<PAGE> 1
As filed with the Securities and Exchange Commission on June 22, 1999.
Registration No. 333-77557
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-4 REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
LHS GROUP INC.
(Exact Name of Issuer as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 58-2224883
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
</TABLE>
SIX CONCOURSE PARKWAY
SUITE 2700
ATLANTA, GEORGIA 30328
(770) 280-3100
(Address, including zip code, and telephone
number of Principal Executive Offices)
PRIORITY CALL MANAGEMENT, INC. AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(Full Titles of the Plan)
<TABLE>
<S> <C>
SCOTT A. WHARTON COPY TO:
SENIOR VICE PRESIDENT LAURA G. THATCHER
AND GENERAL COUNSEL ALSTON & BIRD LLP
LHS GROUP INC. ONE ATLANTIC CENTER
6 CONCOURSE PARKWAY 1201 WEST PEACHTREE STREET, NW
SUITE 2700 ATLANTA, GEORGIA 30309-3424
ATLANTA, GEORGIA 30328 (404) 881-7546
(770) 280-3100
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
</TABLE>
-----------------------
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-4 on
Form S-8 (the "Registration Statement") filed by LHS Group Inc. (the "Company")
relates to 1,398,911 shares (the "Shares") of the Company's Common Stock, $0.01
par value per share (the "Common Stock") which were previously registered on the
Company's Registration Statement on Form S-4, as amended (File No. 333-77557),
and are being transferred to this Registration Statement. The registration fee
with respect to such shares has been previously paid.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(a) The documents constituting Part I of this Registration
Statement will be sent or given to participants in the Plans as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Company will provide,
without charge, the documents incorporated by reference in Item 3 of Part II of
this Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information should be
directed to Scott A. Wharton, Senior Vice President and General Counsel, at
(770) 280-3000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by LHS Group Inc. (the "Company") (File
No. 22409) with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
are incorporated herein by reference and are deemed to be a part hereof from the
date of the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(3) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1998;
(4) The description of Common Stock contained in the Company's
Registration Statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description; and
(5) All other documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment to this Registration Statement that indicates that
all securities offered have been sold or that deregisters all securities that
remain unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the authority of Delaware law, the Company's Certificate of
Incorporation, as amended, provides that the Company may indemnify a director or
officer 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, by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at its request in such capacity in another corporation or business association,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner 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 no
reasonable cause to believe his conduct was unlawful. In addition, the Company's
Certificate of Incorporation, as amended, also eliminates the monetary liability
of directors to the fullest extent permitted by Delaware law.
Under its Bylaws, the Company is required to indemnify its directors
and officers to the fullest extent of the law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS(1)
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
5 Opinion of Counsel.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page).
99.1 Priority Call Management, Inc. Amended and Restated 1993 Stock Option Plan.
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
- --------
(1) Exhibits are numbered in accordance with Item 601 of Regulation S-K.
<PAGE> 4
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities being
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of this
Part II, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(signatures on following page)
<PAGE> 5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant, LHS Group Inc., certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia, on June 22,
1999
LHS GROUP INC.
By: /s/ Hartmut Lademacher
-----------------------------------------
Hartmut Lademacher
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hartmut Lademacher, Jerry W. Braxton and
Scott A. Wharton, and each of them (with full power in each to act alone), as
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of June 22, 1999.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
/s/ Hartmut Lademacher
- ---------------------------------------- Chairman of the Board and
Hartmut Lademacher Chief Executive Officer
(Principal Executive Officer)
/s/ Jerry W. Braxton
- ---------------------------------------- Executive Vice President, Chief
Jerry W. Braxton Financial Officer, Treasurer and Director
(Principal Financial and Accounting Officer)
/s/ Ulf Bohla
- ---------------------------------------- Director
Ulf Bohla
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
/s/ William E. Ford
- ---------------------------------------- Director
William E. Ford
- ---------------------------------------- Director
Dr. Wolf J. Gaede
/s/ William O. Grabe
- ---------------------------------------- Director
William O. Grabe
/s/ George F. Schmitt
- ---------------------------------------- Director
George F. Schmitt
</TABLE>
<PAGE> 7
Registration No. 333-77557
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
EXHIBITS FILED WITH
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-4 REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
----------------------------
LHS GROUP INC.
SIX CONCOURSE PARKWAY
SUITE 2700
ATLANTA, GEORGIA 30328
(770) 280-3000
<PAGE> 8
EXHIBIT INDEX
TO
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-4 REGISTRATION STATEMENT
ON
FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (included on signature page)
99.1 Priority Call Management, Inc. Amended and Restated 1993 Stock Option Plan
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[ALSTON & BIRD LLP LETTERHEAD]
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-4777
www.alston.com
June 22, 1999
LHS Group Inc.
Six Concourse Parkway
Suite 2700
Atlanta, Georgia 30328
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel for LHS Group Inc., a Delaware corporation
(the "Company"), in connection with the referenced Registration Statement on
Form S-8 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and covering 1,398,911 shares of the Company's common
stock, $.01 par value ("Common Stock") that may be offered and sold pursuant to
the exercise of stock options of Priority Call Management, Inc. assumed by the
Company pursuant to the Agreement and Plan of Merger by and among LHS Group
Inc., Patriot Acquisition Corp. and Priority Call Management, Inc. dated as of
April 20, 1999 (the "Assumed Options"). This Opinion Letter is rendered pursuant
to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock to be issued upon the exercise of the Assumed Options have been
duly authorized by all requisite action on the part of the Company and, when
issued in accordance with the terms and conditions of the Assumed Options, will
be legally and validly issued, fully paid and nonassessable.
<PAGE> 2
LHS Group Inc.
June 22, 1999
Page 2
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the Registration
Statement, may be relied upon by you and the Commission only in connection with
the Registration Statement, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Laura G. Thatcher
----------------------
Laura G. Thatcher
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective Amendment
No. 1 to the Form S-4 Registration Statement on Form S-8 pertaining to the
Priority Call Management, Inc. Amended and Restated 1993 Stock Option Plan of
our report dated February 12, 1999, with respect to the consolidated financial
statements and schedule of LHS Group, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
June 16, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our Firm included in or made part of this Registration
Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
June 17, 1999
<PAGE> 1
EXHIBIT 99.1
PRIORITY CALL MANAGEMENT, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
1. Definitions. As used in this Amended and Restated 1993 Stock Option
Plan of Priority Call Management, Inc., the following terms shall have the
following meanings:
1.1. Board means the Company's Board of Directors.
1.2. Code means the federal Internal Revenue Code of 1986, as
amended.
1.3. Committee means a committee appointed by the Board or, if no
such committee is appointed, the Board itself. Such committee or the
Board, as the case may be, shall be responsible for the
administration of the Plan, as provided in section 5 of the Plan.
1.4. Company means Priority Call Management, Inc., a Massachusetts
corporation.
1.5. Employment Agreement means an agreement, if any, between the
Company and an Optionee, setting forth, inter alia, conditions and
restrictions upon the transfer of shares of Stock.
1.6. Fair Market Value means (i) on any date prior to the Initial
Public Offering Date, the value of a share of Stock on any such date as
determined by the Committee, and (ii) on the Initial Public Offering
Date or on any date thereafter, (A) the average of the closing bid and
asked prices of a share of Common Stock on the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc.
("NASD") on such date, or (B) the closing price of a share of Common
Stock on an exchange or the NASD's National Market System, as the case
may be, on such date.
<PAGE> 2
-2-
1.7. Grant Date means the date as of which an Option is granted, as
determined under Section 7.
1.8. Incentive Option means an Option which by its terms is to be
treated as an "incentive stock option" within the meaning of Section
422 of the Code.
1.9. Initial Public Offering Date means the date of the closing of
the Company's initial public offering of Common Stock.
1.10. Non-statutory Option means any Option that is not an
Incentive Option.
1.11. Option means an option to purchase shares of Stock granted
under the Plan.
1.12. Option Agreement means an agreement between the Company and
an Optionee, setting forth the terms and conditions of an Option.
1.13. Option Price means the price paid by an Optionee for a share
of Stock upon exercise of an Option.
1.14. Optionee means a person eligible to receive an Option, as
provided in Section 6, to whom an Option shall have been granted
under the Plan.
1.15. Plan means this Amended and Restated 1993 Stock Option Plan
of the Company, as amended from time to time.
1.16. Stock means Class B Common Stock (Non-Voting), par value $.01
per share, of the Company.
1.17. Stock Restriction Agreement means a Stock Restriction
Agreement, substantially in the form attached hereto as Annex A,
between the Company and an Optionee.
1.18. Ten Percent Owner means a person who owns, or is deemed
within the meaning of Section 422(b)(6) of the Code to own, stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company (or its parent or subsidiary
corporations). Whether a person is a Ten Percent Owner shall be
<PAGE> 3
-3-
determined with respect to each Option based on the facts existing
immediately prior to the Grant Date of such Option.
1.19. Vesting Year for any portion of any Incentive Option means
the calendar year in which that portion of the Option first becomes
exercisable.
2. Purpose. This Plan is intended to encourage ownership of Stock by
employees and consultants of the Company and its subsidiaries and to provide
additional incentives for them to promote the success of the Company's business.
The Plan is intended to be an incentive stock option plan within the meaning of
Section 422 of the Code but not all Options granted hereunder are required to be
Incentive Options.
3. Term of the Plan. Options may be granted hereunder at any time in
the period commencing on the approval of the Plan by the Board and ending
January 11, 2003.
4. Stock Subject to the Plan. At no time shall the number of shares of
Stock then outstanding which are attributable to the exercise of Options granted
under the Plan, plus the number of shares then issuable upon exercise of
outstanding Options granted under the Plan, exceed 240,000 shares, subject,
however, to the provisions of Section 17 of the Plan. Shares to be issued upon
the exercise of Options granted under the Plan may be either authorized but
unissued shares or shares held by the Company in its treasury. If any Option
expires or terminates for any reason without having been exercised in full, the
shares not purchased thereunder shall again be available for Options thereafter
to be granted.
5. Administration. The Plan shall be administered by the Committee.
Subject to the provisions of the Plan, the Committee shall have complete
authority, in its discretion, to make or to select the manner of making the
following determinations with respect to each Option to be granted by the
Company: (a) the employee or consultant to receive the Option; (b) whether the
Option (if granted to an employee) will be an Incentive Option or Non-statutory
Option; (c) the time of granting the Option; (d) the number of shares subject to
the Option; (e) the Option Price; (f) the Option period; (g) the Option exercise
date or dates; and (h) the effect of termination of employment, consulting or
association with the
<PAGE> 4
-4-
Company on the subsequent exercisability of the Option. In making such
determinations, the Committee may take into account the nature of the services
rendered by the respective employees and consultants, their present and
potential contributions to the success of the Company and its subsidiaries, and
such other factors as the Committee in its discretion shall deem relevant.
Subject to the provisions of the Plan, the Committee shall also have complete
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the
respective Option Agreements (which need not be identical), and to make all
other determinations necessary or advisable for the administration of the Plan.
The Committee's determinations on the matters referred to in this Section 5
shall be conclusive.
6. Eligibility. An Option shall be granted only to an employee or
consultant of one or more of the Company or any subsidiary thereof. A director
of one or more of the Company and any subsidiary who is not also an employee or
consultant of one or more of the Company or a subsidiary shall not be eligible
to receive an Option.
7. Time of Granting Options. The granting of an Option shall take
place at the time specified in the Option Agreement. Only if expressly so
provided in the Option Agreement, shall the Grant Date be the date on which an
Option Agreement shall have been duly executed and delivered by the Company and
the Optionee.
8. Option Price. The Option Price under each Incentive Option shall
be not less than 100% of the Fair Market Value of Stock on the Grant Date, or
not less than 110% of the Fair Market Value of Stock on the Grant Date if the
Optionee is a Ten Percent Owner. The Option Price under each Non-statutory
Option shall not be so limited solely by reason of this Section 8.
9. Option Period. No Incentive Option may be exercised later than
the tenth anniversary of the Grant Date, but in any case not later than the
fifth anniversary of the Grant Date, if the Optionee is a Ten Percent Owner. The
Option period under each Non-statutory Option shall not be so limited solely by
reason of this Section 9. An Option may become exercisable in such installments,
cumulative or non-cumulative, as the
<PAGE> 5
-5-
Committee may determine. In the case of an Option not otherwise immediately
exercisable in full, the Committee may accelerate the exercisability of such
Option in whole or in part at any time, provided the acceleration of the
exercisability of any Incentive Option would not cause the Option to fail to
comply with the provisions of Section 422 of the Code.
10. Limit on Incentive Option Characterization. No Incentive Option
shall be considered an Incentive Option to the extent that pursuant to its terms
it would permit the Optionee to purchase for the first time in any Vesting Year
under that Incentive Option more than the number of shares of Stock calculated
by dividing the current limit by the Option Price. The current limit for any
Optionee for any Vesting Year shall be $100,000 minus the aggregate Fair Market
Value at the date of grant of the number of shares of Stock available for
purchase for the first time in the Vesting Year under each other Incentive
Option granted to the Optionee under the Plan after December 31, 1986 and each
other incentive stock option granted to the Optionee after December 31, 1986
under any other incentive stock option plan of the Company (and any parent and
subsidiary corporations).
11. Exercise of Option. An Option may be exercised by the Optionee
giving written notice, in the manner provided in Section 21, specifying the
number of shares with respect to which the Option is then being exercised. In
the event that such notice of exercise is given prior to the Initial Public
Offering Date, such notice shall be accompanied by (x) payment in the form of
cash, or certified or bank check payable to the order of the Company, in an
amount equal to the option price of the shares to be purchased, and (y) if the
exercising Optionee is not already a party to a Stock Restriction Agreement, an
executed counterpart of a Stock Restriction Agreement. In the event that such
notice of exercise is given on or after the Initial Public Offering Date, such
notice of exercise shall be accompanied by payment in the form of (i) cash, or
certified or bank check payable to the order of the Company, in an amount equal
to the option price of the shares to be purchased, or (ii) shares of Common
Stock having a Fair Market Value on the date the Option is exercised equal to
the option price of the shares to be purchased (provided that the use of shares
of Common Stock to exercise an option shall be subject to such restrictions as
the Committee may reasonably
<PAGE> 6
-6-
require to avoid adverse accounting effects). Receipt by the Company of such
notice, payment and, if applicable, executed counterpart shall constitute the
exercise of the Option. Within 30 days thereafter but subject to the remaining
provisions of the Plan, the Company shall deliver or cause to be delivered to
the Optionee or his agent a certificate or certificates for the number of shares
then being purchased. Such shares shall be fully paid and nonassessable.
12. Restrictions on Issue of Shares.
(a) Notwithstanding any other provision of the Plan, if, at any
time, in the reasonable opinion of the Company the issuance of shares of Stock
covered by the exercise of any Option may constitute a violation of law, then
the Company may delay such issuance and the delivery of a certificate for such
shares until (i) approval shall have been obtained from such governmental
agencies, other than the Securities and Exchange Commission, as may be required
under any applicable law, rule, or regulation; and (ii) in the case where such
issuance would constitute a violation of a law administered by or a regulation
of the Securities and Exchange Commission, one of the following conditions shall
have been satisfied:
(1) the shares with respect to which such Option has
been exercised are at the time of the issue of such shares
effectively registered under the Securities Act of 1933, as amended
(the "Securities Act"); or
(2) a no-action letter in form and substance reasonably
satisfactory to the Company and its counsel with respect to the
issuance of such shares shall have been obtained by the Company from
the Securities and Exchange Commission.
The Company shall make all reasonable efforts to bring about the occurrence of
said events.
(b) Each certificate representing shares issued upon the
exercise of an Option will bear restrictive legends which may refer to this Plan
and to applicable restrictions under the Employment Agreement.
<PAGE> 7
-7-
13. Purchase for Investment; Subsequent Registration.
(a) Unless the shares to be issued upon exercise of an Option
granted under the Plan have been effectively registered under the Securities
Act, the Company shall be under no obligation to issue any shares covered by any
Option unless the person who exercises such Option, in whole or in part, shall
give a written representation to the Company which is satisfactory in form and
substance to its counsel and upon which the Company may reasonably rely, that he
or she is acquiring the shares issued pursuant to such exercise of the Option as
an investment and not with a view to, or for sale in connection with, the
distribution of any such shares.
(b) Each share of Stock issued pursuant to the exercise of an
Option granted pursuant to this Plan may bear a reference to the investment
representation made in accordance with this Section 13 and to the fact that no
registration statement has been filed with the Securities and Exchange
Commission in respect to said Stock.
(c) If the Company shall deem it necessary or desirable to
register under the Securities Act or other applicable statutes any shares with
respect to which an Option shall have been granted, or to qualify any such
shares for exemption from the Securities Act or other applicable statutes, then
the Company shall take such action at its own expense. The Company may require
from each Option holder, or each holder of shares of Stock acquired pursuant to
the Plan, such information in writing for use in any registration statement,
prospectus, preliminary prospectus or offering circular as is reasonably
necessary for such purpose and may require reasonable indemnity to the Company
and its officers and directors from such holder against all losses, claims,
damage and liabilities arising from such use of the information so furnished and
caused by any untrue statement of any material fact therein or caused by the
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made.
<PAGE> 8
-8-
14. Withholding; Notice of Disposition of Stock Prior to Expiration
of Specified Holding Period.
(a) Whenever shares are to be issued in satisfaction of an
Option granted hereunder, the Company shall have the right to require the
Optionee to remit to the Company an amount sufficient to satisfy federal, state,
local or other withholding tax requirements if and to the extent required by law
(whether so required to secure for the Company an otherwise available tax
deduction or otherwise) prior to the delivery of any certificate or certificates
for such shares.
(b) The Company may require as a condition to the issuance of
shares covered by any Incentive Option that the party exercising such Option
give a written representation to the Company which is satisfactory in form and
substance to its counsel and upon which the Company may reasonably rely, that he
or she will report to the Company any disposition of such shares prior to the
expiration of the holding periods specified by Section 422(a)(1) of the Code. If
and to the extent that the realization of income in such a disposition imposes
upon the Company federal, state, local or other withholding tax requirements, or
any such withholding is required to secure for the Company an otherwise
available tax deduction, the Company shall have the right to require that the
recipient remit to the Company an amount sufficient to satisfy those
requirements; and the Company may require as a condition to the issuance of
shares covered by an Incentive Option that the party exercising such option give
a satisfactory written representation promising to make such a remittance.
15. Termination of Association with the Company. If the Optionee's
employment or association with the Company is terminated, whether voluntarily or
otherwise, the Option, to the extent the Option is exercisable on the date of
termination, may be exercised by the Optionee, but only within 90 days after he
or she ceases to be an employee of or consultant to the Company, unless
terminated earlier by its terms. Notwithstanding the foregoing, in the event
that the applicable Option Agreement with respect to an Option shall contain
specific provisions governing the effect that any such termination shall have on
the exercisability of such Option, such provisions in the Option Agreement
shall, to the extent that they are inconsistent with the provisions of this
<PAGE> 9
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Section 15, control and deem to supersede the provisions of this Section 15. For
purposes of this Section 15, military or sick leave shall not be deemed a
termination of employment, provided that it does not exceed the longer of 120
days or the period during which the absent Optionee's reemployment rights, if
any, are guaranteed by statute or by contract.
16. Transferability of Options. Options shall not be transferable,
otherwise than by will or the laws of descent and distribution, and may be
exercised during the life of the Optionee only by the Optionee.
17. Adjustment of Number and Kind of Option Shares.
(a) In the event of any stock dividend payable in Stock or any
split-up or contraction in the number of shares of Stock after the date of an
Option Agreement and prior to the exercise in full of the Option, the number of
shares subject to such Option Agreement and the price to be paid for each share
subject to the Option shall be proportionately adjusted. In the event of any
reclassification, exchange, conversion or change of outstanding shares of Stock,
or in case of any consolidation or merger of the Company with or into another
company, or in case of any sale or conveyance to another company or entity of
the property of the Company as a whole or substantially as a whole, shares of
stock or other securities equivalent in kind and value to those shares an
Optionee would have received if he or she had held the full number of shares of
Stock subject to the Option immediately prior to such reclassification,
exchange, conversion, change, consolidation, merger, sale or conveyance and had
continued to hold those shares (together with all other shares, stock and
securities thereafter issued in respect thereof) to the time of the exercise of
the Option shall thereupon be subject to the Option. Upon dissolution or
liquidation of the Company, the Option shall terminate, but the Optionee (if at
the time in the employ of or retained as a consultant to the Company or any of
its subsidiaries) shall have the right, immediately prior to such dissolution or
liquidation, to exercise the Option to the extent exercisable on the date of
such dissolution or liquidation. No fraction of a share shall be purchasable or
deliverable upon exercise, but in the event any adjustment hereunder of the
number of shares covered by the Option shall cause such number to include a
fraction of a share, such number of shares shall be adjusted to the nearest
<PAGE> 10
-10-
smaller whole number of shares. In the event of changes in the outstanding Stock
by reason of any stock dividend, split-up, contraction, reclassification, or
change of outstanding shares of Stock of the nature contemplated by this Section
17, the number of shares of Stock available for the purpose of the Plan as
stated in Section 4 shall be correspondingly adjusted.
(b) Upon the close of business on the Initial Public Offering
Date, each Option then outstanding shall cease to be exercisable for shares of
Stock and shall become exercisable for shares of Common Stock of the Company.
The number of shares of Common Stock that shall become subject to each such
Option upon the close of business on the Initial Public Offering Date shall be
equal to the number of shares of Stock subject to each such Option on the date
immediately preceding such Initial Public Offering Date. From and after the
Initial Public Offering Date, each such Option shall be exercisable only in
accordance with the terms set forth in, and to the extent provided in, this Plan
or any applicable Option Agreement (including, without limitation, any vesting
schedule set forth therein), all to the same extent as if each such Option were
still exercisable for shares of Stock. Without limiting the generality of the
preceding sentence, nothing in this Section 17(b) shall be construed as
accelerating the exercisability of any Option.
18. Reservation of Stock. The Company shall at all times during the
term of the Options reserve or otherwise keep available such number of shares of
Stock as will be sufficient to satisfy the requirements of the Plan and shall
pay all fees and expenses necessarily incurred by the Company in connection
therewith.
19. Limitation of Rights in Stock; No Special Employment or Other
Rights. The Optionee shall not be deemed for any purpose to be a stockholder of
the Company with respect to any of the shares of Stock covered by an Option,
except to the extent that the Option shall have been exercised with respect
thereto and, in addition, a certificate shall have been issued therefor and
delivered to the Optionee or his agent. Any Stock issued pursuant to the Option
shall be subject to all restrictions upon the transfer thereof which may be now
or hereafter imposed by the Certificate of Incorporation, the By-laws of the
Company, and the Employment Agreement. Nothing contained in the Plan or in any
Option shall confer upon any
<PAGE> 11
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Optionee any right with respect to the continuation of his or her employment
with, or retention as a consultant by, the Company (or any subsidiary), or
interfere in any way with the right of the Company (or any subsidiary), subject
to the terms of any separate employment or consulting agreement or provision of
law or corporate articles or by-laws to the contrary, at any time to terminate
such employment or consulting agreement or to increase or decrease the
compensation of the Optionee from the rate in existence at the time of the grant
of an Option.
20. Termination and Amendment of the Plan. The Board may at any time
terminate the Plan or make such modifications of the Plan as it shall deem
advisable. No termination or amendment of the Plan may, without the consent of
the Optionee to whom any Option shall theretofore have been granted, adversely
affect the rights of such Optionee under such Option.
21. Notices and Other Communications. All notices and other
communications required or permitted under the Plan shall be effective if in
writing and if delivered or sent by certified or registered mail, return receipt
requested (a) if to the Optionee, at his or her residence address last filed
with the Company, and (b) if to the Company, at 226 Lowell Street, Wilmington,
MA 01887, Attention: Andrew D. Ory, President, with a copy to the Clerk of the
Company, presently, Robert G. Ory, at such address, or to such other persons or
addresses as the Optionee or the Company may specify by a written notice to the
other from time to time.
<PAGE> 12
PRIORITY CALL MANAGEMENT, INC.
FIRST AMENDMENT
TO
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
This FIRST AMENDMENT (this "Amendment") to the Amended and Restated
1993 Stock Option Plan (the "Plan") of Priority Call Management, Inc., a
Massachusetts corporation (the "Company"), is adopted by the Board of Directors
of the Company by written consent effective as of March 9, 1995 (the "Effective
Date"), subject to ratification and approval by the stockholders of the Company.
Effective from and after the Effective Date, the Plan is hereby amended as
follows:
1. Section 4 of the Plan hereby is amended by replacing the number
"240,000" in the fifth (5th) line thereof with the number "340,000", said
amendment being for purposes of increasing the total number of shares of Class B
Common Stock (Non-Voting), $.01 par value per share, that have been issued
and/or that may be issued upon exercise of stock options granted under the Plan
from 240,000 to 340,000.
Except to the extent amended hereby, all of the terms, provisions
and conditions set forth in the Plan are hereby ratified and confirmed and shall
remain in full force and effect. The Plan and this Amendment shall be read and
construed together as a single instrument.
<PAGE> 13
PRIORITY CALL MANAGEMENT, INC.
SECOND AMENDMENT
TO
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
This SECOND AMENDMENT (this "Amendment") to the Amended and Restated
1993 Stock Option Plan, as heretofore amended (the "Plan"), of Priority Call
Management, Inc., a Massachusetts corporation (the "Company"), is being adopted
by the Board of Directors of the Company at a meeting held on January 31, 1996
(the "Effective Date"), subject to ratification and approval by the stockholders
of the Company. Effective from and after the Effective Date, the Plan is hereby
amended as follows:
1. Section 4 of the Plan hereby is amended by replacing the number
"340,000" in the fifth (5th) line thereof with the number "440,000", said
amendment being for purposes of increasing the total number of shares of Common
Stock, $.01 par value per share, that have been issued and/or that may be issued
upon exercise of stock options granted under the Plan from 340,000 to 440,000.
Except to the extent amended hereby, all of the terms, provisions
and conditions set forth in the Plan are hereby ratified and confirmed and shall
remain in full force and effect. The Plan and this Amendment shall be read and
construed together as a single instrument.
<PAGE> 14
PRIORITY CALL MANAGEMENT, INC.
THIRD AMENDMENT
TO
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
This THIRD AMENDMENT (this "Amendment") to the Amended and Restated
1993 Stock Option Plan (the "Plan") of Priority Call Management, Inc., a
Massachusetts corporation (the "Company"), is adopted by the Board of Directors
of the Company by written consent effective as of June 28, 1996 (the "Effective
Date"), subject to ratification and approval by the stockholders of the Company.
Effective from and after the Effective Date, the Plan is hereby amended as
follows:
1. Section 4 of the Plan hereby is amended by replacing the number
"440,000" in the fifth (5th) line thereof with the number "490,000", said
amendment being for purposes of increasing the total number of shares of Common
Stock, $.01 par value per share, that have been issued and/or that may be issued
upon exercise of stock options granted under the Plan from 440,000 to 490,000.
Except to the extent amended hereby, all of the terms, provisions
and conditions set forth in the Plan are hereby ratified and confirmed and shall
remain in full force and effect. The Plan and this Amendment shall be read and
construed together as a single instrument.
<PAGE> 15
PRIORITY CALL MANAGEMENT, INC.
FOURTH AMENDMENT
TO
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
This FOURTH AMENDMENT (this "Amendment") to the Amended and Restated
1993 Stock Option Plan (the "Plan") of Priority Call Management, Inc., a
Massachusetts corporation (the "Company"), is adopted by the Board of Directors
of the Company by written consent effective as of March 9, 1998 (the "Effective
Date"), subject to ratification and approval by the stockholders of the Company.
Effective from and after the Effective Date (subject to ratification and
approval by the stockholders of the Company), the Plan is hereby amended as
follows:
1. Section 4 of the Plan hereby is amended by replacing the number
"490,000" in the fifth (5th) line thereof with the number "640,000", said
amendment being for purposes of increasing the total number of shares of Common
Stock, $.01 par value per share, that have been issued and/or that may be issued
upon exercise of stock options granted under the Plan from 490,000 to 640,000.
Except to the extent amended hereby, all of the terms, provisions
and conditions set forth in the Plan are hereby ratified and confirmed and shall
remain in full force and effect. The Plan and this Amendment shall be read and
construed together as a single instrument.
<PAGE> 16
PRIORITY CALL MANAGEMENT, INC.
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
This FIFTH AMENDMENT (this "Amendment") to the Amended and Restated 1993 Stock
Option Plan (the "Plan")) of Priority Call Management, Inc., a Massachusetts
corporation (the "Company"), is adopted by the Board of Directors of the Company
by written consent effective as of March 9, 1999 (the "Effective Date"), subject
to ratification and approval by the stockholders of the Company. Effective from
and after the Effective Date (subject to ratification and approval by the
stockholders of the Company), the Plan is hereby amended as follows:
1. Section 4 of the Plan hereby is amended by replacing the number
"640,000" in the fifth line thereof with the number "770,000", said
amendment being for purposes of increasing the total number of
shares of Common Stock, $.01 par value per share, that have been
issued and/or that may be issued upon exercise of stock options
granted under the Plan from 640,000 to 770,000
Except to the extent amended hereby, all of the terms, provisions and conditions
set forth in the Plan are hereby ratified and confirmed and shall remain in full
force and effect. The plan and this amendment shall be read and construed
together as a single instrument.
