As filed with the Securities and Exchange Commission on August 7, 1997
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DecisionOne Holdings Corp.
(Exact Name of issuer as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7378 13-3435409
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification No.) Identification No.)
50 East Swedesford Road
Frazer, Pennsylvania 19355
(610) 296-6000
(Address of principal executive offices)
DecisionOne Holdings Corp.
1997 Management Incentive Plan
(Full title of the Plan)
Dwight T. Wilson
Vice President-Human Resources
DecisionOne Holdings Corp.
50 East Swedesford Road
Frazer, Pennsylvania 19355
(Name and address of agent for service)
Telephone number, including area code, of agent
for service: (610) 296-6000
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered* Share** Price** Fee
------------------- ----------------- -------- -------------- -------------
<S> <C> <C> <C> <C>
Common Stock (par value 1,698,280 shares $23.09 $39,213,285.20 $11,882.81
$.01 per share).............
</TABLE>
* Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
** Estimated pursuant to Rule 457 of the General Rules and Regulations under
the Securities Act of 1933 solely for the purpose of computing the
registration fee, based on the average of the high and low sale prices of
the securities being registered hereby on the Composite Tape on
July 31, 1997.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
DecisionOne Holdings Corp. (the "Company") hereby incorporates
herein by reference the following documents:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996;
(2) All reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
June 30, 1996;
(3) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8A dated April 25, 1995, filed
under the Securities Exchange Act of 1934, including any amendment thereto or
report filed for the purpose of updating such description; and
(4) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and 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.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL permits a corporation to indemnify any
of its directors or officers who was or is a party, or is threatened to be
made a party to any third party proceeding by reason of the fact that such
person is or was a director or officer of the corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, if such person acted in good faith and in a manner
such person 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 reason to believe that such person's conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation, the
corporation is permitted to indemnify directors and officers against expenses
(including attorneys' fees) actually and reasonably incurred by them in
connection with the defense or settlement of an action or suit if they acted
in good faith and in a manner that no indemnification shall be made if such
person shall have been adjudged liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought shall
determine upon application that the defendant directors or officers are fairly
and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Article 7 of the Company's Amended and Restated Certificate of
Incorporation makes mandatory indemnification expressly authorized under the
DGCL for directors of the Company. With respect to officers of the Company,
Article 7 of the Company's Amended and Restated Certificate of Incorporation
provides indemnification to such extent and to such effect as the Board of
Directors shall determine to be appropriate and authorized by Delaware law.
Pursuant to Section 6.03 of the Agreement and Plan of Merger
dated as of May 4, 1997 among the Company and Quaker Holding Co., Quaker
Holding Co. has agreed for a period of six years following the Effective Time
to (a) maintain in effect and cause the Company maintain in effect policies of
directors' and officers' liability insurance and fiduciary liability insurance
with terms no less favorable than current policies, with respect to claims
arising prior to the Effective Time, provided that premiums for such insurance
not exceed 125% of the amount per annum the Company paid in its last full
fiscal year and (b) indemnify, and cause the Company to indemnify, the
directors and officers of the Company to the fullest extent permitted the
Company's charter and bylaws and applicable law.
EXHIBITS
The following is a complete list of exhibits filed as part of
this Registration Statement:
Exhibit No.
- ----------
4(a) Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Registration Statement on
Form S-1 (No. 333-1256) filed with the Securities and
Exchange Commission on February 9, 1996 (the "Form S-1"))
4(b) By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Form S-1)
4(c) 1997 Management Incentive Plan
5 Opinion of Davis Polk & Wardwell
23(a) Consent of Deloitte & Touche
23(b) Consent of Davis Polk & Wardwell (included in Exhibit 5)
24 Powers of Attorney
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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
(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; and
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(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, each
filing of the registrant's Annual Report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's Annual Report pursuant to Section 15(d) of
the Exchange Act) 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 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.
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 Frazer, Pennsylvania, on the 7th day of August,
1997.
DECISIONONE HOLDINGS CORP.
By /s/ Kenneth Draeger
------------------------------------
Kenneth Draeger
Chairman 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
--------- ----- ----
* Chairman, Chief Executive Officer August 7, 1997
- ------------------------- and Director (Principal Executive
Kenneth Draeger Officer)
* Vice President and Chief Financial August 7, 1997
- ------------------------- Officer (Principal Financial and
Thomas J. Fitzpatrick Accounting Officer)
* Director August 7, 1997
- -------------------------
Peter T. Grauer
* Director August 7, 1997
- -------------------------
Tom G. Greig
* Director August 7, 1997
- -------------------------
Lawrence M.v.D. Schloss
/s/ Kirk B. Wortman Director August 7, 1997
- -------------------------
Kirk B. Wortman
*By /s/ Kirk B. Wortman
---------------------
Kirk B. Wortman
Attorney-in-Fact
INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of
this Registration Statement:
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C> <C>
4(a) Certificate of Incorporation of the Company (incorporated by reference to Exhibit
3.1 to the Registration Statement on Form S-1 (No. 333-1256) filed with the
Securities and Exchange Commission on February 9, 1996 (the "Form S-1"))
4(b) By-Laws of the Company (incorporated by reference to Exhibit 3.2 to the Form
S-1)
4(c) 1997 Management Incentive Plan..................................................... 8
5 Opinion of Davis Polk & Wardwell................................................... 9
23(a) Consent of Deloitte & Touche....................................................... 10
23(b) Consent of Davis Polk & Wardwell (included in Exhibit 5)
24 Powers of Attorney................................................................. 11
</TABLE>
EXHIBIT 4.c
DECISIONONE HOLDINGS CORP.
1997 Management Incentive Plan
Section 1. Purpose. The purposes of the DecisionOne Holdings
Corp. 1997 Management Incentive Plan are to promote the interests of
DecisionOne Holdings Corp. (the "Company") and its stockholders by (i)
attracting and retaining exceptional executive personnel and other key
employees of the Company and its Subsidiaries, as defined below; (ii)
motivating such employees by means of performance-related incentives to
achieve longer-range performance goals; and (iii) enabling such employees
to participate in the long-term growth and financial success of the
Company. In addition, the Plan shall cover certain "rollover" options
resulting from the merger of the Company with Quaker Holding Co.
Section 2. Definitions. As used in the Plan, the following
terms shall have the meanings set forth below:
"Affiliate" means (i) any entity that is, directly or
indirectly, controlled by the Company and (ii) any other entity in which the
Company has a significant equity interest or which has a significant equity
interest in the Company, in either case as determined by the Committee.
"Award" means any Option or Stock Appreciation Right.
"Award Agreement" means any written agreement, contract, or
other instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" means the Board of Directors of the Company.
"Cause" means, unless otherwise defined in any Employment
Agreement or Award Agreement:
(a) a Participant's willful and continued failure substantially
to perform his duties (other than as a result of total or partial incapacity
due to physical or mental illness);
(b) an act or acts on a Participant's part constituting a
felony under the laws of the United States or any state thereof or any other
jurisdiction in which the Company conducts business;
(c) a Participant being repeatedly under the influence of
illegal drugs or alcohol while performing his duties; or
(d) any other act or omission which is materially injurious to
the financial condition or business reputation of the Company or any of its
Affiliates as determined in the reasonable discretion of the Company,
including a Participant's breach of the provisions of any non-competition,
non-solicitation or confidentiality covenant in favor of the Company or its
Affiliates binding upon such Participant.
"Change of Control" shall mean, unless otherwise defined in any
Employment Agreement or Option Agreement,
(i) any "person" (as such term is used in Section 3(a)(9) and 13(d)(3)
of the Exchange Act) other than (A) the DLJ Entities, the Institutional
Shareholders (as defined in the Investors' Agreement) and/or their respective
Permitted Transferees (as defined in the Investors' Agreement) or (B) any
"group" (within the meaning of such Section 13(d)(3)) of which any of the DLJ
Entities or any of the Institutional Shareholders is a part, acquires,
directly or indirectly, by virtue of the consummation of any purchase, merger
or other combination, securities of the Company representing more than 51% of
the combined voting power of the Company's then outstanding voting securities
with respect to matters submitted to a vote of the stockholders generally; or
(ii) a sale or transfer by the Company or any of its Subsidiaries of
substantially all of the consolidated assets of the Company and its
Subsidiaries to an entity which is not an Affiliate of the Company prior to
such sale or transfer.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means a committee of the Board designated by the
Board to administer the Plan and composed of not less than the minimum number
of persons from time to time required by Rule 16b-3 and Section 162(m) each of
whom, to the extent necessary to comply with Rule 16b-3 and Section 162(m)
only, is a "Non-Employee Director" and an "Outside Director" within the
meaning of Rule 16b-3 and Section 162(m), respectively. Until otherwise
determined by the Board, the full Board shall be the Committee under the Plan.
"Disability" shall mean a Participant's inability, as a result
of physical or mental illness, to perform the duties of his position(s) for a
period of 90 consecutive days or for an aggregate of 150 days in any twelve
consecutive month period. Any question as to the existence of the Disability
of a Participant as to which such Participant and the Company cannot agree
shall be determined in writing by a qualified independent physician selected
by the Company and reasonably acceptable to the Participant. The
determination of Disability made in writing to the Company and the Participant
shall be final and conclusive for all purposes of the Plan.
"Employee" means an employee of the Company or any Subsidiary.
"Employment Agreement" means an employment agreement entered
into between the Company or any Subsidiary and a Participant.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means with respect to the Shares, as of the
consummation of the merger of the Company and Quaker Holding Co., $20.6084 per
share, and as of any other given date or dates, the average reported closing
price of a share of such class of common stock on such exchange or market as
is the principal trading market for such class of common stock for the three
trading days immediately preceding such date or dates. If such class of common
stock is not traded on an exchange or principal trading market on such date,
the fair market value of a Share shall be determined by the Committee in good
faith taking into account as appropriate recent sales of the Shares, recent
valuations of the Shares and such other factors as the Committee shall in its
discretion deem relevant or appropriate.
"Good Reason" shall mean, unless otherwise defined in any
Employment Agreement or Award Agreement:
(A) A Participant is removed from his/her position or assigned
duties and responsibilities materially inconsistent with his/her position; or
(B) A Participant's base salary and benefits (including target
bonus opportunities and criteria but not actual bonus payments) are reduced by
more than 10% in the aggregate, except for across-the-board reductions
similarly affecting similarly situated employees.
"Incentive Stock Option" means a right to purchase Shares from
the Company that is granted under Section 6 of the Plan and that is intended
to meet the requirements of Section 422 of the Code or any successor provision
thereto.
"Investors' Agreement" means the Investors' Agreement dated as
of the date hereof among Quaker Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II,
C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJMB Funding II,
Inc., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ First ESC,
LLC, and certain other shareholders listed on the signature pages thereto.
"Non-Qualified Stock Option" means a right to purchase Shares
from the Company that is granted under Section 6 of the Plan and that is not
intended to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-Qualified
Stock Option.
"Participant" means any Employee selected by the Committee to
receive an Award under the Plan and any former director who receives a
Rollover Option (and to the extent applicable, any heirs or legal
representatives thereof).
"Permitted Transferee" shall have the meaning assigned to it in
the Investors' Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"Plan" means this DecisionOne Holdings Corp. 1997 Management
Incentive Plan.
"Rollover Option" means any employee or director options
"rolled over" in connection with the merger of the Company with Quaker Holding
Co.
"Rule 16b-3" means Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" means the Securities and Exchange Commission or any
successor thereto.
"Section 162(m)" means Section 162(m) of the Code, or any
successor section thereto as in effect from time to time.
"Shares" means shares of common stock, $.01 par value, of the
Company or such other securities as may be designated by the Committee from
time to time.
"Stock Appreciation Right" means any right granted under
Section 7 of the Plan.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by such Person.
"Substitute Awards" means Awards granted in assumption of, or
in substitution for, outstanding awards previously granted by a company
acquired by the Company or with which the Company combines.
Section 3. Administration.
(a) Authority of Committee. The Plan shall be administered by
the Committee. Subject to the terms of the Plan, applicable law and
contractual restrictions affecting the Company, and in addition to other
express powers and authorizations conferred on the Committee by the Plan,
the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to
a Participant; (iii) determine the number of Shares to be covered by, or
with respect to which payments, rights, or other matters are to be
calculated in connection with, Awards; (iv) determine the terms and
conditions of any Award and Award Agreement; (v) determine whether. to
what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited, or suspended and the method or methods by
which Awards may be settled, exercised, canceled, forfeited. or suspended;
(vi) determine whether, to what extent, and under what circumstances cash,
Shares, other securities, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or
at the election of the holder thereof or of the Committee; (vii) interpret
and administer the Plan and any instrument or agreement relating to, or
Award made under, the Plan; (viii) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (ix) make any
other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations,
and other decisions under or with respect to the Plan or any Award shall be
within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive and binding upon all Persons, including the
Company, any Subsidiary, any Participant, any holder or beneficiary of any
Award, any shareholder and any Employee.
Section 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in
Section 4(b) and 4(c), the number of Shares with respect to which Awards
may be granted under the Plan shall be 1,447,452 plus the number of Shares
necessary to accommodate the Rollover Options and the number of Shares with
respect to which Incentive Stock Options may be granted under the Plan
shall be 1,447,452 plus the number of Shares necessary to accommodate any
Rollover Options which are Incentive Stock Options. If, after the
effective date of the Plan, any Shares covered by an Award granted under
the Plan or to which such an Award relates are forfeited, or if such an
Award is settled for cash or otherwise terminates or is canceled without
the delivery of Shares, then the Shares covered by such Award, or to which
such Award relates, or the number of Shares otherwise counted against the
aggregate number of Shares with respect to which Awards may be granted, to
the extent of any such settlement, forfeiture, termination or cancellation,
shall, in the calendar year in which such settlement, forfeiture,
termination or cancellation occurs, again become Shares with respect to
which Awards may be granted unless any dividends have been paid thereon
prior to such settlement, forfeiture, termination or cancellation. In
addition, Shares tendered in satisfaction or partial satisfaction of the
exercise price of any Award or any tax withholding obligations will again
become Shares with respect to which Awards may be granted. Notwithstanding
the foregoing and subject to adjustment as provided in Section 4(b), no
Employee of the Company may receive Options and/or Stock Appreciation
Rights in any calendar year that relate to more than 375,000 Shares.
(b) Adjustments. In the event that the Committee determines
that any dividend or other distribution (whether in the form of cash,
Shares, other securities or other property), recapitalization, stock split,
reverse stock split, reorganization, reclassification, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants or other
rights to purchase Shares or other securities of the Company, or other
similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in
such manner as it may deem equitable, adjust any or all of (i) the number
of Shares of the Company (or number and kind of other securities or
property) with respect to which Awards may thereafter be granted, (ii) the
number of Shares or other securities of the Company (or number and kind of
other securities or property) subject to outstanding Awards, and (iii) the
grant or exercise price with respect to any Award, or, if deemed
appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided, in each case that, with respect to Awards of
Incentive Stock Options, no such adjustment shall be authorized to the
extent that such authority would cause the Plan to violate Section
422(b)(1) of the Code, as from time to time amended.
(c) Substitute Awards. Any Shares underlying Substitute
Awards shall not be counted against the Shares available for Awards under
the Plan.
(d) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares.
Section 5. Eligibility. Any Employee, including any officer or
employee-director of the Company or any Subsidiary, and any former director of
the Company receiving a Rollover Option, shall be eligible to be designated
a Participant.
Section 6. Stock Options.
(a) Grant. Subject to the provisions of the Plan and
contractual restrictions affecting the Company, the Committee shall have
sole and complete authority to determine the Employees to whom Options
shall be granted, the number of Shares to be covered by each Option, the
exercise price therefor and the conditions and limitations applicable to
the exercise of the Option. The Committee shall have the authority to
grant Incentive Stock Options, or to grant Non-Qualified Stock Options, or
to grant both types of options. In the case of Incentive Stock Options,
the terms and conditions of such grants shall be subject to and comply with
such rules as may be prescribed by Section 422 of the Code, as from time to
time amended, and any regulations implementing such statute.
(b) Exercise Price. The Committee in its sole discretion shall
establish the exercise price at the time each Option is granted.
(c) Exercise. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter. The
Committee may impose such conditions with respect to the exercise of
Options, including without limitation, any relating to the application of
Federal or state securities laws, as it may deem necessary or advisable.
(d) Payment. No Shares shall be delivered pursuant to any
exercise of an Option until payment in full of the exercise price, or
adequate provision therefor, is received by the Company. Such payment may
be made: (i) in cash; (ii) in Shares owned by the Participant for at
least six months (the value of such Shares shall be their Fair Market Value
on the date of exercise); (iii) by a combination of cash and Shares; (iv)
if approved by the Committee, in accordance with a cashless exercise
program; or (v) in such other manner as permitted by the Committee at the
time of grant or thereafter.
(e) Rollover Options. Except as otherwise specifically
provided herein and in any option rollover agreement, the Rollover Options
shall continue to be governed by the terms under which they were originally
granted.
Section 7. Stock Appreciation Rights.
(a) Grant. Subject to the provisions of the Plan and
contractual restrictions affecting the Company, the Committee shall have
sole and complete authority to determine the Employees to whom Stock
Appreciation Rights shall be granted, the number of Shares to be covered by
each Stock Appreciation Right Award, the grant thereof and the conditions
and limitations applicable to the exercise thereof. Stock Appreciation
Rights may be granted in tandem with another Award, in addition to another
Award, or freestanding and unrelated to another Award. Stock Appreciation
Rights granted in tandem with or in addition to an Award may be granted
either at the same time as the Award or at a later time. Stock
Appreciation Rights shall not be exercisable earlier than six months after
grant and shall have an exercise price as determined by the Committee on
the date of grant.
(b) Exercise and Payment. A Stock Appreciation Right shall
entitle the Participant to receive an amount equal to the excess of the
Fair Market Value of a Share on the date of exercise of the Stock
Appreciation Right over the exercise price thereof. The Committee shall
determine whether a Stock Appreciation Right shall be settled in cash,
Shares or a combination of cash and Shares.
(c) Other Terms and Conditions. Subject to the terms of the
Plan and any applicable Award Agreement, the Committee shall determine, at
or after the grant of a Stock Appreciation Right, the term, methods of
exercise, methods and form of settlement, and any other terms and
conditions of any Stock Appreciation Right. Any such determination by the
Committee may be changed by the Committee from time to time and may govern
the exercise of Stock Appreciation Rights granted or exercised prior to
such determination as well as Stock Appreciation Rights granted or
exercised thereafter. The Committee may impose such conditions or
restrictions on the exercise of any Stock Appreciation Right as it shall
deem appropriate.
Section 8. Termination or Suspension of Employment or Service.
The following provisions shall apply in the event of the Participant's
termination of employment or service unless the Committee shall have provided
otherwise, either at the time of the grant of the Award or thereafter.
(i) Termination of Employment or Service. Except as the
Committee may at any time otherwise provide or as required to comply with
applicable law, if the Participant's employment or service with the Company
or its Subsidiaries is terminated for any reason other than death,
Disability, retirement at age 62 or older or by the Company for Cause, the
Participant's right to exercise any Option or Stock Appreciation Right
shall terminate, and such Option or Stock Appreciation Right shall expire,
on the earlier of the ninetieth day following such termination of
employment or service or the date such Option or Stock Appreciation Right
would have expired had it not been for the termination of employment or
service. The Participant shall have the right to exercise such Option or
Stock Appreciation Right prior to such expiration to the extent it was
exercisable at the date of such termination of employment or service and
shall not have been exercised.
(ii) Death, Disability or Retirement. Except as the
Committee may at any time otherwise provide or as required to comply with
applicable law, if the Participant's employment or service with the Company
or its Subsidiaries is terminated by reason of death, Disability, or
retirement at age 62 or older, all Time Vesting Options (as defined in an
Award Agreement) shall vest and become immediately exercisable and the
Participant or his successor (if employment or service is terminated by
death) shall have the right to exercise any Option or Stock Appreciation
Right during the one-year period following such termination of employment
or service, to the extent it was exercisable and outstanding at the date of
such termination of employment or service, but in no event shall such
option be exercisable later than the date the Option would have expired had
it not been for the termination of such employment or
service.
(iii) Cause. If the Participant's employment or service
with the Company or its Subsidiaries is terminated by the Company for
Cause, all Awards other than the Rollover Options (whether vested or
unvested) shall be forfeited.
(iv) Puts, Calls. In the event of a Participant's
termination of employment by reason of death or Disability, termination of
employment by the Company other than for Cause or termination by a
Participant for Good Reason (and, in the case of the Rollover Options, upon
any type of termination), the Company or its designee shall have the right
to purchase all or a portion of the vested Options and/or Shares acquired
upon the exercise of Options, and the Participant shall have the right to
cause the Company to purchase all or a portion of the vested Options and/or
Shares acquired upon the exercise of Options, at a per share price equal to
Fair Market Value on the date of purchase, less the exercise price in the
case of vested Options. If either the Company or a Participant elects to
exercise its right under this clause (iv), the Company or the Participant,
as the case may be, shall deliver written notice (a "Purchase Notice") to
the other to such effect within 60 days of a termination of employment.
For purposes of this Section 8, the "date of purchase" shall mean the third
business day following the receipt of notice by the other party that the
purchase right is to be exercised. Payment of the purchase price may be
made in cash or by certified check; provided that if the terms of any
agreement to which the Company is a party, or any of the indentures
governing any debt securities issued by the Company or any of its
subsidiaries would prohibit the Company from effecting such payment,
payment may be effected through a promissory note having such commercially
reasonable terms and interest rate as may be determined by the Company in
its reasonable discretion, provided that in any event such note shall
become due at such time as the prohibitions described above shall lapse.
Section 9. Change of Control. The Committee, in its sole
discretion, may provide in an Award Agreement for the accelerated vesting of
an Award in the event of a Change of Control.
Section 10. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter,
suspend, discontinue, or terminate the Plan or any portion thereof at any
time; provided that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder approval
if such approval is necessary to comply with any tax or regulatory
requirement, including for these purposes any approval requirement which is
a prerequisite for exemptive relief from Section 16(b) of the Exchange Act,
for which or with which the Board deems it necessary or desirable to
qualify or comply. Notwithstanding anything to the contrary herein, the
Committee may amend the Plan in such manner as may be necessary so as to
have the Plan conform with local rules and regulations in any jurisdiction
outside the United States.
(b) Amendments to Awards. Subject to the terms of the Plan
and applicable law, the Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate,
any Award theretofore granted, prospectively or retroactively; provided
that any such waiver, amendment, alteration, suspension, discontinuance,
cancellation or termination that would adversely affect the rights
Participant or any holder or beneficiary of any Award theretofore granted
shall not to that extent be effective without the consent of the affected
Participant, holder or beneficiary.
(c) Cancellation. Any provision of this Plan or any Award
Agreement to the contrary notwithstanding, in the event of a Change of
Control or an offer to Participants generally relating to the acquisition
of Shares, including through purchase, merger or otherwise, the Committee
may cause any Award granted hereunder to be canceled in consideration of a
cash payment or alternative Award made to the holder of such canceled Award
equal in value to the Fair Market Value of such canceled Award.
Section 11. General Provisions.
(a) Dividend Equivalents. In the sole and complete
discretion of the Committee, an Award may provide the Participant with
dividends or dividend equivalents, payable in cash, Shares, other
securities or other property on a current or deferred basis.
(b) Nontransferability. Except to the extent otherwise
provided in an Award Agreement, no Award shall be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by a
Participant, except by will or the laws of descent and distribution.
(c) No Rights to Awards. No Employee, Participant or other
Person shall have any claim to be granted any Award, and there is no
obligation for uniformity of treatment of Employees, Participants, or
holders or beneficiaries of Awards. The terms and conditions of Awards
need not be the same with respect to each recipient.
(d) Share Certificates. Certificates issued in respect of
Shares shall, unless the Committee otherwise determines, be registered in
the name of the Participant or its Permitted Transferees and, so long as a
Participant continues to be governed by the provisions of any Loan, shall
be deposited by such Participant or Permitted Transferee, together with a
stock power endorsed in blank, with the Company. When the Participant
ceases to be bound by the provisions of any Loan, the Company shall deliver
such certificates to the Participant upon request. Such stock certificate
shall carry such appropriate legends, and such written instructions shall
be given to the Company's transfer agent, as may be deemed necessary or
advisable by counsel to the Company in order to comply with the
requirements of (i) the Securities Act of 1933, any state securities laws
or any other applicable laws, (ii) the Investors' Agreement and (iii) any
Loan. Subject to the provisions of the Investors' Agreement, all
certificates for Shares or other securities of the Company or any
Subsidiary delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the
rules, regulations and other requirements of the Securities and Exchange
Commission or any stock exchange upon which such Shares or other securities
are then listed and any applicable laws or rules or regulations, and the
Committee may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
(e) Withholding. A Participant may be required to pay to
the Company or any Subsidiary, and the Company or any Subsidiary shall have
the right and is hereby authorized to withhold from any Award, from any
payment due or transfer made under any Award or under the Plan or from any
compensation or other amount owing to a Participant the amount (in cash,
Shares, other securities, other Awards or other property) of any applicable
withholding taxes in respect of an Award, its exercise, or any payment or
transfer under an Award or under the Plan and to take such other action as
may be necessary in the opinion of the Company to satisfy all obligations
for the payment of such taxes. The Committee may provide for additional
cash payments to holders of Awards to defray or offset any tax arising from
any such grant, lapse, vesting, or exercise of any Award.
(f) Award Agreements. Each Award hereunder shall be
evidenced by an Award Agreement which shall be delivered to the Participant
and shall specify the terms and conditions of the Award and any rules
applicable thereto.
(g) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Subsidiary from
adopting or continuing in effect other compensation arrangements, which
may, but need not, provide for the grant of options, restricted stock,
Shares and other types of Awards provided for hereunder (subject to
shareholder approval if such approval is required), and such arrangements
may be either generally applicable or applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not
be construed as giving a Participant the right to be retained in the employ
or service of the Company or any Subsidiary. Further, the Company or an
Subsidiary may at any time dismiss a Participant from employment or
service, free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement.
(i) Rights as a Stockholder. Subject to the provisions of
the applicable Award, no Participant or holder or beneficiary of any Award
shall have any rights as a stockholder with respect to any Shares to be
issued under the Plan until he or she has become the holder of such Shares.
(j) Governing Law. The validity, construction, and effect
of the Plan and any rules and regulations relating to the Plan and any
Award Agreement shall be determined in accordance with the laws of the
State of Delaware.
(k) Severability. If any provision of the Plan or any Award
is or becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or
any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to the applicable laws, or
if it cannot be construed or deemed amended without, in the determination
of the Committee, materially altering the intent of the Plan or the Award,
such provision shall be stricken as to such jurisdiction, Person or Award
and the remainder of the Plan and any such Award shall remain in full force
and effect.
(l) Other Laws. The Committee may refuse to issue or
transfer any Shares or other consideration under an Award if, acting in its
sole discretion, it determines that the issuance or transfer of such Shares
or such other consideration might violate any applicable law or regulation
or entitle the Company to recover the same under Section 16(b) of the
Exchange Act, and any payment tendered to the Company by a Participant in
connection therewith shall be promptly refunded to the relevant
Participant, holder or beneficiary. Without limiting the generality of the
foregoing, no Award granted hereunder shall be construed as an offer to
sell securities of the Company, and no such offer shall be outstanding,
unless and until the Committee in its sole discretion has determined that
any such offer, if made, would be in compliance with all applicable
requirements of the U.S. federal securities laws and any other laws to
which such offer, if made, would be subject.
(m) No Trust or Fund Created. Neither the Plan nor any
Award shall create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or any Subsidiary
and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Subsidiary
pursuant to an Award, such right shall be no greater than the right of any
unsecured general creditor of the Company or any Subsidiary.
(n) No Fractional Shares. No fractional Shares shall be
issued or delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash or other securities or other property shall be
paid or transferred in lieu of any fractional Shares or whether such
fractional Shares or any rights thereto shall be canceled, terminated, or
otherwise eliminated.
(o) Transfer Restrictions. Shares acquired hereunder may
not be sold, assigned, transferred, pledged or otherwise disposed of,
except as provided in the Plan, the applicable Award Agreement and the
Investors' Agreement.
(p) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of the Plan or any provision thereof.
(q) Investors' Agreement. A Participant shall, as a condition
precedent to the exercise or settlement of an Award, execute an instrument
agreeing to be bound by the terms of the Investors' Agreement or, at the
election of the Company, a counterpart of the Investors' Agreement. In any
event, any Shares acquired upon exercise or settlement shall be subject to the
provisions in the Investors' Agreement regarding restrictions on transfer and
the Company's rights to compel sales and repurchase Shares.
Section 12. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of
August 7, 1997, subject to approval by the shareholders of the Company.
Awards may be granted hereunder prior to such shareholder approval subject
in all cases, however, to such approval.
(b) Expiration Date. No Incentive Stock Option shall be
granted under the Plan after August 6, 2007. Unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award granted
hereunder may, and the authority of the Board or the Committee to amend,
alter, adjust, suspend, discontinue, or terminate any such Award or to
waive any conditions or rights under any such Award shall, continue after
the authority for grant of new Awards hereunder has been exhausted.
EXHIBIT 5
August 7, 1997
DecisionOne Holdings Corp.
50 East Swedesford Road
Frazer, Pennsylvania 19355
Ladies and Gentlemen:
We are acting as special counsel for DecisionOne Holdings Corp.
(the "Company") in connection with the filing of a Registration Statement (the
"Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended, relating to 1,698,280 shares of common stock, par value $0.01 per
share (the "Common Stock"), deliverable in accordance with the DecisionOne
Holdings Corp. 1997 Management Incentive Plan as referred to in such Form S-8
(the "Plan").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments relating to the
adoption of the Plan as we have deemed necessary or advisable for the purposes
of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Common Stock deliverable pursuant to the Plan, when delivered in accordance
with the Plan upon receipt by the Company of adequate consideration therefor,
will be duly authorized, validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 23.a
INDEPENDENT AUDITORS' CONSENT
DecisionOne Holdings Corp.:
We consent to the incorporation by reference in this Registration Statement of
DecisionOne Holdings Corp. on Form S-8 of our report dated August 30, 1996 on
the consolidated financial statements of DecisionOne Holdings Corp. and
subsidiaries appearing in the Annual Report on Form 10-K for the year ended
June 30, 1996.
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
August 7, 1997
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Kirk B. Wortman, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of August, 1997.
/s/ Kenneth Draeger
--------------------------
KENNETH DRAEGER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Kirk B. Wortman, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of August, 1997.
/s/ Thomas J. Fitzpatrick
--------------------------
Thomas J. Fitzpatrick
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Kirk B. Wortman, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of August, 1997.
/s/ Peter T. Grauer
--------------------------
PETER T. GRAUER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Kirk B. Wortman, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of August, 1997.
/s/ Lawrence M.v.D. Schloss
----------------------------
LAWRENCE M.v.D. SCHLOSS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Kirk B. Wortman, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of August, 1997.
/s/ Tom G. Greig
--------------------------
TOM G. GREIG
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or
her capacity or capacities as an officer or director or both of DecisionOne
Holdings Corp. does hereby constitute and appoint Peter T. Grauer, the true
and lawful attorney and agent of the undersigned, each with power of
substitution, to do any and all acts and things for and on behalf of the
undersigned and in the name of the undersigned and in the capacity or
capacities of the undersigned as aforesaid and to execute any and all
instruments for and on behalf of the undersigned and in the name of the
undersigned, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
this Registration Statement, including specifically but without limitation,
power and authority to sign for the undersigned in the capacities indicated
below, any and all amendments (including post-effective amendments) hereto;
and the undersigned does hereby ratify and confirm all that the said attorneys
and agents, or their substitute or substitutes, or either of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 30th day of July, 1997.
/s/ Kirk B. Wortman
--------------------------
KIRK B. WORTMAN
