H.T.E., INC. QUALIFIED ESPP FORM S-8
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------
H.T.E., INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 59-2133858
- ---------------------------------- ---------------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
1000 BUSINESS CENTER DRIVE
LAKE MARY, FLORIDA 32746
----------------------------------------------------
(Address of Principal Executive Offices)
H.T.E., INC. 1997 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------
(Full title of the Plans)
-----------------------
DENNIS J. HARWARD
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
H.T.E., INC.
1000 BUSINESS CENTER DRIVE
LAKE MARY, FLORIDA 32746
--------------------------------------------------
(Name and address of agent for service)
(407) 304-3235
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Randolph H. Fields, Esq.
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel, P.A.
111 North Orange Avenue, Suite 2050
Orlando, Florida 32801
(407) 420-1000
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================ ===================== ===================== ====================== =====================
Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered registered per share (1) offering price (1) registration fee
- ---------------------------- --------------------- --------------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
Common stock, 200,000
$.01 par value........ shares $13.31 $2,662,000 $806.59
============================ ===================== ===================== ====================== =====================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of the average of the
high and low sale price of the Common Stock as of the close of business on
August 18, 1997.
</FN>
</TABLE>
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's quarterly report on Form 10-Q for the fiscal
quarter ended June 30, 1997; and
(b) the description of the Registrant's Common Stock, and the
financial statements (including the notes relating hereto),
filed as a part of the Registrant's Registration Statement,
as amended, on Form S-1 under the Securities Act of 1933
(Registration No. 333-22637).
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Amended and Restated Articles of
Incorporation provide that the Registrant may indemnify its executive officers
and directors to the fullest extent permitted by law either now or hereafter.
The Registrant has also entered into an agreement with each of its directors and
certain of its officers wherein it has agreed to indemnify each of them to the
fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "1933 Act") may be permitted to directors, officers
or controlling persons of Registrant, pursuant to the foregoing provisions or
otherwise, Registrant has been advised that, in the opinion of the Securities
and Exchange Commission (the "Commission"), such indemnification is against
public policy as expressed in the 1933 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 Registrant in the successful defense of any
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered hereunder, 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 1933 Act
and will be governed by the final adjudication of such issue.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT DESCRIPTION
NUMBER -----------
-------
4.1 1997 Employee Stock Purchase Plan
5.1 Opinion of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
23.1 Consent of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A. (contained in
its opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen L.L.P.
24.1 Power of Attorney is included in the
Signatures section of this Registration
Statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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 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 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Mary, State of Florida on August 22, 1997.
H.T.E.
By:/s/ Dennis J. Harward
------------------------------------
Dennis J. Harward
Chairman of the Board, President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Dennis J. Harward his true and
lawful attorney-in-fact, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Dennis J. Harward Chairman of the Board, President, Chief August 22, 1997
- ---------------------------------------- Executive Officer and Director
Dennis J. Harward (principal executive officer)
/s/ Jack L. Harward Executive Vice President and Director August 22, 1997
- ----------------------------------------
Jack L. Harward
/s/ L. A. Gornto, Jr. Executive Vice President and Chief August 22, 1997
- ---------------------------------------- Financial Officer (principal financial
L. A. Gornto, Jr. officer)
/s/ Susan D. Falotico Vice President, Controller, Chief August 22, 1997
- ---------------------------------------- Accounting Officer (chief accounting
Susan D. Falotico officer)
/s/ Bernard B. Markey Director August 22, 1997
- ----------------------------------------
Bernard B. Markey
/s/ Peter R. Roberts Director August 22, 1997
- ----------------------------------------
Peter R. Roberts
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT DESCRIPTION NUMBERED
NUMBER ----------- PAGE
------- ------------
4.1 1997 Employee Stock Purchase Plan
5.1 Opinion of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
23.2 Consent of Arthur Andersen L.L.P.
II-4
OFFERING MEMORANDUM
for
H.T.E., INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS
COVERING SECURITIES THAT HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
August 19, 1997
<PAGE>
H.T.E., INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
PAGE
----
INTRODUCTION...............................................................1
SUMMARY DESCRIPTION OF PLAN................................................1
PURCHASE PERIOD.........................................................1
ELIGIBILITY.............................................................2
SHARE RESERVE...........................................................2
PAYROLL DEDUCTION.......................................................2
MAXIMUM NUMBER OF PURCHASABLE SHARES....................................2
WITHDRAWAL..............................................................2
TERMINATION OF EMPLOYMENT...............................................2
PLAN TERMINATION........................................................2
ADMINISTRATION.............................................................2
ELIGIBILITY................................................................3
TERMS AND CONDITIONS OF RIGHTS TO PURCHASE SHARES OF COMMON STOCK..........3
GRANT OF OPTION.........................................................3
EXERCISE PRICE..........................................................4
AUTOMATIC EXERCISE......................................................4
DELIVERY................................................................4
WITHDRAWAL; TERMINATION OF EMPLOYMENT...................................4
STOCK...................................................................5
DESIGNATION OF BENEFICIARY..............................................5
TRANSFERABILITY.........................................................5
PARTICIPANT ACCOUNTS....................................................5
ADJUSTMENTS AND REORGANIZATION.............................................6
TERMINATION OF THE PLAN....................................................6
RESTRICTIONS ON RESALE.....................................................7
TAXATION...................................................................8
OUTSTANDING OPTIONS UNDER THE PLAN.........................................8
ADDITIONAL INFORMATION.....................................................9
INCORPORATION OF DOCUMENTS BY REFERENCE.................................9
DOCUMENTS AVAILABLE TO PARTICIPANTS.....................................9
<PAGE>
H.T.E., INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
INTRODUCTION
This Offering Memorandum (the "Memorandum") relates to 200,000 shares
of the common stock, $.01 par value per share (the "Common Stock" or "Shares"),
of H.T.E., Inc., a Florida corporation (the "Company"), that may be granted
under the Company's 1997 Employee Stock Purchase Plan (the "Plan").
The Plan becomes effective as of September 1, 1997, and, unless sooner
terminated by the Board of Directors of the Company (the "Board") in accordance
with the terms thereof, shall terminate as provided below. All eligible
employees of the Company may participate in the Plan.
The Plan is qualified as an employee stock purchase Plan under Section
423(a) of the Internal Revenue Code of 1986, as amended (the "Code" or the
"Internal Revenue Code"). See "Taxation" below.
The statements in this Memorandum concerning the terms and provisions
of the Plan are summaries only and do not purport to be complete. All such
statements are qualified in their entirety by reference to the full text of the
Plan, a copy of which is filed as an exhibit to the Company's Form 10Q dated and
filed with the Securities and Exchange Commission on August 14, 1997, and
incorporated by reference in the Company's registration statement (the
"Registration Statement") on Form S-8. The Registration Statement has been filed
by the Company in order to register the Shares sold by the Company under the
Plan. A copy of the Plan will be provided by the Company upon request. See
"Additional Information -- Documents Available to Participants".
SUMMARY DESCRIPTION OF PLANS
The principal features of the Plan may be summarized as follows:
PURCHASE PERIOD. The initial offering period will be from September 1,
1997 until the last business day in 1997. Thereafter, each offering period will
have a duration of approximately 6 months beginning on the first business days
of January and July during the term of the Plan. An employee who is eligible to
join the Plan may elect to become a participant as of the date of September 1,
1997 or on any January 1 or July 1 thereafter (each being referred to as an
entry date). On the date he becomes a participant, an eligible employee will be
granted a right to purchase shares of common stock on the last business day on
or before each June 30 and December 31 during which he is a participant. All
payroll deductions collected from the participant would be applied to the
purchase of common stock as of each such last business day. The purchase price
per share will be not less than 85% of the LOWER of (i) the market price on the
first day of the offering period or (ii) the market price on the exercise date.
However, for any participant whose entry date is other than the first day of the
offering period, the clause (i) amount will in no event be less than the market
price of the common stock on the participant's entry date. This limitation will
preclude a new hire from having a lower purchase price than a longer-term
employee.
<PAGE>
ELIGIBILITY. Each individual who is expected on a regularly-scheduled
basis to work more than 20 hours per week for more than five months per calendar
year will be eligible to join the Plan on the first semi-annual entry date
following the date of his or her employment with the Company.
SHARE RESERVE. Two hundred thousand (200,000) shares of common stock
will be reserved for issuance over the term of the Plan, subject to periodic
adjustment for changes in the outstanding common stock occasioned by stock
splits, stock dividends, recapitalizations or other similar changes affecting
the outstanding common stock.
PAYROLL DEDUCTION. The purchase price is to be paid through periodic
payroll deductions not to exceed 25% of the participant's total base salary,
overtime and other wages (excluding bonuses and commissions) for his or her
period of Plan coverage. The rate of payroll deduction may be lowered once per
six-month exercise period (which shall be effective with the first full payroll
period following ten (10) business days after the Company's receipt of the new
enrollment agreement) and may be increased as of the start date of any
subsequent exercise period.
MAXIMUM NUMBER OF PURCHASABLE SHARES. No participant may purchase more
than five hundred shares of common stock on any one semi-annual exercise date.
In addition, the Federal tax laws preclude any participant from purchasing more
than $25,000 worth of common stock (based on the fair market value of the shares
on the participant's entry date) in any one calendar year.
WITHDRAWAL. A participant may withdraw from a particular offering
period at any time prior to any semi-annual exercise date. Upon such withdrawal,
all further payroll deductions will cease, and any payroll deductions collected
on the participant's behalf since the last semi-annual exercise date will, at
the participant's election, be immediately refunded to the participant. The
participant will not be permitted to rejoin the Plan until the first day of the
offering period following such withdrawal.
TERMINATION OF EMPLOYMENT. Participation will terminate immediately
upon the individual's cessation of employment or loss of eligibility status, and
the payroll deductions collected on that individual's behalf since the last
exercise date will be immediately refunded.
PLAN TERMINATION. The Board may suspend or terminate the Plan at any
time following the close of any six-month exercise period.
ADMINISTRATION
The Plan is to be administered by a committee appointed by the Board or
the Board (hereinafter referred to in either instance as the "Committee"). The
Committee makes all decisions or determinations by either a majority vote of its
members at a meeting or without a meeting by the unanimous written approval of
its members. The Committee may adopt rules and regulations for carrying out the
purposes of the Plan, and any such determinations, interpretations and
construction by the Committee of any such rule or regulation or provision of the
Plan are final and conclusive. The Committee has the full and exclusive right to
determine, among other things, the persons to whom shares are to be delivered,
the number of shares, the price of the shares and the term thereof.
2
<PAGE>
See "Eligibility" and "Terms and Conditions of Rights to Purchase Shares of
Common Stock," below.
ELIGIBILITY
All employees of the Company whose customary employment with the
Company (or certain of its designated subsidiaries) is at least twenty hours per
week and more than five months in any calendar year are eligible to receive
grants of rights to purchase Shares under the Plan. Any person who files with
the Committee a written waiver of eligibility to receive any right to purchase
Shares under the Plan shall not be eligible to receive any right to purchase
Shares under the Plan for the duration of such waiver.
On the date he becomes a participant, an eligible employee will be
granted a right to purchase shares of common stock on the last business day on
or before each June 30 and December 31 during which he is a participant. All
payroll deductions collected from the participant would be applied to the
purchase of common stock as of each such last business day. The purchase price
per share will be not less than 85% of the LOWER of (i) the market price on the
first day of the offering period or (ii) the market price on the exercise date.
However, for any participant whose entry date is other than the first day of the
offering period, the clause (i) amount will in no event be less than the market
price of the common stock on the participant's entry date. This limitation will
preclude a new hire from having a lower purchase price than a longer-term
employee.
TERMS AND CONDITIONS OF RIGHTS TO PURCHASE SHARES OF COMMON STOCK
GRANT OF OPTION. On a participant's entry date, subject to certain
limitations determined in accordance with calculations set forth in the Plan,
the participant shall be granted an option to purchase on each subsequent
exercise date during the offering period in which such entry date occurs up to
five hundred (500) shares of Common Stock determined in accordance with
calculations set forth therein. The fair market value of a share of Common Stock
shall be determined by the Committee in its discretion; PROVIDED, that if there
is a public market for the Common Stock, the fair market value per share shall
be either (i) the closing price of the Common Stock on such date (or, in the
event that the Common Stock is not traded on such date, on the immediately
preceding trading date), as reported by the National Association of Securities
Dealers Automated Quotation (Nasdaq) National Market System, (ii) if such price
is not reported, the average of the bid and asked prices for the Common Stock on
such date (or, in the event that the Common Stock is not traded on such date, on
the immediately preceding trading date), as reported by Nasdaq, (iii) in the
event the Common Stock is listed on a stock exchange, the closing price of the
Common Stock on such exchange on such date (or, in the event that the Common
Stock is not traded on such date, on the immediately preceding trading date), as
reported in The Wall Street Journal, or (iv) if no such quotations are available
for a date within a reasonable time prior to the valuation date, the value of
the Common Stock as determined by the Committee using any reasonable means.
EXERCISE PRICE. The exercise price per share of Common Stock offered to
each participant in a given offering period shall be the LOWER of: (i) the
applicable percentage of the greater of (A) the
3
<PAGE>
fair market value of a share of Common Stock on the offering date or (B) the
fair market value of a share of Common Stock on the entry date on which the
employee elects to become a participant within the offering period; or (ii) the
applicable percentage of the fair market value of a share of Common Stock on the
exercise date. The applicable percentage with respect to each offering period
shall be 85%, unless and until such applicable percentage is increased by the
Committee, in its sole discretion, provided that any such increase in the
applicable percentage with respect to a given offering period must be
established not less than fifteen (15) days prior to the offering date thereof.
AUTOMATIC EXERCISE. Unless the participant withdraws from the Plan in
accordance with its terms, the participant's option for the purchase of shares
will be exercised automatically on each exercise date, and the maximum number of
full shares subject to such option shall be purchased for the participant at the
applicable exercise price with the accumulated Plan contributions then credited
to the participant's account under the Plan. During a participant's lifetime, a
participant's option to purchase shares hereunder is exercisable only by the
participant.
DELIVERY. As promptly as practicable after each exercise date, the
Company shall arrange for the delivery to each participant (or the participant's
beneficiary), as appropriate, or to a custodial account for the benefit of each
participant (or the participant's beneficiary) as appropriate, of a certificate
representing the shares purchased upon exercise of such participant's option.
Any amount remaining to the credit of a participant's account after the purchase
of shares by such participant on an exercise date, or which is insufficient to
purchase a full share of Common Stock, shall be carried over to the next
exercise period if the participant continues to participate in the Plan or, if
the participant does not continue to participate, shall be returned to the
participant.
WITHDRAWAL; TERMINATION OF EMPLOYMENT. A participant may withdraw from
the Plan at any time by giving written notice to the Company. All of the Plan
contributions credited to the participant's account and not yet invested in
Common Stock will be paid to the participant as soon as administratively
practicable after receipt of the participant's notice of withdrawal, the
participant's option to purchase shares pursuant to the Plan automatically will
be terminated, and no further payroll deductions for the purchase of shares will
be made for the participant's account. Payroll deductions will not resume on
behalf of a participant who has withdrawn from the Plan (a "Former participant")
unless the Former participant enrolls in a subsequent offering period in
accordance with the Plan. Upon termination of the participant's continuous
status as an employee prior to any exercise date for any reason, including
retirement or death, the Plan contributions credited to the participant's
account and not yet invested in Common Stock will be returned to the participant
or, in the case of death, to the participant's beneficiary, and the
participant's option to purchase shares under the Plan will automatically
terminate. A participant's withdrawal from an offering period will not have any
effect upon the participant's eligibility to participate in succeeding offering
periods or in any similar plan which may hereafter be adopted by the Company.
STOCK. The maximum number of shares of the Company's Common Stock that
shall be made available for sale under the Plan shall be Two Hundred Thousand
(200,000) shares, subject to certain adjustments. Shares of Common Stock subject
to the Plan may be newly issued shares or shares reacquired in private
transactions or open market purchases. If and to the extent that any right to
purchase reserved shares shall not be exercised by any participant for any
reason or if such right to
4
<PAGE>
purchase shall terminate as provided herein, shares that have not been so
purchased hereunder shall again become available for the purpose of the Plan
unless the Plan shall have been terminated, but all shares sold under the Plan,
regardless of source, shall be counted against the limitation set forth above. A
participant will have no interest or voting rights in shares covered by his
option until such option has been exercised. Shares to be delivered to a
participant under the Plan will be registered in the name of the participant or
in the name of the participant and his or her spouse, as requested by the
participant.
DESIGNATION OF BENEFICIARY. A participant may file a written
designation of a beneficiary who is to receive any shares and cash, if any, from
the participant's account under the Plan in the event of the participant's death
subsequent to an exercise date on which the participant's option hereunder is
exercised but prior to delivery to the participant of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of the participant's death prior to the exercise of the option. A participant's
beneficiary designation may be changed by the participant at any time by written
notice. In the event of the death of a participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
TRANSFERABILITY. Neither Plan contributions credited to a participant's
account nor any rights to exercise any option or receive shares of Common Stock
under the Plan may be assigned, transferred, pledged or otherwise disposed of in
any way (other than by will or the laws of descent and distribution, or as
provided under the Plan), and any attempt to make such prohibited transfer shall
be void.
PARTICIPANT ACCOUNTS. Individual accounts will be maintained for each
participant in the Plan to account for the balance of his Plan contributions and
options issued and shares purchased under the Plan. Statements of account will
be given to participants semi-annually in due course following each exercise
date, which statements will set forth the amounts of payroll deductions, the per
share purchase price, the number of shares purchased and the remaining cash
balance, if any. No interest is credited to employees on contributions held
pending investment under the Plan.
ADJUSTMENTS AND REORGANIZATION
The Plan contains certain adjustment provisions applicable in the event
that the outstanding shares of Common Stock are changed in number or class by
reason of reorganizations, restructurings, recapitalizations, reclassifications,
stock dividends, stock split-ups or similar changes in capitalization, in which
event appropriate adjustments will be made by the Committee, in the number
and/or kind of shares, and the per-share exercise price thereof, which may be
issued both in the aggregate and to any participant upon exercise of options
granted under the Plan. In the event of the proposed liquidation or dissolution
of the Company, the offering period will terminate prior to
5
<PAGE>
the consummation of such event, unless otherwise determined by the Committee. In
the event of a proposed sale of all or substantially all of the Company's
assets, or the merger of the Company into another corporation, then existing
options granted under the Plan may be assumed or equivalent options substituted
therefor, unless the Committee, in its sole discretion, determines to shorten
the then existing exercise period by setting a new exercise date, as provided in
the Plan.
AMENDMENT OF THE PLAN
The Board or the Committee may at any time, or from time to time, amend
the Plan in any respect; provided, that (i) no such amendment may make any
change in any option theretofore granted which adversely affects the rights of
any participant and (ii) the Plan may not be amended in any way that will cause
rights issued under the Plan to fail to meet the requirements for employee stock
purchase plans as defined in Section 423 of the Code or any successor thereto.
To the extent necessary to comply with Rule 16b-3 under the Exchange Act,
Section 423 of the Code, or any other applicable law or regulation, the Company
shall obtain shareholder approval of any such amendment.
TERMINATION OF THE PLAN
The Plan and all rights of employees hereunder shall terminate on the
earliest of:
(a) the exercise date that participants become entitled to purchase
a number of shares greater than the number of reserved shares remaining
available for purchase under the Plan;
(b) such date as is determined by the Board in its discretion; or
(c) the last exercise date immediately preceding the tenth (10th)
anniversary of the Plan's effective date.
In the event that the Plan terminates under circumstances described in
section (a) hereinabove, reserved shares remaining as of the termination date
shall be sold to participants on a PRO RATA basis.
RESTRICTIONS ON RESALE
Shares of Common Stock acquired upon issuance of Shares under the Plan
may be resold only in compliance with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and applicable state
securities laws. Persons not deemed to be "affiliates" of the Company within the
meaning of the Securities Act and applicable regulations promulgated thereunder
by the Securities and Exchange Commission (the "Commission") may resell shares
of Common Stock acquired pursuant to the Plan without limitation under the
Securities Act as to either the quantity sold or the period during which such
stock was held, provided such shares are acquired upon exercise of an option
while a registration statement under the Securities Act covering the issuance of
such shares is in effect.
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Under the Securities Act, persons who are "affiliates" of the Company
may resell shares of Common Stock purchased under the Plan only (i) in
accordance with the provisions of Rule 144 promulgated by the Commission under
the Securities Act (exclusive of the one-year holding period if such shares are
acquired upon exercise of an option while a registration statement covering the
issuance of such shares is in effect) or some other exemption from registration
under the Securities Act, or (ii) pursuant to an applicable, current and
effective registration statement in accordance with the Securities Act,
including Form S-1 or Form S-3, but not including a registration statement on
Form S-8. As defined in Rule 405 promulgated by the Commission, an "affiliate"
of the Company is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Company. The determination of whether a person is an "affiliate" of the
Company is primarily a factual one based upon whether he possesses, directly or
indirectly, individually or in concert with others, the power to direct or cause
the direction of the management or policies of the Company, whether through the
ownership of voting stock, by executive position, by membership on the Board, by
contract or otherwise. Each optionee should consult his legal counsel to
determine whether he is an "affiliate" of the Company and therefore whether the
attendant restrictions on resale under the Securities Act apply to sales of
Common Stock acquired pursuant to the Plan.
Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), provides, among other things, that any person who is a
beneficial owner of more than 10 percent of an equity security of a company
registered under the Exchange Act or who is an officer or director of that
company, will be liable to the company for any profit realized from any purchase
and sale (or any sale and purchase) of any equity security of such company
within a period of less than six months, irrespective of the intention on the
part of such person entering into the transaction. Section 16(b) liability does
not attach unless both a purchase and a sale of a security has occurred. In that
regard, because the Plan complies with the requirements of Rule 16b-3
promulgated under the Exchange Act, an acquisition of Common Stock pursuant to
the exercise of an option shall not be deemed to be a "purchase" of shares;
however, any sale of such shares may be matched to another purchase made within
six (6) months of the sale if such purchase is not otherwise exempt under Rule
16b-3. Persons to whom Section 16(b) may apply should consult with the Company's
general counsel prior to the acquisition or disposition of any shares of Common
Stock (including shares acquired in connection with the exercise of options
granted pursuant to the Plan).
TAXATION
The Plan is designed to qualify as an employee stock purchase Plan
under Internal Revenue Code Section 423. Under a Plan which so qualifies, no
taxable income is reportable by the participant upon either the grant of the
purchase right or the periodic purchase of common stock pursuant to that right.
For participants who sell their shares within two years after their entry date
into the exercise period or within one year after the exercise date of the
shares, the gain realized upon such sale will be taxed, in general, as follows:
/bullet/ ordinary income equal to the excess of (i) the market price of
the shares on the exercise date over (ii) the purchase price paid for such
shares.
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/bullet/ capital gain equal to the appreciation in value of the shares
between the exercise date and the sale date.
For participants who hold the shares for more than two years after
their entry date into the exercise period and more than one year after the
exercise date, the profit realized upon subsequent sale of the shares will be
taxed as follows:
/bullet/ ordinary income equal to the discount (currently, 15%) in the
purchase price offered under the Plan from the market price of the shares on the
participant's entry date into the exercise period.
/bullet/ long-term capital gain equal to the amount by which the
selling price of the shares exceeds the sum of (i) the purchase price paid for
such shares plus (ii) the ordinary income recognized above.
The information set forth above is a summary only and does not purport
to be complete. In addition, the information is based upon current Federal
income tax rules and therefore is subject to change when those rules change.
Moreover, because the tax consequences to any optionee may depend on his
particular situation, each optionee should consult his tax adviser as to the
Federal, state, local and other tax consequences of the grant or exercise of an
option to purchase Common Stock under the Plan or the disposition of Common
Stock acquired on exercise of an option.
OUTSTANDING OPTIONS UNDER THE PLAN
Certain information with respect to outstanding options to purchase
shares is set forth in the Company's reports and other documents incorporated
herein and required or available upon request to be delivered to participants in
the Plan. See "Additional Information," below.
ADDITIONAL INFORMATION
INCORPORATION OF DOCUMENTS BY REFERENCE. The Company hereby
incorporates by reference into this Memorandum the following documents:
(i) the registration statement on Form S-1 (Registration
No. 333-22637) filed with the Securities and Exchange Commission, effective June
10, 1997;
(ii) the Company's quarterly report on Form 10-Q for the
fiscal quarter ended June 30, 1997; and
(iii) all reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which
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indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents.
DOCUMENTS AVAILABLE TO PARTICIPANTS. Participants in the Plan may
obtain from the Company without charge, upon written or oral request, a copy of
the Plan and any and all of the documents incorporated by reference herein as
described above (not including exhibits thereto unless such exhibits are
incorporated by reference into such documents), and a copy of any other
documents required by Rule 428(b)(2) promulgated under the Securities Act to be
delivered herewith to each employee to whom this Memorandum is sent or given.
Such requests should be directed to the Company, by writing to H.T.E., Inc.,
1000 Business Center Drive, Lake Mary, Florida 32746, Attention L.A. Gornto,
Jr., Executive Vice President, Chief Financial Officer. In addition, the Company
will deliver or cause to be delivered to all employees, officers and directors
participating in the Plan who do not otherwise receive such material, copies of
all reports, proxy statements, and other communications distributed to its
security holders generally.
9
Exhibit 5.1
August 22, 1997
H.T.E., Inc.
1000 Business Center Drive
Lake Mary, Florida 32746
RE: H.T.E., INC. REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
On the date hereof, H.T.E., Inc. a Florida corporation (the "Company"),
sent for filing with the Securities and Exchange Commission a registration
statement on Form S-8 (the "Registration Statement"), under the Securities Act
of 1933, as amended (the "Act"). The Registration Statement relates to the
offering and sale by the Company of up to 200,000 shares of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), pursuant to the Company's
1997 Employee Stock Purchase Plan (the "Plan"). We have acted as special counsel
to the Company in connection with the preparation and filing of the Registration
Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the articles of incorporation
and bylaws of the Company, each as amended to date; (ii) records of corporate
proceedings of the Company authorizing the Plan, any amendments thereto, and the
preparation of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 200,000 authorized and unissued shares
of Common Stock from which the 200,000 shares of Common Stock proposed to be
sold pursuant to the Plan may be issued, and, assuming that the Company
maintains an adequate number of authorized and unissued shares of Common Stock
available for issuance pursuant to purchases made under the Plan and the
<PAGE>
H.T.E., Inc.
August 22, 1997
Page 2
consideration for shares of Common Stock issued pursuant to the Plan is actually
received by the Company as provided in the Plan, the shares of Common Stock
issued pursuant to purchases made under and in accordance with the terms of the
Plan will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Sincerely,
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 28, 1997, included in H.T.E., Inc.'s Form S-1 (File No. 333-22637) and
to all references to our Firm included in this registration statement.
Orlando, Florida,
August 21, 1997 /S/ Arthur Andersen LLP
