatives to, grants or rights under any other employee plan of the Company, including the plan of any acquired entity. Any other provision hereof notwithstanding, no Participant shall be granted within any fiscal year of the Company Awards of stock options or SAR's the aggregate of which shall exceed 100,000 shares. (a) Stock Options. A stock option is the grant by the Company to a Participant of a right to purchase a specified number of shares of Stock the purchase price of which shall be not less than 100% of Fair Market Value on the date of grant of such right, as determined by the Committee. A stock option may be in the form of (i) a nonqualified option which shall be subject to terms, conditions and limitations established by the Committee or (ii) an incentive stock option ("ISO") which, in addition to being subject to applicable terms, conditions and limitations established by the Committee, complies with Section 422 of the Code which, among other limitations, provides that the aggregate Fair Market Value (determined at the time the option is granted) of Stock for which ISO's are exercisable for the first time by a Participant during any calendar year shall not exceed $100,000; that ISO's shall be priced at not less than 100% of the Fair Market Value on the date of the grant; and that ISO's shall be exercisable for a period of not more than ten years. (b) Stock Appreciation Rights. A stock appreciation right ("SAR") is a right of a Participant to receive from the Company a payment, in cash and/or Stock, equal to the excess of the Fair Market Value of a specified number of shares of Stock on the date the SAR is exercised over the Fair Market Value on the date of grant of the SAR, as set forth in the Award Agreement. (c) Stock Award. An Award may be made in shares of Stock or denominated in units of Stock. All or part of any Stock Award may be subject to terms, conditions and limitations established by the Committee, and set forth in the Award Agreement, which may include, but are not limited to, continuous service with the Company, achievement of specific individual, divisional or Company-wide business objectives, increases in specified indices, attaining financial growth rates, and other comparable measurements of performance. When transfer of Stock is so restricted or subject to forfeiture provisions, it is referred to as "Restricted Stock." (d) Cash Award. An Award may be denominated in cash with the eventual payment amount subject to future service and such other restrictions and conditions established by the Committee and set forth in the Award Agreement, including, but not limited to, continuous service with the Company, achievement of specific individual, divisional or Company-wide business objectives, increases in specified indices, attaining financial growth rates, and other comparable measurements of performance. 8. PAYMENT OF AWARDS Payment of Awards may be made in the form of cash, Stock, or combinations thereof, and may include such restrictions as the Committee shall determine, including in the case of Stock, restrictions on transfer and forfeiture provisions. If the Committee specifies in the Award Agreement, payment of Awards shall be deferred, either in the form of installments or as a future lump sum payment. The Committee may permit Participants to elect to defer payments of some or all types of Awards in accordance with procedures established by the Committee which are intended to permit such deferrals to comply with applicable requirements of the Code including, at the choice of the Participant, the capability to make further deferrals for payment after retirement. Any deferred payment, whether elected by the Participant or specified by the Award Agreement, may require the payment to be forfeited in accordance with the provisions of Section 13 of the Plan. Dividends or dividend equivalent rights may be extended to and made a part of any Award denominated in Stock or units of Stock, subject to such terms, conditions and restrictions as the Committee may establish. The Committee may also establish rules and procedures for the crediting of interest on deferred cash payments and dividend equivalents for deferred payments denominated in Stock or units of Stock. At the discretion of the Committee, a Participant may be offered an election to substitute an Award for another Award or Awards of the same or different type. 9. STOCK OPTION EXERCISE The price at which shares of Stock may be purchased under a Stock Option shall be paid in full at the time of the exercise in cash or, if permitted by the Committee, by means of tendering Stock or surrendering another Award, including Restricted Stock, valued at Fair Market Value on the date of exercise, or any combination thereof. The Committee shall determine acceptable methods for tendering Common Stock or other Awards and may impose such conditions on the use of Common Stock or other Awards to exercise a stock option as it deems appropriate. In the event shares of Restricted Stock are tendered as consideration for the exercise of a stock option, a number of the shares issued upon the exercise of the stock option, equal to the number of shares of Restricted Stock used as consideration therefor, shall be subject to the same restrictions as the Restricted Stock so submitted plus any additional restrictions that may be imposed by the Committee. 10. TAX WITHHOLDING The Company shall have the right to deduct applicable taxes from any Award payment and withhold, at the time of delivery or vesting of shares under the Plan, an appropriate number of shares for payment of taxes required by law or to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for withholding of such taxes; provided that with respect to Section 16 Persons the Company shall in all cases where tax withholding is required with respect to such Participants, withhold shares of Stock having a value equal to such withholding obligation. If Stock or Restricted Stock is used to satisfy tax withholding, such Stock shall be valued based on the Fair Market Value when the tax withholding is required to be made. 11. AMENDMENT, MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE PLAN The Board may amend, modify, suspend or terminate the Plan for the purpose of meeting or addressing any changes in legal requirements or for any other purpose permitted by law. Subject to changes in law or other legal requirements that would permit otherwise, the Plan may not be amended without the approval of the shareholders, to (i) increase the aggregate number of shares of Common Stock that may be issued under the Plan (except for adjustments pursuant to Section 15 of the Plan), (ii) decrease the option price to less than 100% of Fair Market Value for stock options or SAR's, or (iii) materially modify the requirements as to eligibility for participation in the Plan. 12. TERMINATION OF EMPLOYMENT If the employment of a Participant terminates, other than pursuant to paragraphs (a) or (b) of this Section 12, all unexercised, deferred and unpaid Awards shall be cancelled immediately, unless the Award Agreement provides otherwise. (a) Retirement Under a Company Retirement Plan. When a Participant's employment terminates as a result of retirement in accordance with the terms of a Company retirement plan, the Committee (in the form of an Award Agreement or otherwise) may permit Awards to continue in effect beyond the date of retirement in accordance with the applicable Award Agreement and the exercisability and vesting of any Award may be accelerated. (b) Death or Disability of a Participant. (i) In the event of a Participant's death, the Participant's estate or beneficiaries shall have a period of one year from the date of the Participant's death, or other period specified in the Award Agreement, within which to receive or exercise any outstanding Award held by the Participant to the extent such Award was exercisable by the Participant on the date of his death, provided that no Award shall be exercisable by anyone after the termination date otherwise applicable to the Award. Rights to any such outstanding Awards shall pass by will or the laws of descent and distribution in the following order: (1) to beneficiaries so designated by the Participant; if none, then (2) to a legal representative of the Participant; if none, then (3) to the persons entitled thereto as determined by a court of competent jurisdiction. Subject to subparagraph (iii) below, Awards so passing shall be exercised or paid out at such times and in such manner as if the Participants were living. (ii) In the event a Participant is deemed by the Company to be disabled, Awards and rights to any such Awards may be paid to or exercised by the Participant, if legally competent, or a committee or other legally designated guardian or representative if the Participant is legally incompetent by virtue of such disability; in the event of the Participant's disability the Participant (or such legally designated guardian) shall have a period of one year after the Participant ceases to perform services on account of disability, or other period specified in the Award Agreement, within which to receive or exercise any outstanding Award held by the Participant to the extent such Award was exercisable by the Participant on the date he ceased to perform services, provided that no Award shall be exercisable by anyone after the termination date otherwise applicable to the Award. (iii) After the death or disability of a Participant, the Committee may in its sole discretion at any time (1) terminate restrictions in Award Agreements; (2) accelerate any or all installments and rights: and (3) instruct the Company to pay the total of any accelerated payments in a lump sum to the Participant, the Participant's estate, beneficiaries or representative, notwithstanding that, in the absence of such termination of restrictions or acceleration of payments, any or all of the payments due under the Awards might ultimately have become payable to other beneficiaries. (iv) In the event of uncertainty as to interpretation of or controversies concerning this paragraph (b) of Section 12, the Committee's determination shall be binding and conclusive. 13. CANCELLATION AND RESCISSION OF AWARDS Unless the Award Agreement specifies otherwise, the Committee may cancel any unexpired, unpaid, or deferred Awards at any time if the Participant is not in compliance with all other applicable provisions of the Award Agreement, the Plan and with the following conditions: (a) A Participant shall not render services for any organization or engage directly or indirectly in any business which, in the judgment of the chief executive officer of the Company or other senior officer designated by the Committee, is or becomes competitive with the Company, or which organization or business, or the rendering of services to such organization or business, is or becomes otherwise prejudicial to or in conflict with the interests of the Company. For a Participant whose employment has terminated, the judgment of the chief executive officer shall be based on the Participant's position and responsibilities while employed by the Company, the Participant's post-employment responsibilities and position with the other organization or business, the extent of past, current and potential competition or conflict between the Company and the other organization or business, the effect on the Company's customers, suppliers and competitors of the Participant's assuming the post-employment position, and such other considerations as are deemed relevant given the applicable facts and circumstances. (b) A Participant shall not, without prior written authorization from the Company, disclose to anyone outside the Company, or use in other than the Company's business, any confidential information or material relating to the business of the Company, acquired by the Participant either during or after employment with the Company. (c) A Participant shall disclose promptly and assign to the Company all right, title, and interest in any invention or idea, patentable or not, made or conceived by the Participant during employment by the Company, relating in any manner to the actual or anticipated business, research or development work of the Company and shall do anything reasonably necessary to enable the Company to secure a patent where appropriate in the United States and in other countries. (d) Upon exercise, payment or delivery pursuant to an Award, the Participant shall certify on a form acceptable to the Committee that he or she is in compliance with the terms and conditions of the Plan. Failure to comply with the provisions of paragraph (a), (b) or (c) of this Section 13 prior to, or during the six months after, any exercise, payment or delivery pursuant to an Award shall cause such exercise, payment or delivery to be rescinded. The Company shall notify the Participant in writing of any such rescission within two years after such exercise, payment or delivery. Within ten days after receiving such a notice from the Company, the Participant shall pay to the Company the amount of any gain realized or payment received as a result of the rescinded exercise, payment or delivery pursuant to an Award. Such payment shall be made either in cash or by returning to the Company the number of shares of Stock that the Participant received in connection with the rescinded exercise, payment or delivery. (e) Nothing in the Plan shall interfere with or limit in any way the right of the Company to terminate any Participant's employment at any time, for any reason or no reason in the Company's sole discretion, nor confer upon any Participant any right to continue in the employ of the Company. For purposes of the Plan, transfer of employment of a Participant between the Company and any one of its subsidiaries (or between subsidiaries) shall not be deemed a termination of employment. (f) No employee shall have the right to be selected to receive an Award under this Plan, or, having been so selected, to be selected to receive a future Award. 14. NON-TRANSFERABILITY Unless the Award Agreement specifies otherwise, no Award shall be transferable by a Participant otherwise than by will or by the laws of descent and distribution and each Award shall be exercisable during a Participant's lifetime only by him. 15. ADJUSTMENTS In the event of any change in the outstanding Stock of the Company by reason of a stock split, stock dividend, combination or reclassification of shares, recapitalization, merger, or similar event, the Committee may adjust proportionally (a) the number of shares of Stock (i) reserved under the Plan, (ii) available for ISO's, (iii) for which Awards may be granted to an individual Participant, and (iv) covered by outstanding Awards denominated in Stock or units of Stock; (b) the Stock prices related to outstanding Awards; and (c) the appropriate Fair Market Value and other price determinations for such Awards. In the event of any other change affecting the Stock or any distribution (other than normal cash) to holders of Stock, such adjustments as may be deemed equitable by the Committee, including adjustments to avoid fractional shares, shall be made to give proper effect to such event. In the event of a corporate merger, consolidation, acquisition of property or stock, reorganization or liquidation, the Committee is authorized to issue or assume stock options, whether or not in a transaction to which Section 424(a) of the Code applies, by means of substitution of new stock options for previously issued stock options or an assumption of previously issued stock options. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation, or if the Company is liquidated or sells or otherwise disposes of substantially all of its assets to another corporation while Awards remain outstanding under the Plan, (i) subject to the provisions of clauses (iii), (iv) and (v) below, after the effective date of such merger, consolidation or sale, as the case may be, each holder of an outstanding Award shall be entitled, upon exercise of such Award, to receive in lieu of Stock of the Company, shares of such stock or other securities as the holders of Stock received pursuant to the terms of the merger, consolidation or sale; or (ii) the Committee may waive any discretionary limitations imposed with respect to the exercise of the Award so that all Awards from and after a date prior to the effective date of such merger, consolidation, liquidation or sale, as the case may be, specified by the Committee, shall be exercisable or payable in full; or (iii) all outstanding Awards may be cancelled by the Committee as of the effective date of any such merger, consolidation, liquidation or sale provided that notice of such cancellation shall be given to each holder of an Award, and each such holder thereof shall have the right to exercise such Award in full (without regard to any discretionary limitations imposed with respect to the Award) during a 30-day period preceding the effective date of such merger, consolidation, liquidation or sale; or (iv) all outstanding Awards may be cancelled by the Committee as of the date of any such merger, consolidation, liquidation or sale provided that notice of such cancellation shall be given to each holder of an Award, and each such holder thereof shall have the right to exercise such Award but only to the extent exercisable in accordance with any discretionary limitations imposed with respect to the Award prior to the effective date of such merger, consolidation, liquidation or sale; or (v) the Committee may provide for the cancellation of all outstanding Awards and for the payment to the holders thereof some part or all of the amount by which the value thereof exceeds the payment, if any, which the holder would have been required to make to exercise such Award. 16. NOTICE Any notice to the Company required by any of the provisions of the Plan shall be addressed to the chief financial officer of the Company in writing, and shall become effective when it is received by the chief financial officer. 17. UNFUNDED PLAN Insofar as it provides for Awards of cash and Stock, the Plan shall be unfunded. Although bookkeeping accounts may be established with respect to Participants who are entitled to cash, Stock or rights thereto under the Plan, any such accounts shall be used merely as a bookkeeping convenience. The Company shall not be required to segregate any assets that may at any time be represented by cash, Stock or rights thereto, nor shall the Plan be construed as providing for such segregation, nor shall the Company or the Board or the Committee be deemed to be a trustee of any cash, Stock or rights thereto to be granted under the Plan. Any liability of the Company to any Participant with respect to a grant of cash, Stock or rights thereto under the Plan shall be based solely upon any contractual obligations that may be created by the Plan and any Award Agreement; no such obligation of the Company shall be deemed to be secured by any pledge or other encumbrance on any property of the Company. Neither the Company nor the Board nor the Committee shall be required to give any security or bond for the performance of any obligation that may be created by the Plan. 18. GOVERNING LAW The Plan and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the laws of the United States, shall be governed by the laws of The Commonwealth of Massachusetts and construed accordingly. 19. EFFECTIVE AND TERMINATION DATES The Plan became effective on June 8, 1994, the date it was adopted by the Board, and was approved by stockholders on July 21, 1994. This amendment and restatement of the Plan was approved by the Board effective April 13, 1995 and was approved by the stockholders on July 20, 1995. The Plan shall terminate ten years after the date it is initially adopted by the Board, subject to earlier termination by the Board pursuant to Section 11, after which no Awards may be made under the Plan, but any such termination shall not affect Awards then outstanding or the authority of the Committee to continue to administer the Plan. EX-23 5 Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated April 11, 1995 included in Microcom, Inc.'s 1995 Annual Report to Stockholders for the year ended March 31, 1995 and all references to our firm included in this registration statement. Arthur Andersen LLP Boston, Massachusetts November 20, 1995 -----END PRIVACY-ENHANCED MESSAGE-----