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As filed with the Securities and Exchange Commission on December 31, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
HEALTH SYSTEMS DESIGN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 94-3235734
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1330 Broadway, Oakland, CA 94612
(Address of Principal Executive Offices)
HEALTH SYSTEMS DESIGN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Russell J. Harrison
President and Chief Executive Officer
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
(510) 763-2629
(Name, address and telephone number of agent for service)
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, CA 94111
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
- --------------------------------------------------------------------------------
Common Stock 300,000 shares $7.25 $2,175,000.00 $642.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* Estimated solely for the purpose of calculating the registration fee on the
basis of $7.25 per share, the average of the high and low prices for the
Common Stock on December 26, 1997 as reported by NASDAQ.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of Health Systems Design Corporation
(the "Registrant") filed pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all other reports
filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the annual report referred to in
clause (i) above; and (iii) the description of the Registrant's common stock set
forth in the Registrant's Registration Statement on Form 8-A relating thereto,
including any amendment or report filed for the purpose of updating such
description. All documents filed by the Registrant after the date of this
registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment (that indicates
all securities offered have been sold or deregisters all securities then
remaining unsold), shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Sixth, Section 2 of the Registrant's Certificate of Incorporation
provides that directors of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, to the fullest extent permitted by the General Corporation Law of
the State of Delaware. Article Five, Section 1 of the Registrant's By-Laws
provides for indemnification of officers and directors to the full extent and in
the manner permitted by Delaware law. Section 145 of the Delaware General
Corporation Law makes provision for such indemnification in terms sufficiently
broad to cover officers and directors under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended.
The Registrant has entered into indemnification agreements with each director
which provide indemnification under certain circumstances for acts and omissions
which may not be covered by any directors' and officers' liability insurance.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Health Systems Design Corporation Employee Stock Purchase Plan.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney of Directors.
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;
(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 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference 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
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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.
(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 section 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) 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.
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Signatures
THE REGISTRANT
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 Oakland, State of California on the 12th day of
December, 1997.
HEALTH SYSTEMS DESIGN CORPORATION
(Registrant)
/s/ Russell J. Harrison
- ---------------------------------
Russell J. Harrison
President and Chief
Executive 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
Principal Executive Officer:
/s/ Russell J. Harrison
- ----------------------------
Russell J. Harrison President and December 12, 1997
Chief Executive
Officer
Principal Financial Officer
and Accounting Officer:
/s/ Steven J. Correia
- ----------------------------
Steven J. Correia Chief Financial December 12, 1997
Officer
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Directors:
/s/ Russell J. Harrison
- ----------------------------
Russell J. Harrison Director December 12, 1997
*
- ----------------------------
Richard C. Auger Director December 12, 1997
*
- ----------------------------
Catherine C. Roth Director December 12, 1997
- ----------------------------
Christopher J. Herron Director December___, 1997
*
- ----------------------------
J. Matthew Mackowski Director December 12, 1997
*
- ----------------------------
Arthur M. Southam Director December 12, 1997
*By: /s/ Richard C. Auger
-----------------------------------
Richard C. Auger
Attorney-in-Fact
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
4.1 Health Systems Design Corporation Employee Stock Purchase Plan.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney of Directors.
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EXHIBIT 4.1
HEALTH SYSTEMS DESIGN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1
PURPOSE
Health Systems Design Corporation hereby establishes the Health
Systems Design Corporation Employee Stock Purchase Plan, effective as of
October 24, 1996, in order to provide eligible employees of the Company and its
participating Subsidiaries with the opportunity to purchase Common Stock through
payroll deductions. The Plan is intended to qualify as an employee stock
purchase plan under Section 423(b) of the Code.
SECTION 2
DEFINITIONS
2.1 "1934 ACT" means the Securities Exchange Act of 1934, as
amended. Reference to a specific Section of the 1934 Act or regulation
thereunder shall include such Section or regulation, any valid regulation
promulgated under such Section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding such Section or
regulation.
2.2 "BOARD" means the Board of Directors of the Company.
2.3 "CODE" means the Internal Revenue Code of 1986, as amended.
Reference to a specific Section of the Code or regulation thereunder shall
include such Section or regulation, any valid regulation promulgated under such
Section, and any comparable provision of any future legislation or regulation
amending, supplementing or superseding such Section or regulation.
2.4 "COMMITTEE" shall mean the committee appointed by the Board to
administer the Plan. Any member of the Committee may resign at any time by
notice in writing mailed or delivered to the Secretary of the Company. As of
the effective date of the Plan, the Committee shall be administered by the
Compensation Committee of the Board.
2.5 "COMMON STOCK" means the common stock of the Company.
2.6 "COMPANY" means Health Systems Design Corporation, a Delaware
corporation.
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2.7 "COMPENSATION" means a Participant's base salary or regular
wages (including sick pay and vacation pay). The Committee, in its discretion,
may (on a uniform and nondiscriminatory basis) establish a different definition
of Compensation prior to an Enrollment Date for all options to be granted on
such Enrollment Date.
2.8 "ELIGIBLE EMPLOYEE" means every Employee of an Employer, except
any Employee who (a) has not completed at least two years of service since his
or her last hire date, (b) customarily works not more than 20 hours per week,
(c) customarily works not more than 5 months per calendar year, (d) officers or
other management personnel, or (e) immediately after the grant of an option
under the Plan, would own stock and/or hold outstanding options to purchase
stock possessing five percent (5%) or more of the total combined voting power or
value of all classes of stock of the Company or of any Subsidiary of the Company
(including stock attributed to such Employee pursuant to Section 424(d) of the
Code), provided that the Committee, in its discretion, from time to time may
determine (on a uniform and nondiscriminatory basis) that Employees in one or
more of the preceding classes (other than class "(e)") shall qualify as Eligible
Employees.
2.9 "EMPLOYEE" means an individual who is a common-law employee of
any Employer, whether such employee is so employed at the time the Plan is
adopted or becomes so employed subsequent to the adoption of the Plan.
2.10 "EMPLOYER" or "EMPLOYERS" means any one or all of the Company
and those Subsidiaries which, with the consent of the Board, have adopted the
Plan.
2.11 "ENROLLMENT DATE" means such dates as may be determined by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
time to time.
2.12 "GRANT DATE" means any date on which a Participant is granted
an option under the Plan.
2.13 "PARTICIPANT" means an Eligible Employee who (a) has become a
Participant in the Plan pursuant to Section 4.1 and (b) has not ceased to be a
Participant pursuant to Section 8 or Section 9.
2.14 "PLAN" means the Health Systems Design Corporation Employee
Stock Purchase Plan, as set forth in this instrument and as hereafter amended
from time to time.
2.15 "PURCHASE DATE" means such dates as may be determined by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
time to time prior to an Enrollment Date for all options to be granted on such
Enrollment Date.
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2.16 "SUBSIDIARY" means any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
SECTION 3
SHARES SUBJECT TO THE PLAN
3.1 NUMBER AVAILABLE. A maximum of 300,000 shares of Common Stock
shall be available for issuance pursuant to the Plan. Shares sold under the
Plan may be newly issued shares or treasury shares.
3.2 ADJUSTMENTS. In the event of any reorganization,
recapitalization, stock split, reverse stock split, stock dividend, combination
of shares, merger, consolidation, offering of rights or other similar change in
the capital structure of the Company, the Board may make such adjustment, if
any, as it deems appropriate in the number, kind and purchase price of the
shares available for purchase under the Plan and in the maximum number of shares
subject to any option under the Plan.
SECTION 4
ENROLLMENT
4.1 PARTICIPATION. Each Eligible Employee may elect to become a
Participant by enrolling or re-enrolling in the Plan effective as of any
Enrollment Date. In order to enroll, an Eligible Employee must complete, sign
and submit to the Company an enrollment form in such form, manner and by such
deadline as may be specified by the Committee from time to time (in its
discretion and on a nondiscriminatory basis). Any Participant whose option
expires and who has not withdrawn from the Plan automatically will be
re-enrolled in the Plan on the Enrollment Date immediately following the
Purchase Date on which his or her option expires.
4.2 PAYROLL WITHHOLDING. On his or her enrollment form, each
Participant must elect to make Plan contributions via payroll withholding from
his or her Compensation. Pursuant to such procedures as the Committee may
specify from time to time, a Participant may elect to have withholding equal to
a whole percentage from 1% to 15% (or such lesser percentage that the Committee
may establish from time to time for all options to be granted on any Enrollment
Date). A Participant may elect to increase or decrease his or her rate of
payroll withholding by submitting a new enrollment form in accordance with such
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procedures as may be established by the Committee from time to time. A
Participant may stop his or her payroll withholding by submitting a new
enrollment form in accordance with such procedures as may be established by the
Committee from time to time. In order to be effective as of a specific date, an
enrollment form must be received by the Company no later than the deadline
specified by the Committee, in its discretion and on a nondiscriminatory basis,
from time to time. Any Participant who is automatically re-enrolled in the Plan
will be deemed to have elected to continue his or her contributions at the
percentage last elected by the Participant.
SECTION 5
OPTIONS TO PURCHASE COMMON STOCK
5.1 GRANT OF OPTION. On each Enrollment Date on which the
Participant enrolls or re-enrolls in the Plan, he or she shall be granted an
option to purchase shares of Common Stock.
5.2 DURATION OF OPTION. Each option granted under the Plan shall
expire on the earliest to occur of (a) the completion of the purchase of shares
on the last Purchase Date occurring within 27 months of the Grant Date of such
option, (b) such shorter option period as may be established by the Committee
from time to time prior to an Enrollment Date for all options to be granted on
such Enrollment Date, or (c) the date on which the Participant ceases to be such
for any reason. Until otherwise determined by the Committee for all options to
be granted on an Enrollment Date, the period referred to in clause (b) in the
preceding sentence shall mean the period from the applicable Enrollment Date
through the last business day prior to the immediately following Enrollment
Date.
5.3 NUMBER OF SHARES SUBJECT TO OPTION. The number of shares
available for purchase by each Participant under the option will be established
by the Committee from time to time prior to an Enrollment Date for all options
to be granted on such Enrollment Date. In addition and notwithstanding the
preceding, an option (taken together with all other options then outstanding
under this Plan and under all other similar employee stock purchase plans of the
Employers) shall not give the Participant the right to purchase shares at a rate
which accrues in excess of $25,000 of fair market value at the applicable Grant
Dates of such shares in any calendar year during which such Participant is
enrolled in the Plan at any time.
5.4 OTHER TERMS AND CONDITIONS. Each option shall be subject to
the following additional terms and conditions:
(a) payment for shares purchased under the option shall be made only
through payroll withholding under Section 4.2;
(b) purchase of shares upon exercise of the option will be
accomplished only in accordance with Section 6.1;
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(c) the price per share under the option will be determined as
provided in Section 6.1; and
(d) the option in all respects shall be subject to such other terms
and conditions (applied on a uniform and nondiscriminatory basis), as the
Committee shall determine from time to time in its discretion.
SECTION 6
PURCHASE OF SHARES
6.1 EXERCISE OF OPTION. Subject to Section 6.2, on each Purchase
Date, the funds then credited to each Participant's account shall be used to
purchase whole shares of Common Stock. Any cash remaining after whole shares of
Common Stock have been purchased shall be carried forward in the Participant's
account for the purchase of shares on the next Purchase Date. The price per
Share of the Shares purchased under any option granted under the Plan shall be
eighty-five percent (85%) of the lower of:
(a) the closing price per Share on the Grant Date for such option
on the Nasdaq National Market; or
(b) the closing price per Share on the Purchase Date on the Nasdaq
National Market.
6.2 DELIVERY OF SHARES. As directed by the Committee in its sole
discretion, shares purchased on any Purchase Date shall be delivered directly to
the Participant or to a custodian or broker (if any) designated by the Committee
to hold shares for the benefit of the Participants. As determined by the
Committee from time to time, such shares shall be delivered as physical
certificates or by means of a book entry system.
6.3 EXHAUSTION OF SHARES. If at any time the shares available
under the Plan are over-enrolled, enrollments shall be reduced proportionately
to eliminate the over-enrollment. Such reduction method shall be "bottom up",
with the result that all option exercises for one share shall be satisfied
first, followed by all exercises for two shares, and so on, until all available
shares have been exhausted. Any funds that, due to over-enrollment, cannot be
applied to the purchase of whole shares shall be refunded to the Participants
(without interest thereon).
SECTION 7
WITHDRAWAL
7.1 WITHDRAWAL. A Participant may withdraw from the Plan by
submitting a completed enrollment form to the Company. A withdrawal will be
effective only if it is received by the Company by the deadline specified by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
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time to time. When a withdrawal becomes effective, the Participant's payroll
contributions shall cease and all amounts then credited to the Participant's
account shall be distributed to him or her (without interest thereon).
SECTION 8
CESSATION OF PARTICIPATION
8.1 TERMINATION OF STATUS AS ELIGIBLE EMPLOYEE. A Participant
shall cease to be a Participant immediately upon the cessation of his or her
status as an Eligible Employee (for example, because of his or her termination
of employment from all Employers for any reason). As soon as practicable after
such cessation, the Participant's payroll contributions shall cease and all
amounts then credited to the Participant's account shall be distributed to him
or her (without interest thereon). If a Participant is on a Company-approved
leave of absence, his or her participation in the Plan shall continue for so
long as he or she remains an Eligible Employee and has not withdrawn from the
Plan pursuant to Section 7.1.
SECTION 9
DESIGNATION OF BENEFICIARY
9.1 DESIGNATION. Each Participant may, pursuant to such uniform
and nondiscriminatory procedures as the Committee may specify from time to time,
designate one or more Beneficiaries to receive any amounts credited to the
Participant's account at the time of his or her death. Notwithstanding any
contrary provision of this Section 9, Sections 9.1 and 9.2 shall be operative
only after (and for so long as) the Committee determines (on a uniform and
nondiscriminatory basis) to permit the designation of Beneficiaries.
9.2 CHANGES. A Participant may designate different Beneficiaries
(or may revoke a prior Beneficiary designation) at any time by delivering a new
designation (or revocation of a prior designation) in like manner. Any
designation or revocation shall be effective only if it is received by the
Committee. However, when so received, the designation or revocation shall be
effective as of the date the designation or revocation is executed (whether or
not the Participant still is living), but without prejudice to the Committee on
account of any payment made before the change is recorded. The last effective
designation received by the Committee shall supersede all prior designations.
9.3 FAILED DESIGNATIONS. If a Participant dies without having
effectively designated a Beneficiary, or if no Beneficiary survives the
Participant, the Participant's Account shall be payable to his or her estate.
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SECTION 10
ADMINISTRATION
10.1 PLAN ADMINISTRATOR. The Plan shall be administered by the
Committee. The Committee shall have the authority to control and manage the
operation and administration of the Plan.
10.2 ACTIONS BY COMMITTEE. Each decision of a majority of the
members of the Committee then in office shall constitute the final and binding
act of the Committee. The Committee may act with or without a meeting being
called or held and shall keep minutes of all meetings held and a record of all
actions taken by written consent.
10.3 POWERS OF COMMITTEE. The Committee shall have all powers and
discretion necessary or appropriate to supervise the administration of the Plan
and to control its operation in accordance with its terms, including, but not by
way of limitation, the following discretionary powers:
(a) To interpret and determine the meaning and validity of the
provisions of the Plan and the options and to determine any question
arising under, or in connection with, the administration, operation or
validity of the Plan or the options;
(b) To determine any and all considerations affecting the
eligibility of any employee to become a Participant or to remain a
Participant in the Plan;
(c) To cause an account or accounts to be maintained for each
Participant;
(d) To determine the time or times when, and the number of shares
for which, options shall be granted;
(e) To establish and revise an accounting method or formula for the
Plan;
(f) To designate a custodian or broker to receive shares purchased
under the Plan and to determine the manner and form in which shares are to
be delivered to the designated custodian or broker;
(g) To determine the status and rights of Participants and their
Beneficiaries or estates;
(h) To employ such brokers, counsel, agents and advisers, and to
obtain such broker, legal, clerical and other services, as it may deem
necessary or appropriate in carrying out the provisions of the Plan;
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(i) To establish, from time to time, rules for the performance of
its powers and duties and for the administration of the Plan;
(j) To adopt such procedures and subplans as are necessary or
appropriate to permit participation in the Plan by employees who are
foreign nationals or employed outside of the United States; and
(k) To delegate to any one or more of its members or to any other
person, severally or jointly, the authority to perform for and on behalf of
the Committee one or more of the functions of the Committee under the Plan.
10.4 DECISIONS OF COMMITTEE. All actions, interpretations, and
decisions of the Committee shall be conclusive and binding on all persons, and
shall be given the maximum possible deference allowed by law.
10.5 ADMINISTRATIVE EXPENSES. All expenses incurred in the
administration of the Plan by the Committee, or otherwise, including legal fees
and expenses, shall be paid and borne by the Employers, except any stamp duties
or transfer taxes applicable to the purchase of shares may be charged to the
account of each Participant. Any brokerage fees for the purchase of shares by a
Participant shall be paid by the Company, but fees and taxes (including
brokerage fees) for the transfer, sale or resale of shares by a Participant, or
the issuance of physical share certificates, shall be borne solely by the
Participant.
10.6 ELIGIBILITY TO PARTICIPATE. No member of the Committee who is
also an employee of an Employer shall be excluded from participating in the Plan
if otherwise eligible, but he or she shall not be entitled, as a member of the
Committee, to act or pass upon any matters pertaining specifically to his or her
own account under the Plan.
10.7 INDEMNIFICATION. Each of the Employers shall, and hereby does,
indemnify and hold harmless the members of the Committee and the Board, from and
against any and all losses, claims, damages or liabilities (including attorneys'
fees and amounts paid, with the approval of the Board, in settlement of any
claim) arising out of or resulting from the implementation of a duty, act or
decision with respect to the Plan, so long as such duty, act or decision does
not involve gross negligence or willful misconduct on the part of any such
individual.
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SECTION 11
AMENDMENT, TERMINATION, AND DURATION
11.1 AMENDMENT, SUSPENSION, OR TERMINATION. The Board, in its sole
discretion, may amend or terminate the Plan, or any part thereof, at any time
and for any reason. If the Plan is terminated, the Board, in its discretion,
may elect to terminate all outstanding options either immediately or upon
completion of the purchase of shares on the next Purchase Date, or may elect to
permit options to expire in accordance with their terms (and participation to
continue through such expiration dates). If the options are terminated prior to
expiration, all amounts then credited to Participants' accounts which have not
been used to purchase shares shall be returned to the Participants (without
interest thereon) as soon as administratively practicable.
11.2 DURATION OF THE PLAN. The Plan shall commence on the date
specified herein, and subject to Section 11.1 (regarding the Board's right to
amend or terminate the Plan), shall remain in effect thereafter.
SECTION 12
GENERAL PROVISIONS
12.1 PARTICIPATION BY SUBSIDIARIES. One or more Subsidiaries of the
Company may become participating Employers by adopting the Plan and obtaining
approval for such adoption from the Board. By adopting the Plan, a Subsidiary
shall be deemed to agree to all of its terms, including (but not limited to) the
provisions granting exclusive authority (a) to the Board to amend the Plan, and
(b) to the Committee to administer and interpret the Plan. An Employer may
terminate its participation in the Plan at any time. The liabilities incurred
under the Plan to the Participants employed by each Employer shall be solely the
liabilities of that Employer, and no other Employer shall be liable for benefits
accrued by a Participant during any period when he or she was not employed by
such Employer.
12.2 INALIENABILITY. In no event may either a Participant, a former
Participant or his or her Beneficiary, spouse or estate sell, transfer,
anticipate, assign, hypothecate, or otherwise dispose of any right or interest
under the Plan; and such rights and interests shall not at any time be subject
to the claims of creditors nor be liable to attachment, execution or other legal
process. Accordingly, for example, a Participant's interest in the Plan is not
transferable pursuant to a domestic relations order.
12.3 SEVERABILITY. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
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12.4 REQUIREMENTS OF LAW. The granting of options and the issuance
of shares shall be subject to all applicable laws, rules, and regulations, and
to such approvals by any governmental agencies or securities exchanges as the
Committee may determine are necessary or appropriate.
12.5 COMPLIANCE WITH RULE 16b-3. Any transactions under this Plan
with respect to officers (as defined in Rule 16a-1 promulgated under the 1934
Act) are intended to comply with all applicable conditions of Rule 16b-3. To
the extent any provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee. Notwithstanding any contrary provision of
the Plan, if the Committee specifically determines that compliance with
Rule 16b-3 no longer is required, all references in the Plan to Rule 16b-3 shall
be null and void.
12.6 NO ENLARGEMENT OF EMPLOYMENT RIGHTS. Neither the establishment
or maintenance of the Plan, the granting of options, the purchase of shares, nor
any action of any Employer or the Committee, shall be held or construed to
confer upon any individual any right to be continued as an employee of the
Employer nor, upon dismissal, any right or interest in any specific assets of
the Employers other than as provided in the Plan. Each Employer expressly
reserves the right to discharge any employee at any time, with or without cause.
12.7 APPORTIONMENT OF COSTS AND DUTIES. All acts required of the
Employers under the Plan may be performed by the Company for itself and its
Subsidiaries, and the costs of the Plan may be equitably apportioned by the
Committee among the Company and the other Employers. Whenever an Employer is
permitted or required under the terms of the Plan to do or perform any act,
matter or thing, it shall be done and performed by any officer or employee of
the Employers who is thereunto duly authorized by the Employers.
12.8 CONSTRUCTION AND APPLICABLE LAW. The Plan is intended to
qualify as an "employee stock purchase plan" within the meaning of
Section 423(b) of the Code. Any provision of the Plan which is inconsistent
with Section 423(b) of the Code shall, without further act or amendment by the
Company or the Committee, be reformed to comply with the requirements of
Section 423(b). The provisions of the Plan shall be construed, administered and
enforced in accordance with such Section and with the laws of the State of
California (excluding California's conflict of laws provisions).
12.9 CAPTIONS. The captions contained in and the table of contents
prefixed to the Plan are inserted only as a matter of convenience, and in no way
define, limit, enlarge or describe the scope or intent of the Plan nor in any
way shall affect the construction of any provision of the Plan.
10
<PAGE>
EXECUTION
IN WITNESS WHEREOF, Health Systems Design Corporation, by its duly
authorized officer, has executed this Plan on the date indicated below.
HEALTH SYSTEMS DESIGN CORPORATION
Dated: ___________, 1997 By___________________________
Title:
11
<PAGE>
EXHIBIT 5.1
December 31, 1997
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
Re: Registration Statement on Form S-8/
Health Systems Design Corporation
Employee Stock Purchase Plan
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the Health Systems Design Corporation Employee
Stock Purchase Plan (the "Plan"), of up to 300,000 shares of common stock,
$0.001 par value ("Common Stock"), of Health Systems Design Corporation, a
Delaware corporation (the "Company").
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed.
Based on such examination, we are of the opinion that the 300,000
shares of Common Stock to be issued by the Company pursuant to the Plan are
validly authorized shares of Common Stock and, when issued in accordance with
the provisions of the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8 and to the use of our name wherever it
appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder, with respect to any part
of the Registration Statement, including this opinion as an exhibit or
otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP<PAGE>
<PAGE>
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
November 13, 1997 (except with respect to the matter discussed in Note 12 to the
financial statements, as to which the date is December 23, 1997) included in
Health Systems Design Corporations's Form 10-K for the year ended September 30,
1997 and to all references to our Firm included in this Registration Statement
on Form S-8.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Francisco, California
December 29, 1997
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY OF DIRECTORS
KNOW BY ALL PERSONS BY THESE PRESENTS:
Each of the undersigned hereby constitutes and appoints Richard C.
Auger and Richard E. Malone, and each of them with power to act alone, his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a Registration Statement or Registration
Statements on Form S-8 relating to 300,000 shares of common stock issuable under
the Health Systems Design Corporation Employee Stock Purchase Plan, and any and
all amendments of such Registration Statements, including post-effective
amendments, and to file the same, together with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto such attorney-in-fact 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 hereof, as fully to all intents and purposes as he or she might do or
could do in person, thereby ratifying and confirming all that said
attorney-in-fact or his or her substitutes may lawfully do or cause to be done
by virtue hereof.
/s/ Richard C. Auger October 24, 1996
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Richard C. Auger
/s/ Catherine C. Roth October 24, 1996
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Catherine C. Roth
/s/ J. Matthew Mackowski October 24, 1996
- ------------------------------
J. Matthew Mackowski
/s/ Arthur M. Southam October 24, 1996
- ------------------------------
Arthur M. Southam
