As filed with the Securities and Exchange Commission on March 9, 1998.
Registration No. 333- .
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UNITED STATES SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE ACT OF 1933
APPLIED INTELLIGENCE GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
Oklahoma 73-1247666
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
13800 Benson Road
__________ Edmond, Oklahoma_____________ _____73013_____
(Address of principal executive offices) (Zip Code)
Applied Intelligence Group, Inc. 1998 Non-Qualified Stock Option Plan
(Full Title of the Plan)
Mr. Robert L. Barcum
President and Chief
Executive Officer
Applied Intelligence Group, Inc.
13800 Benson Road
Edmond, Oklahoma 73013
(Name and Address of Agent For Service)
(405) 936-2300
(Telephone Number, Including Area Code, of Agent For Service)
Copies To:
Mr. Michael E. Dunn, Esq.
Dunn Swan & Cunningham
2800 Oklahoma Tower, 210 Park Avenue
Oklahoma City, Oklahoma 73102-5604
(405) 235-8318
CALCULATION OF REGISTRATION FEE(1)
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to Registered Offering Price Aggregate Offering Registration
be Registered Per Share (1) Price (1) Fee (2)
Common Stock
($.001 per
share par 300,000 $3.3125 $993,750 $302
value) shares
(1) Estimated solely for the purpose of determining the registration fee.
(2) Calculated pursuant to rule 457(h)(1) on the basis of the reported
closing price of shares of the Common Stock on the Nasdaq SmallCap Market
on March 3, 1998.
PART II
This Registration Statement relates to 300,000 shares of Common Stock,
$.001 par value per share (the "Common Stock"), of Applied Intelligence
Group, Inc. (the "Company" or the "Registrant"), being registered for
issuance under the Applied Intelligence Group, Inc. 1998 Non-Qualified Stock
Option Plan, adopted February 9, 1998. The Common Stock registered
hereunder may be issued under the Plan upon exercise of options granted to
eligible persons as defined under and pursuant to the Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
(a) the Prospectus, dated November 20, 1996, of the Registrant filed with
the Central Regional Officer of the Commission pursuant to Rule 424(b) and in
conjunction with the Company's Registration Statement on Form SB-2
(No. 333-5038-D), as declared effective by the Commission on November 20,
1996;
(b) the Certificate of Incorporation contained as Exhibit 3.1 to the
Company's Registration Statement on Form SB-2 (No. 3335038-D), as filed with
the Central Regional Office of the Commission and as declared effective by
the Commission on November 20, 1996;
(c) the Bylaws contained as Exhibit 3.2 to the Company's Registration
Statement on Form SB-2 (No. 333-5038-D), as filed with the Central Regional
Office of the Commission and as declared effective by the Commission on
November 20, 1996;
(d) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A as filed with the Commission on
November 14, 1996 under Section 12 of the Securities Exchange Act of 1934,
including any amendment or description filed for the purpose of updating such
description; and
(e) All documents and reports subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a posteffective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents. Specifically incorporated by reference are Form 10-KSB for the
year ending December 31, 1996 and Forms 10-QSB for the quarters ending
March 31, 1997, June 30, 1997 and September 30, 1997.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (Class of securities to be offered is registered under
Section 12(g) of the Securities Exchange Act of 1934.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1031 of the Oklahoma General Corporation Act permits and (and
Registrant's Certificate of Incorporation and Bylaws, which are incorporated
by reference herein) authorizes indemnification of directors and officers of
the Registrant and officers and directors of another corporation, partnership,
joint venture, trust or other enterprise who serve at the request of
Registrant, against expenses, including attorneys fees, judgments, fines and
amount paid in settlement actually and reasonably incurred by such person in
connection with any action, suit or proceeding in which such person is a
party by reason of such person being or having been a director or officer of
Registrant or at the request of Registrant, if he conducted himself in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Registrant may not indemnify an officer or a director with respect to any
claim, issue or matter as to which such officer or director shall have been
adjudged to be liable to Registrant, unless and only to the extent that the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper. To the
extent that an officer or director is successful on the merits or otherwise
in defense on the merits or otherwise in defense of any action, suit or
proceeding with respect to which such person is entitled to indemnification,
or in defense of any claim, issue or matter therein, such person is
entitled to be indemnified against expenses, including attorneys fees,
actually and reasonable incurred by him in connection therewith.
The circumstances under which indemnification is granted with an action
brought on behalf of Registrant are generally the same as those set forth
above; however, expenses incurred by an officer or a director in defending a
civil or criminal action, suit or proceeding may be paid by the Company in
advance of final disposition upon receipt of an undertaking by or on behalf
of such officer or director to repay such amount it is ultimately
determined that such officer or director is not entitled to indemnification
by Registrant.
These provisions may be sufficiently broad to indemnify such persons for
liabilities under the Securities Act of 1933, as amended (the "1933 Act"),
in which case such provision is against public policy as expressed in the
1933 Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.5 Applied Intelligence Group, Inc. 1998 Non-Qualified Stock
Option Plan, adopted February 9, 1998.
5.3 Opinion of Dunn Swan & Cunningham
23.7 Consent of Independent Accountants
23.8 Consent of Dunn Swan & Cunningham
24.3 Power of Attorney
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 1933 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;
(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 2 (a) (1) (i) and 2 (a) (1) (ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference
herein.
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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 posteffective
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 1933 Act, each filing of the undersigned
Company's annual report pursuant to Section 13 (a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the new 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 1933
Act my be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of 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 Company of expenses incurred or
paid by a director, officer, or controlling person of the Company 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 Company 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 Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Edmond, Oklahoma, on
this 9th day of March, 1998.
APPLIED
INTELLIGENCE GROUP, INC.
BY:/S/ ROBERT L. BARCUM
Robert L. Barcum
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
SIGNATURES TITLE DATE
/S/ ROBERT L. BARCUM Chairman of the Board March 9, 1998
Robert L. Barcum of Directors
/S/ ROBERT N. BAKER Vice President and March 9, 1998
Robert N. Baker Director
/S/ RUSSELL L REINHARDT Vice President and March 9, 1998
Russell L. Reinhardt Director
/S/ DAVID B. NORTH Vice President March 9, 1998
David B. North
/S/ JOHN M. DUCK Vice President and March 9, 1998
John M. Duck Chief Financial
Officer
/S/ Larry R. Davenport Vice President March 9, 1998
Larry R. Davenport
/S/ Lewis B. Kilbourne Director March 9, 1998
Lewis B. Kilbourne
/S/ Jimmy M. Wright Director March 9, 1998
Jimmy M. Wright
Exhibit 4.5
APPLIED INTELLIGENCE GROUP, INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
ARTICLE I
General Provisions
On February 9, 1998, Applied Intelligence Group, Inc. (the
"Company") adopted the Applied Intelligence Group, Inc. 1998 NonQualified
Stock Option Plan (the "Plan").
1.1 Purpose. The purpose of the Plan shall be to attract, retain
and motivate directors, executive officers, key employees and independent
contractors and consultants of the Company and its subsidiaries
("Eligible Persons") by way of granting (i) non-qualified stock
options ("Stock Options") with stock appreciation rights attached
("Stock Option SARs"). For the purpose of this Plan, Stock Option
SARs are sometimes herein called "SARs." The Stock Options to be granted
are intended to be "non-qualified stock options" as described in Sections
83 and 421 of the Internal Revenue Code of 1986, as amended (the
"Code"). Furthermore, under the Plan, the terms "parent" and
"subsidiary" shall have the same meaning as set forth in
Subsections (e) and (f) of Section 425 of the Code unless the context
herein clearly indicates to the contrary.
1.2 General. The terms and provisions of this Article I shall be
applicable to Stock Options and SARs unless the context herein clearly
indicates to the contrary.
1.3 Administration of the Plan. The Plan shall be administered
by the Board of Directors (the "Board") of the Company.
1.3.1 Board Administration. The Board shall have the power
where consistent with the general purpose and intent of the Plan to
(i) modify the requirements of the Plan to conform with the law or
to meet special circumstances not anticipated or covered in the
Plan, (ii) suspend or discontinue the Plan, (iii) establish
policies, and (iv) adopt rules and regulations and prescribe forms
for carrying out the purposes and provisions of the Plan including
the form of any "stock option agreements" ("Stock Option
Agreements").
1.3.2 Plan Interpretation. Unless otherwise provided in the
Plan, the Board shall have the authority to interpret and construe
the Plan, and determine all questions arising under the Plan and any
agreement made pursuant to the Plan. Any interpretation, decision or
determination made by the Board shall be final, binding and
conclusive.
1.3.3 Selection of Participants. In designating and selecting
Eligible Persons ("Participants") for participation in the Plan, the
Board may consult with and give consideration to the recommendations
and criticisms submitted by appropriate managerial and executive
officers of the Company. The Board also shall take into account the
duties and responsibilities of the Eligible Persons, their past,
present and potential contributions to the success of the Company and
such other factors as the Board shall deem relevant in connection with
accomplishing the purpose of the Plan.
1.4 Shares Subject to the Plan. Shares of stock ("Stock") covered
by Stock Options and SARs shall consist of 300,000 shares of the Common
Stock, $.001 par value, of the Company, subject to adjustment pursuant to
Section 1.7 of the Plan, which may be either authorized and unissued
shares or treasury shares, as determined in the sole discretion of the
Board. If any Option for shares of Stock, granted to a Participant
lapses, or is otherwise terminated, the Board may grant Stock Options and
SARs for such shares of Stock to other Participants. However, Stock
Options and SARs shall not be granted again for shares of Stock which
have been (i) subject to SARs which are surrendered in exchange for
cash or shares of Stock issued pursuant to the exercise of SARs as
provided in Article II hereof and (ii) shares withheld for tax withholding
requirements.
1.5 Participation in the Plan. The Board shall determine from time to
time those Eligible Persons who are to be granted Stock Options and SARs
and the number of shares of Stock covered thereby. The maximum number of
shares of Stock for which the Eligible Person may be granted Stock
Options that become exerciseable in any calendar year shall not exceed 25
percent of the aggregate number of shares of Stock with respect to
which Options may be granted under the Plan.
1.6 Determination of Fair Market Value. As used in the Plan,
"fair market value" shall mean on any particular day (i) if the Stock is
listed or admitted for trading on any national securities exchange or
the SmallCap Market System or the National Market System of Nasdaq Stock
Market, Inc. ("Nasdaq"), the last sale price, or if no sale occurred, the
mean between the closing high bid and low asked quotations, for such day
of the Stock, (ii) if Stock is not traded on any national securities
exchange but is quoted on an automated quotation system or any similar
system of automated dissemination of quotations or securities prices in
common use, the mean between the closing high bid and low asked quotations
for such day of the Stock on such system, (iii) if neither clause (i) nor
(ii) is applicable, the mean between the high bid and low asked
quotations for the Stock as reported by the National Daily Quotation
Bureau, Incorporated if at least two securities dealers have inserted both
bid and asked quotations for shares of the Stock on at least five (5) of the
ten (10) preceding days, (iv) in lieu of the above, if actual transactions
in the shares of Stock are reported on a consolidated transaction
reporting system, the last sale price of the shares of Stock on such system
or, (v) if none of the conditions set forth above is met, the fair market
value of shares of Stock as determined by the Board. Provided, however,
for purposes of determining "fair market value" of the Common Stock of
the Company, such value shall be determined without regard to any
restriction other than a restriction which will never lapse.
1.7 Adjustments Upon Changes in Capitalization. The grants of Stock
Options shall in no way affect the right of the Company to adjust,
reclassify, reorganize or otherwise change its capital or business structure
or to merge, consolidate, dissolve, liquidate or sell or transfer all or
any part of its assets or business. The aggregate number of shares of
Stock under Stock Options granted under the Plan, the Option Price and
the total number of shares of Stock which may be purchased by a Participant
on exercise of a Stock Option shall be appropriately adjusted by the Board
to reflect any recapitalization, stock split, merger, consolidation,
reorganization, combination, liquidation, stock dividend or similar
transaction involving the Company. Provided, however, and notwithstanding
the foregoing, (i) a dissolution or liquidation of the Company, (ii) a
merger or consolidation in which the Company is not the surviving or
the resulting corporation or (iii) a reverse merger in which the Company
is the surviving entity but in which the securities possessing more than 50
percent of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from those
who held such securities immediately prior to the merger (collectively
referred to herein as a (Corporate Transaction"), shall cause the Plan and
any Stock Option or SAR granted thereunder, to terminate upon the effective
date of such dissolution, liquidation, merger or consolidation, subject
to Section 1.21 of the Plan. Provided, further, that for the purposes of
this Section 1.7, if any merger, consolidation or combination occurs in
which the Company is not the surviving corporation and is the result of
a mere change in the identity, form or place of organization of the
Company accomplished in accordance with Section 368(a)(1)(F) of the
Code, then, such event will not cause a termination of the Plan.
Appropriate adjustment may also be made by the Board in the terms of a SAR
to reflect any of the foregoing changes.
1.8 Amendment and Termination of the Plan. The Plan shall terminate
at midnight, October 31, 2007, but prior thereto may be altered, changed,
modified, amended or terminated by written amendment approved by the
Board. Provided, that no action of the Board may amend the Plan in any
manner which would impair the applicability of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended, to the Plan. Except as
provided in this Article I, no amendment, modification or termination of
the Plan shall in any manner adversely affect any Stock Option or SAR
theretofore granted under the Plan without the consent of the affected
Participant.
1.9 Effective Date. The Plan shall be effective November 1, 1997
(the "Effective Date").
1.10 Securities Law Requirements. The Company shall have the
right, but not the obligation to cause the shares of Stock issuable upon
exercise of the Options to be registered under the Securities Act of 1933,
as amended (the "Securities Act") or the securities laws of any state or
jurisdiction.
1.10.1 Restrictions on Transferability and Legend on
Certificates. As a condition precedent to the grant of any Stock
Option or the issuance or transfer of shares pursuant to the exercise
of any Stock Option, the Company may require the Participant or
holder to take any reasonable action to meet such requirements or to
obtain such approvals. The Company shall have the right to restrict
the transferability of shares of Stock issued or transferred upon
exercise of the Stock Options in such manner as it deems necessary
or appropriate to insure the availability of any exemption from
registration under the Securities Act and any other applicable
securities laws or regulations that may be available, including
the endorsement with a legend reading as follows:
The shares of Common Stock evidenced by this certificate
have been issued to the registered owner in reliance
upon written representations that these shares have been
purchased solely for investment purposes. These shares
may not be sold, transferred or assigned unless in the
opinion of the Company and its legal counsel such sale,
transfer or assignment will not be in violation of the
Securities Act of 1933, as amended, and the rules and
regulations thereunder.
1.10.2 Registration Statement. If a registration statement
covering the shares of Stock issuable upon exercise of the Stock
Options granted under the Plan is filed under the Securities Act,
and is declared effective the Securities and Exchange Commission, the
provisions of Section 1.10.1 shall terminate during the period of
time that such registration statement, as periodically amended,
remains effective.
1.11 Separate Certificates. Separate certificates representing
the Common Stock of the Company to be delivered to a Participant upon the
exercise of any Stock Option and SAR will be issued to such Participant.
1.12 Payment for Stock; Receipt of Stock or Cash in Lieu of Payment.
1.12.1 Payment for Stock. Payment for shares of Stock purchased
under this Plan shall be made (i) in full and in cash or check made
payable to the Company or (ii) may also be made in Common Stock of
the Company held for the requisite period necessary to avoid a
charge to the Company's reported earnings and valued at fair market
value on the date of exercise of the Option, or (iii) a
combination of cash and Common Stock of the Company. In the event
that Common Stock of the Company is utilized in consideration for the
purchase of Stock upon the exercise of an Option, such Common Stock
shall be valued at the "fair market value" as defined in Section 1.6
of the Plan.
1.12.2 Receipt of Stock in Lieu of Cash Payment. Furthermore,
a Participant may exercise an Option without payment of the Option
Price in the event that the exercise is pursuant to rights under an
SAR attached to the Option and such SAR is exercisable on the date
of exercise of the Stock Option to which it is attached. In the
event a Stock Option with an SAR attached is exercised without payment
of the Option Price in cash or by check or Common Stock of the
Company, the Participant shall be entitled to receive either (i) a
cash payment from the Company equal to the excess of the total fair
market value of the shares of Stock on such date as determined with
respect to which the Stock Option is being exercised over the total
cash Option Price of such shares of Stock as set forth in the Stock
Option SAR or (ii) that number of whole shares of Stock as is
determined by dividing (A) an amount equal to the fair market value
per share of Stock on the date of exercise into (B) an amount equal
to the excess of the total fair market value of the shares of Stock
on such date with respect to which the Stock Option SAR is being
exercised over the total cash Option Price of such shares of Stock
as set forth in the Stock Option SAR, and fractional shares will
be rounded to the next lowest number and the Participant will
receive cash in lieu thereof.
1.13 Incurrence of Disability and Retirement. A Participant
shall be deemed to have terminated his employment as an employee, his
independent contractor arrangement or consulting arrangement with the
Company and incurred a disability ("Disability") if such Participant
suffers a physical or mental condition which, in the judgment of the
Board, totally and permanently prevents a Participant from engaging
in any substantial gainful employment with or the providing of services or
consulting for the Company or a subsidiary. A Participant shall be
deemed to have terminated employment as an employee, independent contractor
or a consultant due to retirement ("Retirement") if such Participant ceases
to be an employee, independent contractor or a consultant of the
Company or its subsidiary, without cause, after attaining the age of 55.
1.14 Stock Options Granted Separately. Because the Board is
authorized to grant Stock Options and SARs to Participants, the grant
thereof and Stock Option Agreements relating thereto will be made separately
and totally independent of each other.
1.15 Grants of Options and Stock Option Agreement. Each Stock
Option and Stock Option SAR granted under this Plan shall be evidenced by
the minutes of a meeting of the Board or by the written consent of the
Board and by a written Stock Option Agreement effective on the date of
grant and executed by the Company and the Participant. Each Stock Option
and Stock Option SAR granted hereunder shall contain such terms,
restrictions and conditions as the Board may determine, which terms,
restrictions and conditions may or may not be the same in each case.
1.16 Use of Proceeds. The proceeds received by the Company from the
sale of Stock pursuant to the exercise of Stock Options granted under the
Plan shall be added to the Company's general funds and used for general
corporate purposes.
1.17 Non-Transferability of Options. Except as otherwise herein
provided, any Stock Option or Stock Option SAR granted shall not be
transferable otherwise than by will or the laws of descent and
distribution or with the consent of the Company, and the Stock Option
and Stock Option SAR may be exercised, during the lifetime of the
Participant, only by him. More particularly (but without limiting the
generality of the foregoing), the Stock Option and Stock Option SAR may
not be assigned, transferred (except as provided above), pledged or
hypothecated in any way, shall not be assingable by operation of law and
shall not be subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation, or other disposition
of the Stock Option or Stock Option SAR contrary to the provisions hereof
shall be null and void and without effect.
1.18 Additional Documents on Death of Participant. No transfer of
a Stock Option or Stock Option SAR by the Participant by will or the laws
of descent and distribution shall be effective to bind the Company
unless the Company shall have been furnished with written notice and an
unauthenticated copy of the will and/or such other evidence as the Board
may deem necessary to establish the validity of the transfer and the
acceptance by the successor to the Stock Option or Stock Option SAR of
the terms and conditions of such Stock Option or Stock Option SAR.
1.19 Changes in Employment. So long as the Participant shall
continue to be a director, an employee, an independent contractor or a
consultant of the Company or any one of its subsidiaries, any Stock
Option or Stock Option SAR granted to such Participant shall not be
affected by any change of duties or position. Nothing in the Plan or in
any Stock Option Agreement which relates to the Plan shall confer upon any
Participant any right to continue as a director or in the employ as
an employee, independent contractor or consultant of the Company or of any
of its subsidiaries, or interfere in any way with the right of the Company
or any of its subsidiaries to terminate such Participant as a director,
employee or independent contractor or consultant at any time.
1.20 Shareholder Rights. No Participant shall have a right as a
shareholder with respect to any shares of Stock subject to a Stock Option
or Stock Option SAR prior to the purchase of such shares of Stock by
exercise of the Stock Option or Stock Option SAR.
1.21 Right to Exercise Upon Company Ceasing to Exist. In the event
of a Corporate Transaction, the Participant shall have the right immediately
prior to consummation of the Corporate Transaction to exercise, in whole
or in part, such Participant's then remaining Stock Options and Stock
Option SARs whether or not then exercisable, but limited to that number of
shares that can be acquired without causing the Participant to have an
"excess parachute payment" as determined under Section 280G of the Code
determined by taking into account all of Participant's "parachute payments"
determined under Section 280G of the Code. Provided, the foregoing
notwithstanding, after the Participant has been afforded the opportunity
to exercise his then remaining Stock Options and Stock Option SARs as
provided in this Section 1.21, and to the extent such Stock Options and
Stock Option SARs are not timely exercised as provided in this Section
1.21, then, the terms and provisions of this Plan and any Stock Option
Agreement will thereafter continue in effect, and the Participant will be
entitled to exercise any such remaining and unexercised Options in
accordance with the terms and provisions of this Plan and such Stock Option
Agreement as such Stock Options and Stock Option SARs thereafter become
exercisable. Provided further, that for the purposes of this Section
1.21, if any merger, consolidation or combination occurs in which the
Company is not the surviving corporation and is the result of a mere change
in the identity, form, or place of organization of the Company
accomplished in accordance with Section 368(a)(1)(F) of the Code, then,
such event shall not cause an acceleration of the exercisability of any
such Stock Options and Stock Option SARs granted hereunder.
1.22 Assumption of Outstanding Stock Options and Stock Option SARs.
Any successor to the Company succeeding to, or assigned the business
of, the Company as the result of or in connection with a corporate
merger, consolidation, combination, reorganization, dissolution or
liquidation transaction shall assume all Stock Options and Stock Option
SARs outstanding under the Plan or issue new Stock Options and Stock
Option SARs in place of outstanding Stock Options and/or Stock Option SARs
under the Plan.
1.23 Tax Withholdings. The Company's obligation to deliver Stock
upon the exercise of Stock Options or Stock Option SARs under the Plan
shall be subject to the satisfaction of all applicable federal, state
and local income tax withholding requirements. The Board may in its
discretion and in accordance with the provisions of Section 1.23 and such
supplemental rules as the Board may from time to time adopt, provide any
or all holders of Stock Options or Stock Option SARs with the right to use
shares of Stock in satisfaction of all or part of the federal, state
and local income tax liabilities incurred by such holders in connection
with the exercise of their Stock Options or Stock Option SARs ("Taxes").
Such right may be provided to any such holders of Stock Options or Stock
Option SARs in either or both of the following methods: (i) the holder
of a Stock Option or Stock Option SAR may be provided with the election,
which may be subject to approval by the Board, to have the Company
withhold, from the Stock otherwise issuable upon exercise of such Stock
Option or Stock Option SAR, a portion of those shares of Stock with an
aggregate fair market value equal to the percentage (not to exceed 100
percent) of the applicable Taxes designated by the holder of the Options,
and/or (ii) the Board may, in its discretion, provide the holder of
the Stock Options or Stock Option SARs with the election to deliver to
the Company, at the time the Stock Option or Stock Option SAR is
exercised, one or more shares of Stock previously acquired by such
holder (other than pursuant to the transaction triggering the Taxes)
with an aggregate fair market value equal to the percentage (not to
exceed 100 percent) of the Taxes incurred in connection with such Stock
Option or Stock Option SAR exercise designated by such holder.
1.24 Governing Law. The Plan shall be governed by and all questions
hereunder shall be determined in accordance with the laws of the State of
Oklahoma.
ARTICLE II
Terms of Stock Options and Exercise
2.1 General Terms.
2.1.1 Grant and Terms for Stock Options. Stock Options and Stock
Option SARs shall be granted by the Board on the following terms and
conditions: No Stock Options and Stock Option SARs shall be
exercisable more than 10 years after the date of grant. Subject to
such limitation, the Board shall have the discretion to fix the
period (the "Option Period") during which any Stock Option or Stock
Option SAR may be exercised. Stock Options and Stock Option SARs
granted shall not be transferable except by will or by the laws of
descent and distribution or with the consent of the Company. Stock
Options and Stock Option SARs shall be exercisable only by the
Participant while serving as a Director of the Company or a
subsidiary or while actively employed as an employee, an independent
contractor or a consultant by the Company or a subsidiary, except
that (i) any such Stock Option granted and which is otherwise
exercisable, may be exercised by the personal representative of a
deceased Participant within 12 months after the death of such
Participant (but not beyond the Option Period of such Stock Option),
(ii) if a Participant is terminated as a Director, an employee, an
independent contractor or a consultant of the Company or a
subsidiary on account of Retirement, such Participant may exercise
any Stock Option which is otherwise exercisable at any time within
three months of such date of termination, or (iii) if a
Participant is terminated as a Director, as an employee, an independent
contractor or a consultant of the Company or a subsidiary on account
of incurring a Disability, such Participant may exercise any Stock
Option which is otherwise exercisable at any time within 12 months of
such date of termination. If a Participant should die during
the applicable three-month or 12-month period following the date of
such Participant's Retirement or termination on account of Disability,
the rights of the personal representative of such deceased Participant
as such relate to any Stock Options and Stock Option SARs
granted to such deceased Participant shall be governed in accordance
with Subsection 2.1.1(i) of this Article II.
2.1.2 Option Price. The option price ("Option Price") for shares
of Stock subject to Stock Options and Stock Option SARs shall be
determined by the Board, but in no event shall such Option Price be
less than 85 percent of the fair market value of the Stock on the date
of grant.
2.1.3 Acceleration of Otherwise Unexercisable Stock Option on
Retirement, Death, Disability or Other Special Circumstances. The
Board, in its sole discretion, may permit (i) a Participant who is
terminated as a Director, an employee, an independent contractor or a
consultant due to Retirement or Disability, (ii) the personal
representative of a deceased Participant, or (iii) any other
Participant who is terminated as a Director, an employee, an independent
contractor or a consultant upon the occurrence of special
circumstances (as determined by the Board), to exercise and purchase
(within three years of such date of such Participant's
termination) all or any part of the shares subject to Stock Options
and Stock Option SARs on the date of the Participant's termination,
Retirement, Disability, death, or as the Board otherwise so
determines, notwithstanding that all installments, if any, with respect
to such Stock Option or Stock Option SAR, had not accrued on such
termination date.
2.1.4 Number of Stock Options Granted. Participants may be
granted more than one Stock Option and Stock Option SAR. In making
any such determination, the Board shall obtain the advice and
recommendation of the officers of the Company or a subsidiary
which have supervisory authority over such Participants. The
granting of a Stock Option or Stock Option SAR under the Plan
shall not affect any outstanding Stock Options or Stock Option
SARs previously granted to a Participant under the Plan.
2.1.5 Notice of Exercise Stock Option. Upon exercise of a Stock
Option or Stock Option SAR, a Participant shall give written notice
to the Secretary of the Company, or other officer designated by the
Board, at the Company's main office in Oklahoma City, Oklahoma. No
Stock shall be issued to any Participant until the Company receives
full payment for the Stock purchased, if applicable, and any required
Taxes as provided in the Plan and the Stock Option Agreement.
ARTICLE III
SARs
3.1 General Terms.
3.1.1 Grant and Terms of SARs. The Board grant SARs to
Participants in connection with Stock Options granted under the
Plan. SARs shall terminate at such time as the Board determines
and shall be exercised only upon surrender of the related Stock
Option and only to the extent that the related Stock Option (or the
portion thereof as to which the SAR is exercisable) is exercised.
SARs may be exercised only by the Participant while a director,
an employee, an independent contractor or a consultant of the Company
or a subsidiary except that (i) any SARs previously granted to a
Participant which are otherwise exercisable may be exercised,
with the approval of the Board, by the personal representative of a
deceased Participant (but not beyond the expiration date of such SAR),
and (ii) if a Participant is terminated as a director, an employee,
an independent contractor or a consultant of the Company or a
subsidiary, as the case may be, on account of Retirement or Disability,
such Participant may exercise any SARs which are otherwise exercisable,
with the approval of the Board, anytime within three months of the
date of the termination by Retirement or within 12 months of
termination by Disability. If a Participant should die during
the applicable three-month period following the date of such
Participant's Retirement or during the applicable 12 month period
following the date of termination on account of Disability, the rights
of the personal representative of such deceased Participant as such
relate to any SARs granted to such deceased Participant shall be
governed in accordance with (i) of the second sentence of this
Subsection 3.1.1. The applicable SAR shall (i) terminate upon the
termination of the underlying Stock Option (ii) only be transferable
at the same time and under the same conditions as the underlying
Stock Option is transferable, (iii) only be exercised when the
underlying Stock Option is exercised, and (iv) may be exercised only
if there is a positive spread between the Option Price and the fair
market value of the Stock for which the SAR is exercised.
3.1.2 Acceleration of Otherwise Unexercisable SARs on
Retirement, Death, Disability or Other Special Circumstances. The
Board, in its sole discretion, may permit (i) a Participant is
terminated as a director, an employee, an independent contractor,
or a consultant with the Company or a subsidiary due to Retirement or
Disability, (ii) the personal representative of such deceased
Participant, or (iii) any other Participant who is terminated as
director, an employee, an independent contractor or a consultant
with the Company or a subsidiary upon the occurrence of special
circumstances (as determined by the Board) to exercise (within three
years of such date of such termination) all or any part of any
such SARs previously granted to such Participant as of the date of
such Participant's termination, Retirement, Disability, death, or
as the Board otherwise so determines, notwithstanding that all
installments, if any with respect to such SARs, had not accrued on
such date.
3.1.3 Form of Payment of SARs. The Participant may request
the method and combination of payment upon the exercise of a SAR;
however, the Board has the final authority to determine whether the
value of the SAR shall be paid in cash or shares of Stock or both.
Upon exercise of a SAR, the holder is entitled to receive the excess
amount of the fair market value of the Stock (as of the date of
exercise) for which the SAR is exercised over the Option Price
under the related Stock Option. All applicable Taxes will be paid
by the Participant to the Company upon the exercise of a SAR in
accordance with Section 1.23.
EXHIBIT 5.3
DUNN SWAN & CUNNINGHAM
Attorneys and Counsellors At Law 2800
Oklahoma Tower
210 Park Avenue
(405) 235-8318
Facsimile (405) 235-9605
March 6, 1998
Board of Directors
Applied Intelligence Group, Inc.
13800 Benson Road
Edmond, Oklahoma 73013-6417
Gentlemen:
We have acted as counsel to Applied Intelligence Group, Inc., an
Oklahoma corporation (the "Company"), in conjunction with the offering
of an aggregate of 300,000 shares of Common Stock, $.001 par value per
share, of the Company (the "Shares") to be issued upon exercise of stock
options granted under the Applied Intelligence Group, Inc. 1998
Non-Qualified Stock Option Plan (the "Plan").
The offering of the Securities is more fully described in that
certain Registration Statement on Form S-8 (No. 333-22227), filed by the
Company with the United States Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Act").
For purposes of this opinion, we have made such
investigations as we deem necessary or appropriate and have reviewed
and considered among other certificates, documents and materials the
following:
(a) The Certificate of Transcript, dated November 25, 1996, issued by
the Secretary of State of the State of Oklahoma certifying that the
copy of Certificate of Incorporation of the Company attached
thereto is a full, true and correct copy;
(b) The Certificate of Good Standing, dated November 25, 1996, issued
by the Secretary of State of the State of Oklahoma certifying that
the Company is duly organized and existing under and by virtue of
the Law of the State of Oklahoma and is in good standing according
to the records of its office;
(c) A copy of the Bylaws, as amended and restated, of the Company as
certified by the Secretary of the Company;
(d) A copy of the resolutions adopted by the Board of Directors of
the Company on February 9, 1998, as certified by the Secretary of
the Company;
(e) The manually signed Registration Statement; and
(f) Form of certificate of the Common Stock of the Company.
In conducting our examination we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents
submitted to us as certified copies. Based upon our examination and
consideration of the foregoing and upon our examination and
consideration of such other documents, certificates, records, matters and
things as we have deemed necessary for the purposes hereof, we are
of the opinion as of the date hereof that:
1. The Company is duly organized and existing under the
laws of the State of Oklahoma;
2. All of the issued and outstanding shares of the Common
Stock of the Company have been legally issued, are fully paid
and are not liable to further call or assessment; and
3. The 300,000 shares of Common Stock to be issued upon
exercise of stock options granted pursuant to the Plan, upon
issuance and delivery against payment therefor in accordance
with the terms and conditions of the stock options, will be
legally issued, fully paid and not liable for further call or
assessment.
In arriving at the foregoing opinion, we have relied, among other
things, upon the examination of the corporate records of the Company and
certificates of officers and directors of the Company and of public
officials. We hereby consent to the use of this opinion in the
Registration Statement and all amendments thereto.
Very truly yours,
DUNN SWAN & CUNNINGHAM
Exhibit 23.7
CONSENT OF INDEPENDENT ACCOUNTANTS
Board of Directors and Shareholders
Applied Intelligence Group, Inc.
We consent to the incorporation by reference in the Registration
Statement of Applied Intelligence Group, Inc. on Form S-8 (File No. _______)
of our report dated March 7, 1997, on our audits of the financial statements
of Applied Intelligence Group, Inc. as of December 31, 1996 and 1995, and
for each of the three years in the period ended December 31, 1996, which
report is included in the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1996.
/s/COOPERS & LYBRAND L.L.P.
Oklahoma City, Oklahoma
March 6, 1998
Exhibit 23.8
CONSENT OF DUNN SWAN & CUNNINGHAM
Board of Directors and Shareholders
Applied Intelligence Group, Inc.
Dunn Swan & Cunningham, A Professional Corporation, hereby consents to
the use of its name in connection with the opinion of counsel provided and
included as an exhibit to this Registration Statement.
/s/DUNN SWAN & CUNNINGHAM
Oklahoma City, Oklahoma
March 6, 1998
Exhibit 24.3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Robert L. Barcum,
Russell L. Reinhardt, David B. North, Larry R. Davenport, Lewis B. Kilbourne
and Jimmy M. Wright constitutes and appoints Robert N. Baker and John M.
Duck, and each of them, his true and lawful attorney-in-fact and agent,
with all power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, including post-effective amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith with the United States Securities and Exchange
Commission, granting unto same attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any
of them, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Dated: March 6, 1998 /s/Robert L.Barcum
Robert L.Barcum
/s/ Russell L. Reinhardt
Russell L. Reinhardt
/s/ David B. North
David B. North
/s/ Larry R.Davenport
Larry R. Davenport
/s/ Lewis B. Kilbourne
Lewis B. Kilbourne
/s/ Jimmy M. Wright
Jimmy M. Wright
