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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 22, 1998
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EDUCATIONAL MEDICAL, INC. n/k/a QUEST EDUCATION CORPORATION.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
000-21567 65-0038445
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Commission File Number (IRS Employer Identification No.)
Quest Education Corporation
1327 Northmeadow Parkway, Suite 132
Roswell, Georgia 30076
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (770) 475-9930
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ITEM 5. OTHER EVENTS.
On September 22, 1998, Educational Medical, Inc. (the "Company") conducted
its 1998 Annual Shareholders' Meeting (the "Meeting") at the offices of
Donaldson Lufkin & Jenrette, 277 Park Avenue, New York, NY 10172. The following
actions were taken at the Meeting:
Proposal 1: Election of Directors: Messrs. Robert J. Cresci, William D.
Ford, Carl S. Hutman, Gary D. Kerber and Richard E. Kroon were elected to
the Board for a term which expires at the annual meeting of shareholders
to be held in 1999.
Proposal 2: Change of Name to "Quest Education Corporation:" An Amendment
to the Restated Certificate of Incorporation changing the Company's name
to "Quest Education Corporation" was approved.
The Amendment was filed with the Delaware Secretary of State on
September 22, 1998.
The trading symbol for the Company's Common Stock on The Nasdaq Stock
Market, Inc. was changed from "EDMD" to "QEDC" effective at 9:00 a.m. on
September 23, 1998.
Proposal 3: Approval of the 1998 Employee Stock Purchase Plan: The 1998
Employee Stock Purchase Plan providing for up to 200,000 shares of the
Company's Common Stock to be sold to the Company's employees pursuant to
the Purchase Plan was approved.
Proposal 4: Approval of Amendment to 1996 Stock Incentive Plan: The 1998
Amendment to the 1996 Stock Incentive Plan increasing the number of shares
provided for in the Incentive Plan from 961,666 to 1,461,666 was approved.
Proposal 5: Ratification of the Company's Selection of Ernst & Young, LLP
as the Company's Independent Auditors for the Fiscal Year ending March
31,1999: The selection of the firm of Ernst & Young, LLP as the Company's
independent accountants for the fiscal year ending March 31, 1999 was
approved and ratified.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements: Not applicable.
(b) Pro Forma Financial Information: Not applicable.
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(c) Exhibits:
10.1 1998 Amendment to 1996 Stock Incentive Plan
10.2 1998 Employee Stock Purchase Plan
99.1 Ninth Amendment to Amended and Restated Articles of
Incorporation changing name of corporation from Educational
Medical, Inc. to Quest Education Corporation.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EDUCATIONAL MEDICAL, INC.
N/K/A QUEST EDUCATION CORPORATION
Date: October 1, 1998. By: /s/Vince Pisano
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Vince Pisano, Vice President Finance
and Chief Financial Officer
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Exhibit 10.1
1998 AMENDMENT TO EDUCATIONAL MEDICAL, INC.
1996 STOCK INCENTIVE PLAN
W I T N E S S E T H:
1. AMENDMENT TO PARAGRAPH 1(i) OF THE 1996 PLAN. Paragraph 1(i) of the
1996 Stock Incentive adopted by the Board of Directors of Educational Medical,
Inc. on June 20, 1996 is hereby amended in its entirety as follows:
"(i) 'Plan' shall mean the Educational Medical, Inc. 1996
Stock Incentive Plan as amended from time to time."
2 AMENDMENT TO PARAGRAPH 5 OF THE 1996 PLAN. Paragraph 5 of the 1996
Plan is hereby amended in its entirety as follows:
"5. MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN: The maximum
number of shares with respect to which stock options or stock
appreciation rights may be granted or which may be awarded as
restricted stock under the Plan shall be 1,461,666 shares in the
aggregate of Common Stock of the Corporation. The number of shares
with respect to which a stock appreciation right is granted, but not
the number of shares which the Corporation delivers or could deliver
to a Participant upon exercise of a stock appreciation right, shall be
charged against the aggregate number of shares remaining available
under the Plan; provided, however, that in the case of a stock
appreciation right granted in conjunction with a stock option under
circumstances in which the exercise of the stock appreciation right
results in termination of the stock option and vice versa, only the
number of shares subject to the stock option shall be charged against
the aggregate number of shares remaining available under the Plan. If
a stock option or stock appreciation right expires or terminates for
any reason (other than termination as a result of the exercise of a
related right) without having been fully exercised, or if shares of
restricted stock are forfeited, the number of shares with respect to
which the stock option or stock appreciation right was not exercised
at the time of its expiration or termination, and the number of
forfeited shares of restricted stock, shall again become available for
the grant of stock options or stock appreciation rights, or the award
of restricted stock, under the Plan, unless the Plan shall have been
terminated.
The number of shares subject to each outstanding stock option,
stock appreciation right or restricted stock award, the option price
with respect to outstanding stock options, the grant value with
respect to outstanding stock appreciation rights and the aggregate
number of shares remaining available under the
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Plan shall be subject to such adjustment as the Administrator, in its
Discretion, deems appropriate to reflect such events as stock
dividends, stock splits, recapitalizations, mergers, consolidations or
reorganizations of or by the Corporation; provided, however, that no
fractional shares shall be issued pursuant to the Plan, no rights may
be granted under the Plan with respect to fractional shares, and any
fractional shares resulting from such adjustments shall be eliminated
from any outstanding stock option, stock appreciation right, or
restricted stock award."
3. CONFLICT BETWEEN 1996 PLAN AND THIS 1998 AMENDMENT. In the event of any
conflict between the terms and provisions of the 1996 Plan and the terms and
provisions of this 1998 Amendment, the terms and provisions of this 1998
Amendment shall govern. All terms and provisions of the 1996 Plan not hereby
amended shall remain in full force and effect.
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Exhibit 10.2
QUEST EDUCATION CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Plan is to provide incentive for present
and future employees of the Company and any Designated Subsidiary to acquire a
proprietary interest (or increase an existing proprietary interest) in the
Company through the purchase of Common Stock. It is the Company's intention
that the Plan qualify as an "employee stock purchase plan" under Section 423 of
the Code. Accordingly, the provisions of the Plan shall be administered,
interpreted and construed in a manner consistent with the requirements of that
section of the Code.
2. Definitions.
(a) "Applicable Percentage" means the percentage specified in
Section 8, subject to adjustment by the Committee as provided in Section 8.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto.
(d) "Committee" means the committee appointed by the Board to
administer the Plan as described in Section 13 of the Plan or, if no such
Committee is appointed, the Board.
(e) "Common Stock" means the Company's common stock.
(f) "Company" means Quest Education Corporation, a Delaware
corporation.
(g) "Compensation" means, with respect to each Participant for
each pay period, the full base salary, overtime, bonuses and commissions paid
to such Participant by the Company or a Designated Subsidiary. Except as
otherwise determined by the Committee, "Compensation" does not include: (i)
overtime, bonuses or commissions; (ii) any amounts contributed by the Company
or a Designated Subsidiary to any pension plan; (iii) any automobile or
relocation allowances (or reimbursement for any such expenses); (iv) any
amounts paid as a starting bonus or finder's fee; (v) any amounts realized from
the exercise of any stock options or incentive awards; (vi) any amounts paid by
the Company or a Designated Subsidiary for other fringe benefits, such as
health and welfare, hospitalization and group life insurance benefits, or
perquisites, or paid in lieu of such benefits, or; (vii) other similar forms of
extraordinary compensation.
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(h) "Continuous Status as an Employee" means the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave of absence
agreed to in writing by the Company or the Designated Subsidiary that employs
the Employee, provided that such leave is for a period of not more than 90 days
or reemployment upon the expiration of such leave is guaranteed by contract or
statute.
(i) "Designated Subsidiaries" means the Subsidiaries that have
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(j) "Employee" means any person, including an Officer, whose
customary employment with the Company or one of its Designated Subsidiaries is
at least twenty (20) hours per week and more than five (5) months in any
calendar year [and who are not "highly-compensated employees" of the Company or
any Designated Subsidiaries, as that term is defined in Section 414(q) of the
Code, as amended.].
(k) "Entry Date" means the first day of each Exercise Period.
(l) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(m) "Exercise Date" means the last Trading Day ending on or before
December 31, 1998, and the last Trading Day ending on or before each June 30
and December 31 thereafter.
(n) "Exercise Period" means, for any Offering Period, each period
commencing on the Offering Date and on the day after each Exercise Date, and
terminating on the immediately following Exercise Date.
(o) "Exercise Price" means the price per share of Common Stock
offered in a given Offering Period determined as provided in Section 8.
(p) "Fair Market Value" means, with respect to a share of Common
Stock, the Fair Market Value as determined under Section 7(b).
(q) "First Offering Date" means October 22, 1998.
(r) "Offering Date" means the first Trading Day of each Offering
Period; provided, that in the case of an individual who becomes eligible to
become a Participant under Section 3 after the first Trading Day of an Offering
Period, the term "Offering Date" shall mean the first Trading Day of the
Exercise Period coinciding with or next succeeding the day on which that
individual becomes eligible to become a Participant. Options granted after the
first day of an Offering Period will be subject to the same terms as the
options granted on the first Trading Day of such Offering Period except that
they will have a different grant date (thus, potentially, a different exercise
price) and, because they expire at the same time as the options granted on the
first Trading Day of such Offering Period, a shorter term.
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(s) "Offering Period" means (i) with respect to the first
Offering Period, the period beginning on the First Offering Date and ending on
December 31, 1998, and (ii) with respect to each Offering Period thereafter,
and subject to adjustment as provided in Section 4, the period beginning [on
the first Trading Day of the month of January in the immediately succeeding
calendar year and ending on the last Trading Day of that calendar year.
(t) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 under the Exchange Act and the rules and
regulations promulgated thereunder.
(u) "Participant" means an Employee who has elected to participate
in the Plan by filing an enrollment agreement with the Company as provided in
Section 5 of the Plan.
(v) "Plan" shall mean this 1998 Employee Stock Purchase Plan.
(w) "Plan Contributions" means, with respect to each Participant,
the after-tax payroll deductions withheld from the Compensation of the
Participant and contributed to the Plan for the Participant as provided in
Section 6 of the Plan and any other amounts contributed to the Plan for the
Participant in accordance with the terms of the Plan.
(x) "Subsidiary" shall mean any corporation, domestic or foreign,
of which the Company owns, directly or indirectly, 50% or more of the total
combined voting power of all classes of stock, and that otherwise qualifies as
a "subsidiary corporation" within the meaning of Section 424(f) of the Code.
(y) "Trading Day" shall mean a day on which the national stock
exchanges and the Nasdaq system are open for trading.
3. Eligibility.
(a) Any Employee who [has completed at least one year of
employment with the Company or any Subsidiary and who] is an Employee as of the
Offering Date of a given Offering Period shall be eligible to become a
Participant as of any Entry Date within that Offering Period under the Plan,
subject to the requirements of Section 5(a) and the limitations imposed by
Section 423(b) of the Code.
(b) Notwithstanding any provision of the Plan to the contrary, no
Participant shall be granted an option under the Plan (i) to the extent that if,
immediately after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own stock and/or hold outstanding options to purchase stock possessing 5%
or more of the total combined voting power or value of all classes of stock of
the Company or of any Subsidiary of the Company, or (ii) to the extent that his
or her rights to purchase stock under all employee stock purchase plans of the
Company and its Subsidiaries intended to qualify under Section 423 of the Code
to accrue at a rate which exceeds $25,000 of
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fair market value of stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by a series of
consecutive Offering Periods. The first Offering Period shall commence on the
First Offering Date, the second Offering Period shall commence on the first
Trading Day in 1999, and succeeding Offering Periods shall commence on the
first Trading Day in each succeeding calendar year (or at such other time or
times as may be determined by the Committee). The Committee shall have the
power to change the duration and/or the frequency of Offering Periods with
respect to future offerings if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be affected.
5. Election to Participate.
(a) An eligible Employee may elect to participate in the Plan
commencing on any Entry Date by completing an enrollment agreement on the form
provided by the Company and filing the enrollment agreement with the Company on
or prior to such Entry Date, unless a later time for filing the enrollment
agreement is set by the Committee for all eligible Employees with respect to a
given offering. The enrollment agreement shall set forth the percentage of the
Participant's Compensation that is to be withheld by payroll deduction pursuant
to the Plan.
(b) Except as otherwise determined by the Committee under rules
applicable to all Participants, payroll deductions for a Participant shall
commence on the first payroll following the Entry Date on which the Participant
elects to participate in accordance with Section 5(a) and shall end on the last
payroll in the Offering Period, unless sooner terminated by the Participant as
provided in Section 11.
(c) Unless a Participant elects otherwise prior to the last
Exercise Date of an Offering Period, such Participant shall be deemed (i) to
have elected to participate in the immediately succeeding Offering Period (and,
for purposes of such Offering Period such Participant's "Entry Date" shall be
deemed to be the first day of such Offering Period) and (ii) to have authorized
the same payroll deduction for such immediately succeeding Offering Period as
was in effect for such Participant immediately prior to the commencement of such
succeeding Offering Period.
6. Participant Contributions.
(a) Except as otherwise authorized by the Committee pursuant to
Section 6(d) below, all Participant contributions to the Plan shall be made only
by payroll deductions. At the time a Participant files the enrollment agreement
with respect to an Offering Period, the Participant may authorize payroll
deductions to be made on each payroll date during the portion of the Offering
Period that he or she is a Participant in an amount not less than 1% and not
more than 25% of the Participant's Compensation on each payroll date during the
portion of the
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Offering Period that he or she is a Participant (or subsequent Offering Periods
as provided in Section 5(c)). The amount of payroll deductions shall be a whole
percentage (i.e., 1%, 2%, 3%, etc.) of the Participant's Compensation.
(b) A Participant may discontinue his or her participation in the
Plan as provided in Section 11, or may decrease or increase the rate or amount
of his or her payroll deductions during such Offering Period (within the
limitations of Section 6(a) above) by completing and filing with the Company a
new enrollment agreement authorizing a change in the rate or amount of payroll
deductions; provided, that a Participant may not change the rate or amount of
his or her payroll deductions more than once in any Exercise Period. The change
in rate or amount shall be effective with the first full payroll period
following ten (10) business days after the Company's receipt of the new
enrollment agreement.
(c) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a
Participant's payroll deductions may be decreased to 0% at such time during any
Exercise Period which is scheduled to end during the current calendar year that
the aggregate of all payroll deductions accumulated with respect to such
Exercise Period and any other Exercise Period ending within the same calendar
year are equal to the product of $25,000 multiplied by the Applicable Percentage
for the calendar year. Payroll deductions shall recommence at the rate provided
in the Participant's enrollment agreement at the beginning of the following
Exercise Period which is scheduled to end in the following calendar year, unless
terminated by the Participant as provided in Section 11.
(d) Notwithstanding anything to the contrary in the foregoing, but
subject to the limitations set forth in Section 3(b), the Committee may permit
Participants to make after-tax contributions to the Plan at such times and
subject to such terms and conditions as the Committee may in its discretion
determine. All such additional contributions shall be made in a manner
consistent with the provisions of Section 423 of the Code or any successor
thereto, and shall be held in Participants' accounts and applied to the purchase
of shares of Common Stock pursuant to options granted under this Plan in the
same manner as payroll deductions contributed to the Plan as provided above.
(e) All Plan Contributions made for a Participant shall be
deposited in the Company's general corporate account and shall be credited to
the Participant's account under the Plan. No interest shall accrue or be
credited with respect to a Participant's Plan Contributions. All Plan
Contributions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate or
otherwise set apart such Plan Contributions from any other corporate funds.
7. Grant of Option.
(a) On a Participant's Entry Date, subject to the limitations set
forth in Sections 3(b) and 12(a), the Participant shall be granted an option to
purchase on each subsequent
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Exercise Date during the Offering Period in which such Entry Date occurs (at the
Exercise Price determined as provided in Section 8 below) up to a number of
shares of Common Stock determined by dividing such Participant's Plan
Contributions accumulated prior to such Exercise Date and retained in the
Participant's account as of such Exercise Date by the Exercise Price; provided,
that the maximum number of shares an Employee may purchase during any Exercise
Period shall be 750 shares. The Fair Market Value of a share of Common Stock
shall be determined as provided in Section 7(b).
(b) The Fair Market Value of a share of Common Stock on a given
date 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. For
purposes of the First Offering Date, the Fair Market Value of a share of Common
Stock shall be the Price to Public as set forth in the final prospectus filed by
the Company with the Securities and Exchange Commission pursuant to Rule 424
under the Securities Act of 1933, as amended.
8. 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 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.
9. Exercise of Options. Unless the Participant withdraws from the Plan as
provided in Section 11, 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 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.
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10. 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.
11. Withdrawal; Termination of Employment.
(a) 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 Section 5(a).
(b) 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 as determined pursuant to Section 14,
and the Participant's option to purchase shares under the Plan will
automatically terminate.
(c) 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.
12. Stock.
(a) 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 adjustment as provided in Section 17.
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 purchase shall terminate as
provided herein, shares that have not been so purchased hereunder shall again
become available for the purpose of the
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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.
(b) A Participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) 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.
13. Administration.
(a) The Plan shall be administered by the Committee. The Committee
shall have the authority to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. The administration,
interpretation, or application of the Plan by the Committee shall be final,
conclusive and binding upon all persons.
(b) Notwithstanding the provisions of Subsection (a) of this
Section 13, in the event that Rule 16b-3 promulgated under the Exchange Act or
any successor provision thereto ("Rule 16b-3") provides specific requirements
for the administrators of plans of this type, the Plan shall only be
administered by such body and in such a manner as shall comply with the
applicable requirements of Rule 16b-3. Unless permitted by Rule 16b-3, no
discretion concerning decisions regarding the Plan shall be afforded to any
person that is not "disinterested" as that term is used in Rule 16b-3.
14. Designation of Beneficiary.
(a) 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.
(b) 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.
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15. 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 in Section 14). Any attempted assignment, transfer, pledge or other
distribution shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Section 11.
16. 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.
17. Adjustments Upon Changes in Capitalization; Corporate Transactions.
(a) If the outstanding shares of Common Stock are increased or
decreased, or are changed into or are exchanged for a different number or kind
of shares, as a result of one or more reorganizations, restructurings,
recapitalizations, reclassifications, stock splits, reverse stock splits, stock
dividends or the like, upon authorization of the Committee, appropriate
adjustments shall be made in the number and/or kind of shares, and the per-share
option price thereof, which may be issued in the aggregate and to any
Participant upon exercise of options granted under the Plan.
(b) In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided 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 with or into another corporation
(each, a "Sale Transaction"), each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor corporation or a parent
or subsidiary of such successor corporation, unless the Committee determines, in
the exercise of its sole discretion and in lieu of such assumption or
substitution, to shorten the Exercise Period then in progress by setting a new
Exercise Date (the "New Exercise Date"). If the Committee shortens the Exercise
Period then in progress in lieu of assumption or substitution in the event of a
Sale Transaction, the Committee shall notify each Participant in writing, at
least ten (10) days prior to the New Exercise Date, that the exercise date for
such Participant's option has been changed to the New Exercise Date and that
such Participant's option will be exercised automatically on the New Exercise
Date, unless prior to such date the Participant has withdrawn from the Plan as
provided in Section 11. For purposes of this Section 17(b), an option granted
under the Plan shall be deemed to have been assumed if, following the Sale
Transaction, the option confers the right to purchase, for each share of option
stock subject to the option immediately prior to the Sale Transaction, the
consideration (whether stock, cash or other securities or property) received in
the Sale Transaction by holders of Common Stock for each share of Common Stock
held on the effective
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date of the Sale Transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); provided, that if the consideration
received in the Sale Transaction was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code), the
Committee may, with the consent of the successor corporation and the
Participant, provide for the consideration to be received upon exercise of the
option to be solely common stock of the successor corporation or its parent
equal in fair market value to the per share consideration received by the
holders of Common Stock in the Sale Transaction.
(c) In all cases, the Committee shall have sole discretion to
exercise any of the powers and authority provided under this Section 17, and the
Committee's actions hereunder shall be final and binding on all Participants. No
fractional shares of stock shall be issued under the Plan pursuant to any
adjustment authorized under the provisions of this Section 17.
18. 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.
19. 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 19(a) above, reserved shares remaining as of the termination date shall
be sold to Participants on a pro rata basis.
20. Notices. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
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21. Effective Date. Subject to adoption of the Plan by the Board, the Plan
shall become effective on the First Offering Date. The Board shall submit the
Plan to the shareholders of the Company for approval within twelve months after
the date the Plan is adopted by the Board.
22. Conditions Upon Issuance of Shares.
(a) The Plan, the grant and exercise of options to purchase shares
under the Plan, and the Company's obligation to sell and deliver shares upon the
exercise of options to purchase shares shall be subject to compliance with all
applicable federal, state and foreign laws, rules and regulations and the
requirements of any stock exchange on which the shares may then be listed.
(b) The Company may make such provisions as it deems appropriate
for withholding by the Company pursuant to federal or state tax laws of such
amounts as the Company determines it is required to withhold in connection with
the purchase or sale by a Participant of any Common Stock acquired pursuant to
the Plan. The Company may require a Participant to satisfy any relevant tax
requirements before authorizing any issuance of Common Stock to such
Participant.
23. Expenses of the Plan. All costs and expenses incurred in administering
the Plan shall be paid by the Company, except that any stamp duties or transfer
taxes applicable to participation in the Plan may be charged to the account of
such Participant by the Company.
24. No Employment Rights. The Plan does not, directly or indirectly, create
any right for the benefit of any employee or class of employees to purchase any
shares under the Plan, or create in any employee or class of employees any
right with respect to continuation of employment by the Company, and it shall
not be deemed to interfere in any way with the Company's right to terminate, or
otherwise modify, an employee's employment at any time.
25. Applicable Law. The laws of the State of Delaware shall govern all
matter relating to this Plan except to the extent (if any) superseded by the
laws of the United States.
26. Additional Restrictions of Rule 16b-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
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Exhibit 99.1
NINTH AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
EDUCATIONAL MEDICAL, INC.
Pursuant to Section 242 of the Delaware
General Corporation Law
1. Educational Medical, Inc., a corporation duly organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), hereby amends its Restated Certificate of Incorporation, as
follows:
Article First is deleted in its entirety and the following article is
substituted in its place:
"Article First: The name of the corporation is: Quest Education
Corporation."
2. The Amendment to the Restated Certificate of Incorporation of the
Corporation set forth in this Ninth Amendment to Restated Certificate of
Incorporation has been duly adopted in accordance with the applicable
provisions of Section 242 of the Delaware General Corporation Law, (a) the
Board of Directors of the Corporation having duly adopted a resolution setting
forth the amendment proposed, declaring its advisability, and directing that
the amendment proposed be considered at the next annual meeting of the
stockholders, and by (b) the stockholders of the Corporation having duly
adopted a resolution setting forth and approving such amendment at the annual
meeting of the stockholders held upon notice in accordance with Section 222 of
the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned, as Secretary of the Corporation,
certifies that the foregoing Amendment was duly adopted in accordance with
Section 242 of the Delaware General Corporation Law, and the Corporation has
caused its corporate seal to be affixed hereto, all as of the 22nd day of
September 1998.
EDUCATIONAL MEDICAL, INC.
By: /s/ Morris C. Brown
------------------------------
Morris C. Brown, Secretary
2
