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FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
UNDER SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
INTERNATIONAL COMPUTEX, INC.
(Name of Small Business Issuer in its Charter)
GEORGIA 58-1938206
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5500 INTERSTATE NORTH PARKWAY
SUITE 507
ATLANTA, GEORGIA 30328
(Address of principal executive offices)(Zip Code)
Issuer's telephone number: (770) 953-1464
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered: each class is to be registered:
NONE NONE
Securities to be registered under Section 12(g) of the Act:
COMMON STOCK, $.001 PAR VALUE
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Title of Class
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ITEM 1. DESCRIPTION OF BUSINESS
GENERAL
Registrant is a software technology company that develops, markets and
supports client/server software and implementation services for the
manufacturing and process industries. Registrant provides services in the areas
of system analysis and design, object-oriented technology, cross platform
development, and client/server architecture. Since its incorporation in 1991,
Registrant has built strong skills in industry applications for manufacturing
and product data management ("PDM"). Registrant's virtual object warehouse and
classification system (ItemQuest), which currently is in the controlled
availability stage, enables manufacturers to reduce product development costs
and time-to-market by allowing them to create and manage their own standardized
repository for information regarding all items used throughout the enterprise.
ItemQuest is based on a sophisticated object oriented classification and search
engine used to classify objects, such as parts and assemblies, documents and
drawings, and to retrieve references to those objects. These capabilities enable
ItemQuest to complement and enhance the effectiveness of PDM software, as well
as other systems.
Currently, Registrant's revenues are derived primarily from its services
business, which is comprised principally of PDM-related services and custom
software development. The demand for these services, especially in the PDM
application area, is strong and exceeds Registrant's current capacity.
Management expects that this demand will increase, although this cannot be
assured.
Management anticipates that ItemQuest will be made generally available to
the marketplace by the end of the first quarter of 1997. At that time, in
addition to generation of license fee revenue, Management anticipates that
ItemQuest will add significantly to Registrant's core services business.
Management expects the ratio of services to license fee revenue for ItemQuest to
be roughly two to one. ItemQuest remains in the controlled availability stage,
however, and no assurances can be given that ItemQuest will be successfully
introduced.
Registrant is closely associated with IBM Manufacturing Industry Solutions
Unit, based in Charlotte, North Carolina, where Registrant maintains an office.
Because of Registrant's relationship with that Unit, which is responsible for
the development and support of ProductManager, a large portion of Registrant's
customer base consists of manufacturing companies that are users of
ProductManager. ProductManager customers for which Registrant has provided
services directly or through IBM include, among others, Pratt & Whitney,
Lockheed Martin, Space Systems/Loral, IVECO, SPS Technologies, Hyundai, Daewoo
Motor Co. and Siemens. It is anticipated that this customer base will continue
to grow as IBM experiences success in the PDM market.
Registrant's primary objective is to be a leader in the information
classification and management (ICAM) marketplace, both in terms of products and
services. To achieve that objective, Registrant's business strategy includes a
roll-out of ItemQuest into the PDM marketplace and in other applications;
increasing technical personnel available to provide ICAM
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and PDM-related services; leveraging its existing customer relationships to
capture new customers; increasing exposure to customers using PDM products;
increasing advertising and marketing to build awareness for ItemQuest and
Registrant services; and expanding into international markets.
INDUSTRY BACKGROUND
Manufacturing and process companies face intense competitive pressure on a
global basis. Their response is to increase focus on bringing products to
market faster and at lower cost, with increasingly higher levels of quality. To
achieve those enhancements, these companies have re-engineered their processes
and continue to make significant investments in information technology. One such
technology is PDM. PDM is software technology that allows companies to manage
and control product related data from the product development and design stages
through manufacturing and post-production maintenance stages. By managing and
sharing this data more effectively, manufacturing companies can improve the
efficiency of their entire product development process and reduce time-to-
market, thereby increasing their competitiveness.
A major component within a PDM application is information classification
and management, or ICAM. ICAM allows companies to classify and group data by its
characteristics, thereby providing the capability for quick and easy access to
data. Management believes that this access frequently is integral to a
successful PDM implementation. The primary objective of information
classification and management is to reduce time-to-market of new products.
It is typical in modern manufacturing for even the least complex products
to be composed of numerous parts, some supplied by third party vendors and some
manufactured within the enterprise. Purchase or development of these parts can
represent a substantial portion of new product cost. The search for or
development of the right parts or the optimal combination of parts can create
significant delays. Thus, selection of the optimal set of parts early in the
design process can greatly reduce the cost and improve the efficiency of new
product development.
A major factor contributing to delays in product development is the
inability of design engineers to quickly locate existing parts or acceptable
substitutes that meet design requirements. Since designing new parts is an
expensive and time-consuming process, manufacturers prefer to re-use existing
parts or acceptable substitutes, whether manufactured internally or by a third
party. Most large manufacturing systems are not equipped with a classification
and search facility that allows the design engineer to easily and definitively
determine whether a part exists or a new one needs to be designed.
Design engineers generally know the particular component they need and the
specific characteristics of that component. However, because traditional
systems do not allow parts to be located based on characteristics or attributes
that a design engineer is familiar with, they are not always helpful. Parts
typically are located by part numbers or coded descriptions. However, design
engineers usually are not familiar with the thousands of part numbers or coded
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descriptions that may exist in a large and often geographically dispersed
enterprise. Without a system that provides an effective information
classification and management capability, finding an existing part can be
extremely difficult and time-consuming.
Since searching for an existing part often can take longer than designing a
new part, engineers often take the "easier" approach of designing a new part,
which in most instances is much more expensive than re-using an existing part.
This added cost stems not only from the longer design and manufacturing process,
but also in the lost time in bringing the new product to market. If the delay
is long enough, the manufacturer's ability to effectively compete in the
marketplace can be greatly hindered.
To reduce product development costs and shorten time-to-market, several
capabilities must be provided. Vast amounts of information related to either
custom components internally designed or provided by suppliers currently exist
in some form within a manufacturing enterprise. This information, commonly
referred to as "legacy data," must be organized and managed to provide optimal
value. To achieve this, legacy data first must be standardized (i.e. multiple
names for the same component reduced to a single reference) and mapped from
diverse formats and sources to a single part definition in the classification
system. Next, the enterprise must be provided with the ability to have new parts
data added to the legacy data to form one complete system. Once all of the data
is mapped to the company's data system, powerful search and retrieval
capabilities with an intuitive user interface are required for the selection of
the optimal components.
Management believes that there will be an active market for an effective
ICAM system on a stand-alone basis. Moreover, a system that provides ICAM
features, and which is also integrated with a PDM system, would greatly enhance
the effectiveness of the PDM system. Information classification and management
provides an important missing component to a PDM system by creating a combined
system that organizes product data and enables it to be retrieved with speed and
effectiveness.
PDM INDUSTRY ANALYSIS
OVERVIEW. The PDM market is growing at a rapid rate. According to a PDM
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industry analyst, worldwide revenues for PDM software and services were $684
million in 1995, representing a 45% increase over 1994. Industry analysts
attribute this trend to several factors:
. Continued investment in technology by manufacturing companies to
improve competitiveness
. Increased familiarity with and maturing of PDM technology, leading
to broader market acceptance
. Increased number of successful PDM implementations
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IBM has participated in this market growth with the success of ProductManager
Version 3.0. In an attempt to accelerate the growth of its software revenues,
IBM has established relationships with independent software services companies,
such as Registrant, to supplement its own skills in providing customers with
implementation and customization services. The ability to deliver these services
effectively is one of the most important factors in a successful PDM project.
Registrant intends to capitalize on its relationship with IBM, which dates back
to 1993, to continue to capture a substantial portion of these services
revenues.
Major PDM vendors have focused attention and resources in the first three PDM
application areas: Document Management, Workflow, and Product Structure
Management. This has created an opportunity to supply the fourth application of
PDM: Information Classification and Management (ICAM). Presently, it is
believed that there are only two companies, Aspect Development, Inc. and CADIS,
Inc., with broad market exposure that offer ICAM products and services to
satisfy this market need. Management believes that the market for PDM, and
specifically ICAM software, is experiencing substantial growth worldwide.
Expertise in PDM software technology, combined with the introduction of
ItemQuest for information classification and management, has positioned
Registrant to take advantage of this market growth.
MARKET SEGMENTS. The industry view of PDM and ICAM systems falls into
traditional lines of segmentation. To date, the discrete manufacturing segments
of aerospace, automotive and electronics have led in implementation of PDM
systems. Opportunity also exists in other discrete segments, process industries
and utilities. Registrant expects to continue to derive revenues from providing
services to users of PDM systems in all industry segments and intends to market
ItemQuest to all industry segments.
REGISTRANT MARKET POSITION. Management believes Registrant's current market
position as a services provider for IBM's ProductManager provides a strong base
to launch ItemQuest. The synergy between the services Registrant provides and
the ItemQuest product, and the opportunity to use Registrant's skills across
these two areas of business, are expected to be significant factors in
Registrant's future growth. In combining these skills and experience, Management
believes that Registrant offers a unique set of capabilities to help
manufacturing companies improve their competitiveness through the application of
ICAM and PDM technology to their business.
ITEMQUEST SOLUTION
ITEMQUEST FEATURES. Management believes that the information classification
and management capabilities of ItemQuest provide a solution to one of the most
costly problems of manufacturing and engineering industries - how to quickly and
reliably identify, classify and retrieve existing data for re-use throughout the
enterprise. Management also believes that ItemQuest is based on the PDM
industry's most sophisticated search and classification engine for parts,
assemblies, documents, drawings and other relevant items. This, combined with
ItemQuest's power and flexibility, allows ItemQuest to serve as a complete
classification and management system. In a manufacturing enterprise, ItemQuest
provides quick access to data by
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classifying it in terms of recognizable attributes. Such classification enables
the data to be retrieved with speed and effectiveness, thereby decreasing a new
product's time to market and increasing Registrant's competitiveness.
ItemQuest is an object-oriented search and classification system that is
structured using a three-tiered client/server architecture, consisting of an
application layer, a data layer and a presentation layer. ItemQuest allows for
any combination of these tiers to coexist on a single machine or across multiple
machines. This allows for a scalable implementation, permitting the use of
additional and more powerful hardware to cope with increasing numbers of users.
ItemQuest provides an intuitive process for describing an item using a
Graphical User Interface (GUI) that does not require a user to have special
computer expertise. The user interface is cross-platform, allowing it to run on
most of the popular client operating systems. The data server is database
independent to allow the application direct access to almost any database that
can be accessed with Structured Query Language (SQL). Server objects in both the
application server and database server have CORBA compliant interfaces to allow
for easy integration and maximum flexibility and scalability at customer sites.
Item attributes used within ItemQuest can be any of the basic types: numeric,
character, boolean or string. ItemQuest also supports user defined types,
called extended types, which allow the definition of functional routines to
manipulate the data when it is retrieved and stored.
In addition to the search and classification capabilities that are available
in other classification systems, ItemQuest provides the following capabilities
that are expected to position it favorably in the market:
. INTEGRATED ARCHITECTURE STRATEGY. ItemQuest is designed to be
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integrated with other product offerings. This does not preclude it
from being packaged as a stand-alone system, but does offer a product
that is generally suited to be licensed by vendors of PDM or similar
systems. Management anticipates that these vendors would be interested
in licensing ItemQuest because it would enable them to provide more
robust and competitive functionality within their product offerings.
Management believes that this opportunity is not currently being
adequately addressed in the market by other providers of ICAM systems.
. DATABASE INDEPENDENCE. ItemQuest is developed with a database
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independence layer that supports different Relational Database
Management Systems, which is believed by Management to be more
effective than other currently available systems. In addition,
ItemQuest is capable of maintaining multiple simultaneous connections
to different databases. These capabilities enhance ItemQuest's
flexibility and ease of implementation into an organization's existing
information technology environment.
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. ABILITY TO MAINTAIN ACCESS TO LEGACY SYSTEMS. ItemQuest allows on-line
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connection and mapping to legacy systems during the initial
implementation and loading of ItemQuest. In addition, ItemQuest has
the capability of maintaining this on-line link to existing data
systems of the enterprise. Management believes this capability
distinguishes ItemQuest from its competitors because it allows data to
be retrieved from the enterprise's existing database using ad-hoc
queries rather than requiring costly bulk loading of all legacy data
and the subsequent data clean-up that is often required in connection
with such bulk loading activities. As a result, the enterprise is able
to implement the data classification and retrieval system immediately
and bulk load the legacy data and new data to a single system at a
subsequent time.
. PRODUCTMANAGER INTEGRATION. ItemQuest has been integrated with the
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current version of ProductManager. This illustrates ItemQuest's
ability to be integrated and licensed for classification, search and
retrieval functions within a PDM system. Management believes that
currently no other information classification and management system
has achieved this degree of integration with ProductManager.
. BUILT-IN TOOL APPROACH FOR IMPLEMENTATION. ItemQuest offers the
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basic built-in tools and capabilities required to implement the system
at a customer site. This eliminates the need for the customer to
purchase basic implementation tools from the vendor. It is expected
that this will reduce the initial implementation costs and total cost
of ownership of ItemQuest. Management believes that currently most
vendors do not routinely provide these tools directly to their
customers.
. MAINSTREAM TECHNOLOGY. ItemQuest employs mainstream technologies,
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including multiple platform client support, CORBA (Common Object
Request Broker Architecture), C++, three-tiered client-server
architecture, Windows NT and UNIX, as well as a defined Web strategy.
This is consistent with customer's strategies for new technology
acquisitions. Use of mainstream technology decreases the likelihood of
the technology becoming rapidly outdated and enables ItemQuest to
easily integrate with other software products.
SERVICES
PDM-RELATED SERVICES. Registrant currently offers a range of implementation
and programming services that capitalize on its PDM industry knowledge and
expertise in object oriented, cross-platform and client/server application
development. Implementation support and customization services for IBM's
ProductManager are delivered by Registrant on a subcontract basis through IBM,
as well as on a direct contract basis with ProductManager customers. Currently,
a substantial number of Registrant's employees work under a contract with IBM
Charlotte and provide a wide range of services to IBM and its customers,
including:
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. Program development
. Defect support
. Implementation
. Customization
. Integration
A significant portion of a PDM solution is the implementation services that
apply PDM technology to a company's specific business. With its intimate
knowledge of PDM systems, Registrant is well positioned to provide the following
PDM services:
. Project management
. Installation
. Workshops
. Solution architecture
. Customization
. Integration
CUSTOM DEVELOPMENT. Apart from its ICAM and PDM-related services,
Registrant offers programming skills to companies whose business needs require a
custom development solution. Currently, Registrant is providing development
services for Eastman Kodak Company. The resulting product is expected to provide
significant productivity enhancements for laboratory personnel, and in turn
produce reduction in research and development cycle times and improvement in
manufacturing effectiveness.
CUSTOMERS
SERVICES. For 1996 Registrant's largest customers were IBM, Eastman Kodak
Company, Lockheed Martin, Pratt & Whitney and Space Systems/Loral. Registrant's
revenues in any period are substantially dependent upon a relatively small
number of large projects and this trend is expected to continue for the
foreseeable future. In 1994, services to IBM for development and implementation
work and to Kodak for custom development work accounted for 65% and 10%,
respectively, of total revenue. In 1995, services to IBM and Lockheed Martin
accounted for 81% and 4%, respectively, of total revenues. In 1996, sales and
services to IBM, Kodak and Pratt & Whitney accounted for 70%, 13% and 8%,
respectively, of total revenues. The 70% revenues received from IBM in 1996
consisted 56.9% from IBM United States (primarily under subcontracts for a
variety of IBM customers), 5.8% from IBM Italy, 0.3% from IBM England, 3.4% from
IBM Korea and 0.8% from IBM Japan. In 1994, 1995 and 1996, ICI had
approximately 10, 10 and 15 direct customers, respectively.
ITEMQUEST. Registrant has entered into agreements with three customers,
Space Systems/Loral, SPS Technologies and Black & Decker for the ItemQuest
controlled availability program. These companies are manufacturers embarking on
PDM implementations and focusing within their engineering divisions on
consolidation of standard parts and re-use of existing parts. Registrant's
strategy in the controlled availability program is to work closely with these
companies in order to validate ItemQuest's function and establish an
implementation methodology.
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Once released in the general marketplace, Registrant will provide ItemQuest
to customers under standard non-exclusive, non-transferable license agreements.
As is customary in the software industry, in order to protect its intellectual
property rights, Registrant will not sell or transfer title to its products to
its customers. Registrant's standard license agreement will provide that the
licensed software may be used solely for the customer's internal operations.
Although Management expects that ItemQuest will be well received, there can
be no assurance that this will be the case or that the controlled availability
program will meet its objectives.
COMPETITION
In the information classification and management market, Registrant
currently faces competition principally from Aspect Development, Inc. and CADIS,
Inc. These two companies have targeted their solutions mainly to the
engineering and manufacturing industries.
ASPECT DEVELOPMENT, INC. Aspect Development is a publicly-owned, worldwide
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provider of enterprise-wide component and supplier management (CSM) systems for
preferred parts and supplier management, parts selection, and design re-use.
Aspect's customers include 50 of the world's leading electronics and mechanical
manufacturing companies.
CADIS, INC. CADIS is a privately owned software and services company that
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provides new technology solutions for information access. CADIS provides multi-
national manufacturing corporations the opportunity to achieve substantial cost
savings through the elimination of part redundancy and standardization of new
parts using the CADIS parts management system. The parts management system
addresses the problem of controlling parts and vendor proliferation across the
enterprise through the implementation and application of its technology and
services.
MARKETING STRATEGY
GENERAL. Registrant's marketing strategy is to promote and convey the
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message that Registrant's services and ItemQuest will help manufacturing
companies improve competitiveness by reducing time to market, reducing costs and
improving quality. Sales of Registrant services will be based upon continued and
expanded promotion of Registrant's established skills and customer reputation
and in conjunction with ItemQuest. Management believes that ItemQuest sales will
be driven by the following fundamentals:
. The integration between ItemQuest and IBM ProductManager is currently
a strong differentiator, creating significant opportunity in the
existing ProductManager installed base, as well as highlighting
integration potential with other PDM vendors.
. Manufacturing companies will continue to invest in PDM technology to
improve competitiveness due to the significant return on investment
generated by such investment.
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. Implementation services capability is critical if a PDM project is to
be successful. Management believes that this capability currently is
in short supply. Management believes that Registrant is a leader in
PDM implementation services for ProductManager and will continue to
build on that capability.
. Opportunities for information classification and management solutions
continue to grow. The number of offerings on the market is limited and
expensive, ranging from $50,000 to several million dollars. In spite
of the high cost, Management believes that prospective customers will
realize that an effective ICAM solution can deliver an attractive
return on investment due to the high proportion of new product cost
comprised of part and component costs.
Initially, Registrant intends to market and sell its products and services
primarily through a direct sales force, as well as through strategic
relationships and other distribution channels.
However, with the anticipated broader introduction of ItemQuest, Registrant
intends to establish sales channels either through relationships it has
developed with its customers or through its own direct resources to establish
marketing, selling and consulting relationships both domestically and
internationally. In addition, Registrant intends to use its relationships with
hardware and software vendors and systems consultants to encourage these parties
to recommend or distribute Registrant's products. To support its sales force,
Registrant intends to conduct a number of marketing programs, including public
relations, telemarketing, seminars, trade shows and user groups.
Registrant's marketing strategy contains several assumptions, including but
not limited to its ability to successfully introduce ItemQuest within the PDM
marketplace. There can be no assurance that this will occur on a timely basis,
if at all.
In general, pricing for ItemQuest will follow the industry standard of a one-
time charge for each concurrent user license. In addition, there will be a
monthly maintenance charge for each license. Site licenses will be available on
a special bid basis giving unrestricted use at a given company site. Volume
purchase discounts for both ItemQuest and services will be offered on a special
bid basis as well. ItemQuest pricing strategy will focus on capturing market
share and establishing a solid base of customer references.
RESEARCH AND DEVELOPMENT
Registrant has committed, and expects to continue to commit in the future,
substantial resources to product development, particularly to ItemQuest. During
1995 and 1996, Registrant's investment in ItemQuest was approximately $111,000
and $280,000, respectively. Research and development efforts are directed at
increasing product functionality, improving product performance and expanding
compatibility with third party software. Registrant's
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investment in the research and development of ItemQuest represented a
significant percentage of its operating costs during 1995 and 1996.
Registrant intends to supplement its product development efforts by reviewing
customer feedback on ItemQuest and working with customers and potential
customers to anticipate future functionality requirements. To assist in this
effort, Registrant intends to host a customer advisory board made up of
representatives from key customers who would meet periodically to provide
feedback to Registrant's current and future product offerings.
Registrant's future success will depend in part upon its ability to enhance
its current products and to develop and introduce new products on a timely basis
that keep pace with technological developments, emerging industry standards and
the increasingly sophisticated needs of its customers. If Registrant is unable,
however, for technological or other reasons, to develop and introduce new
products or enhancements, Registrant's business, financial condition or results
of operations could be materially adversely affected.
COMPLIANCE WITH ENVIRONMENTAL LAWS
Registrant anticipates that, given its operations as a computer software
services and design firm, its operations will not involve any significant
efforts to comply with federal, state and local environmental laws.
EMPLOYEES
As of December 31, 1996, Registrant employed 35 persons, of whom 13
were based in Charlotte, North Carolina and 22 were based in Atlanta, Georgia.
Of the total, 3 were engaged in sales and marketing, 30 were primarily in
product development and software services and 2 were primarily in finance and
administration. No current employee of Registrant is represented by a labor
union with respect to his or her employment by Registrant. Registrant has
experienced no organized work stoppage and believes its relationship with its
employees to be good. Registrant believes that its future success will depend to
a significant extent upon its ability to attract, train and retain highly
skilled technical, management, sales, marketing and consulting personnel.
Competition for such personnel in the computer software industry is intense.
Registrant has from time to time experienced difficulty in locating candidates
with appropriate qualifications. There can be no assurance that Registrant will
be successful in attracting or retaining such personnel, and the failure to
attract or retain such personnel could have a material adverse affect on
Registrant's business or results of operations.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
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The following discussion and analysis should be read in conjunction with
the financial statements and notes thereto.
OVERVIEW
From the time of its incorporation in 1991 through mid-1996, all Registrant
revenues resulted from computer software-related services. To date, Registrant
has focused its primary efforts in the area of product data management ("PDM")
software applications. Registrant has provided a wide variety of services to
IBM, including product development and, on a subcontract basis, customer
installation, implementation and customization services relating to IBM's PDM
product, ProductManager.
Registrant also has applied its expertise in client/server software
development by providing specialized software services directly to customers
other than IBM, in some cases relating to IBM's ProductManager and in other
cases unrelated to IBM.
Commencing in April 1995, Registrant began development work on its own
product, ItemQuest, which is intended to address the information classification
and management ("ICAM") market, and which includes PDM-related applications.
Among other potential applications, ItemQuest provides virtual object warehouse
and classification capabilities to manufacturing or engineering customers,
enabling them to shorten and reduce the cost of the new product development
cycle. Although research and development costs began to be incurred in the
second quarter of 1995, the first limited revenues from licenses of ItemQuest
were not received until the last quarter of 1996. Initial licenses of ItemQuest
have been offered on a limited basis to a selected group of customers. As of
February 1997, contracts have been signed with three customers in this
"controlled availability program." When ItemQuest reaches the stage where
Management determines that it is ready for general availability, and Registrant
begins to license ItemQuest on an increased scale, Management anticipates that
substantial service revenues will be generated by customer implementation and
customization of ItemQuest, as well as from ItemQuest license fees. There can be
no assurance, however, that efforts to license ItemQuest will be successful, or
that substantial services revenues would result from any such licenses.
RELIANCE ON IBM
Registrant's business currently is heavily reliant on IBM in two ways.
First, a substantial portion of services revenues are derived directly or
indirectly from IBM, either for (i) product development services rendered
directly to IBM, (ii) services rendered to IBM ProductManager customers on a
subcontract basis through IBM, or (iii) services rendered directly to IBM
customers under contracts to provide implementation or customization services
with respect to IBM's ProductManager. Second, although Management believes that
ItemQuest will be compatible with a wide variety of PDM software products and
with a number of other types of complementary applications, as well as being
useful in stand-alone applications, the strongest initial market for ItemQuest
is expected to be IBM customers currently using ProductManager.
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SENIOR DEBENTURES AND EMPLOYEE STOCK OPTIONS
In January 1997, Registrant issued an aggregate of $1,115,000 in Senior
Debentures, bearing interest at 6% per annum, with interest being payable semi-
annually and the principal amount payable in January 2000. The principal and
accrued interest are required to be pre-paid out of the proceeds of a public or
private offering by which Registrant raises at least $5,000,000. Registrant
would anticipate raising in excess of $5,000,000 if its proposed initial public
offering of Common Stock (the "Offering") is successful. The Senior Debentures
are held by 17 purchasers, who acquired them in a private placement.
In January 1997, the Company granted stock options to 32 employees,
covering an aggregate of 163,200 shares of Common Stock, at an exercise price
of $4.80 per share, under the Company's 1996 Stock Option Plan. See
"Management--Stock Option Plans".
The Board of Directors of the Company has not determined that the Warrants
issued in connection with the Senior Debentures have any fair market value.
The Board of Directors has determined that the exercise price of the employee
stock options granted in January 1997 was equal to the fair market value of the
Common Stock at the time of the grant. The results of operations for the first
quarter of fiscal 1997 could be adversely affected by a non-cash charge against
earnings for interest (less any income tax benefit) if it is determined that the
fair market value of the Warrants exceeded zero at the time of the issuance of
the Senior Debentures, because any value ascribed to the Warrants would be
deemed to be a contribution to capital by the current stockholders of the
Company, and treated as additional interest paid to the holders of the Senior
Debentures. The results of operations for the first quarter of fiscal 1997 also
could be adversely affected by a non-cash charge for compensation (less any
income tax benefit) if it is determined that the exercise price of the employee
stock options granted in January 1997 was less than 100% of the fair market
value of those shares at the time the options were granted.
PLANNED DISTRIBUTION OF ACCUMULATED EARNINGS
In connection with the conversion of Registrant from S corporation status
to C corporation status for federal and state income tax purposes, Registrant
intends to distribute to its five current stockholders an amount equal to the
accumulated, undistributed subchapter S earnings of Registrant through the date
prior to the closing date of the Offering. This distribution will be effected by
transfer of accounts receivable and by cash payments, a portion of which will be
derived from the proceeds of the Offering.
INCOME TAX MATTERS
Since its inception, Registrant has elected to operate as an S corporation
under the Code. An S corporation generally is not subject to income tax at the
corporate level (with certain exceptions under state income tax laws).
Accordingly, the Financial Statements do not include a provision for federal and
state income taxes, except on a pro forma basis. Effective the date prior to the
closing date of the Offering, Registrant will terminate its S corporation status
and, thereafter, will be subject to federal and state income taxes on its
earnings.
In connection with the Offering, Registrant's S corporation status will be
terminated. Pursuant to SFAS No. 109, "Accounting for Income Taxes," Registrant
will be required to record deferred income taxes upon the termination of its
S corporation status. This will result in a non-cash, non-recurring charge to
earnings during the quarter in which the Offering is completed. Such charge
would have been approximately $21,600 had the S corporation status of Registrant
terminated at December 31, 1996.
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RESULTS OF OPERATIONS
The following table sets forth certain operating data as a percentage of
gross revenues for the periods indicated:
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------
1994 1995 1996
----- ----- -----
<S> <C> <C> <C>
Total Revenues 100.0% 100.0% 100.0%
===== ===== =====
Expenses
Operating 55.7% 56.0% 47.1%
General and Administrative 10.2% 5.2% 6.2%
----- ----- -----
Total Expenses 65.9% 61.2% 53.3%
----- ----- -----
Income from Operations 34.1% 38.8% 46.7%
Other Income - Interest Income -- -- --
----- ----- -----
Net income /(1)/ 34.1% 38.8% 46.7%
===== ===== =====
Pro forma income data:
Net income as reported/(2)/ 34.1% 38.8% 46.7%
===== ===== =====
Pro forma provision for income taxes/(2)/ 12.9% 14.7% 17.6%
----- ----- -----
Pro forma net income 21.2% 24.1% 29.1%
===== ===== =====
</TABLE>
____________
(1) Net income for each of these fiscal years does not reflect a provision for
federal and state income taxes, as a consequence of Registrant's S
Corporation status prior to the Offering.
(2) Through December 31, 1996 the Company had elected Subchapter S status and,
as a result, was not subject to payment of federal or state income tax on
its net income. Pro forma income data reflects federal and state income
taxes (assuming a 37.7% effective tax rate) as if the Company had been
taxed as a C Corporation rather than as an S Corporation during each of
these fiscal years. See Note A of Notes to Financial Statements.
Year Ended December 31, 1996 Compared to Year Ended December 31, 1995.
- ---------------------------------------------------------------------
Operating Revenues. The revenues of Registrant during the year ended
December 31, 1996 consisted primarily of revenues from software services, with
revenues from licenses and related services in connection with Registrant's
ItemQuest product constituting approximately $270,000, or less than 10% of
revenues. Revenues for the year ended December 31, 1995 consisted entirely of
revenues from software services. Operating revenues increased 35% to
approximately $3,891,000 in fiscal 1996, compared to approximately $2,876,000 in
fiscal 1995. This increase resulted from a number of factors. The most important
factor was increased sales of ProductManager by IBM in fiscal 1996, resulting in
increased demand for Registrant's software services, as a substantial portion of
those services are provided, both directly and on a subcontract basis, to IBM
ProductManager customers.
14
<PAGE>
Increased operating revenues in fiscal 1996 over fiscal 1995 also were due
to increased overall demand for Registrant's software services, including a
major project for the Eastman Kodak Company in 1996. Another factor contributing
to increased operating revenues was an increase in the proportion of projects
undertaken directly with IBM customers, rather than on a subcontract basis.
Finally, there were approximately $270,000 in license fees and related services
from ItemQuest in fiscal 1996, compared to no such license fees in fiscal 1995.
Software services revenues in fiscal 1996 increased in comparison to fiscal
1995 with no significant increases in software services personnel. This was due
to more efficient management of personnel and an increase in the proportion of
software services projects conducted on a fixed bid basis, as compared to an
hourly basis. The factors leading to an increase in operating revenues in fiscal
1996 were partially offset by a substantial increase in the amount of personnel
time devoted to the development of the ItemQuest product in fiscal 1996, as
compared to fiscal 1995.
Operating and Research and Development Expenses. Operating and research and
development expenses increased by approximately $223,000, or 14%, in fiscal 1996
compared to fiscal 1995. This increase in operating expenses was substantially
less than the increase in operating revenues between the two fiscal years, due
to the increased efficiencies referred to above. This rate of increase was
reduced also by the capitalization of approximately $276,000 in ItemQuest
development costs in fiscal 1996, compared to fiscal 1995, in which no such
costs were capitalized, but instead were expensed as research and development
expenses. Increases in operating expenses were attributable primarily to the
addition of the North Carolina office, and payroll associated with additional
management personnel and sales personnel.
General and Administrative Expenses. General and administrative expenses
increased by $89,000, or 59%, in fiscal 1996 as compared to fiscal 1995. This
increase was due to increased business activity in general, and in particular as
a result of increases in legal and accounting expenses, underwriting expenses
associated with the offering of senior debentures, which commenced in December
1996, and payment of license fees to third-party software vendors.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994.
- ---------------------------------------------------------------------
Operating Revenues. Operating revenues in fiscal 1995 increased by
approximately $1,630,000, or 131%, compared to the year ended December 31, 1994.
This increase in operating revenues was due primarily to the increase in demand
for Registrant's software services, particularly related to product development
efforts for IBM's ProductManager, and the increase in billing volume generated
by additional personnel hired to provide those services. In fiscal 1995,
Registrant commenced a substantial product development project for IBM relating
to the IBM ProductManager software product. In addition, there was a substantial
increase in revenues relating to the provision of training services to IBM
ProductManager customers.
Operating and Research and Development Expenses. Operating and research and
development expenses during fiscal 1995 increased by approximately $916,000, or
132%, as
15
<PAGE>
compared to fiscal 1994. This increase was due primarily to general increases in
business activity and increased personnel required to provide the increased
level of software services. Research and development expense increased by
approximately $98,000 in fiscal 1995 over fiscal 1994, as a result of ItemQuest
product development efforts. In addition, there was a substantial increase in
the level of infrastructure expenses relating to increases in personnel, as well
as expansion of office space in Atlanta, Georgia.
General and Administrative Expenses. General and administrative expenses
increased in fiscal 1995 by approximately $25,000, or 19%, as compared to fiscal
1994. This increase was due to growth in personnel and business activity, and
the corresponding increased demand for general and administrative services.
LIQUIDITY AND CAPITAL RESOURCES
The primary source of Registrant's cash has been operations. As of December
31, 1996, Registrant had approximately $120,000 in cash. Net cash provided by
operating activities was approximately $300,000, $680,000 and $1,640,000 for
fiscal 1994, 1995 and 1996, respectively, and was primarily due to net income of
approximately $427,000, $1,119,000 and $1,820,000, respectively. The sources of
cash from operations were partially offset by increases in accounts receivable
of $132,000, $483,000 and $237,000 in fiscal 1994, 1995 and 1996, respectively,
and other working capital changes.
In fiscal 1994, 1995 and 1996, approximately $37,000, $59,000 and $365,000,
respectively, were used for investing activities, including purchases of
property and equipment, and, in fiscal 1996, $276,000 was used for capitalized
software development costs related to the development of ItemQuest, compared to
no such capitalized costs in fiscal 1994 or 1995. Cash used for investing
activities was substantially less in 1995 and 1994, as ItemQuest development
costs substantially increased in 1996.
Registrant made distributions to its stockholders, amounting to
approximately $138,000, $679,000 and $1,215,000, in fiscal 1994, 1995 and 1996,
respectively. Such distributions are not expected to continue after Registrant
converts to C corporation status.
As of December 31, 1996, Registrant's principal commitments consisted of
obligations under operating leases for office space. Rent expense for the fiscal
1994, 1995 and 1996 totaled $17,063, $57,497 and $79,496, respectively. Future
minimum lease commitments total $110,000 through the year 2000. Future lease
commitments are expected to increase substantially when new leases are executed
for the Atlanta and North Carolina operations. There was no material long-term
debt as of December 31, 1996.
Upon receipt of the net proceeds from the Offering, estimated at
approximately $9,500,000, Management anticipates that it will have adequate cash
to fund operations for at least the next eighteen months, although these funds
may not be adequate to fully implement Registrant's long-term expansion plans.
16
<PAGE>
FLUCTUATIONS IN QUARTERLY RESULTS
Registrant's operating results may fluctuate from period to period as a
result of, among other things, the timing of software services agreements and
ItemQuest license agreements, as well as the somewhat seasonal nature of
customers' capital budgets. Given the limited experience of Registrant in
licensing the ItemQuest product, Management cannot predict the extent or nature
of sales fluctuations or the impact of cyclical factors.
INFLATION
Management does not believe that inflation has had a material effect on
Registrant's operations during the past several years. Management anticipates
that Registrant generally will be able to modify its pricing structure for
services and products to substantially offset future increases in its operating
costs.
ITEM 3. DESCRIPTION OF PROPERTY
Registrant's principal administrative, sales, marketing, support and
software research and development facility is located in approximately 4,500
square feet of leased space in Atlanta, Georgia. Registrant also subleases a
1700-square-foot office outside of Charlotte, North Carolina. The terms of those
leases expire in March 1997 and May 2000, respectively. Registrant currently is
exploring other potential locations for both offices, as its current office
space in each location is not expected to be large enough to accommodate
expected growth in personnel and equipment. Registrant believes that, should the
need arise, suitable additional or alternative space will be available in the
future on commercially reasonable terms.
Registrant currently owns no real estate or real estate investments and has
no plans to acquire any real estate or investments in real estate.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of Registrant's Common Stock as of December 31, 1996 (i) by each
person who is known by Registrant to own beneficially more than 5% of
Registrant's Common Stock, (ii) by each of the executive officers named in the
tables under "Executive Compensation" in Item 6 of this Form and by each of
Registrant's directors, and (iii) by all executive officers and directors as a
group. Currently, there are five stockholders of Registrant, three of whom are
also directors and executive officers. Except as indicated in the footnotes to
this table, each stockholder identified in the table possesses sole voting and
investment power with respect to all shares of Common Stock shown as
beneficially owned by each stockholder. The address for each of the individuals
17
<PAGE>
listed below is: c/o International CompuTex, Inc., 5500 Interstate North
Parkway, Suite 507, Atlanta, Georgia 30328-4662.
<TABLE>
<CAPTION>
Shares Beneficially Owned
-------------------------
Beneficial Owner Number Percent /(1)/
- ----------------------- --------- -------------
<S> <C> <C>
Haim E. Dahan 1,407,468 66.2%
Michael J. Galvin 331,171 15.6%
Patricia Tuxbury Salem 275,973 13.0%
All executive
officers and
directors as a group 2,025,651 94.8%
(five persons)/(2)/
</TABLE>
- ---------------------
(1) Percent ownership is based on 2,125,000 shares of Common Stock outstanding
on December 31, 1996, plus any shares issuable pursuant to options held by
the person or group in question which may be exercised within 60 days of
December 31, 1996.
(2) Includes 11,039 shares subject to employee stock options that are
exercisable within 60 days of December 31, 1996.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
EXECUTIVE OFFICERS, DIRECTORS AND KEY EMPLOYEES
Executive officers, directors and key employees of Registrant and their
age, as of the date of this Registration Statement, along with their business
experience for at least the past five years, are as follows:
<TABLE>
<CAPTION>
Year in Which
Directorship
Name Age Position Commenced
- ---- --- -------- -------------
<S> <C> <C> <C>
Haim E. Dahan 36 Chairman of the Board, 1993
Chief Executive Officer
and Chief Financial Officer
Charles J. Giarratana 41 President
Ron Friedman 35 Vice President of Operations
Michael J. Galvin 31 Director and Vice President 1993
of Research and Development
Patricia Tuxbury Salem 33 Director and Treasurer 1993
</TABLE>
Mr. Dahan founded Registrant in 1991 and has served as Chairman of the
Board of Directors and Chief Executive Officer of Registrant since January 1993.
Prior to such time,
18
<PAGE>
from November 1989 to October 1992, Mr. Dahan was a technical specialist for AGS
Information Services, Inc. Mr. Dahan received his M.Sc. in Mathematics and
Computer Science from Ben-Gurion University, Israel in 1986.
Mr. Giarratana joined Registrant in March 1996 as President. Prior to that
time, from March 1993 to February 1996, Mr. Giarratana served as World-Wide
Director of Marketing and Services for IBM ProductManager. From January 1991 to
February 1993, Mr. Giarratana was a business unit executive with IBM. Mr.
Giarratana received a Bachelor of Science degree in Mathematics and Computer
Science from the University of New Hampshire in 1977.
Mr. Friedman joined Registrant as Vice President of Operations in October
1995. Prior to such time, from January 1993 to September 1995, Mr. Friedman
served as Program Manager and Technical Liaison at Elbit Fort Worth, a defense
system development and integration provider. From January 1983 to January 1993,
Mr. Friedman served in various technical and managerial positions at Elbit
Defense System, Ltd., a defense system solution provider. Mr. Friedman received
a B.A. degree in Mathematics and Computer Science from the University of Haifa,
Israel in 1988.
Mr. Galvin joined Registrant in August 1993 as Technical Director and is
currently the Vice-President of Research and Development. Prior to joining
Registrant, Mr. Galvin was a Senior Analyst with Worldspan from March 1991 to
August 1993. Prior to such time, from January 1989 to March 1991, Mr. Galvin
worked as a consultant for AGS Information Services, Inc., where he worked on
the development of IBM's ProductManager. Mr. Galvin received a Bachelor of
Science degree in Computer Science from the Southern College of Technology in
1988.
Ms. Salem joined Registrant in June 1993 as Systems Analyst and has served
as Treasurer of Registrant since that time. From February 1990 to May 1993, Ms.
Salem worked as a consultant for AGS Information Services, Inc., where she
focused on the development of software for the manufacturing sector and
specialized in product data management (PDM). Ms. Salem graduated from the
University of Vermont in 1985 with a Bachelor of Science degree in Electrical
Engineering.
Members of the Board of Directors serve for one-year terms. No director of
Registrant is a director of any other company filing reports under the
Securities Exchange Act of 1934.
COMMITTEES
Registrant currently has no committees of its Board of Directors. Upon the
selection and election of qualified independent directors, the Board of
Directors expects to establish both an audit committee and a compensation
committee.
Once created, the audit committee will be responsible for making
recommendations to the Board of Directors regarding the selection of independent
auditors, reviewing the results and
19
<PAGE>
scope of the audit and other services provided by Registrant's independent
accountants and reviewing and evaluating Registrant's audit and control
functions.
The compensation committee will make recommendations regarding Registrant's
employee stock option plan and decisions concerning salaries and incentive
compensation for employees and consultants of Registrant.
The Board of Directors may also create other committees, including an
executive committee and a nominating committee.
ITEM 6. EXECUTIVE COMPENSATION
COMPENSATION TABLE
The following summary compensation table sets forth the compensation paid
by Registrant during the fiscal year ended December 31, 1996 to Registrant's
chief executive officer. Registrant has no executive officers whose total
annual salary and bonus exceeded $100,000 during that year.
SUMMARY COMPENSATION TABLE
FOR FISCAL YEAR 1996
<TABLE>
<CAPTION>
Annual Compensation
------------------------------
Name and Other Annual Stock Options
Principal Position Salary Bonus Compensation Awarded
- ------------------ ------- ----- ------------ -------------
<S> <C> <C> <C> <C>
Haim E. Dahan, $60,000 $-0- $1,500/(1)/ None
Chief Executive Officer
</TABLE>
- ---------------
(1) Includes matching payments made on behalf of the executive officer into
Registrant's 401(k) Plan account for such executive officer during 1996,
with respect to fiscal 1995. Excludes personal benefits the aggregate value
of which was less than 10% of the annual salary of Mr. Dahan.
Mr. Dahan does not currently hold and has never received any options to
purchase Registrant's Common Stock.
No compensation intended to serve as incentive for performance to occur
over a period longer than one fiscal year was paid pursuant to a long-term
incentive plan during 1996 to Mr. Dahan or any other officer of Registrant.
Registrant does not have any defined benefit or actuarial plan under which
benefits are determined primarily by final compensation or average final
compensation and years of service.
None of the officers of Registrant have entered into employment contracts
with Registrant covering employment compensation terms other than current
salaries and standard employee benefits.
20
<PAGE>
CHANGE OF CONTROL ARRANGEMENTS
As of February 7, 1997, Registrant has granted options to purchase an
aggregate of 334,513 shares of Common Stock to employees of Registrant pursuant
to Registrant's employee stock option plans. The agreements for these options
provide that the options vest over a four-year period beginning on the date the
option was granted. In the event that Registrant is acquired by another entity,
or other events occur that meet the definition of a change of control or
threatened change of control in the option agreement, the vesting of the options
accelerates prior to that event.
STOCK OPTION PLANS
The Board of Directors has reserved a total of 500,000 shares of Common
Stock for issuance under Registrant's 1996 Stock Option Plan (the "1996 Option
Plan") and Registrant's 1995 Restricted Nonqualified Incentive Stock Option Plan
(the "1995 Option Plan"), which has been terminated. At February 7, 1997,
336,513 shares of Common Stock were subject to outstanding options at a weighted
average exercise price of $2.61 per share. Of the 500,000 total authorized
shares, 163,489 shares remain available for future grant under the 1996 Option
Plan, which was adopted effective December 20, 1996. Options may be granted to
employees (including officers), consultants, advisors and directors, although
only employees and directors and officers who are also employees may receive
"incentive stock options" intended to qualify for certain tax treatment. The
exercise price of incentive stock options must be no less than the fair market
value of the Common Stock on the date of grant. The exercise price of
nonqualified stock options is not subject to any limitation. Options granted
under the Option Plans generally vest over a four-year period and have a term of
ten years.
The 1996 Option Plan provides for the automatic grant of stock options to
directors of Registrant who are not employees of Registrant or any parent or
subsidiary corporation of Registrant ("Outside Directors"). Under the 1996
Option Plan, each Outside Director (of which there are none currently will be
granted, automatically on the effective date of his or her election to the
Board, an option to purchase 3,000 shares of Common Stock, and an additional
option to purchase 1,000 shares of Common Stock on each subsequent anniversary
of that date. The exercise price of each such option will equal the fair market
value of the Common Stock on the date of grant, and the term of each option will
be ten years.
Options granted under the 1996 Option Plan are nontransferable. Options
generally are exercisable only while the option holder remains employed or
otherwise affiliated with Registrant, and for a limited period of time after
termination of employment or affiliation. Options held by Messrs. Giarratana,
Friedman and Peter Jeng also contain a provision restricting them from selling
shares acquired upon exercise of those options for a period of one year
following the closing date of the Offering.
COMPENSATION OF DIRECTORS
21
<PAGE>
Directors of Registrant currently do not receive any payment for services
provided as a director. On an annual basis, directors who are not employees of
Registrant will receive grants of options to purchase Registrant's Common Stock,
as described in "Stock Option Plans," above. Registrant currently does not pay
additional amounts for committee participation or special assignments of the
Board of Directors.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Since January 1, 1995, there has not been, nor is there currently proposed,
any transaction or series of similar transactions to which Registrant was or is
to be a party in which the amount involved exceeds $60,000 and in which any
director, executive officer or holder of more than 5% of the Common Stock of
Registrant had or will have a direct or indirect material interest other than
the transactions described below.
On two occasions since January 1, 1995, Registrant has borrowed funds from
its stockholders for working capital purposes. In each case Registrant paid no
interest to the stockholders and the loans were repaid on or before schedule.
The maximum aggregate amount outstanding at any time since January 1, 1995 under
these funding programs was $178,706.
The Board of Directors has indicated its intention to distribute to its
current Stockholders, effective the day immediately preceding the date of the
closing of the Offering, an amount equal to the accumulated undistributed S
corporation earnings of Registrant as of that date. It is anticipated that the
distribution will be in the amount of approximately $1,830,000, to be effected
in the form of an assignment of all accounts receivable as of that date and the
balance in cash, a portion of which is expected to be paid out of the proceeds
of the Offering.
Registrant believes that all transactions with affiliates described above
were made or will be made on terms no less favorable to Registrant than could
have been obtained from unaffiliated third parties.
ITEM 8. DESCRIPTION OF SECURITIES
COMMON STOCK
The authorized capital stock of Registrant consists of 20,000,000 shares of
a single class of Common Stock with a par value of $.001 per share. As of
December 31, 1996, there were 2,125,000 shares of Common Stock outstanding and
held of record by five stockholders. The holders of Common Stock are entitled to
one vote for each share held of record on each matter voted on at a
stockholders' meeting and are entitled to receive ratably such dividends as may
be declared by the Board of Directors out of funds legally available therefor.
In the event of a liquidation, dissolution or winding up of Registrant, the
holders of Common Stock are entitled to share ratably in all assets remaining
after payment of any outstanding indebtedness. Holders
22
<PAGE>
of Common Stock have no preemptive or subscription rights, and there are no
redemption or conversion rights with respect to such shares. All outstanding
shares of Common Stock are fully paid and nonassessable, and the shares of
Common Stock to be issued upon completion of this Offering will be fully paid
and nonassessable.
OPTIONS TO PURCHASE COMMON STOCK
As described in "Item 6 - Stock Option Plans," Registrant has reserved an
aggregate of 500,000 shares for issuance pursuant to the 1996 Option Plan and
the 1995 Option Plan. Of these shares, 334,513 were subject to outstanding
options on February 7, 1997 and the remaining 165,487 shares are available for
future option grants under the 1996 Option Plan.
TRANSFER AGENT AND REGISTRAR
Registrant has not yet selected a Transfer Agent and Registrar for the
Common Stock.
PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON REGISTRANT'S COMMON EQUITY AND OTHER
SHAREHOLDER MATTERS
There currently is no trading market for the Common Stock of Registrant.
There are five holders of Common Stock of Registrant.
Dividends in the amount of $678,706 and $1,215,217 were paid in 1995 and
1996, respectively. Such dividends were paid while Registrant maintained its
status as an S Corporation. Other than a final distribution to its stockholders,
which is currently proposed to be effected immediately prior to the closing of
the Offering, there are no plans for payment of cash dividends on Registrant's
Common Stock in the foreseeable future.
ITEM 2. LEGAL PROCEEDINGS
Registrant is not a party to any pending litigation and, to the best of its
knowledge, no material legal proceeding is contemplated or threatened.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
Habif, Arogeti & Wynne, P.C. have been Registrant's Certified Public
Accountants since 1994. There have been no changes in and/or disagreements with
said firm or any prior accounting firm for Registrant.
23
<PAGE>
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
The following discussion gives retroactive effect to the stock splits
effected in March 1996 and December 1996. Commencing January 1, 1994, Registrant
has sold and issued the following unregistered securities:
In January 1997, Registrant issued Senior Debentures in the aggregate
principal amount of $1,115,000 to 17 individuals, with warrants to purchase up
to 123,889 shares of Common Stock from certain stockholders of Registrant. The
placement of Senior Debentures was sold by H. J.Meyers & Co., Inc., which
received for such services an aggregate of 11% of the gross proceeds of that
offering as commissions and nonaccountable expense reimbursement.
In July 1995, pursuant to a nonqualified stock option plan, Registrant
granted options to three employees to purchase an aggregate of 140,745 shares of
Common Stock, at $0.543 per share. One of such options, covering 66,233 shares,
has subsequently been terminated.
In February 1996, pursuant to that same option plan, Registrant granted
options to nine employees to purchase an aggregate of 107,079 shares of Common
Stock, at $0.543 per share. Three of such options, covering 8,280 shares, have
subsequently been terminated.
In January 1997, pursuant to the 1996 Stock Option Plan, Registrant granted
options to 32 employees to purchase an aggregate of 149,202 shares of Common
Stock at $4.80 per share. All of such options remain outstanding.
The above transactions were private transactions not involving a public
offering and were exempt from the registration provisions of the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to Section 4(2) thereof
and, in the case of the Senior Debentures, also were exempt under Section 4(6)
of such Act and Rule 506 promulgated under Section 4(2). Except for the Senior
Debentures, the sales of securities were without the use of selling agent. The
certificates evidencing the shares, Senior Debentures and warrants bear
restrictive legends permitting the transfer thereof only upon registration of
the shares or pursuant to an exemption under the Securities Act.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant's Articles of Incorporation contain certain provisions permitted
under the Georgia Business Corporation Code ("GBCC") which eliminate the
personal liability of directors for monetary damages for a breach of director's
duty of care or other duty as a director, except for: (i) breach of a
director's duty of loyalty, (ii) acts or omissions which involve intentional
misconduct or a knowing violation of law, (iii) the unlawful payment of
dividends, stock purchase or stock redemption, or (iv) any transaction from
which the director derives any improper personal benefit. The Articles of
Incorporation provide that a director's liability shall
24
<PAGE>
be eliminated or limited to the fullest extent permitted by the GBCC, as amended
from time to time. The Articles of Incorporation and Registrant's By-laws also
contain provisions indemnifying Registrant's directors and officers to the
fullest extent permitted by the GBCC. Registrant has also entered into
agreements to indemnify its directors and executive officers. A copy of the form
of such indemnity agreement has been attached as an exhibit to this Registration
Statement. Registrant believes that these provisions and agreements will assist
Registrant in attracting and retaining qualified individuals to serve as
directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to director or officers of Registrant
pursuant to the foregoing provisions, Registrant is informed that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy, as expressed in said Act and is, therefore,
unenforceable.
PART F/S
Financial statements of Registrant for the fiscal years ended December 31,
1994, 1995 and 1996, audited by Habif, Arogeti & Wynne, P.C., 1073 West
Peachtree Street, N.E., Atlanta, Georgia 30309-3837, immediately follow.
PART III
ITEM 1. INDEX TO EXHIBITS
2.1 Restated Articles of Incorporation of Registrant
2.2 By-Laws of Registrant
3.1 Form of Senior Debenture
6.1 1995 Restricted Non-qualified Incentive Option Plan
6.2 1996 Stock Option Plan
6.3 Forms of Stock Option Agreements
6.4 Escrow Agreement by and between Registrant, Gambrell & Stolz, L.L.P. and
certain stockholders of Registrant
6.5 Form of Indemnity Agreement
6.6 Form of Warrant attached to Senior Debentures
6.7 Offer letter between Registrant and Ron Friedman, dated September 15, 1995
6.8 Offer letter between Registrant and Charles J. Giarratana, dated
February 13, 1996
6.9 Agreement dated as of February 7, 1997 between the Registrant and H.J.
Meyers & Co., Inc., relating to the offer of the Registrant to rescind the
sale of the Senior Debentures.
6.10 Form rescission offer letter with respect to Senior Debentures.
12.1 Consent of Habif, Arogeti & Wynne, Certified Public Accountants
SIGNATURES
25
<PAGE>
In accordance with Section 12 of the Securities Exchange Act of 1934,
Registrant caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
February 11, 1997 INTERNATIONAL COMPUTEX, INC.
BY: /s/ Haim E. Dahan
---------------------------------------
HAIM E. DAHAN, CHIEF EXECUTIVE
OFFICER AND CHIEF FINANCIAL OFFICER
26
<PAGE>
EXHIBIT 2.1
RESTATED
ARTICLES OF INCORPORATION
OF
INTERNATIONAL COMPUTEX, INC.
-----------------------------
At a Special Meeting held on January 9, 1997, the Board of Directors of
International CompuTex, Inc. approved and recommended to the shareholders of
that Corporation the adoption of the following Restated Articles of
Incorporation:
I.
The name of the Corporation is: "International CompuTex, Inc."
II.
The Corporation shall have perpetual duration.
III.
The Corporation is a corporation for profit and is organized pursuant to
the Georgia Business Corporation Code for the purpose of engaging in any lawful
act or activity for which corporations may be organized under the Georgia
Business Corporation Code (the "Code").
IV.
The Corporation shall have authority to issue not more than twenty million
(20,000,000) shares of a single class of Common Stock with a par value of $.001
per share.
V.
(a) A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a director, except (i) liability for any appropriation, in
violation of his duties, of any business opportunity of the Corporation; (ii)
liability for acts or omissions which involve intentional misconduct or a
knowing violation of law; (iii) for the types of liabilities set forth in
O.C.G.A. (S)14-2-832, as in effect from time to time; or (iv) liability for any
transaction from which the director derived an improper personal benefit.
<PAGE>
If the Georgia Business Corporation Code hereafter is amended to
further eliminate or limit the liability of a director, then a director of the
Corporation, in addition to the circumstances in which a director is not
personally liable as set forth in the preceding paragraph, shall be not liable
to the fullest extent permitted by the Georgia Business Corporation Code, as it
may be amended from time to time (the "Code").
(b) In discharging their duties and in determining what is believed to be
in the best interest of the Corporation, the directors of the Corporation may
consider all factors that they consider pertinent to the full extent permitted
by O.C.G.A. (S)14-2-202(b)(5) or other applicable provisions of the Code.
(c) Any repeal or modification of this Article by the shareholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
VI.
Each person who is or was a director or officer of the Corporation, and
each person who is or was a director or officer of the Corporation who at the
request of the Corporation is serving or has served as an officer, director,
partner, joint venturer, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall be indemnified by the Corporation against those expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
which are allowed to be paid or reimbursed by the Corporation under the laws of
the State of Georgia and which are actually and reasonably incurred in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, in which such person
may be involved by reason of his being or having been a director or officer of
this Corporation or of such other enterprises.
Notwithstanding anything contained herein to the contrary, this Article is
intended to provide indemnification to each director and officer of the
Corporation to the fullest extent authorized by the Code, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader rights
than said statute permitted the Corporation to provide prior thereto).
VII.
These Restated Articles of Incorporation include amendments to the previous
Restated Articles of Incorporation, requiring shareholder approval.
2
<PAGE>
There are 2,125,000 shares of Common Stock of the Corporation outstanding
and entitled to vote. These Restated Articles of Incorporation were adopted by
affirmative vote of the holders of all outstanding shares. The vote of a
majority of the outstanding shares of Common Stock was required to amend the
Corporation's Articles of Incorporation. Accordingly, these Restated Articles of
Incorporation were duly approved by the shareholders of the Corporation in
accordance with Section 14-2-1003 of the Code.
These Restated Articles of Incorporation supersede the previous Restated
Articles of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused these Restated Articles of
Incorporation to be executed and attested by its duly authorized officers on the
9th day of January, 1997.
INTERNATIONAL COMPUTEX, INC.
By:
------------------------------------
Title:
---------------------------------
ATTEST:
- ---------------------------
Secretary
3
<PAGE>
EXHIBIT 2.2
BY-LAWS
OF
INTERNATIONAL COMPUTEX, INC.,
----------------------------
A GEORGIA CORPORATION
(AMENDED AND RESTATED AS OF DECEMBER 17, 1996)
ARTICLE I
SEAL
----
The seal of the Corporation shall be in such form as the Board of
Directors may from time to time determine. The signature of the Corporation
followed by the word "Seal" enclosed in parentheses or scroll shall be deemed
the seal of the Corporation, if affixed by appropriate authority. The seal may
be affixed by the Secretary, or Assistant Secretary, or such other person or
persons as may be designated by the Board of Directors or the Chief Executive
Officer.
ARTICLE II
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and may be changed
from time to time, by the Board of Directors.
ARTICLE III
MEETINGS OF SHAREHOLDERS
------------------------
SECTION 1. ANNUAL MEETING. The Annual Meeting shall be held on a date
---------------
selected by the Board of Directors within 120 days following the end of the
Corporation's fiscal year, provided that if such meeting shall not be held at
the appropriate time, such meeting may be called, without statement of purpose,
in accordance with the provisions for calling a special meeting. The notice of
such specially called meeting shall state that it is to be held in lieu of the
omitted meeting. At the Annual Meeting, the shareholders shall elect a Board of
Directors and transact other business.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may
-----------------
be held whenever and wherever called by the Chief Executive Officer, a majority
of the incumbent Directors, or by shareholders owning not less than 25% of the
outstanding voting shares.
<PAGE>
SECTION 3. NOTICE OF MEETINGS. Written notice of each shareholders'
-------------------
meeting, stating the place, day and hour of the meeting, and in the case of a
special meeting, the purpose or purposes of the meeting, shall be given by the
Secretary of the Corporation, or by persons authorized to call the meeting, to
each shareholder of record entitled to vote at the meeting. Such notice shall
be delivered not less than 10 nor more than 60 days before the date of the
meeting, either in hand, by telegram, by facsimile or by first class mail. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail with first class postage thereon prepaid, addressed to the
shareholder at his address as it appears on the stock transfer books of the
Corporation.
SECTION 4. PLACE OF MEETINGS. Meetings of the shareholders may be held
------------------
at any place selected by the persons authorized to call the meeting, either
within or without the State of Georgia.
SECTION 5. RECORD DATES AND CLOSING OF TRANSFER BOOKS. The Board of
-------------------------------------------
Directors may fix, in advance, a date as the record date for the determination
of shareholders, such date in any case to be not more than 70 days and, in case
of a meeting of shareholders, not less than 10 days prior to the date on which
the particular action, requiring such determination of shareholders, is to be
taken; and only shareholders of record on such date shall be entitled to notice
of and to vote at such meeting or to receive such dividend or rights, as the
case may be.
SECTION 6. QUORUM. At all meetings of shareholders, one third of the
-------
voting stock issued and outstanding, present in person or by proxy, shall
constitute a quorum for all purposes except as otherwise required by law. When
a quorum is once present to organize a meeting, the shareholders present may
continue to do business at the meeting, or at any adjournment thereof,
notwithstanding the withdrawal of shareholders so as to leave less than a quorum
present. A majority of the voting shares represented at a meeting, whether or
not a quorum is present, may adjourn such meeting from time to time, without
further notice than announcement at such meeting. The vote of a majority of the
shares entitled to vote at any meeting, as represented in person or by proxy,
shall determine any action taken, except as otherwise provided in the Articles
of Incorporation, by these By-Laws, or by law.
SECTION 7. VOTING AND INSPECTORS. Unless otherwise provided in the
----------------------
Articles of Incorporation or in a shareholder's agreement, each outstanding
share entitled to vote shall be entitled to one vote on each matter submitted to
a shareholders' meeting. Cumulative voting shall not be permitted except as
specifically provided for in the Articles of Incorporation. At any meeting at
which Directors are to be elected, the Board of Directors or the Chief Executive
Officer may, and upon the request of the holders of 25% of the shares entitled
to vote at such meeting shall, appoint three inspectors of election who shall
execute faithfully the duties of inspectors at such meeting with strict
impartiality and according to the best of their ability, and shall, after any
vote taken at such meeting, make a certificate of the result thereof. No
candidate for the office of Director shall be appointed as such inspector.
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<PAGE>
SECTION 8. PROXIES AND VOTING. At every meeting of the shareholders,
-------------------
all proxies shall be received and held, and all ballots shall be received and
canvassed, by the Secretary of the meeting, who shall decide all questions
relating to the qualification of voters, the validity of proxies, and the
acceptance or rejection of votes, except that where inspectors of election have
been appointed as provided in the preceding Section, the duties set forth herein
shall be performed by such inspectors. Any voting shareholder may be
represented and vote at any regular or special meeting by proxy authorized in
writing, signed by the shareholder, and filed with the Secretary of the meeting
at or before the holding of such meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof, unless otherwise specifically
provided in the proxy.
SECTION 9. MATTERS CONSIDERED AT ANNUAL MEETINGS. Notwithstanding
-------------------------------------
anything to the contrary in these By-Laws, the only business that may be
conducted at an annual meeting of shareholders shall be business brought before
the meeting (a) by or at the direction of the Board of Directors prior to the
meeting, (b) by or at the direction of the Chairman of the Board or the Chief
Executive Officer, or (c) by a shareholder of the Corporation who is entitled to
vote with respect to the business and who complies with the notice procedures
set forth in this Section 9. For business to be brought properly before an
annual meeting by a shareholder, the shareholder must have given timely notice
of the business in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered or mailed to and received at the
principal offices of the Corporation on or before the later to occur of (i) 14
days prior to the annual meeting or (ii) five days after notice of the meeting
is provided to the shareholders pursuant to Section 3 of this Article III. A
shareholder's notice to the Secretary shall set forth a brief description of
each matter of business the shareholder proposes to bring before the meeting and
the reasons for conducting that business at the meeting; the name, as it appears
on the Corporation's books, and address of the shareholder proposing the
business; the number of shares of the Corporation's capital stock that are
beneficially owned by the shareholder; and any material interest of the
shareholder in the proposed business. Subject to applicable requirements of the
Securities and Exchange Act of 1934, and the rules promulgated thereunder, the
chairman of the meeting shall have the discretion to declare to the meeting that
any business proposed by a shareholder to be considered at the meeting is out of
order and that such business shall not be transacted at the meeting if (i) the
chairman concludes that the matter has been proposed in a manner inconsistent
with this Section 9 or (ii) the chairman concludes that the subject matter of
the proposed business is inappropriate for consideration by the shareholders at
the meeting.
ARTICLE IV
THE BOARD OF DIRECTORS
----------------------
SECTION 1. NUMBER AND TENURE OF OFFICE. Except as may be otherwise
----------------------------
provided by an agreement among shareholders, the business and affairs of the
Corporation shall be conducted and managed by the Board of Directors, consisting
of not less than one individual. The number of Directors may be increased or
decreased as provided in Section 2 of this Article. Each Director shall hold
office until the Annual Meeting of shareholders next succeeding his election or
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<PAGE>
until his successor is duly elected and qualified, unless he is removed from
office or unless his resignation is accepted by a majority of the remaining
Directors. Directors need not be shareholders.
SECTION 2. NUMBER, ELECTION AND TERM OF OFFICE. The number of
-----------------------------------
directors of the Corporation shall be fixed by resolution of the Board of
Directors or of the shareholders from time to time; provided, however, that no
decrease in the number of directors shall have the effect of shortening the term
of an incumbent director. Except as provided elsewhere in this Section 2 and in
Section 4 of this Article IV, the directors shall be elected at each annual
meeting of shareholders, or at a special meeting of shareholders called for
purposes that include the election of directors, by a plurality of the votes
cast by the shares entitled to vote and present at the meeting. Except in case
of death, resignation, disqualification or removal, the term of each director
shall expire at the next succeeding annual meeting of shareholders. Despite the
expiration of a director's term, he or she shall continue to serve until his or
her successor, if there is to be any, has been elected and has qualified.
SECTION 3. REMOVAL OF DIRECTORS. The entire Board of Directors or any
--------------------
individual director may be removed, with or without cause, by the shareholders.
Removal action may be taken only at a shareholders' meeting for which notice of
the removal action has been given. A removed director's successor, if any, may
be elected at the same meeting to serve the unexpired term.
SECTION 4. VACANCIES. A vacancy occurring in the Board of Directors
---------
may be filled for the unexpired term, unless the shareholders have elected a
successor, by the affirmative vote of a majority of the remaining directors,
whether or not the remaining directors constitute a quorum. A vacancy or
vacancies in the Board of Directors may result from the death, resignation,
disqualification, or removal of any director, or from an increase in the number
of directors.
SECTION 5. QUALIFICATION OF DIRECTORS. No person elected to serve as
--------------------------
a director of the Corporation shall assume office and begin serving unless and
until duly qualified to serve, as determined by reference to the Georgia
Business Corporation Code, the Articles of Incorporation, and any further
eligibility requirements established in these By-Laws.
SECTION 6. CERTAIN NOMINATION REQUIREMENTS. No person may be
-------------------------------
nominated for election as a director at any annual or special meeting of
shareholders unless (a) the nomination has been or is being made pursuant to a
recommendation or approval of the Board of Directors of the Corporation or a
properly constituted committee of the Board of Directors previously delegated
authority to recommend or approve nominees for director; (b) the person is
nominated by a shareholder of the Corporation who is entitled to vote for the
election of the nominee at the subject meeting, and the nominating shareholder
has furnished written notice to the Secretary of the Corporation, at the
Corporation's principal office, not later than 14 days before the date of the
meeting or five days after notice is given pursuant to Section 3 of Article III,
whichever is later, and the notice (i) sets forth with respect to the person to
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<PAGE>
be nominated his or her name, age, business and residence addresses, principal
business or occupation during the past five years, any affiliation with or
material interest in the Corporation or any transaction involving the
Corporation, and any affiliation with or material interest in any person or
entity having an interest materially adverse to the Corporation, and (ii) is
accompanied by the sworn or certified statement of the shareholder that the
nominee has consented to being nominated and that the shareholder believes the
nominee will stand for election and will serve if elected; or (c) (i) the person
is nominated to replace a person previously identified as a proposed nominee (in
accordance with the provisions of subpart (b) of this Section 6) who has since
become unable or unwilling to be nominated or to serve if elected, (ii) the
shareholder who furnished such previous identification makes the replacement
nomination and delivers to the Secretary of the Corporation (at the time of or
prior to making the replacement nomination) an affidavit or other sworn
statement affirming that the shareholder had no reason to believe the original
nominee would be so unable or unwilling, and (iii) such shareholder also
furnishes in writing to the Secretary of the Corporation (at the time of or
prior to making the replacement nomination) the same type of information about
the replacement nominee as required by subpart (b) of this Section 6 to have
been furnished about the original nominee. The chairman of any meeting of
shareholders at which one or more directors are to be elected, for good cause
shown and with proper regard for the orderly conduct of business at the meeting,
may waive in whole or in part the operation of this Section 6.
SECTION 7. COMPENSATION. Directors may receive such compensation for
------------
their services as directors as may be fixed by the Board of Directors from time
to time. A director may also serve the Corporation in one or more capacities
other than that of director and receive compensation for services rendered in
those other capacities.
SECTION 8. PLACE OF MEETING. The Directors may hold the meetings of
-----------------
the Board within or without the State of Georgia as they may, from time to time,
by resolution determine, or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
SECTION 9. REGULAR MEETINGS. The Annual Meeting of the Board of
-----------------
Directors shall be held as soon as practicable after the Annual Meeting of
shareholders for the election of Directors, and may be without any notice to
members of the Board if convened at the place of the Annual Meeting of
shareholders on the same or on the next business day.
SECTION 10. SPECIAL MEETINGS. Special meetings of the Board of
-----------------
Directors may be held from time to time upon call of the Chief Executive
Officer, the Executive Committee, or a majority of the incumbent Directors by
oral, telegraphic, facsimile or written notice to each Director not less than
two days before such meeting, specifying the date, time and place of the
meeting.
SECTION 11. QUORUM. A majority of the members of the Board of
-------
Directors in office immediately before a meeting begins shall constitute a
quorum for the transaction of business at such meeting, provided that a quorum
shall in no case be less than two Directors unless there is only one Director,
as may be permitted under Section l of this Article. If, at any meeting of the
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<PAGE>
Board, there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time, without notice, other than an
announcement at the meeting, until the quorum shall be present. The action of a
majority of the Directors present at any meeting at which there is a quorum,
shall determine any action taken by the Directors except as may be otherwise
specifically provided by statute, by the Articles of Incorporation, by these By-
Laws, or by any contract or agreement to which the Corporation is a party.
SECTION 12. EXECUTIVE COMMITTEE. There may be an Executive Committee
--------------------
of the Board of Directors, consisting of the Chief Executive Officer and such
number of members as elected by the Board. The members of this Committee shall
be elected at the Annual Meeting of the Board of Directors and shall serve until
the next organizational meeting of the Board and until their successors shall be
elected and qualify, unless sooner removed by a majority vote of the entire
Board of Directors. In the event of a vacancy in the membership of the
Executive Committee, the Board of Directors may fill such vacancy by a majority
vote of the entire Board. A majority of said Committee shall constitute a
quorum for all purposes. The Chief Executive Officer shall be Chairman of the
Executive Committee, and the Committee may, by resolution, fix its own rules of
procedure, the time and place of its meetings, and the method of call of its
meetings. All actions of the Executive Committee shall be reported to the Board
of Directors at its meeting next succeeding such action. The Executive
Committee shall have only such powers and authority as the Board of Directors
shall, by resolution, provide.
SECTION 13. OTHER COMMITTEES. The Board of Directors, by a majority
-----------------
vote of the entire Board, may create and appoint other committees which in each
case shall consist of such number of members and shall have and may exercise, to
the extent permitted by law, such powers, as the Board may determine by
resolution. A majority of all members of any such committee shall determine
its action, and fix the time and place of its meetings, unless the Board of
Directors shall otherwise provide. The Board of Directors shall have power at
any time to change the members and, to the extent permitted by law, the powers
of any such committee, to fill vacancies, and to discharge any such committee.
SECTION 14. INDEMNITY.
----------
(A) POWER TO INDEMNIFY - THIRD PARTY ACTIONS. The Corporation shall
-----------------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
Director, officer, employee, or agent, or is or was serving at the request of
the Corporation as a Director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, penalties, fines, and amounts
paid in settlement, actually and reasonably incurred by him in connection with
such action, suit, or proceeding, if he acted in a manner he believed in good
faith to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
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<PAGE>
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interest of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(B) POWER TO INDEMNIFY - ACTIONS BROUGHT IN THE RIGHT OF THE
--------------------------------------------------------
CORPORATION. The Corporation shall indemnify any person who was or is a party or
- ------------
is threatened to be made a party to any threatened, pending, or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a Director, officer, employee, or agent
of the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the investigation,
defense or settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and except that no indemnification shall be made in respect of
any claim, issue, or matter as to which such person shall have been adjudged to
be liable to the Corporation 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 circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(C) RIGHT TO INDEMNIFICATION. To the extent that a Director, officer,
-------------------------
employee, or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in clauses
(a) and (b), or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(D) DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
------------------------------------------------
indemnification under (a) and (b) (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the Director, officer, employee, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in (a) and (b). Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit, or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by the
affirmative vote of a majority of the shareholders entitled to vote thereon, but
shares owned by or voted under the control of Directors, officers, employees or
agents who are at the time parties to the proceeding may not be voted on the
determination and thus shall be deemed not outstanding for purposes of
determining the foregoing majority.
(E) ADVANCEMENT OF EXPENSES. Expenses incurred in defending a civil or
------------------------
criminal action, suit, or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit, or proceeding upon receipt of an
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<PAGE>
undertaking by or on behalf of the Director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section and he furnishes
the Corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct.
(F) SAVINGS CLAUSE. The indemnification and advancement of expenses
---------------
provided by this Section shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any by-law, resolution, agreement, vote of shareholders, or disinterested
Directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a Director, officer, employee, or agent, and shall
inure to the benefit of the heirs, executors and administrators of such a
person so long as such rights are consistent with the Georgia Business
Corporation Code.
(G) INSURANCE. The Corporation may purchase and maintain insurance on
----------
behalf of any person who is or was a Director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Section.
(H) DEFINITION OF "CORPORATION". For purposes of this Article,
----------------------------
reference to the "Corporation" shall include, in addition to the surviving or
new corporation, any merging or consolidated corporation (including any merging
or consolidating corporation of a merging or consolidating corporation) absorbed
in a merger or consolidation so that any person who is or was a director,
officer, employee or agent of such merging or consolidating corporation, or who
is or was serving at the request of such employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity; provided no indemnification under
subsections (a) and (b) of this Section permitted by this subsection shall be
mandatory under this subsection or any by-law of the surviving or new
corporation without the approval of such indemnification by the board of
directors or shareholders of the surviving new corporation in the manner
provided in subsection (d) of this Section.
(I) SAVINGS CLAUSE AND SUBSEQUENT LEGISLATION. If this Section 14 or
------------------------------------------
any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
referred to in subsections (a) and (b) of this Section as to any cost, charge
and expense (including attorneys' fees and related disbursements), judgment,
fine (including, without limitation, ERISA excise taxes and penalties) and
amount paid in settlement with respect to any action, suit or proceedings,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Corporation, to the full extent permitted by any
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<PAGE>
applicable portion of this Section 14 that shall not have been invalidated and
to the full extent permitted by applicable law. The Corporation shall indemnify
the persons referred to in subsections (a) and (b) of this Section to the
fullest extent permitted by the Georgia Business Corporation Code, as amended
from time to time.
ARTICLE V
OFFICERS
---------
SECTION 1. OFFICERS. The Executive Officers of the Corporation shall
---------
be chosen by the Board of Directors as soon as may be practicable after the
Annual Meeting of shareholders. The officers shall include a Chief Executive
Officer, a President, a Secretary, a Treasurer, and may include one or more Vice
Presidents and such other officers and assistant officers, having such authority
as the Board may from time to time provide. One person may hold more than one
of any such offices. Each officer shall hold his office during, and may be
removed from office at, the pleasure of the Board, unless a special contract,
approved by the Board, provides for tenure and compensation for a definite
period of time.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
------------------------
have general and active management of the operation of the Corporation, shall be
responsible for the administration of the Corporation and the execution of
corporate policy, and shall have such other authority and perform such other
duties as shall be assigned to him by the Board of Directors. He shall preside
at shareholders' meetings and at meetings of the Board of Directors, and shall
prescribe the duties of all other officers when not otherwise prescribed by
these By-Laws or by the Board of Directors, and shall have authority to
institute or defend legal proceedings and to employ counsel with respect
thereto. In the event of the death or disability of the Chief Executive Officer,
the Board of Directors shall designate a successor Chief Executive Officer, with
no automatic line of succession being established under these By-laws.
SECTION 3. PRESIDENT. The President shall have administrative
----------
authority for the affairs of the Corporation, shall have such further authority
and perform such other duties as may be provided for him by these By-Laws and by
the Board of Directors. The President shall report to the Chief Executive
Officer.
SECTION 4. VICE PRESIDENT. The Vice President shall have such
---------------
authority and perform such duties as shall be assigned to him by the Board of
Directors, and shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President. When more than one Vice
President is elected, the Board may specify an order of seniority among such
Vice Presidents.
SECTION 5. SECRETARY. The Secretary shall keep the Corporate records
----------
and the Corporate seal, give due notice of meetings of shareholders and
Directors, have responsibility for preparing minutes of the Directors' and
shareholders' meetings and authenticating records of the Corporation, and
perform such other duties as shall be assigned to him by the Board of Directors.
If there is no Treasurer or Assistant Treasurer then in office, the Secretary
shall have the duties set forth in Section 6 as to the Treasurer.
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SECTION 6. TREASURER. The Treasurer shall have custody of the funds of
----------
the Corporation, which shall be kept in such banks or depositories as the Board
may designate. The Treasurer shall keep full and accurate records of receipts
and disbursements and perform all other duties pertaining to the office as may
be assigned to him by the Board of Directors.
SECTION 7. SALARY. The Board of Directors shall fix the salaries of
-------
the officers of the Corporation. The salaries of other agents and employees of
the Corporation may be fixed by the Board of Directors, or by the officer
employing such agent or employee.
ARTICLE VI
CAPITAL SHARES
--------------
SECTION 1. CERTIFICATES FOR SHARES. The interest of each shareholder
------------------------
of the Corporation, upon payment in full for his shares, shall be evidenced by
certificates for shares in such form as the Board of Directors may from time to
time prescribe. No certificate shall be valid unless it is signed by the
President or a Vice President and countersigned by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation. The
signatures may be either manual or facsimile signatures. In case any officer
who has signed any certificate ceases to be an officer of the Corporation before
the certificate is issued, the certificate may, nevertheless, be issued by the
Corporation with the same effect as if the officer had not ceased to be such
officer as of the date of its issue.
SECTION 2. TRANSFER OF SHARES. Shares of the Corporation shall be
-------------------
transferable on the books of the Corporation by the holder thereof in person or
by his duly authorized attorney or legal representative, upon surrender and
cancellation of certificates for the same number of shares of the same class,
duly endorsed or accompanied by proper instruments of assignment and transfer,
with such proof of the authenticity of the signature as the Corporation or its
agents may reasonably require.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
---------------------------------------
Directors or the Executive Committee may determine the conditions upon which a
new share certificate of the Corporation of any class may be issued in place of
a certificate which is alleged to have been lost, stolen or destroyed; and may,
in its discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety to the Corporation and the
Transfer Agent, if any, to indemnify it and such Transfer Agent against any and
all loss or claims which may arise by reason of the issue of a new certificate
in the place of the one so lost, stolen or destroyed. The Board shall have
power to determine what constitutes sufficient indemnity as to any lost
certificate.
ARTICLE VII
EXECUTION OF DOCUMENTS
----------------------
The Board of Directors may, by a proper resolution, provide for the
method of signing checks, notes, drafts, bills of exchange or other instruments
-10-
<PAGE>
for the payment of money; for the transfer and sale of property; for the
endorsement and registration of securities; for the assumption of liabilities;
for the voting of stock held in other corporations; and for the execution of all
other legal documents.
ARTICLE VIII
WAIVER OF NOTICE, APPROVAL AND CONSENT
--------------------------------------
Any notice required by these By-Laws or by law to be given to any
shareholder, officer or Director, may be waived in writing, either before or
after the event to which it relates, and shall be deemed waived with respect to
any meeting, along with any objections to the time or place of such meeting, by
appearance at such meeting, except when such person attends a meeting solely for
the purpose of stating at the beginning of the meeting any objection to the
transaction of business. Written approval of the minutes of any meeting, either
before or after the meeting, shall be deemed a waiver of notice of such meeting
and shall be deemed an appearance at such meeting.
Any action to be taken or that may be taken at a meeting of Directors,
or of any committee thereof, or of the shareholders of the Corporation, may be
taken without a meeting if one or more consents in writing, setting forth the
action so taken, shall be signed by all of the persons entitled to vote with
respect to the subject matter thereof and such consent or consents are delivered
to the Corporation for inclusion in the minutes. This paragraph is subject to
any further provisions relating to action taken by written consent as may be
contained within the Corporation's Articles of Incorporation.
ARTICLE IX
AMENDMENT OF BY-LAWS
--------------------
These By-Laws may be amended, added to, or repealed, by action taken by
shareholders holding a majority of the outstanding shares, or by a vote of the
entire Board of Directors, but any such action by the Board of Directors shall
be reported to the shareholders in the notice of the next meeting of
shareholders.
ARTICLE X
PLURALITY VOTES
---------------
Except as otherwise provided by applicable law, whenever pursuant to
these By-Laws action may be taken by a majority of shares represented at a
Shareholders meeting or by a majority of directors present at a meeting of the
Board of Directors, such action may be taken by a plurality vote, i.e., a vote
in which the number of shares voted or directors voting affirmatively exceeds
the number of shares voted or directors voting negatively.
-11-
<PAGE>
ARTICLE XI
BRANCH OFFICES - BOOKS AND RECORDS
----------------------------------
SECTION 1. BRANCH OFFICES. The Corporation shall have power to have an
---------------
office or offices and, subject to the provisions of the laws of the State of
Georgia, to keep the books of the Corporation outside of said State, at such
places as may from time to time be designated by the Board of Directors.
SECTION 2. BOOKS AND RECORDS. The Board of Directors shall have power
------------------
to determine which accounts and books of the Corporation, if any, shall be open
to the inspection of shareholders, except such as may, by law, be specifically
open to inspection, and shall have power to fix reasonable rules and
regulations, not in conflict with the applicable law, for the inspection of
accounts and books which, by law or by determination of the Board of Directors,
shall be open to inspection.
These By-Laws of International CompuTex, Inc., as amended and restated
effective December 17, 1996, are hereby certified as accurate and correct, this
day of , 1997.
- ----- ------------
-------------------------------
Secretary
-12-
<PAGE>
EXHIBIT 3.1
THIS DEBENTURE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (ii)
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED TRANSFER AND THAT SUCH TRANSFER IS NOT IN
VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY DEBENTURE ISSUED IN EXCHANGE FOR THIS DEBENTURE.
INTERNATIONAL COMPUTEX, INC.
SENIOR DEBENTURE
DUE , 2000
-----------------
No. $
---------- ---------------
INTERNATIONAL COMPUTEX, INC., a Georgia corporation (the "Company") for
value received, hereby promises to pay in currency of the United States of
America to or registered assigns (the "Payee" or
-------------------------------
"Holder") on , 2000 [three (3) years from issue date] (the
------------------
"Maturity Date") at the offices of
---------------------------------------------
the principal amount of ($ ). Interest
--------------------------- --------------
shall accrue on the principal amount of this Debenture from time to time
outstanding at the rate of six percent (6%) per annum from the date hereof, and
shall be due and payable semi-annually, on each and ,
---------- -----------
until this Debenture has been paid in full.
This Debenture is issued pursuant to a Subscription Agreement dated as of
, between the Company and the Payee (the "Subscription
- ---------------------
Agreement"), a copy of which Agreement is available for inspection at the
Company's principal office. Notwithstanding any provision to the contrary
contained herein, this Debenture is subject to certain terms, conditions,
covenants and agreements contained in the Subscription Agreement. Any
transferee or transferees of the Debenture, by their acceptance hereof, assume
the obligations of the Payee in the Subscription Agreement with respect to the
conditions and procedures for transfer of the Debenture. Reference to the
Subscription Agreement shall in no way impair the absolute and unconditional
obligation of the Company to pay both principal and interest hereon provided
herein.
<PAGE>
A. PREPAYMENT.
1. The principal amount of this Debenture may be prepaid by the
Company, in whole or in part, without penalty, at any time on ten (10) days
prior written notice to Payee. Each such prepayment shall include payment of
the unpaid accrued interest on the principal amount prepaid.
2. The principal amount of this Debenture and all unpaid accrued
interest thereon shall be prepaid by the Company in whole without penalty within
five (5) business days from the date of a Qualified Offering (as defined below).
For purposes of this Debenture, a "Qualified Offering" shall mean the receipt by
the Company of aggregate gross proceeds of $5,000,000 or more from (i) the sale
of shares ("Shares") of common stock of the Company ("Common Stock"), covered by
a registration statement under the Securities Act of 1933, as amended (the
"Act"), to the public (a "Public Offering") or (ii) from the sale of Shares of
Common Stock to investors within ninety (90) days of a private placement (a
"Private Placement").
B. COVENANTS OF COMPANY.
The Company covenants and agrees that, so long as this Debenture shall
be outstanding, it will:
(i) promptly pay and discharge all lawful taxes, assessments, and
governmental charges or levies imposed upon the Company or upon its income and
profits, or upon any of its property, before the same shall become in default,
as well as all lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided, however, that the Company shall not be required to pay and discharge
- -----------------
any such tax, assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings and the Company
shall set aside on its books adequate reserves with respect to any such tax,
assessment, charge, levy or claim so contested;
(ii) do or cause to be done all things reasonably necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises and comply with all laws applicable to the Company, except where the
failure to comply would not have a material adverse effect on the Company;
(iii) at all times reasonably maintain, preserve, protect and keep
its property used or useful in the conduct of its business in good repair,
working order and condition, and from time to time make all needful and proper
repairs, renewals, replacements, betterments and improvements thereto as shall
be reasonably required in the conduct of its business;
-2-
<PAGE>
(iv) to the extent necessary for the operation of its business,
keep adequately insured by financially sound and reputable insurers, all
property of a character usually insured by similar corporations and carry such
other insurance as is usually carried by similar corporations; and
(v) at all times keep true and correct books, records and
accounts.
This Debenture is subject to the following additional provisions:
1. The Debentures are issuable in denominations of Fifty Thousand
Dollars ($50,000.00 U.S.) and integral multiples thereof. The Debentures are
exchangeable for an equal aggregate principal amount of Debentures of different
authorized denominations, as requested by the Holders surrendering the same. No
service charge will be made for such registration of exchange.
2. The Company shall be entitled to withhold from all payments of
principal of and interest on this Debenture any amounts required to be withheld
under the applicable provisions of the United States income tax laws or other
applicable laws at the time of such payments.
3. This Debenture has been issued subject to investment representations
of the original purchaser hereof and may be transferred or exchanged only in
compliance with the Act, any applicable state securities laws and any applicable
securities laws of any other jurisdiction. Prior to due presentment for transfer
of this Debenture, the Company and any agent of the Company may treat the person
in whose name this Debenture is duly registered on the Company's Debenture
Register as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Debenture be overdue,
and neither the Company nor any such agent shall be affected by notice to the
contrary.
4. No provision of this Debenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of,
and interest on, this Debenture at the time, place and rate, and in the coin or
currency, herein prescribed. This Debenture and all other Debentures now or
hereafter issued of similar terms are direct obligations of the Company. This
Debenture ranks equally and ratably with all other Debentures now or hereafter
issued under the terms set forth herein.
5. No recourse shall be had for the payment of the principal of, or the
interest on, this Debenture, or for any claim based hereon, or otherwise in
respect hereof, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
-3-
<PAGE>
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
6. The Holder of this Debenture, by acceptance hereof, agrees that
this Debenture is being acquired for investment and that such Holder will not
offer, sell or otherwise dispose of this Debenture until (i) a registration
statement under the Act shall have become effective with respect thereto or (ii)
receipt by the Company of an opinion of counsel reasonably satisfactory to the
Company to the effect that registration under the Act is not required in
connection with such proposed transfer and that such transfer is not in
violation of any applicable state or foreign securities laws.
C. EVENTS OF DEFAULT.
1. This Debenture shall become and be due and payable upon written
demand made by the Holder hereof if one or more of the following events, herein
called events of default, shall happen and be continuing:
(i) default in the payment of the principal and accrued
interest on this Debenture when and as the same shall become due and payable,
whether by acceleration or otherwise;
(ii) default in the due observance or performance of any
material covenant, condition or agreement on the part of the Company to be
observed or performed pursuant to the terms hereof and such default shall
continue uncured for thirty (30) days after written notice thereof, specifying
such default, shall have been given to the Company by the Holder of the
Debenture;
(iii) application for, or consent to, the appointment of a
receiver, trustee or liquidator of the Company or of its property;
(iv) admission in writing of the Company's inability to pay its
debts as they mature;
(v) general assignment by the Company for the benefit of
creditors;
(vi) filing by the Company of a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization, or an arrangement with
creditors;
(vii) a material breach of the Company's representations
contained in the Subscription Agreement;
-4-
<PAGE>
(viii) the sale by the Company of substantially all of its assets;
(ix) the merger by the Company with or into another corporation,
other than for purposes of changing domicile, where the Company is not the
surviving corporation.
2. The Company agrees that notice of the occurrence of any event of
default will be promptly given to the Holder at his or her registered address by
certified mail.
3. In case any one or more of the events of default specified above
shall happen and be continuing, the Holder of this Debenture may proceed to
protect and enforce his rights by suit in the specified performance of any
covenant or agreement contained in this Debenture or in aid of the exercise of
any power granted in this Debenture or may proceed to enforce the payment of
this Debenture or to enforce any other legal or equitable rights as such Holder.
D. MISCELLANEOUS.
1. This Debenture has been issued by the Company pursuant to
authorization of the Board of Directors of the Company which provides for an
aggregate of up to $2,000,000 in face amount of identical Debentures to be
issued, subject to increase in the discretion of the Company.
2. The Company may consider and treat the person in whose name this
Debenture shall be registered as the absolute owner thereof for all purposes
whatsoever (whether or not this Debenture shall be overdue) and the Company
shall not be affected by any notice to the contrary. The registered owner of
this Debenture shall have the right to transfer it by assignment (subject to the
limitations on transfer contained in this Debenture and in the Subscription
Agreement) and the transferee thereof shall, upon his registration as owner of
this Debenture, become vested with all the powers and rights of the transferor.
Registration of any new owner shall take place upon presentation of this
Debenture to the Company at its offices at 5500 Interstate North Parkway, Suite
507, Atlanta, Georgia 30328-4662, together with a duly authenticated assignment.
In case of transfer by operation of law, the transferee agrees to notify the
Company of such transfer and of his address, and to submit appropriate evidence
regarding the transfer so that this Debenture may be registered in the name of
the transferee. This Debenture is transferable only on the books of the Company
by the holder hereof, in person or by attorney, on the surrender hereof, duly
endorsed. Communications sent to any registered owner shall be effective as
against all holders or transferees of the Debenture not registered at the time
of sending the communication.
3. Payment of principal and interest shall be made to the registered
owner of this Debenture upon presentation of this Debenture upon or after
maturity.
-5-
<PAGE>
4. The Company hereby waives presentment for payment, demand and
protest and notice of dishonor.
5. Neither this Debenture nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
6. All notices, requests, demands and other communications to the
Company hereunder shall be in writing and shall be deemed given if delivered
personally or mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows or to such other addresses as the
Company may designate in writing to the holder hereof:
International CompuTex, Inc.
Suite 507
5500 Interstate North Parkway
Atlanta, Georgia 30328-4662
Attention: Emil H. Dahan, Chief Executive Officer
7. This Debenture shall be construed and enforced in accordance with
the internal laws of the State of Georgia without regard to principles of
conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed in
its name by the undersigned.
Dated: January , 1997
---
INTERNATIONAL COMPUTEX, INC.
By:
---------------------------------
Emil H. Dahan
Chief Executive Officer
-6-
<PAGE>
EXHIBIT 6.1
INTERNATIONAL COMPUTEX, INC.
(a Georgia Corporation)
1995 RESTRICTED NON-QUALIFIED INCENTIVE STOCK OPTION PLAN
(STOCK PLAN #1)
DATED: AUGUST 1, 1995
1. Purpose. This Plan shall be known as the "1995 Restricted Non-
--------
qualified Incentive Stock Option Plan" (herein referred to as "the Plan") or
("this Plan"). The purpose of this Plan is to increase the value of outstanding
shares of International Computex, Inc. ("ICI"), by providing certain officers,
directors and key employees of ICI with additional incentive for them to promote
the success of the business. ICI, and its subsidiaries (if any) are
collectively referred to in this Plan as the "Corporation."
2. Administration of Plan. The Plan shall be administered by the
-----------------------
President and Secretary of ICI or any person or persons who are employees of ICI
and who have been appointed by such President and Secretary to administer the
Plan (the "Committee"). The Committee shall have the authority to interpret the
Plan. The Board of Directors of ICI may from time to time appoint members of
the Committee in substitution for or in addition to members previously appointed
and may fill vacancies, however caused, in the Committee. The Committee shall
be responsible for preparing proposed options to be granted hereunder and for
recommending to the Board persons who will receive them. The Board of
Directors, by majority vote, shall approve or disapprove proposed options and
recipients of such options.
3. Participation. Individual participants in the Plan shall be selected
--------------
by the Committee from the following persons who are engaged in activities which
further the objectives of the Plan:
(a) Any director of ICI, or subsidiary thereof, whether or not the
director is an employee of ICI;
(b) Any officer of ICI;
(c) Any employee of ICI.
An employee generally must have six (6) months employment with ICI, before the
employee can participate in the Plan, which employment requirement, however, may
be waived by the Board of Directors in any particular instance. In selecting
those persons to whom options will be granted and in determining the number and
shares to be offered, the Committee shall consider the position and
responsibility of such persons, the value of their services to the
<PAGE>
enterprise, and such other factors as the Committee deems pertinent.
4. Terms, Conditions, Form of Options and Exercise Price Per Share. Each
----------------------------------------------------------------
option shall be evidenced by a writing ("written option") in such form as the
Committee shall from time to time approve, which written option shall contain
the following:
4.1 Option Effective Date. Each option shall specify an effective date,
----------------------
and the time period within which it may be exercised.
4.2 Option Term. The option shall state the expiration date of the
------------
option. In addition, and in limitation of the above, the option period of any
option shall terminate immediately upon (i) the holder's termination of
employment of ICI by the holder or ICI for any reason or for no reason, or (ii)
the holder's resignation or removal from the Board of Directors of ICI, in the
case of directors who are not employees of ICI.
4.3 Death. In the event of the death of an officer, director or
------
employee who is the holder of an option granted hereunder, such options may be
exercised (but only as to those shares which the holder has a vested right to
purchase) by the legatee or legatees under his or her Will, or by his or her
personal representative, at any time within nine (9) months after the date of
death. The exercise date will be deemed to be the date of death. Provided,
however, that the shares shall be subject to immediate repurchase pursuant to
the terms of any buy-sell or shareholder agreement pursuant to which the
officer, director or employee was a party.
4.4 Non-assignability. The option shall state that it is non-assignable
------------------
by the option holder (this provision, however, is subject to Section 4.3
hereof).
4.5 Exercise Price. The exercise price of the option shall be the
---------------
price per share established by the Board of Directors for employee purchases
from time to time, which price shall be stated in said option.
4.6 Vesting and Exercise. The option may contain vesting provisions for
---------------------
the exercise thereof.
5. Exercise of Options. An option granted pursuant to this Plan shall be
--------------------
exercisable at any time within the option exercise period stated therein,
subject to the terms and conditions of such option. Moreover, the option holder
must give the Committee 30 days prior written notice that the option may be
exercised in order that the Committee can provide the option holder with
sufficient information about the Corporation to enable the option holder to make
-2-
<PAGE>
an informed decision about the investment. Exercise of any option shall be
made by the delivery, during the option period that such option is exercisable,
to the personnel department of ICI in person of (i) written notice from the
optionee stating that he or she is exercising such option, (ii) the payment of
the aggregate purchase price of all shares as to which such option is then
exercised, and (iii) execution of a letter agreement containing investment
representations, buy-sell provisions, information about ICI and other matters of
importance in the determination of ICI. Such aggregate purchase price shall be
paid at the time of exercise. Payment shall normally be made by cash or check;
provided, however, in its sole discretion, the Committee may approve of payment
in whole or in part a promissory note of the purchaser, which note shall contain
adequate stated interest and adequate security in the determination of ICI.
Upon the exercise of an option in compliance with the provisions of this
Paragraph 5, and upon the receipt by the Company of the payment for said shares,
ICI shall (i) deliver or cause to be delivered to the optionee so exercising his
option a certificate or certificates for the number of shares with respect to
which the option is so exercised and payment is so made, and (ii) register or
cause such shares to be registered (in the stockholder ledger) the name of the
exercising optionee.
6. Authorized Shares. Shares sold under options issued pursuant to this
------------------
Plan shall be issued to a participant in the form of common stock or any other
class of equity security of ICI which may be created and stated in the option.
The maximum number of Shares that may be issued under the Plan subsequent to the
effective date hereof shall not exceed the number of Shares held in treasury,
plus available unissued shares. The number of shares shall be increased during
the term of this Plan by an amount equal to the number of shares repurchased by
ICI and added to the treasury. Provided, however, that if an option shall
expire or terminate for any reason without having been exercised in full, then
the unpurchased shares covered thereby shall (unless the Plan shall have been
terminated) be added to the shares otherwise available for options which may be
granted in accordance with the terms of this Plan.
7. Effective Date and Term. This Plan shall have an effective date of
------------------------
, 1995, and shall continue for a period of five years from that
- ------------
date. All commitments to grant Shares for Purchase (but not the issuance of
stock pursuant to such commitments), must be made prior to the end of such five-
year period.
8. Restricted Stock. The Shares for purchase shall be restricted stock
-----------------
and shall bear a legend referring to the applicable securities laws restricting
transfer of the Shares for Purchase. The Shares for Purchase shall be, in the
discretion of the Board of Directors or the Committee at the time of their
-3-
<PAGE>
issuance, further restricted as to transferability as the Board may require and
the Board may require any such employee to sign an agreement containing
investment representations and buy-sell provisions as a condition to receiving
any shares. At a minimum, that agreement shall require the employee/offeree to
agree and consent to the following:
(a) No shares purchased hereunder shall be conveyed, transferred,
encumbered or otherwise disposed of (any such disposition being called a
"transfer") by the holder thereof unless all shares covered by this Plan owned
by the holder shall first have been offered to ICI.
(b) ICI shall have a mandatory obligation to redeem said shares in the
event of the termination of the holder's employment by ICI.
(c) The redemption price, if ICI repurchases the shares for any such
repurchase event, shall be the book value per share as determined from the
Corporation's most recent audited balance sheet in effect. The date of
determination of the redemption price shall be the date of the event
precipitating the sale, notwithstanding that a more recent audited balance sheet
may be available as of the actual payment date by the Corporation for the
shares.
(d) Shares that are subject to forfeiture shall not be transferable
until the forfeiture provisions lapse.
9. Adjustments. In the event of the declaration of any stock dividend, or
------------
in the event of any reorganization, merger, consolidation, acquisition,
separation, recapitalization, split-up, combination or exchange of shares of
stock or like adjustment, the number of Shares for purchase granted to any
optionee and the number and class of shares available pursuant to this Plan
shall be adjusted by appropriate modifications in this Plan. Any such
adjustment to the Plan shall be deemed automatically made without any required
action of the Board. In the event of any such stock dividend, reorganization,
merger, consolidation, acquisition, separation, recapitalization, split-up,
combination or exchange of shares or like adjustment, there shall be reserved
for issuance a sufficient number of shares of the Corporation's capital stock to
enable satisfaction in full of all outstanding commitments to issue such shares.
The determination of the Board shall be conclusive, however, in the event that
the operation of this Paragraph reasonably requires clarification in a
particular instance.
10. Termination; Amendments. The Board may at any time terminate this
------------------------
Plan or amend it in any respect with respect to awards not theretofore granted;
provided, however, that no such action shall adversely effect any right or
-4-
<PAGE>
obligation with respect to any Share for purchase or commitment theretofore
granted, except in the event there is secured the written consent of the holder
of the outstanding option proposed to be so altered or amended. Nothing
contained in this Paragraph 10, however, shall in any way condition or limit the
termination of an option, as hereinabove provided, when reference is made to
termination of employment of an optionee, or as provided in an option agreement.
11. Securities Laws Compliance. The options issued hereunder as well as
---------------------------
the shares pursuant to the options will not be registered under the Securities
Act of 1933 or qualified by the Commissioner of the respective state where the
employee/purchaser is domiciled, and will be issued in reliance upon exemptions
from the respective registration or qualification requirements of federal and
state law.
12. Indemnification of the Committee. In addition to such other rights
---------------------------------
or indemnification as they may have, the members of the Committee shall be
indemnified by the Corporation against all costs and expenses reasonably
incurred by them or any of them in connection with any action, suit or
proceeding to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any award
granted pursuant hereto and against all amounts paid by them in settlement
thereof (provided such settlement is approved by legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any action, suit
or proceeding; provided that upon institution of any such action, suit or
proceeding, the person desiring indemnification shall give the Corporation an
opportunity, at its own expense, to handle and defend the same.
13. Miscellaneous.
--------------
(a) Neither this Plan nor any action taken hereunder shall be
construed as giving any optionee any right (i) to be retained in the employ of
ICI (ii) to be affiliated with ICI, or (iii) as a shareholder until the option
is exercised.
(b) Written options pertaining to options granted pursuant hereto may
include conditions that are more (but not less) restrictive to the optionee than
the conditions contained herein and, in such event, the more restrictive
provisions shall apply.
(c) In the event of the liquidation or dissolution of ICI, other than
as an incident to a merger, reorganization or other adjustment referred to in
Paragraph 9, herein, any options granted pursuant to this Plan and remaining
unexercised shall be deemed canceled without regard to or limitation by any
other provision of this Plan.
-5-
<PAGE>
EXHIBIT 6.2
INTERNATIONAL COMPUTEX, INC.
1996 STOCK OPTION PLAN
----------------------
International CompuTex, Inc., a Georgia corporation (the "Company"), hereby
establishes the International CompuTex, Inc. 1996 Stock Option Plan (the
"Plan"), effective as of December 20, 1996.
1. Purpose. The purpose of the Plan is to attract and retain the best
-------
available talent and encourage the highest level of performance by executive
officers, key employees, directors, advisors and consultants, and to provide
them with incentives to put forth maximum efforts for the success of the
Company's business in order to serve the best interests of the Company. Options
granted under the Plan may be Incentive Stock Options or Nonqualified Stock
Options, as such terms are hereinafter defined.
2. Definitions. The following terms, when used in the Plan with initial
-----------
capital letters, will have the following meanings:
(a) "Act" means the Securities Exchange Act of 1934 as in effect from
time to time.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as in effect from
time to time.
(d) "Common Stock" means the common stock of the Company or any
security into which such common stock may be changed by reason of any
transaction or event of the type described in Section 8.
(e) "Date of Grant" means (i) with respect to Participants, the date
specified by the Stock Option Committee or the Special Stock Option
Committee, as applicable, on which a grant of Stock Options will become
effective (which date will not be earlier than the date on which such
committee takes action with respect thereto) and (ii) with respect to
Nonemployee Directors, the applicable date specified in Section 6.
(f) "Incentive Stock Option" means a Stock Option granted in accordance
with Section 422 of the Code.
<PAGE>
(g) "Market Value per Share" means (i) for Stock Options granted prior
to the Company's underwritten initial public offering of the Common Stock
("IPO"), the fair market value per share of the Common Stock on the Date of
Grant as determined by the Stock Option Committee or the Special Stock
Option Committee, as applicable, with respect to Stock Options granted to
Participants, and (ii) with respect to Stock Options granted after the IPO,
the average of the high and low closing sale prices as reported on any
national securities exchange or automated quotation system on which the
Common Stock is listed on the Date of Grant if such date is a trading day
and, if such date is not a trading day, on the immediately preceding date
which is a trading day.
(h) "Nonemployee Director" means a member of the Board who is not an
employee of the Company or any Subsidiary and who qualifies as a
"disinterested person" within the meaning of Rule 16b-3.
(i) "Nonqualified Stock Option" means a Stock Option other than an
Incentive Stock Option.
(j) "Option Price" means the purchase price per share payable on
exercise of a Stock Option.
(k) "Participant" means a person who is selected by the Stock Option
Committee or the Special Stock Option Committee, as applicable, to receive
Stock Options under Section 4 or Section 5 of the Plan and who is at that
time (i) an executive officer or other key employee of the Company or any
Subsidiary, (ii) an advisor or consultant to the Company or any Subsidiary,
or (iii) a member of the Board other than a Nonemployee Director.
(l) "Rule 16b-3" means Rule 16b-3 under Section 16 of the Act, as such
Rule is in effect from time to time.
(m) "Special Stock Option Committee" means (i) a committee that at all
times consists of at least two Nonemployee Directors and all of whose
members qualify as "outside directors" within the meaning of Section 162(m)
of the Code.
(n) "Stock Option" means the right to purchase shares of Common Stock
upon exercise of an option granted pursuant to Section 4, 5 or 6.
(o) "Stock Option Committee" means the Stock Option Committee appointed
by the Board. Prior to the appointment of such a committee, the Board shall
be deemed the Stock Option Committee.
(p) "Subsidiary" means any corporation, partnership, joint venture or
other entity in which the Company owns or controls, directly or indirectly,
2
<PAGE>
not less than 50% of the total combined voting power or equity interests
represented by all classes of stock issued by such corporation,
partnership, joint venture or other entity.
(q) "10-Percent Shareholder" means any person who at the time of a
Stock Option grant owns capital stock of the Company possessing more than
10% of the combined voting power of all classes of capital stock of the
Company.
3. Shares Available Under Plan. The shares of Common Stock which may be
---------------------------
issued under the Plan will not exceed in the aggregate 500,000 shares, less that
number of shares that may be issued pursuant to options outstanding under the
1995 Restricted Nonqualified Incentive Stock Option Plan of the Company (the
"1995 Plan"), subject to adjustment as provided in Section 8. Such shares may
be shares of original issuance or treasury shares or a combination of the
foregoing. Any shares of Common Stock that are subject to Stock Options, or
subject to options outstanding under the 1995 Plan, that are terminated,
unexercised, forfeited or surrendered or that expire for any reason will again
be available for issuance under the Plan.
4. Stock Options for Participants -- Nonexempt Grants. The Stock Option
--------------------------------------------------
Committee or the Special Stock Option Committee may from time to time authorize
grants to any Participant of options to purchase shares of Common Stock upon
such terms and conditions as such committee may determine in accordance with the
provisions set forth below. Grants made by the Stock Option Committee or the
Special Stock Option Committee pursuant to this Section 4 are not intended to
comply with or otherwise satisfy the requirements of Rule 16b-3.
(a) Each grant will specify the number of shares of Common Stock to
which it pertains.
(b) Each grant will specify the Option Price, which, in the case of an
Incentive Stock Option, will be not less than 100% of the Market Value per
Share on the Date of Grant or, in the case of an Incentive Stock Option
granted to a 10% Shareholder, not less than 110% of the Market Value per
Share on the Date of Grant.
(c) Each grant will specify whether the Stock Option is intended to be
an Incentive Stock Option or a Nonqualified Stock Option.
(d) Each grant may specify whether the Option Price will be payable (i)
in cash or by check acceptable to the Company, (ii) by the transfer to the
Company of shares of Common Stock owned by the Participant for at least six
months (or, with the consent of the Stock Option Committee, for less than
six months) having an aggregate fair market value per share at the date of
exercise equal to the aggregate Option Price, (iii) with the consent of the
Stock Option Committee, by authorizing the Company to withhold a number of
shares of Common Stock otherwise issuable to the Participant having an
aggregate fair market value per share on the date of exercise equal to the
aggregate Option Price or (iv) by a combination of such methods of payment;
provided, however, that the payments methods described in clauses (ii) and
(iii) will not be available at any time that the Company is prohibited from
3
<PAGE>
purchasing or acquiring such shares of Common Stock. In the absence of any
such specification, only the payment method in clause (i) shall be
permitted. Any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a bank or broker of some or all of the
shares to which such exercise relates.
(e) Successive grants may be made to the same Participant whether or
not any Stock Options previously granted to such Participant remain
unexercised.
(f) Each grant will specify the term of the Stock Options, which in the
case of an Incentive Stock Option granted to a 10% Shareholder shall not be
greater than five years and for all other Incentive Stock Options shall not
be greater than ten years.
(g) Each grant will specify the required period or periods (if any) of
continuous service by the Participant with the Company or any Subsidiary
and/or any other conditions to be satisfied before the Stock Options or
installments thereof will become exercisable, and any grant may provide, or
may be amended to provide for the earlier exercise of the Stock Options in
the event of a change in control of the Company (as defined in the stock
option agreement evidencing such grant or in any agreement referred to in
such stock option agreement) or in the event of any other similar
transaction or event.
(h) Each Stock Option granted pursuant to this Section 4 will be
subject to the transfer restrictions set forth in Section 7.
(i) Each grant will be evidenced by a stock option agreement executed
on behalf of the Company by the Chief Executive Officer (or another officer
designated by the Stock Option Committee) and delivered to the Participant
and containing such further terms and provisions, consistent with the Plan,
as Committee may approve.
5. Stock Options for Participants -- Exempt Grants. The Special Stock
-----------------------------------------------
Option Committee may from time to time authorize grants to any Participant of
options to purchase shares of Common Stock upon such terms and conditions as it
may determine in accordance with the provisions set forth below. Grants made by
the Special Stock Option Committee pursuant to this Section 5 are intended to
comply with and otherwise satisfy the requirements of Rule 16b-3. To the extent
that (i) any provision of the Plan applicable to a Stock Option granted pursuant
to this Section 5, or (ii) any act of the Board, Stock Option Committee or
Special Stock Option Committee would cause such Stock Option to fail to satisfy
or comply with any requirements of Rule 16b-3, such provision or act will be
deemed null and void for purposes of such Stock Option.
(a) Each grant will specify the number of shares of Common Stock to
which it pertains.
4
<PAGE>
(b) Each grant will specify the Option Price, which, in the case of an
Incentive Stock Option, will be not less than 100% of the Market Value per
Share on the Date of Grant or, in the case of an Incentive Stock Option
granted to a 10% Shareholder, not less than 110% of the Market Value per
Share on the Date of Grant.
(c) Each grant will specify whether the Stock Option is intended to be
an Incentive Stock Option or a Nonqualified Stock Option.
(d) Each grant will specify whether the Option Price will be payable
(i) in cash or by check acceptable to the Company, (ii) by the transfer to
the Company of shares of Common Stock owned by the Participant for at least
six months (or, with the consent of the Special Stock Option Committee, for
less than six months) having an aggregate fair market value per share at
the date of exercise equal to the aggregate Option Price, (iii) with the
consent of the Special Stock Option Committee, by authorizing the Company
to withhold a number of shares of Common Stock otherwise issuable to the
Participant having an aggregate fair market value per share on the date of
exercise equal to the aggregate Option Price or (iv) by a combination of
such methods of payment; provided, however, that the payment methods
described in clauses (ii) and (iii) will not be available at any time that
the Company is prohibited from purchasing or acquiring such shares of
Common Stock. In the absence of any such specification, only the payment
method in clause (i) shall be permitted. Any grant may provide for deferred
payment of the Option Price from the proceeds of sale through a bank or
broker of some or all of the shares to which such exercise relates.
(e) Successive grants may be made to the same Participant whether or
not any Stock Options previously granted to such Participant remain
unexercised.
(f) Each grant will specify the term of the Stock Options, which in the
case of an Incentive Stock Option granted to a 10% Shareholder shall not be
greater than five years and for all other Incentive Stock Options shall not
be greater than ten years.
(g) Each grant will specify the required period or periods (if any) of
continuous service by the Participant with the Company or any Subsidiary
and/or any other conditions to be satisfied before the stock Options or
installments thereof will become exercisable, and any grant may provide, or
may be amended to provide for the earlier exercise of the Stock Options in
the event of a change in control of the Company (as defined in the stock
option agreement evidencing such grant or in any agreement referred to in
such stock option agreement) or in the event of any other similar
transaction or event.
(h) Each Stock Option granted pursuant to this Section 5 will be
subject to the transfer restrictions set forth in Section 7.
5
<PAGE>
(i) Each grant will be evidenced by a stock option agreement executed
on behalf of the Company by the Chief Executive Officer (or another officer
designated by the Special Stock Option Committee) and delivered to the
Participant and containing such further terms and provisions, consistent
with the Plan, as the Special Stock Option Committee may approve.
6. Stock Options for Nonemployee Directors. This Section 6 shall become
---------------------------------------
activated and shall be effective immediately following the close of the IPO.
Thereafter, each Nonemployee Director in office at that time will be granted an
option as of the first business day following the close of the IPO, and each
Nonemployee Director thereafter newly elected or appointed to the Board will be
granted an option on his or her initial election or other appointment to the
Board, to purchase 3000 shares of Common Stock. Each Nonemployee Director will
also be granted an additional option to purchase 1000 shares of Common Stock
every year on the anniversary date of his or her initial option grant under
this Section 6, beginning on the first anniversary of such initial election or
appointment, provided that such individual has served continually as a
Nonemployee Director through the close of business on such anniversary date.
All Stock Options granted pursuant to this Section 6 will contain the terms and
conditions set forth below. Stock Options granted pursuant to this Section 6
are intended to comply with and otherwise satisfy the requirements of Rule 16b-
3. To the extent that (i) any provision of the Plan applicable to a Stock Option
granted pursuant to this Section 6, or (ii) any act of the Board, Stock Option
Committee or Special Stock Option Committee would cause such Stock Option to
fail to satisfy or comply with any requirements of Rule 16b-3, such provision or
act will be deemed null and void for purposes of such Stock Option.
(a) Each grant will specify the number of shares of Common Stock to
which it pertains.
(b) Each grant will specify the Option Price, which will not be less
than 100% of the Market Value per Share on the Date of Grant.
(c) Each grant will specify whether the Option Price will be payable
(i) in cash or by check acceptable to the Company, (ii) by the transfer to
the Company of shares of Common Stock owned by the Participant for at least
six months (or, with the consent of the Special Stock Option Committee, for
less than six months) having an aggregate fair market value per share at
the date of exercise equal to the aggregate Option Price, (iii) with the
consent of the Special Stock Option Committee, by authorizing the Company
to withhold a number of shares of Common Stock otherwise issuable to the
Participant having an aggregate fair market value per share on the date of
exercise equal to the aggregate Option Price or (iv) by a combination of
such methods of payment; provided, however, that the payment methods
described in clauses (ii) and (iii) will not be available at any time that
the Company is prohibited from purchasing or acquiring such shares of
Common Stock. In the absence of any such specification, only the payment
method in clause (i) shall be permitted. Any grant may provide for deferred
6
<PAGE>
payment of the Option Price from the proceeds of sale through a bank or
broker of some or all of the shares to which such exercise relates.
(d) Stock Options for Nonemployee Directors will become exercisable in
cumulative annual installments of one-fourth of the shares subject to the
Stock Options, beginning one year after the Date of Grant, and will expire
on the fifth anniversary of the Date of Grant. Such Stock Options will
also provide for immediate exercise in the event of a Change in Control, as
hereinafter defined.
(e) Each Stock Option granted pursuant to this Section 6 will be
subject to the transfer restrictions set forth in Section 7.
(f) Each grant will be evidenced by a stock option agreement executed
on behalf of the Company by the Chief Executive Officer (or another officer
designated by the Special Stock Option Committee) and delivered to the
Participant and containing such further terms and provisions, consistent
with the Plan, as the Special Stock Option Committee may approve.
For purposes of this Section 6, a "Change in Control" means the
occurrence, prior to the expiration of a Stock Option granted to a Nonemployee
Director, of any of the following events:
(i) the Company is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than two-thirds of the combined voting
power of the then-outstanding securities entitled to vote generally in the
election of directors ("Voting Stock") of such corporation or person
immediately after such transaction are held in the aggregate by the holders
of Voting Stock of the Company immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially all
of its assets to another corporation or other legal person, and as a result
of such sale or transfer less than two-thirds of the combined voting power
of the then-outstanding Voting Stock of such corporation or person
immediately after such sale or transfer is held in the aggregate by the
holders of Voting Stock of the Company immediately prior to such sale or
transfer;
(iii) there is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Act, disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14 (d)(2) of the Act) has become the beneficial owner
(as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Act) of securities
representing 20% or more of the combined voting power of the then-
outstanding Voting Stock of the Company;
7
<PAGE>
(iv) the Company files a report or proxy statement with the Securities
and Exchange Commission pursuant to the Act disclosing in response to Form
8-K or Schedule 14A (or any successor schedule, form or report or item
therein) that a change in control of the Company has occurred or will occur
in the future pursuant to any then-existing contract or transaction; or
(v) if, during any period of two consecutive years, individuals who at
the beginning of any such period constitute the directors of the Company
cease for any reason to constitute at least a majority thereof; provided,
however, that for purposes of this clause (v) each director who is first
elected, or first nominated for election by the Company's stockholders, by
a vote of at least two-thirds of the directors of the Company (or a
committee thereof) then still in office who were directors of the Company
at the beginning of any such period will be deemed to have been a director
of the Company at the beginning of such period.
Notwithstanding the foregoing provisions of clauses (iii) or (iv) above, unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" will not be deemed to have occurred for purposes of clause (iii) or
clause (iv) above solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) under the Act disclosing beneficial ownership by it of shares of
voting Stock of the Company, whether in excess of 20% or otherwise, or because
the Company reports that a change in control of the Company has occurred or will
occur in the future by reason of such beneficial ownership or any increase or
decrease thereof.
7. Transferability. Except as otherwise expressly provided in the
---------------
agreement evidencing a Stock Option granted pursuant to Section 4 or Section 5,
or in any amendment to such agreement, no Stock Option will be transferable by a
Participant or Nonemployee Director other than (i) by will or the laws of
descent and distribution or (ii) pursuant to a qualified domestic relations
order, as that term is defined under the Code or the Employee Retirement Income
Act of 1974, as amended.
8. Adjustments. The Stock Option Committee, with respect to Stock Options
-----------
granted under Section 5, and the Special Stock Option Committee, with respect to
all other Stock Options, may make or provide for such adjustments in the maximum
number of shares specified in Section 3, in the number of shares of Common Stock
covered by outstanding Stock Options granted hereunder, in the Option Price
applicable to any such Stock Options, and/or in the kind of shares covered
thereby (including shares of another issuer), as such Committee in its sole
discretion, exercised in good faith, may determine is equitably required to
prevent dilution or enlargement of the rights of Participants and Nonemployee
Directors that otherwise would result from any stock dividend, stock split,
8
<PAGE>
combination of shares, recapitalization or other change in the capital structure
of the company, merger, consolidation, spin-off, reorganization, partial or
complete liquidation, issuance of rights or warrants to purchase securities or
any other corporate transaction or event having an effect similar to any of the
foregoing. Any fractional shares resulting from the foregoing adjustments will
be eliminated.
9. Withholding of Taxes. To the extent that the Company is required to
--------------------
withhold federal, state, local or foreign taxes in connection with any benefit
realized by an optionee under the Plan, or is requested by any optionee to
withhold additional amounts with respect to such taxes, and the amounts
available to the Company for such withholding are insufficient, it will be a
condition to the realization of such benefit that the optionee make arrangements
satisfactory to the Company for payment of the balance of such taxes required or
requested to be withheld. In addition, if permitted by the Stock Option
Committee, with respect to Stock Options granted under Section 4, or by the
Special Stock Option Committee, with respect to all other Stock Options, an
optionee may elect to have any withholding obligation of the Company satisfied
with shares of Common Stock that would otherwise be transferred to the optionee
on exercise of the Stock Option.
10. Administration of the Plan.
--------------------------
(a) The Plan will be administered by the Stock Option Committee with
respect to Stock Options granted under Section 4 and by the Special Stock
Option Committee with respect to all other Stock Options. For purposes of
any action taken by the Stock Option Committee or the Special Stock Option
Committee, whichever is applicable, a majority of the members will
constitute a quorum, and the action of the members present at any meeting
at which a quorum is present, or acts unanimously approved in writing, will
be the acts of the Stock Option Committee or the Special Stock Option
Committee.
(b) Subject to the allocation of administrative responsibilities set
forth in Section 10(a), the Stock Option Committee and the Special Stock
Option Committee have the full authority and discretion to administer the
Plan and to take any action that is necessary or advisable in connection
with the administration of the Plan, including without limitation the
authority and discretion to interpret and construe any provision of the
Plan or of any agreement, notification or document evidencing the grant of
a Stock Option. The interpretation and construction by the Stock Option
Committee or the Special Stock Option Committee, as applicable, of any such
provision and any determination by the Stock Option Committee or the
Special Stock Option Committee pursuant to any provision of the Plan or of
any such agreement, notification or document will be final and conclusive.
No member of the Stock Option Committee or the Special Stock Option
Committee will be liable for any such action or determination made in good
faith.
(c) Notwithstanding the provisions of Section 10(b), if any authority,
discretion or responsibility granted to the Special Stock Option Committee
under the Plan would, if exercised or discharged by the Special Stock
Option Committee, cause the provisions of Section 5 or 6 or any Stock
9
<PAGE>
Option granted under Section 5 or 6 to fail to satisfy the requirements of
Rule 16b-3, such authority, discretion or responsibility may be exercised
by the Board to the same extent and with the same effect as if exercised by
the Special Stock Option Committee, provided such act of the Board will not
cause the provisions of Section 5 or 6 or any Stock Option granted under
Section 5 or 6 to fail to satisfy the requirements of Rule 16b-3 or cause
any member of the Special Stock Option Committee to cease to be a
disinterested administrator for purposes of Rule 16b-3.
11. Amendments, Etc.
---------------
(a) The Stock Option Committee or the Special Stock Option Committee,
as applicable, may, without the consent of the optionee, amend any
agreement evidencing a Stock Option granted under the Plan, or otherwise
take action, to accelerate the time or times at which the Stock Option may
be exercised, to extend the expiration date of the Stock Option, to waive
any other condition or restriction applicable to such Stock Option or to
the exercise of such Stock Option, to reduce the exercise price of such
Stock Option, to amend the definition of a change in control of the Company
(if such a definition is contained in such agreement) to expand the events
that would result in a change in control of the Company and to add a change
in control provision to such agreement (if such provision is not contained
in such agreement) and may amend any such agreement in any other respect
with the consent of the optionee. Notwithstanding the foregoing, no
amendment will be made to an agreement evidencing a Stock Option granted to
a Nonemployee Director pursuant to Section 6 if such amendment would cause
such Nonemployee Director to cease to qualify as a "disinterested person"
within the meaning of Rule 16b-3.
(b) The Plan may be amended from time to time by the Stock Option
Committee or the Board but may not be amended without further approval by
the shareholders of the Company if such Plan amendment would result in any
grant or other transaction with respect to Stock Options under Section 5 or
6 no longer satisfying the requirements of Rule 16b-3. Notwithstanding the
foregoing, the provisions of Section 6 that designate Nonemployee Directors
eligible to receive Stock Options and specify the amount, Option Price and
timing of Stock Option grants may be amended only by the Board and may be
amended no more than once every six months except to comply with changes in
the Code, the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations thereunder. In the event any law, or any rule
or regulation issued or promulgated by the Internal Revenue Service, the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc., any stock exchange upon which the Common Stock is listed for
trading, or any other governmental or quasi-governmental agency having
jurisdiction over the Company, the Common Stock or the Plan, requires the
Plan to be amended, or in the event Rule 16b-3 is amended or supplemented
(e.g., by addition of alternative rules) or any of the rules under Section
-----
16 of the Act are amended or supplemented, in either event to permit the
10
<PAGE>
Company to remove or lessen any restrictions on or with respect to Stock
Options, the Stock Option Committee and the Board each reserves the right
to amend the Plan to the extent of any such requirement, amendment or
supplement, and all Stock Options then outstanding will be subject to such
amendment.
(c) The Plan may be terminated at any time by action of the Board. The
termination of the Plan will not adversely affect the terms of any
outstanding Stock Option.
(d) The Plan will not confer upon any Participant or Nonemployee
Director any right with respect to continuance of employment or other
service with the Company or any Subsidiary, nor will it interfere in any
way with any right the Company or any Subsidiary would otherwise have to
terminate a Participant's employment or other service at any time.
INTERNATIONAL COMPUTEX, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
11
<PAGE>
EXHIBIT 6.3
INTERNATIONAL COMPUTEX, INC.
1995 RESTRICTED NON-QUALIFIED INCENTIVE STOCK OPTION PLAN
---------------------------------------------------------
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (the "Agreement") is entered into by and
between International CompuTex, Inc., a Georgia corporation (the "Company"), and
(the "Participant"). The Company and the
- -----------------------------
Participant agree as follows:
1. Grant of Stock Option.
---------------------
(a) Pursuant to a duly adopted resolution of the Stock Option Committee
on , 199 (the "Date of Grant"), the Company has granted to the
- --------------- --
Participant under the Company's 1995 Restricted Non-qualified Incentive Stock
Option Plan (the "1995 Plan"), an option (the "Stock Option") to purchase from
the Company, on a split-adjusted basis, a total of shares of
----------------
the Company's common stock ("Common Stock"), at an exercise price per share
equal to $0.543 (the "Option Price"). Notwithstanding that the Stock Option was
granted under the 1995 Plan, the Stock Option and this Agreement shall be
governed by the terms of the Company's 1996 Stock Option Plan (the "Plan"). Any
terms used in this Agreement having initial capital letters but not defined
herein shall have the same meanings as in the Plan, the provisions of which are
incorporated into this Agreement by reference. The Participant acknowledges
receipt of a copy of the Plan.
(b) The Stock Option is intended to be a Nonqualified Stock Option.
2. Time of Exercise. The Stock Option may be exercised, in whole or in
----------------
part, according to the following schedule:
Percentage
Exercisable Periods
----------- -------
0% Immediately
25% On the first anniversary of the Date of Grant
50% On the second anniversary of the Date of Grant
75% On the third anniversary of the Date of Grant
100% On the fourth anniversary of the Date of Grant
<PAGE>
The unexercised portion of the Stock Option from one annual period may be
carried over to a subsequent annual period or periods, and the right of the
Participant to exercise the Stock Option as to such unexercised portion will
continue for the entire term described in Section 3 below. In no event may the
Stock Option be exercised in whole or in part, however, after the expiration of
such term.
3. Term. The Stock Option will expire and all rights under this Agreement
----
will terminate on the tenth anniversary of the Date of Grant.
4. Restriction on Exercise. The Stock Option:
-----------------------
(a) may be exercised only with respect to full shares and no fractional
shares of Common Stock will be issued upon exercise of the Stock Option;
and
(b) may be exercised in whole or in part, but no certificates
representing shares subject to the Stock Option will be delivered if any
requisite registration with, clearance by, or consent, approval or
authorization of, any governmental authority of any kind having
jurisdiction over the exercise of the Stock Option, or issuance of
securities upon such exercise, has not been obtained.
5. Manner of Exercise. The Stock Option may be exercised by written
------------------
notice to the Company of the number of shares being purchased and the Option
Price to be paid, accompanied by full payment of the Option Price (a) in cash or
by check acceptable to the Company, (b) by the transfer to the Company of shares
of Common Stock owned by the Participant for at least six months and having an
aggregate fair market value per share at the date of exercise equal to the
aggregate Option Price, (c) with the consent of the Stock Option Committee, by
authorizing the Company to withhold a number of shares of Common Stock otherwise
issuable to the Participant having an aggregate fair market value per share on
the date of exercise equal to the aggregate Option Price or (d) by a combination
of any of the foregoing (provided that the payment methods described in clauses
(b) and (c) will not be available at any time that the Company is prohibited
from purchasing or acquiring such shares of Common Stock); provided that payment
of the Option Price may also be made by deferred payment for the proceeds of
sale through a bank or broker of some or all of the shares to which the exercise
relates. Any federal, state or local taxes required to be paid or withheld at
the time of exercise will be paid or withheld in full prior to any delivery of
shares upon exercise.
6. Non-Transferability of Stock Options. This Stock Option is not
------------------------------------
assignable or transferable by the Participant other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order as
defined by the Internal Revenue Code of 1986, as amended, or the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder.
2
<PAGE>
7. Rights as Stockholder. Neither the Participant nor any of the
---------------------
Participant's beneficiaries will be deemed to have any rights as a stockholder
with respect to any shares covered by the Stock Option until the issuance of a
certificate to the Participant or such beneficiaries for such shares.
8. Adjustments. The number of shares of Common Stock covered by the Stock
-----------
Option evidenced by this Agreement, and the Option Price thereof, will be
subject to adjustment as provided in the Plan. No adjustment will be made for
dividends or other rights for which the record date is prior to the issuance of
the certificate or certificates representing the shares issued pursuant to the
Stock Option.
9. Rights in Event of Death or Termination of Employment as a Result of
--------------------------------------------------------------------
Disability of Participant. If the Participant dies or terminates employment as
- -------------------------
a result of disability prior to termination of the Participant's rights to
exercise the Stock Option, any unexercised portion of the Stock Option will
continue to vest in accordance with Section 2 and will be exercisable, subject
to all conditions of the Plan and this Agreement, for a period of one year from
the date of the Participant's death or termination of employment as a result of
disability. In the event of the death of the Participant, the Stock Option may
be exercised by the Participant's estate or a person who acquired the right to
exercise the Stock Option by bequest or inheritance or by reason of the death of
the Participant. For purposes of this Section, the Board or a committee of the
Board with authority to address this issue, will have sole discretion to
determine whether termination of a Participant's employment has occurred "as a
result of disability." In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
10. Rights in Event of Termination of Employment Other Than as a Result of
----------------------------------------------------------------------
Death or Disability.
- -------------------
(a) With respect to a Participant who is an employee of the Company or
any Subsidiary on the Date of Grant, if the Participant ceases to be
employed by the Company and all Subsidiaries, other than as a result of
death or disability, prior to the termination of the Participant's rights
to exercise the Stock Option, the Stock Option will cease to vest in
accordance with Section 2 on the date following the last day on which the
Participant is entitled to receive any compensation, including but not
limited to severance or termination payments, from the Company. To the
extent the Stock Option was exercisable on such date, and only to such
extent, the Stock Option will be exercisable through the 90th day following
such date. In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
(b) Notwithstanding the terms of Sections 9 and 10(a), in the event
that the employment of Participant is terminated, for any reason
whatsoever, prior to the closing date of the initial public offering of the
Common Stock, the terms of this paragraph (b) shall apply; otherwise the
terms of Sections 9 or 10(a) shall apply, as appropriate. Upon termination
of employment of Participant at a time when this Section 10(b) applies, and
3
<PAGE>
if such termination of employment occurs prior to the fourth anniversary of
the Date of Grant, then any Common Stock acquired by Participant or his
estate pursuant to exercise of the Stock Option, regardless of the
ownership of such Common Stock at that time, shall be automatically
forfeited to the Company. In such event, the Company shall return to
Participant an amount equal to the Option Price paid for such shares of
Common Stock so forfeited, plus an amount equal to 2% of the Option Price
per annum, calculated from the date or dates on which the Option Price was
paid. The certificate(s) representing the Common Stock issued upon exercise
of the Stock Option while this Section 10(b) is in effect shall bear a
legend referring to this provision. Following the first to occur of the
closing of the initial public offering of the Common Stock or the fourth
anniversary of the Date of Grant, the Company shall, upon request of the
Participant and delivery of any such certificate, cause such certificate to
be cancelled and a replacement certificate issued without such restrictive
legend.
11. Exercisability upon Change in Control.
-------------------------------------
(a) Notwithstanding the vesting schedule in Section 2, in the event of
a Change in Control, as hereinafter defined, or a threatened Change in
Control, any unexercised portion of the Stock Option shall become
immediately exercisable. Whether a Change in Control is threatened will be
determined solely by the Board. Nothing herein shall prevent the assumption
of the Stock Option or substitution therefor of a new stock option by the
surviving corporation in a merger if agreed to by the Participant.
(b) For purposes of Section 11(a), a "Change in Control" means the
occurrence, prior to the expiration of the Stock Option, of any of the
following events:
(i) the Company is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than two-thirds of the
combined voting power of the then-outstanding securities entitled to
vote generally in the election of directors ("Voting Stock") of such
corporation or person immediately after such transaction is held in
the aggregate by the holders of Voting Stock of the Company
immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other legal person, and as
a result of such sale or transfer less than two-thirds of the combined
voting power of the then-outstanding Voting Stock of such corporation
or person immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company immediately
prior to such sale or transfer;
(iii) there is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant
to the Act, disclosing that any person (as the term "person" is used
4
<PAGE>
in Section 13(d)(3) or Section 14(d)(2) of the Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation promulgated under the Act)
of securities representing 20% or more of the combined voting power of
the then-outstanding Voting Stock of the Company;
(iv) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of the Company has
occurred or will occur in the future pursuant to any then-existing
contract or transaction; or
(v) if, during any period of two consecutive years, individuals who
at the beginning of any such period constitute the directors of the
Company cease for any reason to constitute at least a majority
thereof; provided, however, that for purposes of this clause (v) each
director who is first elected, or first nominated for election by the
Company's stockholders, by a vote of at least two-thirds of the
directors of the Company (or a committee thereof) then still in office
who were directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the beginning
of such period.
Notwithstanding the foregoing provisions of clauses (iii) or (iv) above, unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" will not be deemed to have occurred for purposes of clause (iii) or
clause (iv) above solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) under the Act disclosing beneficial ownership by it of shares of
voting Stock of the Company, whether in excess of 20% or otherwise, or because
the Company reports that a change in control of the Company has occurred or will
occur in the future by reason of such beneficial ownership or any increase or
decrease thereof.
12. Stock Purchased for Investment. Unless the shares are covered by a
------------------------------
then current and effective registration statement under the Securities Act of
1933, as then in effect, the Participant, by accepting the Stock Option,
represents, warrants, covenants and agrees on behalf of the Participant and the
Participant's transferees that all shares of Common Stock purchased upon the
exercise of the Stock Option will be acquired for investment and not for resale
or distribution, and that upon each exercise of any portion of the Stock Option,
the person entitled to exercise the same will furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
the shares are being acquired in good faith for investment and not for resale or
distribution. The Participant agrees to furnish or execute such documents as
the Company in its discretion deems necessary to (a) evidence such exercise of
the Stock Option, (b) determine whether a registration is then required under
5
<PAGE>
the Securities Act of 1933, as then in effect, and (c) comply with or satisfy
the requirements of the Securities Act of 1933, or any other federal, state or
local law, as then in effect.
13. Notices. Each notice relating to this Agreement will be in writing
-------
and delivered in person or by certified mail to the proper address. Each notice
will be deemed to have been given on the date it is received. Each notice to
the Company will be addressed to it at its principal office, now 5500 Interstate
North Parkway, Suite 507, Atlanta, Georgia 30328-4662, attention of the
Secretary. Each notice to the Participant or other person or persons then
entitled to exercise the Stock Option will be addressed to the Participant or
such other person or persons at the Participant's address specified below.
Anyone to whom a notice may be given under this Agreement may designate a new
address by notice to that effect.
14. Employment. This Agreement does not confer upon the Participant any
----------
right to be employed or to continue in the employ of the Company or any
Subsidiary, nor does it in any way interfere with the right of the Company or
any Subsidiary to terminate the employment of the Participant at any time.
15. No Obligation to Exercise Stock Option. This Agreement does not
--------------------------------------
impose any obligation upon the Participant to exercise the Stock Option.
16. Amendments. The Board or any stock option committee established by
----------
the Board under the Plan may, without the consent of the Participant, amend this
Agreement, or otherwise take action, to accelerate the time or times at which
the Stock Option may be exercised, to extend the term described in Section 3, to
waive any other condition or restriction applicable to the Stock Option or to
the Exercise of the Stock Option, to reduce the Option Price and to make any
other change permitted to be made under the Plan without the consent of the
Participant; and may amend the Agreement in any other respect with the consent
of the Participant.
17. Governing Law. This Agreement is intended to be performed in the
-------------
State of Georgia and will be construed and enforced in accordance with and
governed by the laws of such State.
18. Entire Agreement. This Agreement, together with the Plan, constitutes
----------------
the entire agreement of the Company and the Participant and supersedes all prior
contracts, agreements, arrangements, communications, discussions and
representations, whether oral or written, with respect to the subject matter
hereof. Without limiting the foregoing, this Agreement supersedes and replaces
the stock option agreement originally executed between the Company and
Participant, relating to the grant of the Stock Option.
19. Restrictions on Resale of Common Stock. Until the earlier of (a) the
-------------------------------------- -------
fourth anniversary of the Date of Grant, or (b) one year after the closing date
of the initial public offering of the Common Stock, neither the Participant nor
his heirs, executors or personal representatives may sell, offer to sell or
otherwise transfer any shares of Common Stock acquired upon exercise of the
Stock Option, except in the event of a Change in Control, as defined in Section
6
<PAGE>
11(b). Any certificate representing such Common Stock issued prior to the
expiration of the periods in (a) and (b) above shall bear a legend referring to
the existence of the restriction expressed in this Section 19. Following the
expiration of either of such periods, the Company shall, upon request of the
Participant and delivery of any such certificate, cause such certificate to be
cancelled and a replacement certificate issued without such restrictive legend.
IN WITNESS WHEREOF, the Company and the Participant have executed this
Agreement as of the 31st day of December, 1996.
INTERNATIONAL COMPUTEX, INC.
By:
---------------------------------------
Title:
------------------------------------
PARTICIPANT:
------------------------------------------
Signature
------------------------------------------
Print Name
Social Security Number:
-------------------
Address for Notice:
------------------------------------------
------------------------------------------
7
<PAGE>
INTERNATIONAL COMPUTEX, INC.
1995 RESTRICTED NON-QUALIFIED INCENTIVE STOCK OPTION PLAN
---------------------------------------------------------
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (the "Agreement") is entered into by and
between International CompuTex, Inc., a Georgia corporation (the "Company"), and
(the "Participant"). The Company and the Participant agree as
- ----------------
follows:
1. Grant of Stock Option.
---------------------
(a) Pursuant to a duly adopted resolution of the Stock Option Committee
on , 199 (the "Date of Grant"), the Company has granted to the
--------------- --
Participant under the Company's 1995 Restricted Non-qualified Incentive Stock
Option Plan (the "1995 Plan"), an option (the "Stock Option") to purchase from
the Company, on a split-adjusted basis, a total of shares of
----------------
the Company's common stock ("Common Stock"), at an exercise price per share
equal to $0.543 (the "Option Price"). Notwithstanding that the Stock Option was
granted under the 1995 Plan, the Stock Option and this Agreement shall be
governed by the terms of the Company's 1996 Stock Option Plan (the "Plan"). Any
terms used in this Agreement having initial capital letters but not defined
herein shall have the same meanings as in the Plan, the provisions of which are
incorporated into this Agreement by reference. The Participant acknowledges
receipt of a copy of the Plan.
(b) The Stock Option is intended to be a Nonqualified Stock Option.
2. Time of Exercise. The Stock Option may be exercised, in whole or in
----------------
part, according to the following schedule:
Percentage
Exercisable Periods
----------- -------
0% Immediately
25% On the first anniversary of the Date of Grant
50% On the second anniversary of the Date of Grant
75% On the third anniversary of the Date of Grant
100% On the fourth anniversary of the Date of Grant
<PAGE>
The unexercised portion of the Stock Option from one annual period may be
carried over to a subsequent annual period or periods, and the right of the
Participant to exercise the Stock Option as to such unexercised portion will
continue for the entire term described in Section 3 below. In no event may the
Stock Option be exercised in whole or in part, however, after the expiration of
such term.
3. Term. The Stock Option will expire and all rights under this Agreement
----
will terminate on the tenth anniversary of the Date of Grant.
4. Restriction on Exercise. The Stock Option:
-----------------------
(a) may be exercised only with respect to full shares and no fractional
shares of Common Stock will be issued upon exercise of the Stock Option;
and
(b) may be exercised in whole or in part, but no certificates
representing shares subject to the Stock Option will be delivered if any
requisite registration with, clearance by, or consent, approval or
authorization of, any governmental authority of any kind having
jurisdiction over the exercise of the Stock Option, or issuance of
securities upon such exercise, has not been obtained.
5. Manner of Exercise. The Stock Option may be exercised by written
------------------
notice to the Company of the number of shares being purchased and the Option
Price to be paid, accompanied by full payment of the Option Price (a) in cash or
by check acceptable to the Company, (b) by the transfer to the Company of shares
of Common Stock owned by the Participant for at least six months and having an
aggregate fair market value per share at the date of exercise equal to the
aggregate Option Price, (c) with the consent of the Stock Option Committee, by
authorizing the Company to withhold a number of shares of Common Stock otherwise
issuable to the Participant having an aggregate fair market value per share on
the date of exercise equal to the aggregate Option Price or (d) by a combination
of any of the foregoing (provided that the payment methods described in clauses
(b) and (c) will not be available at any time that the Company is prohibited
from purchasing or acquiring such shares of Common Stock); provided that payment
of the Option Price may also be made by deferred payment for the proceeds of
sale through a bank or broker of some or all of the shares to which the exercise
relates. Any federal, state or local taxes required to be paid or withheld at
the time of exercise will be paid or withheld in full prior to any delivery of
shares upon exercise.
6. Non-Transferability of Stock Options. This Stock Option is not
------------------------------------
assignable or transferable by the Participant other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order as
defined by the Internal Revenue Code of 1986, as amended, or the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder.
2
<PAGE>
7. Rights as Stockholder. Neither the Participant nor any of the
---------------------
Participant's beneficiaries will be deemed to have any rights as a stockholder
with respect to any shares covered by the Stock Option until the issuance of a
certificate to the Participant or such beneficiaries for such shares.
8. Adjustments. The number of shares of Common Stock covered by the Stock
-----------
Option evidenced by this Agreement, and the Option Price thereof, will be
subject to adjustment as provided in the Plan. No adjustment will be made for
dividends or other rights for which the record date is prior to the issuance of
the certificate or certificates representing the shares issued pursuant to the
Stock Option.
9. Rights in Event of Death or Termination of Employment as a Result of
--------------------------------------------------------------------
Disability of Participant. If the Participant dies or terminates employment as
- -------------------------
a result of disability prior to termination of the Participant's rights to
exercise the Stock Option, any unexercised portion of the Stock Option will
continue to vest in accordance with Section 2 and will be exercisable, subject
to all conditions of the Plan and this Agreement, for a period of one year from
the date of the Participant's death or termination of employment as a result of
disability. In the event of the death of the Participant, the Stock Option may
be exercised by the Participant's estate or a person who acquired the right to
exercise the Stock Option by bequest or inheritance or by reason of the death of
the Participant. For purposes of this Section, the Board or a committee of the
Board with authority to address this issue, will have sole discretion to
determine whether termination of a Participant's employment has occurred "as a
result of disability." In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
10. Rights in Event of Termination of Employment Other Than as a Result of
----------------------------------------------------------------------
Death or Disability.
- -------------------
(a) With respect to a Participant who is an employee of the Company or
any Subsidiary on the Date of Grant, if the Participant ceases to be
employed by the Company and all Subsidiaries, other than as a result of
death or disability, prior to the termination of the Participant's rights
to exercise the Stock Option, the Stock Option will cease to vest in
accordance with Section 2 on the date following the last day on which the
Participant is entitled to receive any compensation, including but not
limited to severance or termination payments, from the Company. To the
extent the Stock Option was exercisable on such date, and only to such
extent, the Stock Option will be exercisable through the 90th day following
such date. In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
(b) Notwithstanding the terms of Sections 9 and 10(a), in the event
that the employment of Participant is terminated, for any reason
whatsoever, prior to the closing date of the initial public offering of the
Common Stock, the terms of this paragraph (b) shall apply; otherwise the
terms of Sections 9 or 10(a) shall apply, as appropriate. Upon termination
of employment of Participant at a time when this Section 10(b) applies, and
3
<PAGE>
if such termination of employment occurs prior to the fourth anniversary of
the Date of Grant, then any Common Stock acquired by Participant or his
estate pursuant to exercise of the Stock Option, regardless of the
ownership of such Common Stock at that time, shall be automatically
forfeited to the Company. In such event, the Company shall return to
Participant an amount equal to the Option Price paid for such shares of
Common Stock so forfeited, plus an amount equal to 2% of the Option Price
per annum, calculated from the date or dates on which the Option Price was
paid. The certificate(s) representing the Common Stock issued upon exercise
of the Stock Option while this Section 10(b) is in effect shall bear a
legend referring to this provision. Following the first to occur of the
closing of the initial public offering of the Common Stock or the fourth
anniversary of the Date of Grant, the Company shall, upon request of the
Participant and delivery of any such certificate, cause such certificate to
be cancelled and a replacement certificate issued without such restrictive
legend.
11. Exercisability upon Change in Control.
-------------------------------------
(a) Notwithstanding the vesting schedule in Section 2, in the event of
a Change in Control, as hereinafter defined, or a threatened Change in
Control, any unexercised portion of the Stock Option shall become
immediately exercisable. Whether a Change in Control is threatened will be
determined solely by the Board. Nothing herein shall prevent the assumption
of the Stock Option or substitution therefor of a new stock option by the
surviving corporation in a merger if agreed to by the Participant.
(b) For purposes of Section 11(a), a "Change in Control" means the
occurrence, prior to the expiration of the Stock Option, of any of the
following events:
(i) the Company is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than two-thirds of the
combined voting power of the then-outstanding securities entitled to
vote generally in the election of directors ("Voting Stock") of such
corporation or person immediately after such transaction is held in
the aggregate by the holders of Voting Stock of the Company
immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other legal person, and as
a result of such sale or transfer less than two-thirds of the combined
voting power of the then-outstanding Voting Stock of such corporation
or person immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company immediately
prior to such sale or transfer;
4
<PAGE>
(iii) there is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant
to the Act, disclosing that any person (as the term "person" is used
in Section 13(d)(3) or Section 14(d)(2) of the Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation promulgated under the Act)
of securities representing 20% or more of the combined voting power of
the then-outstanding Voting Stock of the Company;
(iv) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of the Company has
occurred or will occur in the future pursuant to any then-existing
contract or transaction; or
(v) if, during any period of two consecutive years, individuals who
at the beginning of any such period constitute the directors of the
Company cease for any reason to constitute at least a majority
thereof; provided, however, that for purposes of this clause (v) each
director who is first elected, or first nominated for election by the
Company's stockholders, by a vote of at least two-thirds of the
directors of the Company (or a committee thereof) then still in office
who were directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the beginning
of such period.
Notwithstanding the foregoing provisions of clauses (iii) or (iv) above, unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" will not be deemed to have occurred for purposes of clause (iii) or
clause (iv) above solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) under the Act disclosing beneficial ownership by it of shares of
voting Stock of the Company, whether in excess of 20% or otherwise, or because
the Company reports that a change in control of the Company has occurred or will
occur in the future by reason of such beneficial ownership or any increase or
decrease thereof.
12. Stock Purchased for Investment. Unless the shares are covered by a
------------------------------
then current and effective registration statement under the Securities Act of
1933, as then in effect, the Participant, by accepting the Stock Option,
represents, warrants, covenants and agrees on behalf of the Participant and the
Participant's transferees that all shares of Common Stock purchased upon the
exercise of the Stock Option will be acquired for investment and not for resale
or distribution, and that upon each exercise of any portion of the Stock Option,
the person entitled to exercise the same will furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
5
<PAGE>
the shares are being acquired in good faith for investment and not for resale or
distribution. The Participant agrees to furnish or execute such documents as
the Company in its discretion deems necessary to (a) evidence such exercise of
the Stock Option, (b) determine whether a registration is then required under
the Securities Act of 1933, as then in effect, and (c) comply with or satisfy
the requirements of the Securities Act of 1933, or any other federal, state or
local law, as then in effect.
13. Notices. Each notice relating to this Agreement will be in writing
-------
and delivered in person or by certified mail to the proper address. Each notice
will be deemed to have been given on the date it is received. Each notice to
the Company will be addressed to it at its principal office, now 5500 Interstate
North Parkway, Suite 507, Atlanta, Georgia 30328-4662, attention of the
Secretary. Each notice to the Participant or other person or persons then
entitled to exercise the Stock Option will be addressed to the Participant or
such other person or persons at the Participant's address specified below.
Anyone to whom a notice may be given under this Agreement may designate a new
address by notice to that effect.
14. Employment. This Agreement does not confer upon the Participant any
----------
right to be employed or to continue in the employ of the Company or any
Subsidiary, nor does it in any way interfere with the right of the Company or
any Subsidiary to terminate the employment of the Participant at any time.
15. No Obligation to Exercise Stock Option. This Agreement does not
--------------------------------------
impose any obligation upon the Participant to exercise the Stock Option.
16. Amendments. The Board or any stock option committee established by
----------
the Board under the Plan may, without the consent of the Participant, amend this
Agreement, or otherwise take action, to accelerate the time or times at which
the Stock Option may be exercised, to extend the term described in Section 3, to
waive any other condition or restriction applicable to the Stock Option or to
the Exercise of the Stock Option, to reduce the Option Price and to make any
other change permitted to be made under the Plan without the consent of the
Participant; and may amend the Agreement in any other respect with the consent
of the Participant.
17. Governing Law. This Agreement is intended to be performed in the
-------------
State of Georgia and will be construed and enforced in accordance with and
governed by the laws of such State.
6
<PAGE>
18. Entire Agreement. This Agreement, together with the Plan, constitutes
----------------
the entire agreement of the Company and the Participant and supersedes all prior
contracts, agreements, arrangements, communications, discussions and
representations, whether oral or written, with respect to the subject matter
hereof. Without limiting the foregoing, this Agreement supersedes and replaces
the stock option agreement originally executed between the Company and
Participant, relating to the grant of the Stock Option.
IN WITNESS WHEREOF, the Company and the Participant have executed this
Agreement as of the 31st day of December, 1996.
INTERNATIONAL COMPUTEX, INC.
By:
---------------------------------------
Title:
------------------------------------
PARTICIPANT:
------------------------------------------
Signature
------------------------------------------
Print Name
Social Security Number:
-------------------
Address for Notice:
------------------------------------------
------------------------------------------
7
<PAGE>
INTERNATIONAL COMPUTEX, INC.
1996 STOCK OPTION PLAN
----------------------
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (the "Agreement") is entered into by and
between International CompuTex, Inc., a Georgia corporation (the "Company"), and
(the "Participant"). The Company and the Participant agree as
- ----------------
follows:
1. Grant of Stock Option.
---------------------
(a) Pursuant to a duly adopted resolution of the Stock Option Committee
on , 199 (the "Date of Grant"), the Company hereby grants to the
------------- --
Participant, upon the terms and conditions set forth below and subject to the
terms and conditions of the Company's 1996 Stock Option Plan (the "Plan"), an
option (the "Stock Option") to purchase from the Company a total of
shares of the Company's common stock, par value $ per share
- ----------------
("Common Stock"), at an exercise price per share equal to $ (the
--------------
"Option Price"). Any terms used in this Agreement having initial capital letters
but not defined herein shall have the same meanings as in the Plan, the
provisions of which are incorporated into this Agreement by reference. The
Participant acknowledges receipt of a copy of the Plan.
(b) The Stock Option is intended to be an Incentive Stock Option. [The
Stock Option is intended to be a Nonqualified Stock Option.]
2. Time of Exercise. The Stock Option may be exercised, in whole or in
----------------
part, according to the following schedule:
Percentage
Exercisable Periods
----------- -------
0% Immediately
25% On the first anniversary of the Date of Grant
50% On the second anniversary of the Date of Grant
75% On the third anniversary of the Date of Grant
100% On the fourth anniversary of the Date of Grant
<PAGE>
The unexercised portion of the Stock Option from one annual period may be
carried over to a subsequent annual period or periods, and the right of the
Participant to exercise the Stock Option as to such unexercised portion will
continue for the entire term described in Section 3 below. In no event may the
Stock Option be exercised in whole or in part, however, after the expiration of
such term.
3. Term. The Stock Option will expire and all rights under this Agreement
----
will terminate on the anniversary of the Date of Grant.
----------
4. Restriction on Exercise. The Stock Option:
-----------------------
(a) may be exercised only with respect to full shares and no fractional
shares of Common Stock will be issued upon exercise of the Stock Option;
and
(b) may be exercised in whole or in part, but no certificates
representing shares subject to the Stock Option will be delivered if any
requisite registration with, clearance by, or consent, approval or
authorization of, any governmental authority of any kind having
jurisdiction over the exercise of the Stock Option, or issuance of
securities upon such exercise, has not been obtained.
5. Manner of Exercise. The Stock Option may be exercised by written
------------------
notice to the Company of the number of shares being purchased and the Option
Price to be paid, accompanied by full payment of the Option Price (a) in cash or
by check acceptable to the Company, (b) by the transfer to the Company of shares
of Common Stock owned by the Participant for at least six months and having an
aggregate fair market value per share at the date of exercise equal to the
aggregate Option Price, (c) with the consent of the Stock Option Committee, by
authorizing the Company to withhold a number of shares of Common Stock otherwise
issuable to the Participant having an aggregate fair market value per share on
the date of exercise equal to the aggregate Option Price or (d) by a combination
of any of the foregoing (provided that the payment methods described in clauses
(b) and (c) will not be available at any time that the Company is prohibited
from purchasing or acquiring such shares of Common Stock); provided that payment
of the Option Price may also be made by deferred payment for the proceeds of
sale through a bank or broker of some or all of the shares to which the exercise
relates. Any federal, state or local taxes required to be paid or withheld at
the time of exercise will be paid or withheld in full prior to any delivery of
shares upon exercise.
6. Non-Transferability of Stock Options. This Stock Option is not
------------------------------------
assignable or transferable by the Participant other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order as
defined by the Internal Revenue Code of 1986, as amended, or the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder.
2
<PAGE>
7. Rights as Stockholder. Neither the Participant nor any of the
---------------------
Participant's beneficiaries will be deemed to have any rights as a stockholder
with respect to any shares covered by the Stock Option until the issuance of a
certificate to the Participant or such beneficiaries for such shares.
8. Adjustments. The number of shares of Common Stock covered by the Stock
-----------
Option evidenced by this Agreement, and the Option Price thereof, will be
subject to adjustment as provided in the Plan. No adjustment will be made for
dividends or other rights for which the record date is prior to the issuance of
the certificate or certificates representing the shares issued pursuant to the
Stock Option.
9. Rights in Event of Death or Termination of Employment as a Result of
--------------------------------------------------------------------
Disability of Participant. If the Participant dies or terminates employment as
- -------------------------
a result of disability prior to termination of the Participant's rights to
exercise the Stock Option, any unexercised portion of the Stock Option will
continue to vest in accordance with Section 2 and will be exercisable, subject
to all conditions of the Plan and this Agreement, for a period of one year from
the date of the Participant's death or termination of employment as a result of
disability. In the event of the death of the Participant, the Stock Option may
be exercised by the Participant's estate or a person who acquired the right to
exercise the Stock Option by bequest or inheritance or by reason of the death of
the Participant. For purposes of this Section, the Board or a committee of the
Board with authority to address this issue, will have sole discretion to
determine whether termination of a Participant's employment has occurred "as a
result of disability." In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
10. Rights in Event of Termination of Employment Other Than as a Result of
----------------------------------------------------------------------
Death or Disability.
- -------------------
(a) With respect to a Participant who is an employee of the Company or
any Subsidiary on the Date of Grant, if the Participant ceases to be
employed by the Company and all Subsidiaries, other than as a result of
death or disability, prior to the termination of the Participant's rights
to exercise the Stock Option, the Stock Option will cease to vest in
accordance with Section 2 on the date following the last day on which the
Participant is entitled to receive any compensation, including but not
limited to severance or termination payments, from the Company. To the
extent the Stock Option was exercisable on such date, and only to such
extent, the Stock Option will be exercisable through the 90th day following
such date. In no event may the Stock Option be exercised after the
expiration date set forth in Section 3.
(b) Notwithstanding the terms of Sections 9 and 10(a), in the event
that the employment of Participant is terminated, for any reason
whatsoever, prior to the closing date of the initial public offering of the
Common Stock, the terms of this paragraph (b) shall apply; otherwise the
terms of Sections 9 or 10(a) shall apply, as appropriate. Upon termination
of employment of Participant at a time when this Section 10(b) applies, and
3
<PAGE>
if such termination of employment occurs prior to the fourth anniversary of
the Date of Grant, then any Common Stock acquired by Participant or his
estate pursuant to exercise of the Stock Option, regardless of the
ownership of such Common Stock at that time, shall be automatically
forfeited to the Company. In such event, the Company shall return to
Participant an amount equal to the Option Price paid for such shares of
Common Stock so forfeited, plus an amount equal to 2% of the Option Price
per annum, calculated from the date or dates on which the Option Price was
paid. The certificate(s) representing the Common Stock issued upon exercise
of the Stock Option while this Section 10(b) is in effect shall bear a
legend referring to this provision. Following the first to occur of the
closing of the initial public offering of the Common Stock or the fourth
anniversary of the Date of Grant, the Company shall, upon request of the
Participant and delivery of any such certificate, cause such certificate to
be cancelled and a replacement certificate issued without such restrictive
legend.
11. Exercisability upon Change in Control.
-------------------------------------
(a) Notwithstanding the vesting schedule in Section 2, in the event of
a Change in Control, as hereinafter defined, or a threatened Change in
Control, any unexercised portion of the Stock Option shall become
immediately exercisable. Whether a Change in Control is threatened will be
determined solely by the Board. Nothing herein shall prevent the assumption
of the Stock Option or substitution therefor of a new stock option by the
surviving corporation in a merger if agreed to by the Participant.
(b) For purposes of Section 11(a), a "Change in Control" means the
occurrence, prior to the expiration of the Stock Option, of any of the
following events:
(i) the Company is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than two-thirds of the
combined voting power of the then-outstanding securities entitled to
vote generally in the election of directors ("Voting Stock") of such
corporation or person immediately after such transaction are held in
the aggregate by the holders of Voting Stock of the Company
immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other legal person, and as
a result of such sale or transfer less than two-thirds of the combined
voting power of the then-outstanding Voting Stock of such corporation
or person immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company immediately
prior to such sale or transfer;
4
<PAGE>
(iii) there is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant
to the Act, disclosing that any person (as the term "person" is used
in Section 13(d)(3) or Section 14(d)(2) of the Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation promulgated under the Act)
of securities representing 20% or more of the combined voting power of
the then-outstanding Voting Stock of the Company;
(iv) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of the Company has
occurred or will occur in the future pursuant to any then-existing
contract or transaction; or
(v) if, during any period of two consecutive years, individuals who
at the beginning of any such period constitute the directors of the
Company cease for any reason to constitute at least a majority
thereof; provided, however, that for purposes of this clause (v) each
director who is first elected, or first nominated for election by the
Company's stockholders, by a vote of at least two-thirds of the
directors of the Company (or a committee thereof) then still in office
who were directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the beginning
of such period.
Notwithstanding the foregoing provisions of clauses (iii) or (iv) above, unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" will not be deemed to have occurred for purposes of clause (iii) or
clause (iv) above solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) under the Act disclosing beneficial ownership by it of shares of
voting Stock of the Company, whether in excess of 20% or otherwise, or because
the Company reports that a change in control of the Company has occurred or will
occur in the future by reason of such beneficial ownership or any increase or
decrease thereof.
12. Stock Purchased for Investment. Unless the shares are covered by a
------------------------------
then current and effective registration statement under the Securities Act of
1933, as then in effect, the Participant, by accepting the Stock Option,
represents, warrants, covenants and agrees on behalf of the Participant and the
Participant's transferees that all shares of Common Stock purchased upon the
exercise of the Stock Option will be acquired for investment and not for resale
or distribution, and that upon each exercise of any portion of the Stock Option,
the person entitled to exercise the same will furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
the shares are being acquired in good faith for investment and not for resale or
5
<PAGE>
distribution. The Participant agrees to furnish or execute such documents as
the Company in its discretion deems necessary to (a) evidence such exercise of
the Stock Option, (b) determine whether a registration is then required under
the Securities Act of 1933, as then in effect, and (c) comply with or satisfy
the requirements of the Securities Act of 1933, or any other federal, state or
local law, as then in effect.
13. Notices. Each notice relating to this Agreement will be in writing
-------
and delivered in person or by certified mail to the proper address. Each notice
will be deemed to have been given on the date it is received. Each notice to
the Company will be addressed to it at its principal office, now 5500 Interstate
North Parkway, Suite 507, Atlanta, Georgia 30328-4662, attention of the
Secretary. Each notice to the Participant or other person or persons then
entitled to exercise the Stock Option will be addressed to the Participant or
such other person or persons at the Participant's address specified below.
Anyone to whom a notice may be given under this Agreement may designate a new
address by notice to that effect.
14. Employment. This Agreement does not confer upon the Participant any
----------
right to be employed or to continue in the employ of the Company or any
Subsidiary, nor does it in any way interfere with the right of the Company or
any Subsidiary to terminate the employment of the Participant at any time.
15. No Obligation to Exercise Stock Option. This Agreement does not
--------------------------------------
impose any obligation upon the Participant to exercise the Stock Option.
16. Amendments. The Board or any stock option committee established by
----------
the Board under the Plan may, without the consent of the Participant, amend this
Agreement, or otherwise take action, to accelerate the time or times at which
the Stock Option may be exercised, to extend the term described in Section 3, to
waive any other condition or restriction applicable to the Stock Option or to
the Exercise of the Stock Option, to reduce the Option Price and to make any
other change permitted to be made under the Plan without the consent of the
Participant; and may amend the Agreement in any other respect with the consent
of the Participant.
17. Governing Law. This Agreement is intended to be performed in the
-------------
State of Georgia and will be construed and enforced in accordance with and
governed by the laws of such State.
6
<PAGE>
18. Entire Agreement. This Agreement, together with the Plan, constitutes
----------------
the entire agreement of the Company and the Participant and supersedes all prior
contracts, agreements, arrangements, communications, discussions and
representations, whether oral or written, with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the Company and the Participant have executed this
Agreement as of the day of , 19 .
------------ --------------- ---
INTERNATIONAL COMPUTEX, INC.
By:
---------------------------------------
Title:
------------------------------------
PARTICIPANT:
------------------------------------------
Signature
------------------------------------------
Print Name
Social Security Number:
-------------------
Address for Notice:
------------------------------------------
------------------------------------------
7
<PAGE>
EXHIBIT 6.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of December 23, 1996 is made by and among
INTERNATIONAL COMPUTEX, INC., a Georgia corporation ("ICI"), certain Selling
Shareholders set forth on Schedule I, and Gambrell & Stolz, L.L.P., a Georgia
limited liability partnership (the "Escrow Agent").
WHEREAS, pursuant to Warrants to be executed by and between Selling
Shareholders and each of the Warrantholders to be set forth on Schedule II to be
attached hereto and signed by the parties hereto, Selling Shareholders have
agreed to reserve certain shares for exercise under such Warrants. In
connection therewith: (i) Selling Shareholders have agreed to deposit an
aggregate amount of 250,000 shares of ICI Common Stock in the proportion set
forth on Schedule I (the "Escrowed Shares") in escrow with the Escrow Agent, and
(ii) the Escrow Agent has agreed to act as escrow agent; all in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained, the parties agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Selling Shareholders and ICI hereby
appoint the Escrow Agent to act as escrow agent in accordance with the terms of
this Agreement, and the Escrow Agent hereby accepts such appointment upon the
terms of this Agreement.
2. DELIVERY OF ESCROWED SHARES. The Selling Shareholders hereby covenant
and agree to tender and deliver the Escrowed Shares to the Escrow Agent no later
than fifteen days after completion of the offering of the Debentures to which
the Warrants are attached. ICI hereby agrees to cause the Escrowed Shares to be
delivered by such date.
3. DISPOSITION OF ESCROWED SHARES.
(A) In the event that the Escrow Agent receives written notification
of exercise of the Warrants by any of the Warrantholders, and upon receipt by
the Escrow Agent of collected funds equal to the exercise price of the Warrant,
then the Escrow Agent shall promptly cause to be delivered, with the assistance
of ICI, the appropriate number of Escrowed Shares to the appropriate
Warrantholder at the address set forth in such Warrantholder's notification of
exercise. The Escrow Agent, in delivering the Escrowed Shares, shall do so
proportionately from among the Escrowed Shares in accordance with the ratio of
shares received initially from the Selling Shareholders as set forth on Schedule
I. The Escrow Agent thereafter shall promptly remit to the Selling Shareholders
the funds received for the exercise price.
(B) To the extent the Escrow Agent has received no written
instructions with respect to all of the Escrowed Shares as contemplated by
Section 3(a) hereof by 5:00 p.m., local time, on the third anniversary of the
<PAGE>
date of the Warrants, then the Escrow Agent shall promptly return the Escrowed
Shares, or the remaining Escrowed Shares, to the Selling Shareholders.
(C) The parties acknowledge that ICI is contemplating an Initial
Public Offering ("IPO") and agree that, to the extent there are excess shares
held in escrow as a result of the actual Offering Price, as defined in the
Warrant, the Escrow Agent shall cause to be returned, with the assistance of
ICI, excess shares to the Selling Shareholders.
4. TERMINATION. This Agreement shall terminate upon the earlier of:
(A) the Escrow Agent's delivery of all of the Escrowed Shares to the
respective parties in accordance with Sections 3(a) hereof; or
(B) the Escrow Agent's delivery of all of the Escrowed Shares as
directed by an arbitration award or a final order, decree or judgment of a
court of competent jurisdiction, as contemplated by Section 6 hereof; or
(C) delivery of all of the remaining Escrowed Shares pursuant to
Section 3(b).
Upon termination of this Agreement and disposition of the Escrowed Shares as
herein contemplated, the Escrow Agent shall have no further obligations
hereunder.
5. CONCERNING THE ESCROW AGENT.
(A) The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving notice of such resignation to Warrantholders and
Selling Shareholders, specifying a date not less than five business days
following the date of the notice when such resignation shall take effect. Upon
such notice, a successor escrow agent shall be jointly selected by a majority of
the Warrantholders and a majority of the Selling Shareholders to become the
Escrow Agent hereunder upon the resignation date specified in such notice. If a
majority of the Warrantholders and a majority of the Selling Shareholders are
unable to agree upon a successor escrow agent within such five business days
after the date of such notice, the Escrow Agent shall be entitled to appoint its
successor. The Escrow Agent shall continue to serve until its successor has
accepted the escrow by executing a counterpart copy of this Agreement, whereupon
the Escrow Agent shall have no further rights or obligations hereunder.
(B) The Escrow Agent undertakes to perform only such duties as are
specifically set forth herein and may conclusively rely on and shall be
protected in acting or refraining from acting on any written notice, instrument
or signature believed by it to be genuine and to have been signed or presented
by the proper party on parties duly authorized so to do. The Escrow Agent shall
have no responsibility for the contents of any writing contemplated herein and
may rely without any liability upon the contents thereof. The Escrow Agent
shall have no obligation to determine if any notice given to any party other
than the Escrow Agent has been timely given. It is acknowledged by
-2-
<PAGE>
Warrantholders and Selling Shareholders that the Escrow Agent is bound only by
the terms of this Agreement and that the Escrow Agent may, but shall not be
required to, use its discretion with respect to any matter that is the subject
of this Agreement or with respect to instructions received under this Agreement.
(C) The Escrow Agent shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
hereby or within the rights or powers conferred upon it hereunder, nor for any
action taken or omitted to be taken by it in good faith and in accordance with
the advice of counsel (which counsel may be of the Escrow Agent's own choosing),
and shall not be liable for any mistakes of fact or errors of judgment or for
any acts or omissions of any kind unless caused by its own willful misconduct or
gross negligence.
(D) ICI shall indemnify and hold harmless the Escrow Agent and its
partners, employees and agents from and against any and all costs, damages,
claims, liabilities, judgments and expenses (including reasonable attorneys'
fees) incurred by it in connection with or arising out of the performance of its
obligations under this Agreement, including without limitation all such costs
and expenses (including reasonable attorneys' fees) incurred by it as
contemplated by Section 6 hereof.
6. SETTLEMENT OF DISPUTES. In the event of a dispute with respect to any
provision of this Agreement or the rights or duties of any party hereto, the
Escrow Agent shall not be required to resolve that dispute or take any action
with respect thereto. The Escrow Agent may continue to hold the Escrowed Shares
and await final resolution of the dispute either:
(A) by mutual agreement of a majority of the Warrantholders and a
majority of the Selling Shareholders (evidenced by appropriate written
instructions to the Escrow Agent, signed by a majority of the
Warrantholders and by a majority of the Selling Shareholders); or
(B) by a final order, decree or judgment of a court of competent
jurisdiction (the time for appeal having expired and no appeal having been
perfected);
provided, however, that if such final order, decree or judgment is served upon
the Escrow Agent, the Escrow Agent shall comply with such final order, decree or
judgment (as the case may be) regardless of what may be instructed by the
parties. The Escrow Agent shall be under no duty whatsoever to institute or
defend any such proceedings. Notwithstanding the foregoing, the Escrow Agent
may at any time deliver the Escrowed Shares to a court of competent jurisdiction
under an appropriate action in interpleader and thereupon be relieved of all
responsibility under this Agreement.
7. COMPENSATION. The Escrow Agent shall be compensated by ICI based upon
actual expenses and time incurred by the Escrow Agent at the then current hourly
rates of attorneys within the Escrow Agent.
-3-
<PAGE>
8. THIRD PARTY BENEFICIARY. It is the intention of the parties that the
Warrantholders to be identified on Schedule II, and their permitted assigns and
successors in interest, shall be deemed to be third party beneficiaries of the
covenants contained in this Escrow Agreement and that, upon any Warrantholder's
exercise of his or her rights as set forth in the Warrant and Section 3(a)
hereof, such Warrantholder shall be entitled to enforce the covenants contained
in this Agreement in his or her own name and on his or her own behalf.
9. IN GENERAL.
(A) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia applicable to agreements made and to be
performed entirely within such State.
(B) Each notice, demand, waiver, consent and other communication
required or permitted to be given hereunder shall be in writing and shall be
sent either by registered or certified first-class mail, postage prepaid and
return receipt requested, addressed as follows:
If to Selling Shareholders:
c/o International CompuTex, Inc.
Suite 507
5500 Interstate North Parkway
Atlanta, Georgia 30328-4662
Attn: Emil H. Dahan, Chief Executive Officer
If to International Computex,
Inc: International CompuTex, Inc.
Suite 507
5500 Interstate North Parkway
Atlanta, Georgia 30328-4662
Attn: Emil H. Dahan, Chief Executive Officer
If to the Escrow Agent: Gambrell & Stolz, L.L.P.
Suite 4300
303 Peachtree Street N.W.
Atlanta, Georgia 30308
Attn: Henry B. Levi
Each such notice and other communication shall be deemed to have been given when
it is deposited in the United States mail in the manner specified herein. Any
party may change its address for the purpose hereof by giving notice in
accordance with the provisions of this Section 9(b).
-4-
<PAGE>
(C) Except insofar as this Agreement expressly refers to other
instruments and agreements between Warrantholders and Selling Shareholders, this
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof, and may not be modified, amended or
supplemented, or any of its provisions waived, except by a writing signed by all
of the parties hereto, or in the case of a waiver, by the party making the same.
No delay or omission by any party in exercising any right or remedy hereunder
shall operate as a waiver thereof or of any other right or remedy, and no single
or partial exercise thereof shall preclude any other or future exercise thereof
or the exercise of any right or remedy.
(D) This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and legal
representatives. Except as otherwise provided by Section 5(a) hereof, this
Agreement may not be assigned by any party without the written consent of each
of the other parties hereto.
(E) Selling Shareholders recognize that the Escrow Agent represents ICI
and that neither the execution and delivery of this Agreement by Escrow Agent,
nor the compliance by Escrow Agent with any of the provisions contained herein,
creates any agency relationship between the Escrow Agent and the Selling
Shareholders.
(F) Section headings contained in this Agreement have been inserted for
reference purposes only, and shall not be construed as part of this Agreement.
(G) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
INTERNATIONAL COMPUTEX, INC.
By:
--------------------------------------
Its
SELLING SHAREHOLDERS
By:
--------------------------------------
Name:
---------------------------------
By:
--------------------------------------
Name:
---------------------------------
-5-
<PAGE>
By:
--------------------------------------
Name:
---------------------------------
By:
--------------------------------------
Name:
---------------------------------
By:
--------------------------------------
Name:
---------------------------------
ESCROW AGENT
GAMBRELL & STOLZ, L.L.P.
By:
-----------------------------
A Partner
-6-
<PAGE>
SCHEDULE I
The following shareholders have agreed to deposit an aggregate amount of
250,000 shares of the Company's Common Stock with Escrow Agent in the amount set
forth opposite their name below:
<TABLE>
<CAPTION>
<S> <C>
Emil H. Dahan 165,585
Michael J. Galvin 38,961
Patricia Tuxbury Salem 32,468
James L. McAlarney, III 6,493
Peter W. Jeng 6,493
</TABLE>
-7-
<PAGE>
EXHIBIT 6.5
INDEMNITY AGREEMENT
This Agreement is made as of the day of , 1997, by and
----- ---------------
between INTERNATIONAL COMPUTEX, INC., a Georgia corporation (the "Corporation")
and ("Indemnitee"), a Director and/or Officer of the
---------------
Corporation.
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and Officers the most capable persons available; and
WHEREAS, service as a director or officer of a corporation, particularly a
corporation the securities of which are or are to be publicly held, may subject
a person to substantial litigation and other risks; and
WHEREAS, it is the express policy of the Corporation to indemnify its
Directors and Officers so as to provide them with the maximum possible
protection permitted by law; and
WHEREAS, Indemnitee does not regard the indemnification provided for under
the Corporation's Articles of Incorporation and By-laws as adequate in the
present circumstances and may not be willing to serve as a Director or Officer
without the provision of further rights to the indemnification, and the
Corporation desires Indemnitee to serve in such capacity.
NOW THEREFORE, for and in consideration of the premises, agreements and
covenants contained herein, the services provided by Indemnitee as Director or
Officer of the Corporation, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as
------------------
a Director and/or Officer of the Corporation until his or her death, or his or
her resignation or removal from office, or the election or appointment and
qualification of his or her successor, whichever shall first occur.
2. Definitions. As used in this Agreement:
-----------
(a) The term "Proceeding" shall include any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether of a
civil, criminal, administrative or investigative nature (including, without
limitation, any action, suit or proceeding by or in the right of the
corporation to procure a judgment in its favor), in which Indemnitee may be
or may have been or may be threatened to be made to become involved in any
manner (including, without limitation, as a party or a witness) by reason
of the fact that Indemnitee is or was a Director, Officer, employee or
agent of the Corporation, or is or was serving at the request of the Board
<PAGE>
of Directors or an Officer of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise (whether or not for profit), or by reason of anything
actually or allegedly done or not done by Indemnitee in any such capacity,
whether or not Indemnitee is serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement
can be provided under this Agreement.
(b) The term "Expenses" includes, without limitation, attorneys' fees
and disbursements and all other costs, expenses and obligation actually and
reasonably incurred by Indemnitee in connection with (i) investigating,
defending, being a witness in or otherwise participating in, or preparing
to defend, be a witness in or participate in, any Proceeding, (ii)
establishing a right to indemnification under Paragraph 7 of this Agreement
or (iii) obtaining recovery under any directors' and officers' liability or
similar insurance policy or policies purchased or maintained at any time by
the Corporation.
(c) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the request
of the Board of Directors or an Officer of the Corporation" shall include
any service as a Director, Officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such Director, Officer,
employee or agent with respect to an employee benefit plan or its
participants or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" for purposes of this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify
------------------------------------
Indemnitee in accordance with the provisions of this Paragraph 3 if Indemnitee
is or was or is threatened to be made to become involved in any manner,
including without limitation as a party or witness, in any Proceeding (other
than a Proceeding by or in the right of the Corporation to procure a judgment in
its favor) against any and all Expenses and any and all judgments, fines and
penalties entered or assessed against Indemnitee, and any and all amounts
reasonably paid or payable in settlement by Indemnitee, in connection with such
Proceeding, but only if Indemnitee acted in good faith and, in the case of
conduct in his or her official capacity, that such conduct was in the best
interests of the Corporation and in all other cases at least not opposed to the
best interests of the Corporation, and Indemnitee in the case of a Proceeding of
a criminal nature, in addition, had no reasonable cause to believe that his or
her conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Corporation. The
--------------------------------------------------------------
Corporation shall indemnify Indemnitee in accordance with the provisions of this
Paragraph 4 if Indemnitee is or was or is threatened to be made to become
involved in any manner, including without limitation as a party or witness, in
any Proceeding by or in the right of the Corporation, against any and all
Expenses, but only if Indemnitee acted in good faith and, in the case of conduct
-2-
<PAGE>
in his or her official capacity, that such conduct was in the best interests of
the Corporation and in all other cases at least not opposed to the best
interests of the Corporation, except that no indemnification for Expenses shall
be made under this Paragraph 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Corporation,
unless and only the extent that any court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as such court shall deem
proper.
5. Indemnification of Expenses of Successful Party; No Adverse
-----------------------------------------------------------
Presumption. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise, in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. The
termination of any Proceeding by judgment, order of court, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption for purposes of any provision of this Agreement
that Indemnitee did not act in good faith, in a manner which he or she
reasonably believed to be in the best interests of the Corporation, or with
respect to any Proceeding of a criminal nature, that such person had reasonable
cause to believe that his or her conduct was unlawful.
6. Advances of Expenses. The Expenses incurred by Indemnitee in any
--------------------
Proceeding shall be paid by the Corporation in advance, promptly upon the
written request of the Indemnitee, if Indemnitee shall undertake to repay such
amount to the extent that it is ultimately determined that Indemnitee is not
entitled to indemnification. No security for the performance of any such
undertaking shall be require and any such undertaking shall be accepted by the
Corporation without regard to the financial capacity of Indemnitee to perform
its obligations thereunder.
7. Right of Indemnitee to Indemnification Upon Application; Procedure Upon
-----------------------------------------------------------------------
Application. Without limiting the obligation of the Corporation to promptly
- -----------
make payments in respect of Expenses in accordance with Paragraph 6, any
indemnification under Paragraphs 3 and 4 shall be made no later than 45 days
after receipt by the Corporation of the written request of Indemnitee, unless a
determination is made within said 45-day period by (a) the Board of Directors of
the Corporation by a majority vote of a quorum consisting of Directors who are
not and were not parties to the relevant Proceeding, or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if such a quorum
is not obtainable) that the Indemnitee has not met the relevant standards for
indemnification set forth in Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction. The
burden of proving that indemnification is not appropriate shall be on the
Corporation. Indemnitee's Expenses reasonably incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such Proceeding shall also be indemnified by the Corporation.
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<PAGE>
8. Indemnification Hereunder Not Exclusive. The indemnification provided
---------------------------------------
by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the General Corporation Law of the State of
Georgia, the Articles of Incorporation or By-laws of the Corporation, any other
agreement, any vote of stockholders or disinterested Directors, or otherwise,
either as to action in his or her official capacity or as to action in any other
capacity. To the extent that Indemnitee otherwise would have any greater right
to indemnification under any provision of the General Corporation Law of the
State of Georgia or the Articles of Incorporation or By-laws of the Corporation
as in effect on the date hereof, Indemnitee will be deemed to have such greater
right hereunder, and, to the extent that any change is made to the General
Corporation Law of the State of Georgia (whether by legislative action or
judicial decision) or the Articles of Incorporation or the By-laws of the
Corporation, which permits any greater right to indemnification than that
provided under this Agreement as of the date hereof, Indemnitee will be deemed
to have such greater right thereunder. The Corporation will not adopt any
amendment to the Articles of Incorporation or By-laws of the Corporation, the
effect of which would be to deny, diminish or encumber Indemnitee's right to
indemnification under the General Corporation Law of the State of Georgia, the
Articles of Incorporation or the By-laws of the Corporation or otherwise as
applied to anything actually or allegedly done or failed to be done in whole or
in part prior to the date upon which the amendment was approved by the
Corporation's Board of Directors, its stockholders or both, as the case may be.
The rights to indemnification and advancement of expenses under this
Agreement shall continue as to Indemnitee even though he or she may have ceased
to be a Director and/or Officer, or to serve in any capacity for or on behalf of
the Corporation or any other enterprise, and shall inure to the benefit of the
heirs, executors, administrators or estate of Indemnitee.
9. Partial Indemnification. In the event that Indemnitee is entitled
-----------------------
under any provision of this Agreement to indemnification by the Corporation for
a portion but less than the entire amount of any Expenses, judgments, fines,
penalties or amounts paid or payable in settlement, the Corporation shall fully
indemnify Indemnitee in accordance with the applicable provisions of this
Agreement for such portion of such Expenses, judgments, fines penalties or
amounts paid in settlement.
10. Liability Insurance and Funding. To the extent the Corporation
-------------------------------
purchases or maintains any insurance policy or policies providing directors' and
officers' liability or similar insurance, Indemnitee shall be covered by such
policy or policies, in accordance with its or their terms, to the maximum extent
of the coverage available for any Director of Officer of the Corporation.
Indemnitee's Expenses in connection with successfully obtaining any recovery
under any such directors' and officers' liability insurance or similar policy
shall also be indemnified by the Corporation. The Corporation may, but shall
not be required to, create a trust fund, grant a security interest or use other
means (including without limitation procuring one or more letters of credit) to
ensure the payment of such amounts as may be necessary to satisfy its
obligations to provide indemnification and advance Expenses pursuant to this
Agreement.
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<PAGE>
11. Subrogation. In the event that the Corporation provides any
-----------
indemnification or makes any payment to Indemnitee in respect of any matter in
respect of which indemnification or the advancement of expenses is provided for
herein (regardless of whether such indemnification or payment is provided or
made under the provisions of this Agreement, the General Corporation Law of the
State of Georgia, the Articles of Incorporation or By-laws of the Corporation or
otherwise), the Corporation shall be subrogated to the extent of such
indemnification or other payment to all of the related rights of recovery of
Indemnitee against other persons or entities. Indemnitee shall execute all
papers reasonably required and shall do everything that may be reasonably
necessary to secure such rights and enable the Corporation effectively to bring
suit to enforce such rights (with all of Indemnitee's reasonable costs and
expenses,including attorneys' fees and disbursements, to be reimbursed by or, at
the option of Indemnitee, advanced by the Corporation).
12. No Duplication of Payments. The Corporation shall not be obligated
--------------------------
under this Agreement to provide any indemnification or make any payment to which
Indemnitee is otherwise entitled hereunder to the extent, but only to the
extent, that such indemnification or payment hereunder would be duplicative of
any amount actually received by Indemnitee pursuant to any insurance policy, the
General Corporation Law of the State of Georgia, the Articles of Incorporation
or the By-laws of the Corporation or otherwise.
13. Saving Clause. If any provision of this Agreement or the application
-------------
of any provision hereof to any circumstance is held illegal, invalid or
otherwise unenforceable, the remainder of this Agreement and the application of
such provision to any other circumstance shall not be affected, and the
provision so held to be illegal, invalid or otherwise unenforceable shall be
reformed to the extent (but only to the extent) necessary to make it legal,
valid and enforceable.
14. Notice. Indemnitee shall give to the Corporation notice in writing as
------
soon as practicable of any claim made against him or her for which
indemnification will or could be sought under this Agreement, provided, however,
that any failure to give such notice to the Corporation will relieve the
Corporation from its obligations hereunder only if, and to the extent that, such
failure results in the forfeiture of substantial rights and defenses. Notice to
the Corporation shall be directed to the Corporation (to the attention of the
President, with a copy to the General Counsel) at its principal executive office
or such other address as the Corporation shall designate in writing to
Indemnitee. Notice shall be deemed received when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally confirmed), or
three calendar days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or one business day
after having been sent for next-day delivery by a nationally recognized
overnight courier. In addition, Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require and shall be within
Indemnitee's power.
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<PAGE>
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one and the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Georgia, without giving effect to the
principles of conflicts of law thereof.
17. Successors. This Agreement shall be binding upon the Corporation and
----------
its successors, including without limitation any person acquiring directly or
indirectly all or substantially all of the business or assets of the Corporation
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the "Corporation" for purposes of this
Agreement), but will not otherwise be assignable, transferable or delegatable by
the Corporation. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Corporation, to assume
and agree in writing to perform this Agreement, expressly for the benefit of
Indemnitee, in the same manner and to the same extent the Corporation would be
required to perform if no such succession had taken place.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
INTERNATIONAL COMPUTEX, INC.
By:
------------------------------------
Title:
---------------------------------
INDEMNITEE:
---------------------------------------
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<PAGE>
EXHIBIT 6.6
WARRANT NO.
--------
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR THE "BLUE SKY" OR SECURITIES LAWS OF ANY STATE AND
MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE
TRANSFERRED AND ANY TRANSFER OR PURPORTED TRANSFER SHALL NOT BE RIGHTFUL UNDER
THE UNIFORM COMMERCIAL CODE AND THE COMPANY SHALL HAVE NO DUTY TO REGISTER A
TRANSFER OF SUCH SECURITIES EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT
UNDER THE 1933 ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO
SUCH SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT BUT ONLY UPON THE HOLDER HEREOF FIRST HAVING OBTAINED THE
WRITTEN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, THAT THE
PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE 1933
ACT AS WELL AS ANY APPLICABLE "BLUE SKY" OR SIMILAR SECURITIES LAW AND THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED. THE RESTRICTIONS CONTAINED
HEREIN ARE BINDING ON THE HOLDER HEREOF AND HIS SUCCESSORS AND ASSIGNS.
Void after the later of January 17, 2000 or 60 days after the Initial Exercise
Date, as defined below.
WARRANT TO PURCHASE COMMON STOCK
OF INTERNATIONAL COMPUTEX, INC.
FOR VALUE RECEIVED, INTERNATIONAL COMPUTEX, INC., a Georgia corporation (the
"Company") and certain Selling Shareholders set forth on Schedule I hereto,
hereby certify that (the "Holder"), or his permitted
-------------------------
assigns, is entitled to purchase from the Selling Shareholders, on the terms and
conditions set forth herein, a number of shares of the Company's common stock
("Common Stock") equal to the quotient of $ /1/ divided by the Offering
---------- ------- --
Price, as defined below, subject to possible proportionate reduction in the
number of shares of Common Stock to be sold upon exercise of this Warrant. Any
such reduction shall be based upon the requirement that a maximum of 250,000
shares of Common Stock shall be available for purchase pursuant to the entire
issue of Warrants concurrently herewith. (Hereinafter, (i) said Common Stock,
together with any other equity securities which may be issued by the Company
with respect thereto or in substitution therefor, is referred to as
- ---------------
/1/ Insert principal amount of Senior Debentures purchased to which this Warrant
is attached.
<PAGE>
the "Common Stock", (ii) the shares of the Common Stock purchasable hereunder
are referred to as the "Warrant Shares", (iii) the aggregate purchase price
payable hereunder for the Warrant Shares is referred to as the "Aggregate
Warrant Price", and (iv) this Warrant, and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrant"). The
"Offering Price" shall mean the price at which the shares of Common Stock are
offered to the public pursuant to the first Public Offering of the Company.
"Public Offering" shall mean the sale to the public of shares of Common Stock
covered by a registration statements under the Securities Act of 1933, as
amended (the "Act"), resulting in gross proceeds of $5,000,000 or more. The
purchase price for each share of Common Stock purchased pursuant to this Warrant
shall be equal to sixty percent (60%) of the Offering Price as determined above
(the "Per Share Warrant Price").
1. EXERCISE OF WARRANT. This Warrant may be exercised, in whole at any
time or in part from time to time, six (6) months after the date of closing of
the first Public Offering of the Company (such anniversary date being the
"Initial Exercise Date), but in no event after the later of (a) 5:00 p.m.,
Eastern Standard Time, on the third anniversary date of the issuance of this
Warrant or (b) the date which is sixty (60) days after the Initial Exercise Date
(the "Expiration Date"), by the Holder of this Warrant by the surrender of this
Warrant (with the subscription form at the end hereof duly executed) at the
address set forth in Subsection 9(a) hereof, together with proper payment of the
Aggregate Warrant Price, or the proportionate part thereof if this Warrant is
exercised in part. Payment for Warrant Shares shall be made by certified or
official bank check payable to the order of Gambrell & Stolz, L.L.P., as escrow
agent. If this Warrant is exercised in part, this Warrant must be exercised for
a minimum of 100 shares of the Common Stock, and the Holder is entitled to
receive a new Warrant covering the number of Warrant Shares in respect of which
this Warrant has not been exercised and setting forth the proportionate part of
the Aggregate Warrant Price applicable to such Warrant Shares. Upon such
surrender of this Warrant, the Company will so notify the Escrow Agent appointed
pursuant to Section 2, at which time the Escrow Agent shall deliver to the
Company, certificates representing a sufficient number of shares of Common Stock
to cover the exercise of the Warrant, and the Company will (a) issue a
certificate or certificates in the name of the Holder for the number of whole
shares of the Common Stock to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional share of the Common
Stock to which the Holder shall be entitled, cash equal to the fair value of
such fractional share (determined in such reasonable manner as the Board of
Directors of the Company shall determine), and (b) deliver the proportionate
part thereof if this Warrant is exercised in part, pursuant to the provisions of
this Warrant.
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<PAGE>
2. RESERVATION OF WARRANT SHARES. The Selling Shareholders agree that,
prior to the closing of the private placement of certain Senior Debentures and
the Warrants, the Selling Shareholders will have delivered in escrow to an
Escrow Agent suitable to H.J. Meyers & Co., Inc. in reserve, and will keep
available, solely for issuance or delivery upon the exercise of this Warrant,
the shares of the Common Stock as from time to time shall be receivable upon the
exercise of the Warrant. As an inducement to Holder to deliver this Warrant,
Selling Shareholders shall enter into the Escrow Agreement annexed hereto as
Schedule II.
3. ANTI-DILUTION PROVISIONS.
(a) If, at any time or from time to time after the date of the closing
of the first Public Offering of the Company (the "Qualified Offering Date"), the
Company shall distribute to the holders of the Common Stock (i) securities,
other than shares of the Common Stock, or (ii) property, other than cash without
payment therefor, with respect to the Common Stock, then, and in each such case,
the Holder, upon the exercise of this Warrant, shall be entitled to receive the
securities and properties which the Holder would hold on the date of such
exercise if, on the Qualified Offering Date, the Holder had been the holder of
record of the number of shares of the Common Stock subscribed for upon such
exercise and, during the period from the Qualified Offering Date to and
including the date of such exercise, had retained such shares and the securities
and properties receivable by the Holder during such period. Notice of each such
distribution shall be forthwith mailed to the Holder.
(b) In case the Company shall after the Qualified Offering Date (i) pay
a dividend or make a distribution on its capital stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of capital stock of the Company, the Per Share Warrant Price in
effect immediately prior to such action shall be adjusted so that if the Holder
surrendered this Warrant for exercise immediately thereafter, the Holder would
be entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would have owned immediately following such action
had such Warrant been exercised immediately prior thereto. An adjustment made
pursuant to this subsection (b) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If, as a result of an adjustment made pursuant to this
subsection (b) the Holder of this Warrant shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and
other capital stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written notice to the Holder of
-3-
<PAGE>
this Warrant promptly after such adjustment) shall determine the allocation of
the adjusted Per Share Warrant Price between or among shares of such classes of
capital stock or shares of Common Stock and other capital stock.
(c) In case of any consolidation or merger to which the Company is a
party after the Qualified Offering Date other than a merger or consolidation in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an entirety or
substantially as an entirety, or in the case of any statutory exchange of
securities with another corporation (including any exchange effected in
connection with a merger of a third corporation into the Company), the Holder
shall have the right thereafter to convert this Warrant into the kind and amount
of securities, cash or other property which he would have owned or have been
entitled to receive immediately after such consolidation, merger, statutory
exchange, sale or conveyance had such Warrant been converted immediately prior
to the effective date of such consolidation, merger, statutory exchange, sale or
conveyance and in any such case, if necessary, appropriate adjustment shall be
made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the conversion of this
Warrant. The above provisions of this subsection (c) shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or conveyances.
Notice of any such consolidation, merger, statutory exchange, sale or conveyance
and of said provisions so proposed to be made, shall be mailed to the Holder not
less than 30 days prior to such event. A sale of all or substantially all of
the assets of the Company for a consideration consisting primarily of securities
shall be deemed a consolidation or merger for the foregoing purposes.
(d) Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any modification of the rights of the Holder of this Warrant
in accordance with this Section 3, the Company shall promptly prepare a
certificate of an officer of the Company, setting forth the Per Share Warrant
Price and the number of Warrant Shares after such adjustment or modification, a
brief statement of the facts requiring such adjustment or modification and the
manner of computing the same and cause a copy of such certificate to be mailed
to the Holder.
(e) If the Board of Directors of the Company shall declare any dividend
or other distribution in cash with respect to the Common Stock after the
Qualified Offering Date, the Company shall mail notice thereof to the Holder not
less than 15 days prior to the record date fixed for determining shareholders
entitled to participate in such dividend or other distribution.
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<PAGE>
4. FULLY PAID STOCK: TAXES. The Company and Selling Shareholders agree
that the shares of the Common Stock represented by each and every certificate
for Warrant Shares delivered on the exercise of this Warrant shall, at the time
of such delivery, be validly issued and outstanding, fully paid and non-
assessable, and not subject to preemptive rights and the Company and the Selling
Shareholders will take all such actions as may be necessary to assure that the
par value or stated value, if any, per share of the Common Stock is at all times
equal to or less than the then Per Share Warrant Price. The Company further
covenants and agrees that it will pay, when due and payable, any and all Federal
and state stamp or similar taxes that may be payable in respect of the issue of
any Warrant Share or certificate therefor. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any Warrant or certificate for shares of Common Stock
in any name other than that of the registered holder of the Warrant surrendered
in connection with the purchase of such shares, and in such case the Company
shall not be required to issue or deliver any stock certificate until such tax
or other charge has been paid or it has been established to the Company's
satisfaction that no tax or other charge is due.
5. TRANSFER.
(a) SECURITIES LAWS. Neither this Warrant nor the Warrant Shares
issuable upon the exercise hereof have been registered under the Act or under
any state securities laws and unless so registered may not be transferred, sold,
pledged, hypothecated or otherwise disposed of unless an exemption from such
registration is available. In the event the Holder desires to transfer this
Warrant or any of the Warrant Shares issued upon exercise hereof, the Holder
must give the Company prior written notice of such proposed transfer including
the name and address of the proposed transferee. Such transfer may be made only
(i) upon publication by the Securities and Exchange Commission (the
"Commission") of a ruling, interpretation, opinion or "no action letter" based
upon facts presented to said Commission; or (ii) upon receipt by the Company of
an opinion of counsel reasonably satisfactory to the Company to the effect that
the proposed transfer will not violate the provisions of the Act, the Securities
Exchange Act of 1934, as amended, or the rules and regulations promulgated under
either such Act; or (iii) the Warrant or Warrant Shares to be sold or
transferred have been registered under the Act and there is in effect a current
prospectus meeting the requirements of Subsection 10(a) of the Act, which is
being or will be delivered to the purchaser or transferee at or prior to the
time of delivery of the certificates evidencing the Warrant or Warrant Shares to
be sold or transferred.
(b) CONDITIONS TO TRANSFER. Prior to any such proposed transfer, and as
a condition thereto, if such transfer is not made pursuant to an effective
registration statement under the Act, the Holder will, if requested by the
Company, deliver to the Selling Shareholders and the Company (i) an investment
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<PAGE>
covenant signed by the proposed transferee, (ii) an agreement by such transferee
to the impression of the restrictive investment legend set forth herein on the
certificate or certificates representing the securities acquired by such
transferee, (iii) an agreement by such transferee that the Company may place a
"stop transfer order" with its transfer agent or registrar, and (iv) an
agreement by the transferee to indemnify the Company to the same extent as set
forth in the next succeeding paragraph.
(c) INDEMNITY. The Holder acknowledges that the Holder understands the
meaning and legal consequences of this Section 5, and the Holder hereby agrees
to indemnify and hold harmless the Company, its representatives and each officer
and director thereof and the Selling Shareholders from and against any and all
loss, damage or liability (including all attorneys' fees and costs incurred in
enforcing this indemnity provision) due to or arising out of (a) the inaccuracy
of any representation or the breach of any warranty of the Holder contained in,
or any other breach of this Warrant, any transfer of the Warrant or any of the
Warrant Shares in violation of the Act, the Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated under either of such Acts, or
any application state securities laws, (c) any transfer of the Warrant or any of
the Warrant Shares not in accordance with this Warrant, or (d) any untrue
statement or omission to state any material fact in connection with the
investment representations or with respect to the facts and representations
supplied by the Holder to counsel upon which counsel's opinion as to a proposed
transfer shall have been based.
(d) TRANSFER. Except as restricted hereby, this Warrant and the Warrant
Shares issued may be transferred by the Holder in whole or in part at any time
or from time to time. Upon surrender of this Warrant to the Company or at the
office of its stock transfer agent, if any, with assignment documentation duly
executed and funds sufficient to pay any transfer tax, and upon compliance with
the foregoing provisions, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such instrument of
assignment, and this Warrant shall promptly be cancelled. Any assignment,
transfer, pledge, hypothecation or other disposition of this Warrant attempted
contrary to the provisions of this Warrant, or any levy of execution, attachment
or other process attempted upon the Warrant, shall be null and void and without
effect.
(e) LEGEND AND STOP TRANSFER ORDERS. Unless the Warrant Shares have
been registered under the Act, upon exercise of any part of the Warrant and the
issuance of any of the shares of Warrant Shares, the Company shall instruct its
transfer agent to enter stop transfer orders with respect to such shares. All
certificates representing Warrant Shares shall bear on the face thereof
substantially the following legend, insofar as is consistent with Georgia law,
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<PAGE>
in addition to any additional legend required by the securities laws of the
state in which the Holder resides or maintains its principal office:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and may
not be sold, offered for sale, assigned, transferred or otherwise
disposed of unless registered pursuant to the provisions of that Act or
an opinion of counsel to the Company is obtained stating that such
disposition is in compliance with an available exemption from such
registration."
6. REGISTRATION RIGHTS.
(a) In the event that, subsequent to exercise of the Warrants, the
Company files a registration statement under the Act with the Securities and
Exchange Commission covering shares of the Common Stock (including but not
limited to shares beneficially owned by third parties), and at the time such
registration statement meeting the requirements of the Act which may be used by
the Holder to dispose of the Common Stock acquired hereunder, the Company will,
at least twenty (20) calendar days prior to the date such registration statement
is so filed, notify the Holder of such proposed filing. Thereafter, the Holder
may request the Company to register pursuant to the Act all, but only all, of
the Common Stock then beneficially owned by the Holder as a result of the
exercise of the Warrants by giving the Company notice requesting such
registration within fifteen (15) calendar days after the giving of the Company's
notice referred to in the preceding sentence. In the event that such notice is
received by the Company, the Company will (a) include such Common Stock in the
registration statement otherwise filed as referred to in the first sentence of
this Paragraph C(1) and (b) use its best efforts to cause any such registration
statement or any amendments thereto to become effective. If the registration of
which the Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holder as a part of the written
notice given pursuant to this Paragraph C(1). In such event, the right of any
Holder to registration pursuant to this Paragraph C(1) shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Common Stock in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and any other shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company.
(b) Notwithstanding anything herein to the contrary, the Company shall
have the right to terminate or withdraw any registration initiated by it under
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<PAGE>
this section C prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration.
(c) The Company will make available to the Holder copies of each
preliminary prospectus, and, if registration of the Common Stock is effected,
each final prospectus and supplement thereto filed in connection with any
registration statement pursuant hereto and any amendments thereto, all in such
quantities as may be reasonably requested in writing by the Holder prior to the
final printing of any such prospectus, supplement, or amendment.
(d) The Company will (a) notify the Holder, promptly after it receives
notice thereof, of the time when any registration statement pursuant hereto has
become effective and of the date any amendment thereto or any supplement to any
prospectus forming a part thereof has been filed; (b) notify the Holder,
promptly after it receives notice thereof, of the issuance by the Securities and
Exchange Commission of any stop order suspending the effectiveness of any such
registration statement or of the initiation or threat of any proceeding for that
purpose an use its best efforts to prevent the issuance of any such stop order
and to obtain the withdrawal of any such stop order which may be issued; (c)
prepare and promptly file with the Securities and Exchange Commission any
amendment to any such registration statement or any supplement to any prospectus
forming a part thereof which may be necessary to correct any statement or
omission if, at a time when a prospectus relating to the Common Stock is
required to be delivered under the Act, any event has occurred as a result of
which such prospectus would otherwise include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading; and (d) use its best efforts to register or qualify the Common
Stock, to the extent required by the applicable securities laws of any state in
which the Holder may reside at the time of the intended sale, as the Holder may
designate, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirements of this subparagraph (d), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction.
(e) Notwithstanding anything herein to the contrary, whenever a
registration proposed to be filed by the Company is for an underwritten
offering, and the underwriters determine that the number of shares of Common
Stock to be sold in such underwritten offering should be limited due to market
conditions or otherwise, the Holder shall have his Common Stock excluded from
such underwritten offering.
(f) The Company will pay all fees and expenses incurred by the Company
relating to the preparation and filing of any registration statement pursuant
-8-
<PAGE>
hereto and any amendment thereto or to any offer or sale of the Common Stock,
including fees of counsel retained by it and brokerage fees. The Holder will
pay all fees and expenses incurred by it relating to any such registration
statement and amendments or to any offer or sale of the Common Stock relating to
Common Stock owned by the Holder, including fees of counsel retained by it,
underwriting discounts, brokerage fees and transfer taxes applicable to the
Common Stock sold by it.
(g) The Holder of any Common Stock to be included in any registration
shall furnish the Company such information regarding such Holder, the Common
Stock held by such Holder and the distribution proposed by such Holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Paragraph C.
(h) At the request of any Holder selling Common Stock, the Company will
furnish to the sellers of such Common Stock on the date that such Common Stock
is delivered to the underwriters for sale in connection with a registration
pursuant to this Paragraph C, if such Common Stock is being sold through
underwriters or, if such Common Stock is not being sold through underwriters, on
the date that the registration statement with respect to such Common Stock
becomes effective, (A) an opinion of the counsel representing the Company for
the purposes of such registration, dated such date, in form and substance as is
customarily given by counsel to underwriters in an underwritten public offering,
and (B) to the extent the Company's accounting firm is willing to do so, a
"comfort" letter dated such date from the independent public accountants who
have certified the Company's financial statements included in the registration
statement, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering.
(i) The Company will give each seller of such Common Stock, and the
underwriters, if any, of such Common Stock and their respective counsel and
accountants, such access to its books and records and such opportunities to
discuss the business of the Company with its officers and independent public
accountants as shall be necessary to enable them to conduct a reasonable
investigation within the meaning of the Act and, in the event that Common Stock
is to be sold in an underwritten offering, enter into an underwriting agreement
containing customary representations and warranties, covenants, conditions and
indemnification provisions.
(j) In the event of any registration of any securities of the Company
under the Act pursuant to this Paragraph C, the Company will, and hereby does,
indemnify and hold harmless the seller of any shares of Common Stock covered by
such registration statement, its directors, and officers, partners, employees,
representatives and affiliates and each other person controlling the seller
against any losses, claims, damages, liabilities and expenses (including
-9-
<PAGE>
reasonably legal fees and expenses and costs of investigation), joint or
several, to which such seller or any such director or officer or participating
or controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions or proceedings
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act or
otherwise, any preliminary prospectus, final prospectus or summary prospectus
included therein, or any amendment or supplement thereto, or any document
incorporated by reference therein, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (iii) any violation of the Act, or any
rules or regulations applicable to the registration, and the Company will
reimburse such seller and each such director, officer, participating person and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
-------- ----
to such an indemnified person in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement or any documents incorporated by reference in any of the above in
reliance upon and in conformity with information furnished by such indemnified
person to the Company. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, participating person or controlling person and shall survive
the transfer of such securities by such seller.
(k) The Company may require, as a condition to including any shares of
Common Stock in any registration statement filed pursuant to the above, that the
Company shall have received an undertaking satisfactory to it from the seller of
any shares of Common Stock to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Paragraph C(10) above) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement and each other person, if any, who controls the Company
within the meaning of the Act, with respect to any statement in or omission from
such registration statement, any preliminary prospectus, final prospectus or
summary prospectus included therein, or any amendment or supplement thereto or
any documents incorporated by reference in any of the above, if such statement
or omission was made in reliance upon and in conformity with information
furnished to the Company by the seller. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such seller.
-10-
<PAGE>
(l) If the indemnification provided for above is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities, expenses or actions in respect thereof referred to
herein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities, expenses or actions in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with the statement or omission
which resulted in such losses, claims, damages, liabilities, expenses or cations
as well as any other relevant equitable considerations, including the failure to
give the notice required hereunder. The relative fault of the indemnifying
party and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to information and the
opportunity to correct or prevent such statement or omission. The Company and
the Holder agree that it would not be just and equitable if contributions
pursuant to the above were determined by pro rata allocation or by any other
method of allocation which did not take account of the equitable considerations
referred to above. The amount paid or payable to an indemnified party as a
result of the losses, claims, damages, liabilities or actions in respect
thereof, referred to above, shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such cation or claim. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
(m) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding Paragraphs 10, 11 and 12, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action, provided that the failure of
-------- ----
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under such preceding paragraphs, except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof; provided, however, that if the indemnified party or parties
reasonably determine that there may be a conflict between the positions of the
indemnifying party or parties and of the indemnified party or parties in
-11-
<PAGE>
conducting the defense of such action or proceeding or that there may be legal
defenses available to such indemnified party or parties different from or in
addition to those available to the indemnifying party or parties, then counsel
for the indemnified party or parties shall be entitled to conduct the defense to
the extent reasonably determined by such counsel to be necessary to protect the
interests of the indemnified party or parties (and the indemnifying party or
parties shall bear the reasonable legal and other expenses incurred in
connection therewith). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. No
indemnified party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to any indemnifying party, who has assumed the defense
of any claim pursuant to the provisions hereof, of a release from all liability
in respect to such claim or litigation without the written consent of the
indemnifying party.
7. LOSS, ETC. OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity and bond reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
8. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent to
or receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the exercise hereof.
9. COMMUNICATION. No notice or other communication under this Warrant
shall be effective unless the same is in writing and is mailed by first-class
mail, postage prepaid, addressed to:
(a) the Company at 550 Interstate North Parkway, Suite 507, Atlanta,
Georgia 30328 or such other address as the Company has designated in writing to
the Holder, or
(b) the Holder at __________________________________________, or such
other address as the Holder has designated in writing to the Company.
10. HEADINGS. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
-12-
<PAGE>
11. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to the
principles of conflicts of law thereof.
12. NO WAIVER. Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought.
IN WITNESS WHEREOF, INTERNATIONAL COMPUTEX, INC., has caused this Warrant to
be signed and attested and its corporate seal to be hereunto affixed this 17th
day of January, 1997.
INTERNATIONAL COMPUTEX, INC.
By: /s/ Emil H. Dahan
--------------------------------------
Emil H. Dahan, Chief Executive Officer
Selling Shareholder Selling Shareholder
- ---------------------------- -----------------------------------------
Patricia Tuxbury Salem Emil H. Dahan
Selling Shareholder Selling Shareholder
- ---------------------------- -----------------------------------------
Peter W.Jeng Michael J. Galvin
Selling Shareholder
____________________________
James C. McAlarney, III
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<PAGE>
EXHIBIT 6.7
[LETTERHEAD OF INTERNATIONAL COMPUTEX, INC. APPEARS HERE]
September 15, 1995
Mr. Ron F. Friedman
2709 Tritt Springs Dr.
Marietta, GA 30062
Dear Mr. Friedman:
I am pleased to extend to you an offer of employment with International
CompuTex, Inc. (ICI) as a V.P. of Operations. Should you accept this offer,
your expected date of hire will be Monday, October 16, 1995. Your compensation
will be $55,000.00 per year paid on a semi-monthly basis.
In addition, you will receive a one time bonus of $5,000.00 to help you cover
the loss of revenues incurred by the move to this new position.
ICI is committed to being proactive in the professional development of its
employees. As a part of this commitment, you may expect your first annual
review in October 1996.
You will be eligible to apply for insurance benefits 30 days after your date of
hire.
Ron, I look forward to working with you, and I am confident that your acceptance
of this offer will begin a very bright future for both you and ICI.
Don't hesitate to call if I can answer any questions you may have.
Sincerely,
/s/ Emil H. Dahan
Emil H. Dahan
President
EHD/ls
<PAGE>
EXHIBIT 6.8
[LETTERHEAD OF INTERNATIONAL COMPUTEX, INC. APPEARS HERE]
February 13, 1996
Mr. Charles Giarratana
RE: Employment Contract
Dear Mr. Giarratana:
After reviewing all the we have discussed with other members of management of
International Computex, Inc. (the "Company"), I would like to offer you the
position of President of our company, under the following terms and conditions:
1. Base Salary: Beginning March 4th 1996, your annual base salary shall
------------
be $96,000.00, which will be paid in accordance with the company's
current payroll policies, from which salary shall be deducted
applicable local, state and federal withholding taxes. Your base
salary shall be subject to review again in February 1997.
2. Benefits: Upon commencement of your employment, you are eligible for
---------
health and medical insurance benefits provided by the company.
Please note that you will also have the option at your own expense
to secure health and medical benefits for any dependents. If you
exercise the option to provide such coverage for your dependents,
that amount will automatically be deducted from your salary. You
will also be entitled to take two (2) weeks of vacation a year.
3. Stock Options: The company has adopted a non-qualified incentive
--------------
stock option plan under which the Board of Directors will grant you
an option to purchase 30,800 restricted shares in the Company for
$1.50 per share. Those shares will be subject to forfeiture in the
event you leave the Company within a four (4) year period and
otherwise will be subject to a buy-sell agreement.
<PAGE>
4. Goals: All expectations, goals, as well as your duties will be
------
discussed with the directors and other officers of the company upon
your arrival. These goals, expectations, and duties will be clearly
defined to assist you in your ability to achieve success in running
the Company. Please note that the company reserves the right from
time to time to reduce, increase or modify your duties. Periodic
reviews will be conducted at mutually agreed upon intervals. It will
be expected that you will devote your full time and best efforts to
the performance of your duties.
I trust that the above represents accurately my previous discussions with you,
and we look forward to you joining us on March 1, 1996. You will based in our
Charlotte, NC office. If you agree with the above terms of this letter
agreement, please return one signed copy to me and retain the other copy for
your files. If you have any questions, please do not hesitate to contact me.
Respectfully submitted,
International Computex, Inc.
/s/Emil Dahan
-------------------------------
Emil H. Dahan, Acting President
Accepted and Agreed To:
/s/ Charles Giarratana
- -------------------------
Charles Giarratana
<PAGE>
EXHIBIT 6.9
AGREEMENT
---------
This Agreement is made and entered into as of the 7th day of February,
1997 by and between INTERNATIONAL COMPUTEX, INC., a Georgia corporation ("ICI"),
and H.J. MEYERS & CO., INC. ("H.J. Meyers").
The parties hereto, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, hereby enter into the
following agreements relating to an offer to be made by ICI to offer rescission
(the "Rescission Offer") to the purchasers ("Purchasers") of Senior Debentures
of ICI, in the aggregate principal amount of $1,115,000 (the "Debentures"), sold
by H.J. Meyers on behalf of ICI in a private placement offering:
1. ICI agrees to furnish to each of the Purchasers a rescission
letter, in such form as shall have been approved by H.J.Meyers, offering to
refund to them the full amount of their investment, plus interest from their
respective dates of subscription in the amount of six percent (6%) per annum, if
they elect to rescind their investment.
2. In light of certain misunderstandings that occurred in connection
with the sale of the Debentures, H.J. Meyers has agreed to make the following
payments to ICI, in each case due and payable within two business days after ICI
notifies H.J. Meyers that ICI has become obligated to make rescission payments
to a particular Purchaser:
(a) The full amount of the commissions and nonaccountable expense
reimbursement received by H.J. Meyers with respect to the
particular Purchaser; and
(b) An amount equal to the interest payments that must be made by
ICI to the particular Purchaser pursuant to the Rescission
Offer.
3. ICI will notify H.J. Meyers on an ongoing basis as notices of
rescission are received from subscribers for the Debentures.
4. ICI and H.J. Meyers will instruct their respective legal counsel
to assist in modifying the Registration Statement to (a) include the Debenture
Warrants and the Common Stock that may be acquired pursuant to exercise of those
Warrants in the Registration Statement for the initial public offering of ICI
and (b) to reflect the "lock up" provision to be described in the Rescission
Offer. Further, H.J. Meyers will instruct its legal counsel to take appropriate
steps to inform the Securities and Exchange Commission, at the time the initial
public offering is filed or promptly thereafter, with respect to the
circumstances surrounding the Rescission Offer.
<PAGE>
5. H.J. Meyers will reimburse ICI in the amount of $8,000 for legal
expenses incurred in addressing certain issues pertaining to the Debentures.
Such payment shall be made within ten (10) business days after the date of this
Agreement.
6. H.J. Meyers will reimburse and indemnify ICI for all other costs
that ICI must pay to third parties, excluding costs associated with securities
registration, as a result of the misunderstandings related to the sale of the
Debentures. ICI shall not settle or otherwise dispose of any claim made by a
third party for which ICI seeks indemnification under this paragraph without
first obtaining the express written consent of H.J. Meyers, which consent shall
not be unreasonably withheld. This indemnification shall be in addition to, and
is not in lieu of, any liability that H.J. Meyers may have under the terms of
the Selling Agent Agreement in connection with the offer and sale of the
Debentures.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first set forth above.
INTERNATIONAL COMPUTEX, INC.
By:
--------------------------------------
Title:
-----------------------------------
H. J. MEYERS & CO., INC.
By:
--------------------------------------
Title:
-----------------------------------
2
<PAGE>
EXHIBIT 6.10
February 11, 1997
NAME AND ADDRESS
Re: Subscription Agreement for certain Units Consisting of Senior Debentures
and Warrants to Purchase Common Stock of International CompuTex, Inc.
Dear ________________:
You recently subscribed for Units of International CompuTex, Inc. (the
"Company"), each Unit consisting of Senior Debentures ("Debentures") and
Warrants to purchase shares of Common Stock of the Company ("Selling Stockholder
Warrants"). In connection with your subscription, you received a Confidential
Private Placement Memorandum dated December 23, 1996 (the "Memorandum"), to
provide you with the information regarding the business and financial condition
of the Company. This letter will clarify the terms of your subscription and
provide you with an opportunity to rescind or reaffirm.
In connection with your subscription, certain representatives of the Selling
Agent may have informed you that, upon exercise of the Selling Stockholder
Warrants after the expiration of the six (6) month period following an initial
public offering, the shares of Common Stock you acquire would be freely
tradeable. In fact, as set forth in the Memorandum and Subscription Agreement,
upon exercise of the Selling Stockholder Warrants, the shares of Common Stock
underlying the Selling Stockholder Warrants will not be immediately tradeable,
but instead will be restricted securities within the meaning of Rule 144 of the
Securities Act. Thus, after exercise of the Selling Stockholder Warrants, you
will be required to hold those shares of Common Stock for a period of two (2)
years before selling them. The two year holding requirement may not apply if,
after the Selling Stockholder Warrants are exercised, the Company chooses to
register any of its Common Stock for its own account or for the account of other
security holders. In either of those cases, you may be entitled to exercise
certain "piggyback" registration rights.
As you know, the Company is considering the possibility of an initial public
offering of its Common Stock, although there is no way to be sure when such a
public offering will occur, if ever. The Company is interested in providing you
with an increased possibility of liquidity in your shares of Common Stock, which
you would acquire if your Selling Stockholder Warrants become exercisable and if
you choose to exercise them. Accordingly, the Company intends to register in
the proposed offering the shares underlying the Selling Stockholder Warrants.
If you reaffirm your investment, and if there is such an offering, you will be
permitted to exercise your Selling Stockholder Warrants within the thirty (30)
day
<PAGE>
period after the effective date of the offering. Thus, your Selling Stockholder
Warrants will no longer be subject to the six (6) month waiting period currently
required before you have the right to exercise them. However, you will be
required to hold the shares of Common Stock underlying your Selling Shareholder
Warrants for the remainder of the twelve (12) month period immediately following
the effective date of the offering (the "twelve month contractual lock-up").
While you are not required to exercise your Selling Stockholder Warrants
within the thirty (30) day period following the effective date of any such
offering, if you do not do so, we cannot guarantee that a current prospectus
will exist at the time you choose to exercise your Selling Stockholder Warrants.
As a result, any shares of Common Stock transferred to you upon exercise of your
Selling Stockholder Warrants after the thirty (30) day period may be deemed
restricted under Rule 144. You will note that the Company is under no
obligation to maintain a current prospectus and there can be no assurance that
one will be maintained for more than thirty (30) days after the effective date
of the registration. In addition, any shares transferred to you upon exercise
of your Selling Stockholder Warrants after the thirty (30) day period following
the effective date will remain subject to the twelve month contractual lock-up.
If your Common Stock is restricted, nothing in the above arrangement will
prevent you from selling your Common Stock under Rule 144 after you have held it
for at least two years after exercising your Selling Stockholder Warrants. Nor
will the arrangement alter your ability to exercise your "piggyback"
registration rights should they become available.
As stated in the Memorandum, there can be no assurance that the Company will
"go public" within the next year, if ever. Further, as described above,
circumstances could prevent your Common Stock from being transferable.
In light of the above clarification, the Company requests that you either
cancel or reaffirm your subscription for Units of the Company. The form of
affirmation is attached to this letter as Exhibit A and the form of rescission
is attached as Exhibit B. If you choose to rescind, you must return both the
Debentures and Warrants to the Company with your rescission form. Upon receipt
of your rescission form and your Debentures and Warrants, you will receive,
within five business days, a full refund of your subscription amount and
interest at the rate of six (6) percent per annum from the date of your
subscription to the date of your rescission. The offer contained in this letter
will remain open for ten days after the date of this letter. If we have not
heard from you by that time, we will assume that you have chosen to affirm your
subscription, the offer will no longer be open and you will retain your
debenture and warrant.
If you have any questions concerning the contents of this letter or your
right to reaffirm
-2-
<PAGE>
or rescind your investment, please call Haim E. Dahan at (404)953-1464 or Linda
Holmes-Rubin at H.J. Meyers & Co., Inc. at 770-267-1770.
Sincerely,
International CompuTex, Inc.
Haim E. Dahan
Chief Executive Officer
Attachments
-3-
<PAGE>
Exhibit A
International CompuTex, Inc.
Suite 507
5500 Interstate North Parkway
Atlanta, Georgia 30328-4662
Affirmation of Subscription
I, the undersigned, hereby acknowledge receipt of the letter from Haim E.
Dahan, dated February 11, 1997. I hereby affirm my subscription or
subscriptions, dated January ___, 1997, to purchase Units of the Company.
I agree, for the benefit of the Company and the undersigned, that should an
initial public offering of the Company's Common Stock become effective and
should I exercise my Selling Stockholder Warrants in accordance with the terms
contained in the February 11, 1997 letter from Haim E. Dahan, I will not,
without prior written consent of the Company, sell, assign, hypothecate, pledge
or otherwise dispose of, directly or indirectly, any shares of Common Stock I
may acquire upon exercise of my Selling Stockholder Warrants, during the twelve
(12) month period commencing on the effective date of the offering.
Furthermore, I will permit all certificates evidencing any such securities to be
endorsed with the appropriate restrictive legends, and I consent to the
placement of appropriate stop transfer orders with the transfer agent for the
Company, consistent with that registration.
Dated: , 1997
-------------
--------------------------------
Signature of Subscriber
--------------------------------
Name of Subscriber
--------------------------------
Social Security No.
<PAGE>
Exhibit B
International CompuTex, Inc.
Suite 507
5500 Interstate North Parkway
Atlanta, Georgia 30328-4662
Rescission of Subscription
I, the undersigned, hereby acknowledge receipt of the letter of Haim E.
Dahan, dated February 11, 1997. I hereby rescind my subscription or
subscriptions, dated January ___, 1997, to purchase Units of the Company. I am
attaching the original Debenture and Warrant for cancellation by the Company.
Dated: , 1997
---------
--------------------------------
Signature of Subscriber
--------------------------------
Name of Subscriber
--------------------------------
Social Security No.
<PAGE>
[LETTERHEAD OF HABIF, AROGETI & WYNNE, P.C. APPEARS HERE]
EXHIBIT 12.1
February 10, 1997
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of International CompuTex,
Inc. on Form 10-SB of our report dated January 24, 1997, except for the second
paragraph of Note J, as to which the date is February 7, 1997, appearing in this
Registration Form.
Very truly yours,
HABIF, AROGETI & WYNNE, P.C.
