-----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, ISMb3z9q9V7hDE491WtNzqdGOh+9h9PBg/2EWj7XAB9q9ycoNlm92xPatXysyoAv QZXDumdi2UxDhGwBTeeXDA== 0000950116-05-002423.txt : 20050712 0000950116-05-002423.hdr.sgml : 20050712 20050712144008 ACCESSION NUMBER: 0000950116-05-002423 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050712 DATE AS OF CHANGE: 20050712 EFFECTIVENESS DATE: 20050712 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOWARE SYSTEMS INC CENTRAL INDEX KEY: 0000894743 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 232705700 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-126533 FILM NUMBER: 05950160 BUSINESS ADDRESS: STREET 1: 400 FEHELEY DR CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 BUSINESS PHONE: 6102778300 MAIL ADDRESS: STREET 1: 400 FEHELEY DR CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 FORMER COMPANY: FORMER CONFORMED NAME: HDS NETWORK SYSTEMS INC DATE OF NAME CHANGE: 19950313 FORMER COMPANY: FORMER CONFORMED NAME: INFORMATION SYSTEMS ACQUISITION CORP DATE OF NAME CHANGE: 19930108 S-8 1 s8.txt S-8 As filed with the Securities and Exchange Commission on July 12, 2005 Registration No. 333- - -------------------------------------------------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NEOWARE SYSTEMS, INC. (Exact name of registrant as specified in its charter)
Delaware 23-2705700 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
400 Feheley Drive King of Prussia, Pennsylvania 19406 (Address of Principal Executive Offices) 2004 EQUITY INCENTIVE PLAN (Full Title of the Plan) Keith D. Schneck, Executive Vice President and Chief Financial Officer Neoware Systems, Inc. 400 Feheley Drive King of Prussia, Pennsylvania 19406 (610) 277-8300 (Name and address of agent for service, telephone number, including area code, of agent for service) Copies to: Nancy D. Weisberg, Esquire McCausland, Keen & Buckman Radnor Court, Suite 160 259 North Radnor-Chester Road Radnor, Pennsylvania 19087-5240 (610) 341-1000
- ------------------------------------------------------------------------------------------------------------------------------------ Calculation of Registration Fee - ------------------------------------------------------------------------------------------------------------------------------------ Proposed maximum Title of Securities Amount to be Proposed maximum aggregate Amount of to be registered Registered(1) offering price per unit offering price registration fee ------------------- ---------- ----------------------- -------------- ---------------- Common Stock, $.001 par value Shares not previously 1,500,000(2) $10.46(3) $15,690,000(3) $1,846.71(4) registered Shares previously 1,750,000(2) N/A(4) N/A(4) N/A(4) registered - ------------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement is deemed to include such additional shares as may become issuable pursuant to the anti-dilution provisions of the Neoware Systems, Inc. (the "Company") 2004 Equity Incentive Plan (the "2004 Plan"), the 2002 Non-Qualified Stock Option Plan (the "2002 Plan") and the 1995 Stock Option Plan (the "1995 Plan," and together with the 2004 Plan and the 2002 Plan, the "Plans"). (2) The number of shares of the Registrant's Common Stock being registered under this registration statement includes: (i) 1,500,000 shares of Common Stock newly authorized and reserved for issuance under the 2004 Plan; and (ii) up to 1,750,000 shares of Common Stock subject to outstanding options under the 1995 Plan and the 2002 Plan that terminate, expire or are canceled without having been exercised and which will be reserved for issuance under the 2004 Plan upon such termination, expiration or cancellation. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(h) and 457(c) under the Securities Act based upon the average of the high and low sale prices of the Common Stock on the NASDAQ National Market on July 5, 2005, which was $10.46 per share. (4) The Registrant is paying a filing fee of $1,846.71 for the registration of 1,500,000 shares of Common Stock newly authorized and reserved for issuance under the 2004 Plan, which is the successor plan to the 1995 Plan and the 2002 Plan. The Registrant has previously filed with the Securities and Exchange Commission ("SEC") the following Registration Statements on Form S-8 (the "Prior Registration Statements") and paid the applicable registration fees with respect to the 1,750,000 shares of Common Stock subject to outstanding options previously reserved for issuance under the 1995 Plan and the 2002 Plan which will be reserved for issuance under the 2004 Plan upon the termination, expiration or cancellation of such options without having been exercised: (a) the 1995 Plan on (i) registration statement on Form S-8, dated June 26, 1995 (Registration No. 33-93942), registering 1,000,000 shares of Common Stock, (ii) registration statement on Form S-8, dated January 22, 1997 (Registration No. 333-20185), registering 500,000 shares of Common Stock, (iii) registration statement on Form S-8, dated February 28, 2001 (Registration No. 333-56298), registering 1,000,000 shares of Common Stock and (iv) registration statement on Form S-8, dated August 14, 2003 (Registration No. 333-107974), registering 500,000 shares of Common Stock; and (b) the 2002 Plan on (i) registration statement on Form S-8, dated January 31, 2003 (Registration No. 333-102878), registering 500,000 shares of Common Stock and (ii) registration statement on Form S-8, dated August 14, 2003 (Registration No. 333-107970), registering 200,000 shares of Common Stock. The 1,750,000 shares are being carried forward from the Prior Registration Statements and therefore no filing fee is required with respect to those shares pursuant to Instruction E of the General Instructions to Form S-8 and Interpretation 89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Division of Corporation Finance of the SEC. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents are incorporated by reference in this registration statement: (a) The Company's annual report on Form 10-K for the fiscal year ended June 30, 2004, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"); (b) The Company's quarterly reports on Form 10-Q for the quarters ended September 30, 2004, December 31, 2004 and March 31, 2005; (c) The Company's current reports on Form 8-K filed since June 30, 2004 (our fiscal year-end) dated August 5, 2004, September 28, 2004, October 25, 2004, November 3, 2004, December 7, 2004, January 18, 2005, February 1, 2005, February 2, 2005, March 10, 2005, March 21, 2005, April 7, 2005, May 3, 2005, May 19, 2005 and June 20, 2005. (d) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the Company's fiscal year ended June 30, 2004; and (e) The description of the Company's Common Stock contained in the Company's registration statement on Form 8-A, declared effective under Section 12(g) of the Exchange Act on February 12, 1993. In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof, prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. 2 Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law (the "DGCL") permits the indemnification by a Delaware corporation of its directors, officers, employees, and other agents against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative, or investigative (other than derivative actions which are by or in the right of the corporation) if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was illegal. In the case of derivative actions, indemnification only extends to expenses (including attorneys' fees) incurred in connection with defense or settlement of such an action and requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The Company's certificate of incorporation provides that each person who was or is made a party to, or is involved in, any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of the Company (or was serving at the request of the Company as a director, officer, employee or agent for another entity) while serving in such capacity will be indemnified and held harmless by the Company to the full extent authorized or permitted by the DGCL. The certificate also provides that the Company may purchase and maintain insurance to ensure full payment of indemnifiable amounts. The Company maintains liability insurance on behalf of its officers and directors. Section 102(b)(7) of the DGCL permits a corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of directors to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability (a) for any breach of the director's duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) for any willful or negligent payment of an unlawful dividend, stock purchase or redemption, or (d) for any transaction from which the director derived an improper personal benefit. The Company's Certificate of Incorporation provides that the personal liability of the Company's directors is eliminated to the fullest extent permitted by Section 102(b)(7) of the DGCL. 3 Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1+ 2004 Equity Incentive Plan. (1) 4.2+ Amendment to 2004 Equity Incentive Plan (effective January 20, 2005)(2) 4.3+ Form of the Annual Director's Grant Agreement under the Registrant's 2004 Equity Incentive Plan. (3) 4.4+ Form of the Incentive Stock Option Award Agreement under the Registrant's 2004 Equity Incentive Plan. (4) 4.5+ Form of the Company's Non-Qualified Stock Option Award Agreement under the Registrant's 2004 Equity Incentive Plan. (5) 4.6* Form of the Company's Stock Option Award Agreement for Optionee's Residing in France under the Registrant's 2004 Equity Incentive Plan. 5* Opinion of McCausland Keen & Buckman. 23.1* Consent of McCausland Keen & Buckman (included in Exhibit 5). 23.2* Consent of KPMG LLP. 24* Power of Attorney (see signature page of the Registration Statement). - ----------- (1) Filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2004 and incorporated herein by reference. (2) Filed as Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2004 and incorporated herein by reference. (3) Filed as Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2004 and incorporated herein by reference. (4) Filed as Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2004 and incorporated herein by reference. 4 (5) Filed as Exhibit 10.6 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2004 and incorporated herein by reference. * Filed herewith. + Management contract or arrangement. Item 9. Undertakings. (a) 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 of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. Provided further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is an offering of asset-backed securities on Form S-1 (ss.239.11 of this chapter) or Form S-3 (ss.239.13 of this chapter), and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB (ss.229.1100(c)). (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 5 (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange commission such indemnification is against public policy as expressed in the 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, 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 Act and will be governed by the final adjudication of such issue. 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Montgomery County, Pennsylvania, on the 12th day of July, 2005. NEOWARE SYSTEMS, INC. By: /S/MICHAEL G. KANTROWITZ ---------------------------------------- Michael G. Kantrowitz, Chairman, President and Chief Executive Officer By: /S/KEITH D. SCHNECK ---------------------------------------- Keith D. Schneck, Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) 7 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Michael G. Kantrowitz and Keith D. Schneck, and each or either of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. By: /S/MICHAEL G. KANTROWITZ Date: July 12, 2005 ----------------------------------- Michael G. Kantrowitz, Chairman, President and Director By: /S/JOHN M. RYAN Date: July 12, 2005 ----------------------------------- John M. Ryan, Director By: /S/CHRISTOPHER G. MCCANN Date: July 12, 2005 ----------------------------------- Christopher G. McCann, Director By: /S/JOHN P. KIRWIN, III Date: July 12, 2005 ----------------------------------- John P. Kirwin, III, Director By: /S/DAVID D. GATHMAN Date: July 12, 2005 ----------------------------------- David D. Gathman, Director 8 EX-4 2 ex4-6.txt EXHIBIT 4.6 NEOWARE SYSTEMS, INC. 2004 EQUITY INCENTIVE PLAN STOCK OPTION AWARD AGREEMENT FOR OPTIONEES RESIDING IN FRANCE Neoware Systems, Inc. (the "Company") hereby grants to ___________ (the "Optionee") an option (the "Option") to purchase a total of _______ shares of the Company's Common Stock, at the price and on the terms set forth herein, and in all respects subject to the terms and provisions of the Neoware Systems, Inc. 2004 Equity Incentive Plan, as amended (the "Plan"), applicable to Non-Qualified Stock Options, which terms and provisions are incorporated by reference herein. Unless otherwise defined herein, capitalized terms used but not defined herein shall have the meanings given to them in the Plan. In the event of any conflict between the terms and conditions of the Plan and those set forth herein, the terms of set forth herein shall govern and be determinative. 1. NATURE OF THE OPTION. The Company intends that the Option granted hereunder shall qualify for the favorable tax and social insurance treatment applicable to stock options that comply with Articles L 225-177 to L 225-186 of the French Commercial Code. In this respect, for the avoidance of doubt, it should be noted, in particular, that: - - No option may be granted to a French resident Optionee holding more than ten percent of the Company's shares. - - The total number of outstanding Options offered by the Company may not, at any time, exceed one third of the Company's capital. - - French resident optionees may only be employees or executives of the Company or of any Subsidiary that are eligible for the grant of options under French law. 2. DATE OF GRANT. The Option is granted as of ___________, 200_ (the "Date of Grant"). 3. TERM OF OPTION. The Option shall have a term of ten years from the Date of Grant and shall terminate at 5:00 p.m. on ________, 200_ unless it is terminated at an earlier date pursuant to the provisions of this Agreement or the Plan. 4. OPTION EXERCISE PRICE. The Option exercise price is $_______ per Share, which is equal to the greater of: (i) ninety-five percent (95%) of the average closing price of the Common Stock during the twenty (20) trading days preceding the Date of Grant of the Option and (ii) one hundred percent (100%) of the Fair Market Value of the Common Stock on the Date of Grant of such Option. 5. EXERCISE OF OPTION. 5.1 VESTING. Subject to Sections 6.7.4(b) and 12 of the Plan, and except as the Committee or the Board may accelerate the vesting of the Option in its sole discretion, the Option shall become vested and will become exercisable during its term only in accordance with the terms and provisions of the Plan and this Award Agreement, over a period of four years, with the Option becoming exercisable with respect to 25% of the shares subject to the Option on the first, second, third and fourth anniversaries, respectively, of the Date of Grant, until the Option is exercisable with respect to 100% of the shares; provided that, subject to Section 6.7.4(b) of the Plan, vesting shall cease upon the Optionee's termination of employment or other Service. 5.2 RIGHT TO EXERCISE. Subject to the vesting provisions of Section 5.1 above and the termination provisions of Section 6.7 of the Plan, the Option may be exercised in whole or in part at any time and from time to time during the term of the Option. Any portion of the Option that is not vested is not exercisable. The unvested portion of the Option may not be exercised until it becomes vested in accordance with Section 5.1. 5.3 METHOD OF EXERCISE. The Option shall be exercisable by written notice from the Optionee to the Company setting forth the Optionee's election to exercise the Option and the number of shares in respect of which the Option is being exercised. Such notice shall be signed by the Optionee, delivered to the Company in a manner consistent with Section 13.13 of the Plan, and accompanied by payment of the exercise price. The Option shall not be payable pursuant to a broker assisted exercise before the fourth anniversary of the Date of Grant of the Option. The Option will be deemed to be exercised upon the receipt by the Company of such notice and payment of the exercise price. The Optionee shall have no right to vote or receive dividends and shall have no other rights as a stockholder with respect to the shares with respect to which the Option is exercised, notwithstanding the exercise of the Option, until the issuance by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidencing the shares that are being issued upon exercise of the Option. The Company will issue (or cause to be issued) such stock certificates promptly following the exercise of the Option. The certificate or certificates for the shares as to which the Option shall be exercised shall be registered in the name of the Optionee and shall contain any legend as may be required under the Plan and/or applicable law. Where the exercise of an Option would lead the Company or any Subsidiary to be liable for any payment, whether due to fees, taxes or to charges of any nature whatsoever, in place of the Optionee, such Option shall be deemed duly exercised when (a) the full payment for the shares with respect to which the Option is exercised is executed by the Optionee and (b) the Optionee provides the Company with either (i) the receipt acknowledging the Optionee's payment of any such fee, tax or charge, as above described, that would otherwise be paid by the Company, upon exercise of the Option, in place of the Optionee or, (ii) the full payment, under the same conditions, of any amount to be borne by the Company due to the exercise of the Option. 2 5.4 RESTRICTIONS ON EXERCISE. The Option may not be exercised if the issuance of the shares upon such exercise would constitute a violation of any applicable securities laws or other laws or regulations. As a condition to the exercise of the Option, the Company may require the Optionee to make any representations and warranties to the Company as may be required by the Plan or any applicable law or regulation. 6. SALE OR OTHER DISPOSITION OF THE SHARES. The Optionee shall not sell or otherwise dispose of the shares issuable upon exercise of the Option (including pursuant to a broker assisted exercise) before the fourth anniversary of the Date of Grant of the Option. Should the Optionee breach the selling restriction set out in this Section 6, it shall be liable for any adverse consequences of such breach on the Company and any Subsidiary, including the payment of any amounts which may be due by the Company and any Subsidiary to any person in connection with such breach. 7. NO TRANSFER OF OPTION. During the lifetime of the Optionee, the Option shall be exercisable only by the Optionee and shall not be assignable or transferable by the Optionee, except for a transfer of the Option by will or by the laws of descent and distribution following the Optionee's death. 8. EXERCISE PERIOD UPON DEATH. If an Optionee dies while holding the Option, then the Option shall remain exercisable during the six-month period following the date of the Optionee's death. During such limited period, the Option may be exercised by the personal representative of the Optionee's estate or by the person or persons to whom the Option is transferred pursuant to the Optionee's will or in accordance with the laws of descent and distribution. 9. WITHHOLDING. The Company or any person or entity which, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company ("Affiliate") of the Company reserves the right to withhold, in accordance with any applicable laws, from any consideration payable to the Optionee any taxes and social charges for which the Optionee is liable as a result of the exercise of the Option or sale or other disposition of the shares issuable upon exercise but which may be required to be paid by the Company or any Affiliate of the Company. 10. THE PLAN. Except to the extent that this Agreement is in conflict with the Plan, this Award Agreement is subject to, and the Company and the Optionee agree to be bound by all of the terms and conditions of the Plan as it may be amended from time to time in accordance with the terms thereof. Pursuant to the Plan, the Board is authorized to adopt rules and regulations not inconsistent with the Plan and this Award Agreement as it shall deem appropriate and proper. A copy of the Plan in its present form is attached hereto and a copy will be available for inspection during business hours by the Optionee or the persons entitled to exercise the Option at the Company's principal office. 3 11. ENTIRE AGREEMENT. This Award Agreement, together with the Plan, represents the entire agreement between the parties. 12. GOVERNING LAW. This Award Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to any conflicts of laws. 13. AMENDMENT. Subject to the provisions of the Plan, this Award Agreement may only be amended by a writing signed by the Company and the Optionee. 14. TAX ADVICE. The Optionee understands that he or she may suffer adverse tax consequences as a result of the exercise of the Option or sale or other disposition of the shares issuable upon exercise. The Optionee represents that he or she has consulted or will consult in due course with such tax consultants as he or she has deemed or will deem advisable in connection therewith. The Optionee is not relying on the Company or any Subsidiary for any tax advice. IN WITNESS WHEREOF, this Award Agreement has been executed by the parties on this __________, 200_. NEOWARE SYSTEMS, INC. By: ________________________ Name: ______________________ Title: _____________________ 4 CERTIFICATION AND ACKNOWLEDGMENT OF STOCK OPTION GRANT UNDER NEOWARE SYSTEMS, INC. 2004 EQUITY PLAN -------------------------------------- The Optionee hereby acknowledges receipt of the Stock Option Award Agreement dated _________, 200_ ("Agreement"), and the Neoware Systems, Inc. 2004 Equity Plan ("Plan"), a copy of which is attached to the Agreement, and certifies and represents that he or she has read and is familiar with the terms and provisions of the Agreement and Plan, and hereby accepts the Option subject to all of the terms and provisions of the Agreement and the Plan, to the extent that terms and provisions in the Plan do not conflict with those in the Agreement. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or the Committee concerning the Plan. Signature: ________________ Name: _____________________ Date: ___________ Please return this certification to the Company within 10 days of receipt. 5 EX-5 3 ex5.txt EXHIBIT 5 EXHIBIT 5 [McCausland Keen & Buckman letterhead] July 12, 2005 Neoware Systems, Inc. 400 Feheley Drive King of Prussia, PA 19406 Re: Neoware Systems, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Neoware Systems, Inc. (the "Company"), a Delaware corporation, in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement"). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Registration Statement. The Registration Statement covers (i) 1,500,000 shares of the Company's Common Stock which may be issued by the Company under the Company's 2004 Equity Incentive Plan (the "2004 Plan") and (ii) up to 1,750,000 shares of the Company's Common Stock (collectively, the "Shares") subject to outstanding options under the Company's 1995 Stock Option Plan (the "1995 Plan") and the Company's 2002 Non-Qualified Stock Option Plan (the "2002 Plan," and together with the 1995 Plan and the 2004 Plan, the "Plans") that terminate, expire or are canceled without having been exercised and which will be reserved for issuance under the 2004 Plan upon such termination, expiration or cancellation. We have examined the Registration Statement, including the exhibits thereto, the Company's Certificate of Incorporation, as amended, the Company's Bylaws, as amended, the Plans and related minutes of actions taken by the Board of Directors and stockholders of the Company. In the foregoing examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the authenticity of all documents submitted to us as copies of originals. Based upon the foregoing, we are of the opinion that the Shares, when issued and paid for in accordance with the terms of, and upon exercise of the options granted under, the Plans, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations thereunder. Sincerely, McCAUSLAND KEEN & BUCKMAN By: /s/ NANCY D. WEISBERG ------------------------------------- Nancy D. Weisberg, Vice President EX-23 4 ex23-2.txt EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors Neoware Systems, Inc.: We consent to the use of our report dated August 4, 2004, with respect to the consolidated balance sheet of Neoware Systems, Inc. as of June 30, 2004 and 2003, and the related consolidated statements of operations, stockholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended June 30, 2004, incorporated herein by reference. /s/ KPMG LLP Philadelphia, Pennsylvania July 12, 2005 -----END PRIVACY-ENHANCED MESSAGE-----