SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DATA SWITCH CORPORATION
_________________________________________________________________
(Exact name of issuer as specified in charter)
Delaware 06-0962862
_________________________________________________________________
(State or other jurisdiction of (I.R.S. employer)
incorporation or organization) identification no.)
One Enterprise Drive, Shelton, CT 06484
_________________________________________________________________
(Address of principal executive (Zip code)
offices)
DATA SWITCH CORPORATION
1992 Executive Stock Incentive Plan
(Full title of the plan)
_________________________________________________________________
Shawn A. Smith, Esq.
Data Switch Corporation
One Enterprise Drive
Shelton, Connecticut 06484
_________________________________________________________________
Name and address of agent for service)
(203) 926-1801
_________________________________________________________________
(Telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
_________________________________________________________________
Proposed Proposed
maximum maximum Amount
Title of Amount offering aggregate of
securities to to be price per offering registra-
be registered registered share price tion fee
___________________________________________________________________
Common Stock, 500,000 $2.25 1,125,000.00 $387.93
$.01 Par Value shares
___________________________________________________________________
*Offering price per share calculated on the basis of Rule 457(h)
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents shall be incorporated by reference
in the registration statement:
(a) The registrant's latest annual report, on Form 10-K,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered
by the registrant document referred to in (a) above.
(c) The description of the registrant's common stock
contained in a registration statement on Form 10, filed with the
Commission on October 15, 1982, including any amendment or reports
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 Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in the registration
statement and to be a part thereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The consolidated balance sheets as of December 31, 1993
and 1992, and the consolidated statements of operations, cash
flows, and shareholder's equity for the three years ended December
31, 1993, incorporated by reference in this Registration Statement,
have been incorporated herein in reliance on the report of Coopers
& Lybrand, independent certified public accountants, given on the
authority of that firm as experts in accounting and auditing.
Item 6. Indemnification of Officers and Directors.
The registrant's Certificate of Incorporation provides
that the registrant shall indemnify, to the full extent permitted
by Section 145 of the Delaware General Corporation law, as amended
from time to time, its officers and directors against certain
liabilities which they may incur during the performance of their
duties as officers and/or directors, including liabilities arising
from violation of the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Articles of Incorporation of the Company, as amended,
defining the rights of holders of its Common Stock. [Exhibits
3(a)(i) and 3(a)(ii) to Registration Statement No. 33-13057.]
4.2 Copy of the 1992 Executive Stock Incentive Plan.
23.1 Consent of Coopers & Lybrand.
24.1 Power of Attorney
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.
(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;
(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.
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.
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.
4. 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 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.
5. The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus to each
employee to whom the prospectus is sent or given, a copy of the
registrant's annual report to stockholders for its last fiscal
year, unless such employee otherwise has received a copy of such
report, in which case the undersigned shall state in the prospectus
that it will promptly furnish, without charge, a copy of such
report on written request of the employee. If the last fiscal year
of the undersigned has ended within 120 days prior to the use of
the prospectus, the annual report for the preceding fiscal year may
be so delivered, but within such 120 day period the annual report
for the last fiscal year will be furnished to each such employee.
6. The undersigned registrant hereby undertakes to
transmit or cause to be transmitted to all employees participating
in the Plan, who do not otherwise receive such material as
stockholders of the undersigned, at the time and in the manner such
material is sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its stockholders
generally.
7. 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 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 policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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 the
City of Shelton, State of Connecticut, on this 20th day of May
1994.
DATA SWITCH CORPORATION
By: /s/ W. James Whittle
W. James Whittle
Vice President and
Chief Financial Officer
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.
Signature Title Date
/s/ William J. Lifka Chairman of the Board, May 20, 1994
William J. Lifka President and Chief
Executive Officer
/s/ W. James Whittle Vice President and May 20, 1994
W. James Whittle Chief Financial Officer
/s/ Brandt R. Allen Director May 20, 1994
Brandt R. Allen
/s/ D. David Cohen Director May 20, 1994
D. David Cohen
/s/ Richard E. Greene Director May 20, 1994
Richard E. Greene
/s/ Norman L. Rasmussen Director May 20, 1994
Norman L. Rasmussen
/s/ Irwin J. Sitkin Director May 20, 1994
Irwin J. Sitkin
/s/ Michael D. Stashower Director May 20, 1994
Michael D. Stashower
DATA SWITCH CORPORATION
1992 EXECUTIVE STOCK INCENTIVE PLAN
1. Purpose. The 1992 Executive Stock Incentive Plan
(the "Plan") is designed to provide incentive and reward to a
limited number of key executive employees of Data Switch
Corporation (the "Company"). Awards pursuant to the Stock
Incentive Plan shall be based upon the Company's pre-tax, pre-bonus
and pre incentive earnings during any applicable period, and the
individual's job performance during such period.
2. Eligibility. Full-time key executive employees of
the Company shall be eligible to participate in the Plan. On or
before March 31, the Compensation and Stock Option Committee (the
"Committee") of the Board of Directors shall determine the eligible
employees participating in the Plan for any year (the
"Participants"). Selection of an eligible employee as a
Participant in any one year shall not require continuation of that
person or any other person as a Participant in any future year.
3. Administration. The Committee shall be
responsible for the administration of the Plan. The determination
of the Committee on all matters pertaining thereto shall be final,
conclusive and binding upon all Participants. Members of the
Committee who are eligible for participation in the Plan shall not
be eligible to vote on any matters regarding the Plan.
4. Incentive Fund. The aggregate incentive fund to
Participants ("Incentive Fund") will be determined each year
pursuant to a formula adopted by the Committee based upon the
pre-tax, pre-bonus, pre incentive profits of the Company (the
"Incentive Formula"). The Incentive Formula for any fiscal year
shall be fixed by the Committee not later than March 31, of each
such year, but such Incentive Formula may not result in any event
in an incentive fund in excess of six (6%) percent of the pre-tax
pre-bonus and pre incentive profits of the Company actually earned
during such year.
5. Allocation of Individual Awards. Within sixty (60)
days after the end of each fiscal year (the "Award Date"), the
Committee will determine the total amount of the Incentive Fund.
A Participant must be employed by the Company as of the Award Date
in order to share in the allocation of the Plan distribution with
respect to the prior year. Upon a Participant's termination of
employment by the Company prior to the Award Date, such
Participant's rights, if any, to receive a distribution pursuant to
the Plan shall terminate.
Each Participant shall be entitled to a share of the
Incentive Fund determined by multiplying such Participant's total
base salary earned during such year by an award percentage (the
"Award Percentage"), as determined by the Committee, based upon
Participant shall be assessed an Award Percentage of less than
seventy-five percent (75%) or greater than one hundred fifty
percent (150%).
The Incentive Fund shall then be prorated among the
Participants proportionally according to the fraction that each
Participant's Adjusted Base Compensation bears to the aggregate
Adjusted Base Compensation of all Participants.
For purposes of this Plan, base salary shall not include
commissions, payments made under any other bonus plan, relocation,
car allowance or any other extraordinary amounts paid to a
Participant.
6. Payment. Bonus awards under the Plan shall be made
principally by the issuance of restricted Shares of the Company's
Common Stock, par value $.01 ("Common Stock") and partially
in cash.
Five-sixths (5/6) of any payment accruing to a Participant
pursuant to this Plan shall be made in Shares. Shares of the
Common Stock shall be valued, for the purposes of any payment due
hereunder, at the closing price for such shares on the last trading
day of the Plan year.
One sixth (1/6) of any payment accruing to a Participant
pursuant to this Plan shall be made in cash.
7. Vesting. Notwithstanding any other provisions
contained herein, Shares of the Company's Common Stock earned by a
Participant pursuant to this Plan shall be issued to such
Participant but restricted as to retransfer. Such Shares shall be
yheld for the account of such Participant by the Company and shall
not be released to the Participant unless and until such
Participant remains in the employ of the Company for two (2) full
years after the January 1 following the end of the Plan year
for which the Shares were awarded (the "Full Vesting Date"). The
Participant shall have the right to vote the restricted unvested
Shares prior to the Full Vesting Date, and to receive any dividends
or distributions thereon. The Participant may not sell, transfer,
hypothecate or make any other disposition of the restricted
unvested Shares prior to the Full Vesting Date.
If a Participant ceases to be employed by the Company prior
to the Full Vesting Date, notwithstanding the cause, reason or
basis of such termination of employment, all of the Shares set
aside for such Participant shall be forfeited to the Company, and
the Participant shall have no further interest therein. Provided,
however, that upon a Participant's retirement (as such term is
defined in the Company's Retirement Savings Plan, or any other
retirement plan made available to employees by the Company in the
future) or death, all of the Shares set aside for such Participant
shall vest upon such Participant's retirement or death, and
extraordinary circumstances the Committee shall have the
discretionary right, but not the obligation, to allow for vesting
and release to the Participant of that percentage of the unvested
Shares which is equal to the number of full calendar months expired
from the end of the Plan year for which such Shares were granted to
the date of any such termination of employment, divided by
twenty-four.
8. Termination of Employment. The Plan does not
create a contract of employment between the Company and any
Participant. The Plan does not limit the right of the Company to
discharge or terminate any Participant or other eligible employee
for any reason, or for no reason. The award of any funds or Shares
under the Plan is completely discretionary with the Committee, and
no person shall have any claim to be granted or to receive any
incentive distribution hereunder. No director, officer, employee
or other person shall have authority to enter into any agreement
with any person for the award or payment of any kind hereunder, or
to make any representation or warranty with respect thereto.
9. Reservation of Shares. A maximum of Five Hundred
Thousand (500,000) Shares of the Company's Common Stock shall be
reserved for award and issuance pursuant to this Plan.
10. Effective Date/Expiration. The Effective Date of
this Plan shall be January 1, 1992, provided that the Shareholders
of the Company shall have approved or ratified the Plan not later
than December 31, 1992. The Plan shall expire on December 31,
2002.
11. Entire Plan. Set forth herein are all of the
provisions of the Plan. The Committee shall have the right to
modify, suspend or terminate the Plan from time to time, except
that the Committee may not increase the number of Shares reserved
for issuance under the Plan or extend the expiration date without
the approval of the Shareholders. No modification, suspension or
termination of the Plan shall entitle any employee to make any
claim under this Plan.
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this registration
statement on Form S-8, relating to the 1992 Executive Stock
Incentive Plan of Data Switch Corporation in the prospectus
included therein, of our report dated February 11, 1994, except for
Note 9, as to which the date is March 22, 1994, on our audits of
the consolidated financial statements and financial statement
schedules of Data Switch Corporation as of December 31, 1993 and
1992 and for the years ended December 31, 1993, 1992 and 1991,
which report is included in the 1993 Annual Report on Form 10-K.
We also consent to the reference to our firm under the caption
"Experts."
Coopers & Lybrand
Stamford, Connecticut
May 11, 1994
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints William J. Lifka
and W. James Whittle, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him 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
and any other regulatory authority, granting unto said
attorney-in-fact and agent 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 attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ William J. Lifka Chairman of the Board, May 20, 1994
William J. Lifka President and Chief
Executive Officer
/s/ W. James Whittle Vice President and May 20, 1994
W. James Whittle Chief Financial Officer
/s/ Brandt R. Allen Director May 20, 1994
Brandt R. Allen
/s/ D. David Cohen Director May 20, 1994
D. David Cohen
/s/ Richard E. Greene Director May 20, 1994
Richard E. Greene
/s/ Norman L. Rasmussen Director May 20, 1994
Norman L. Rasmussen
/s/ Irwin J. Sitkin Director May 20, 1994
Irwin J. Sitkin
/s/ Michael D. Stashower Director May 20, 1994
Michael D. Stashower