<PAGE> 1
As filed with the Securities and Exchange Commission on December 5, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EDUTREK INTERNATIONAL, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Georgia 58-2255472
--------------------------------- -------------------------------
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
3340 Peachtree Road, Suite 2000, Atlanta, Georgia 30326
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(Address of Principal Executive Offices) (Zip Code)
EDUTREK INTERNATIONAL, INC.
1997 INCENTIVE PLAN
---------------------------
(Full Title of the Plan)
Steve Bostic
Chairman and Chief Executive Officer
EduTrek International, Inc.
3340 Peachtree Road, Suite 2000
Atlanta, Georgia 30326
(404) 812-8200
-------------------------------------------
(Name, address, telephone number, including
area code, of agent for service)
----------------------
Copies Requested to:
Arthur Jay Schwartz, Esq.
Smith, Gambrell & Russell, LLP
Promenade II, Suite 3100
1230 Peachtree Road, N.E.
Atlanta, Georgia 30309-3592
(404) 815-3500
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options and Shares of
Class A Common 829,388 $ 23.50 $ 19,490,618 $ 5,749.73
Stock, without par value Shares
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low reported
prices of the Class A Common Stock on the Nasdaq National Market System on
December 2, 1997.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities and
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing such documents:
1. The Company's Prospectus, dated September 23, 1997, as filed with the
Securities and Exchange Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
August 31, 1997;
3. The Company's Amendment No. 1 on Form 10-Q/A to its Quarterly Report on
Form 10-Q for the quarter ended August 31, 1997; and
4. The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form 8-A as filed with the
Commission on August 22, 1997 and declared effective by the Securities
and Exchange Commission on September 23, 1997.
ITEM 4. DESCRIPTION OF SECURITIES.
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No response is required to this item.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As provided under Georgia law, the Company's Articles of Incorporation
provide that a Director shall not be personally liable to the Company or its
shareholders for monetary damages, for breach of duty of care or any other
fiduciary duty owed to the Company as a Director, except that such provisions
shall not eliminate or limit the liability of a Director for (a) any
appropriation, in violation of his or her duties, of any business opportunity
of the Company; (b) acts or omissions that involve intentional misconduct or a
knowing violation of law; (c) unlawful corporate distributions; or (d) any
transaction from which the Director received an improper personal benefit. If
applicable law is amended to authorize corporate action further eliminating or
limiting the liability of Directors, the liability of each Director of the
Company shall be eliminated or limited to the fullest extent permitted by
applicable law. Article VI of the Company's Bylaws provides that the Company
shall indemnify a Director who has been successful in the defense of any
proceeding to which he or she was a party or in defense of any claim, issue or
matter therein because he or she is or was a Director of the Company, against
reasonable expenses incurred by him or her in connection with such defense.
II-2
<PAGE> 3
The Company's Bylaws also provide that the Company may indemnify any
Director, officer, employee or agent made a party to a proceeding because he or
she is or was a Director, officer, employee or agent against liability incurred
in the proceeding if he or she acted in a manner he or she believed in good
faith to be in or not opposed to the best interests of the Company and, in the
case of any criminal proceeding, he or she had no reasonable cause to believe
his or her conduct was unlawful. Determination concerning whether or not the
applicable standard of conduct has been met can be made by (a) a disinterested
majority of the Board of Directors; (b) a majority of a committee of
disinterested Directors; (c) independent legal counsel; or (d) an affirmative
vote of a majority of shares held by disinterested shareholders. No
indemnification may be made to or on behalf of a Director, officer, employee or
agent (1) in connection with a proceeding by or in the right of the Company in
which such person was adjudged liable to the Company, or (2) in connection with
any other proceeding in which such person was adjudged liable on the basis that
personal benefit was improperly received by him or her.
The Company may, if authorized by its shareholders by a majority of
votes which would be entitled to be cast in a vote to amend the Company's
Articles of Incorporation, indemnify or obligate itself to indemnify a
Director, officer, employee or agent made a party to a proceeding, including a
proceeding brought by or in the right of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No response to this Item is required.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement. The exhibits which are denominated by an asterisk
(*) were previously filed as a part of, and are hereby incorporated by
reference from, a Registration Statement on Form S-1 under the Securities Act
of 1933, as amended, for the Registrant, Registration No. 333-29603. The
exhibit number corresponds to the exhibit number in the referenced document.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
10.2.1 Amended and Restated 1997 Incentive Plan.
*10.3 Form of Incentive Stock Option Agreement.
*10.4 Form of Nonqualified Stock Option Agreement.
5.1 Opinion of Smith, Gambrell & Russell, LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (contained
in their opinion filed as Exhibit 5.1).
II-3
<PAGE> 4
24.1 Powers of Attorney (contained on the signature page to
this Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Atlanta, State of
Georgia, on the 5th day of December, 1997.
EDUTREK INTERNATIONAL, INC.
By: /s/ Steve Bostic
-------------------------------------
Steve Bostic
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steve Bostic, Donald J. Blankers and
Douglas C. Chait and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him, in his
name, place and stead, in any and all capacities, to sign any and 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, including a Registration Statement filed under Rule
462(b) of the Securities Act of 1933, as amended, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents 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 and 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Steve Bostic Chairman and Chief Executive December 5, 1997
- ------------------------------- Officer (principal executive
Steve Bostic officer)
/s/ Stephen G. Franklin, Sr. President, Chief Academic December 5, 1997
- ------------------------------- Officer and Director
Stephen G. Franklin, Sr.
/s/ Donald J. Blankers Chief Financial Officer (principal December 5, 1997
- ------------------------------- financial officer and accounting
Donald J. Blankers officer)
/s/ Paul D. Beckman Director December 5, 1997
- -------------------------------
Paul D. Beckman
/s/ Fred C. Davison Director December 5, 1997
- -------------------------------
Fred C. Davison
/s/ Gaylen D. Kemp Director December 5, 1997
- -------------------------------
Gaylen D. Kemp
</TABLE>
<PAGE> 6
/s/ Robert Fitzgerald Director December 5, 1997
- -------------------------------
Robert Fitzgerald
/s/ Gerald Tellefsen Director December 5, 1997
- -------------------------------
Gerald Tellefsen
/s/ Ronald Hogan Director December 5, 1997
- -------------------------------
Ronald Hogan
<PAGE> 7
Exhibit Index
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.2.1 Amended and Restated 1997 Incentive Plan.
23.1 Consent of Deloitte & Touche LLP.
<PAGE> 1
EXHIBIT 5.1
December 3, 1997
Board of Directors
EduTrek International, Inc.
3340 Peachtree Road, Suite 2000
Atlanta, Georgia 30326
RE: EduTrek International, Inc.
Registration Statement on Form S-8
829,388 Shares of Class A Common Stock, without par value
Amended and Restated 1997 Incentive Plan
Gentlemen:
We have acted as counsel for EduTrek International, Inc. (the "Company") in
connection with the registration of 829,388 shares of its Class A Common Stock
(the "Shares") reserved to the Amended and Restated EduTrek International, Inc.
1997 Incentive Plan (the "Plan"), pursuant to a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, covering the
Shares.
In connection therewith, we have examined the following:
(1) The Articles of Incorporation, as amended, of the Company, certified
by the Secretary of State of the State of Georgia;
(2) The By-Laws of the Company, certified as complete and correct by the
Secretary of the Company;
(3) The minute book of the Company, certified as correct and complete by
the Secretary of the Company; and
(4) The Registration Statement, including all exhibits thereto.
<PAGE> 2
Board of Directors
EduTrek International, Inc.
December 3, 1997
Page Two
Based upon such examination and upon examination of such other instruments
and records as we have deemed necessary, we are of the opinion that the Shares
covered by the Registration Statement have been legally authorized and when
issued in accordance with the terms described in said Registration Statement,
will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement on Form S-8 and to the reference to this
firm under the caption "Legal Matters" in the Prospectus. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Sincerely,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ Marlon F. Starr
-------------------
Marlon F. Starr
MFS/dkaw
<PAGE> 1
EXHIBIT 10.2.1
EDUTREK INTERNATIONAL, INC.
AMENDED AND RESTATED 1997 INCENTIVE PLAN
The following plan has been amended to reflect the changes effected by
Amendment No.1 and Amendment No. 2 adopted by the Board of Directors and
approved by the shareholders on June 6, 1997 and July 30, 1997, respectively,
and restated to reflect the seven-for-one split of the Company's Common Stock
effected as of June 17, 1997.
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the EduTrek International, Inc. 1997 Incentive
Plan (the "Plan"). The purpose of the Plan is to enable EduTrek International,
Inc. (the "Company") and its Subsidiaries and Affiliates to attract and retain
employees and directors who contribute to the Company's success by their
ability, ingenuity and industry, and to enable such employees and directors to
participate in the long-term success and growth of the Company through an
equity interest in the Company.
For purposes of the Plan, the following terms shall be defined as set
forth below:
a. "Affiliate" means any corporation (other than a Subsidiary),
partnership, joint venture or any other entity in which the Company owns,
directly or indirectly, at least a 10 percent beneficial ownership interest.
b. "Board" means the Board of Directors of the Company.
c. "Cause" means a felony conviction of a participant or the
failure of a participant to contest prosecution for a felony, or a
participant's willful misconduct or dishonesty, any of which is harmful to the
business or reputation of the Company or any Subsidiary or Affiliate.
d. "Code" means the Internal Revenue Code of 1986, as amended, or
any successor thereto and the Treasury Regulations and rulings promulgated
thereunder.
e. "Committee" means a committee of the Board appointed for the
purpose of administering the Plan, which committee shall at all times consist
of two or more Non-Employee Directors.
f. "Commission" means the U.S. Securities and Exchange Commission.
g. "Company" means EduTrek International, Inc., a corporation
organized under the laws of the State of Georgia (or any successor
corporation).
h. "Disability" means total and permanent disability as determined
under the Company's long term disability program.
i. "Early Retirement" means retirement from active employment with
the Company, any Subsidiary and any Affiliate pursuant to the early retirement
provisions of the applicable company pension plan.
<PAGE> 2
j. "Eligible Employee" means a person regularly employed by the
Company or a Subsidiary and who is responsible for or contributes to the
management, growth and/or profitability of the business of the Company or a
Subsidiary.
k. "Eligible Participant" means an Eligible Employee or a
Non-Employee Director.
l. "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto.
m. "Fair Market Value" means, as of any given date, the mean
between the high "bid" and low "ask" prices as of the close of business for the
Company's Stock in the over-the-counter market, as reported by the Nasdaq Stock
Market (or other national quotation service), or, if the Stock is registered on
a national securities exchange, the closing price of the Stock on such national
securities exchange or, if neither traded in the over-the-counter market nor
listed on a national securities exchange, then the fair market value as
determined by the Board or the Committee, but in no case less than the par
value of such Stock.
n. "Incentive Stock Option" means any Stock Option intended to be
and designated as an "incentive stock option" within the meaning of Section 422
of the Code.
o. "Non-Employee Director" means a member of the Board or the board
of directors of a Subsidiary who is not a regular salaried employee of the
Company or one of its Subsidiaries. As it relates to the members of the
Committee and for the purpose of Sections 2 and 10 of the Plan, "Non-Employee
Director" shall have the meaning set forth in Rule 16b-3(b) (3) as promulgated
by the Commission under the Securities Exchange Act of 1934, as amended, or any
successor definition adopted by the Commission.
p. "Non-Qualified Stock Option" means any Stock Option that is not
an Incentive Stock Option.
q. "Normal Retirement" means retirement from active employment
with the Company, any Subsidiary, and any Affiliate on or after the normal
retirement date specified in the applicable company pension plan.
r. "Performance Award" means an award of shares of Stock or cash
pursuant to Section 9 contingent upon achieving certain performance goals.
s. "Plan" means this 1997 Incentive Plan.
t. "Restricted Stock" means an award of shares of Stock that are
subject to restrictions under Section 8.
u. "Retirement" means Normal or Early Retirement.
v. "Stock" means the Class A Common Stock of the Company.
w. "Stock Appreciation Right" means a right granted under Section 7
which entitles the holder to receive a cash payment or an award of Stock in an
amount equal to the difference between (i) the Fair Market Value of the Stock
covered by such right at the date the right is granted, unless otherwise
determined by the Board or the Committee pursuant to Section 7 and (ii) the
Fair Market Value of the Stock covered by such right at the date the right is
exercised multiplied by the number of shares covered by the right.
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<PAGE> 3
x. "Stock Option" means any option to purchase shares of Stock
granted to Eligible Employees or Eligible Participants under the Plan.
y. "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board or the Committee. Subject
to the provisions of Section 10 of the Plan, the Board or the Committee shall
have the power and authority to grant to Eligible Employees or Eligible
Participants, pursuant to the terms of the Plan: (i) Incentive Stock Options;
(ii) Non-Qualified Stock Options; (iii) Stock Appreciation Rights; (iv)
Restricted Stock; or (v) Performance Awards.
In particular, the Board or the Committee shall have the authority:
(i) to select the Eligible Employees or Eligible Participants to whom
Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation
Rights, Restricted Stock, or Performance Awards or a combination of the
foregoing from time to time will be granted hereunder;
(ii) to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock, or
Performance Awards or a combination of the foregoing, are to be granted
hereunder;
(iii) to determine the number of shares of Stock to be covered by each
such award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder including, but not limited
to, any restriction on any Stock Option or other award and/or the shares of
Stock relating thereto based on performance and/or such other factors as the
Board or the Committee may determine, in its sole discretion, and any vesting
acceleration features based on performance and/or such other factors as the
Board or the Committee may determine, in its sole discretion;
(v) to determine whether, to what extent and under what circumstances
Stock and other amounts payable with respect to an award under this Plan shall
be deferred either automatically or at the election of a participant, including
providing for and determining the amount (if any) of deemed earnings on any
deferred amount during any deferral period.
Subject to Section 12, the Board or the Committee shall have the
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the Plan as it shall, from time to time, deem advisable; to
interpret the terms and provisions of the Plan and any award issued under the
Plan (and any agreements relating thereto); and to otherwise supervise the
administration of the Plan.
All decisions made by the Board or the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including the
Company and Plan participants.
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<PAGE> 4
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
distribution under the Plan shall be 829,388. Such shares may consist, in whole
or in part, of authorized and unissued shares or treasury shares.
If any shares of Stock that have been subject to option cease to be
subject to option, or if any shares subject to any Restricted Stock award
granted hereunder are forfeited or such award is otherwise terminated, such
shares shall again be available for distribution in connection with future
awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Stock, a substitution or adjustment shall be made in the
aggregate number of shares reserved for issuance under the Plan, in the number
and option price of shares subject to outstanding Stock Options granted under
the Plan and in the number of shares subject to Restricted Stock awards granted
under the Plan as may be determined to be appropriate by the Board or the
Committee, in its sole discretion, provided that the number of shares subject
to any award shall always be a whole number. Such adjusted option price shall
also be used to determine the amount payable by the Company upon the exercise
of any Stock Appreciation Right associated with any Stock Option.
SECTION 4. ELIGIBILITY.
Awards granted pursuant to Section 5 hereunder shall be granted only to
Eligible Employees. Awards granted pursuant to Sections 6, 7, 8 and 9 shall be
granted only to Eligible Participants. Awards granted pursuant to Section 10
shall be granted only to Non-Employee Directors who are serving as members of
the Committee. The optionees and participants under the Plan shall be selected
from time to time by the Board or the Committee, in its sole discretion, from
among those eligible, and the Board or the Committee shall determine, in its
sole discretion, the number of shares covered by each award or grant.
SECTION 5. INCENTIVE STOCK OPTIONS.
Incentive Stock Options may be granted either alone or in addition to
other awards granted under the Plan. Any Incentive Stock Option granted under
the Plan shall be in such form as the Board or the Committee may from time to
time approve, and the provisions of Incentive Stock Option awards need not be
the same with respect to each optionee.
The Board or the Committee shall have the authority to grant any
Eligible Employee Incentive Stock Options (with or without Stock Appreciation
Rights) except that Incentive Stock Options shall not be granted to employees
of an Affiliate. To the extent that any Stock Option does not qualify as an
Incentive Stock Option, it shall constitute a separate Non-Qualified Stock
Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or any Incentive Stock Option
under Section 422 of the Code. Notwithstanding the foregoing, in the event an
optionee voluntarily disqualifies an option as an Incentive Stock Option within
the meaning of Section 422 of the Code, the Board or the Committee may, but
shall not be obligated to, make such additional grants, awards or bonuses as
the Board or the Committee shall deem appropriate, to reflect the tax savings
to the Company which results from such disqualification.
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<PAGE> 5
Incentive Stock Options granted under the Plan shall be evidenced by
agreements to be consistent with and subject to the following terms and
conditions and shall contain such additional terms and conditions, consistent
with the terms of the Plan, as the Board or the Committee shall deem desirable:
(a) Option Price. The option price per share of Stock
purchasable under an Incentive Stock Option shall be the Fair Market
Value of the Stock on the date of the grant of the Incentive Stock
Option; provided, however, that the option price per share of an
Incentive Stock Option granted to an individual who, at the time the
option is granted, owns directly or indirectly more than ten percent
(10%) of the total combined voting power of all classes of stock of
the Company (a "Ten Percent Owner"), shall be not less than one
hundred ten percent (110%) of the Fair Market Value on the date the
option is granted.
(b) Option Term. The term of each Incentive Stock Option shall
be fixed by the Board or the Committee, but no Incentive Stock Option
shall be exercisable more than ten years after the date such option is
granted. Notwithstanding the foregoing, no Incentive Stock Option
granted to a Ten Percent Owner shall be exercisable more than five (5)
years from the date of grant of the option.
(c) Exercisability. Subject to paragraph (j) of this Section 5,
Incentive Stock Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the
Board or the Committee at grant. If the Board or the Committee
provides, in its discretion, that any Incentive Stock Option is
exercisable only in installments, the Board or the Committee may waive
such installment exercise provision at any time in whole or in part
based on performance and/or such other factors as the Board or the
Committee may determine in its sole discretion.
(c) Method of Exercise. Incentive Stock Options may be
exercised in whole or in part at any time during the option period, by
giving written notice of exercise to the Company specifying the number
of shares to be purchased, accompanied by payment in full of the
purchase price, in cash, by check or such other instrument as may be
acceptable to the Board or the Committee. As determined by the Board
or the Committee, in its sole discretion, at or after grant, payment
in full or in part may also be made in the form of unrestricted Stock
owned by the optionee (based on the Fair Market Value of the Stock on
the date the option is exercised). An optionee shall have the right to
dividends or other rights of a stockholder with respect to shares
subject to the option only when the optionee has given written notice
of exercise and has paid in full for such shares.
(d) Non-transferability of Options. No Incentive Stock Option
shall be transferable by the Optionee otherwise than by will or by the
laws of descent and distribution. All Incentive Stock Options shall be
exercisable, during the optionee's lifetime, only by the optionee.
(e) Termination by Death. Unless otherwise determined by the
Board or the Committee at grant, if any optionee's employment with the
Company, any Subsidiary, and any Affiliate terminates by reason of
death, the Incentive Stock Option may thereafter be immediately
exercised, to the extent then exercisable (or on such accelerated
basis as the Board or the Committee shall determine at or after
grant), by the legal representative of the estate or by the legatee of
the optionee under the will of the optionee, for a period of three
years from the date of such death or until the expiration of the
stated term of such Incentive Stock Option, whichever period is the
shorter.
(f) Termination by Reason of Disability. Unless otherwise
determined by the Board or the Committee at grant, if any optionee's
employment with the Company, any Subsidiary and any
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<PAGE> 6
Affiliate terminates by reason of Disability, any Incentive Stock
Option held by such optionee may thereafter be exercised, to the
extent it was exercisable at the time of termination due to Disability
(or on such accelerated basis as the Board or Committee shall
determine at or after grant), but may not be exercised after three
years from the date of such termination of employment or the
expiration of the stated term of such Incentive Stock Option,
whichever period is the shorter; provided, however, that, if the
optionee dies within such three-year period, any unexercised Incentive
Stock Option held by such optionee shall thereafter be exercisable to
the extent to which it was exercisable at the time of death for a
period of twelve months from the date of such death or for the stated
term of such Incentive Stock Option, whichever period is the shorter.
In the event of termination of employment by reason of Disability, if
an Incentive Stock Option is exercised after the expiration of the
exercise periods that apply for purposes of Section 422 of the Code,
such Stock Option will thereafter be treated as a Non-Qualified Stock
Option.
(g) Termination by Reason of Retirement. Unless otherwise
determined by the Board or the Committee at grant, if any optionee's
employment with the Company, any Subsidiary and any Affiliate
terminates by reason of Normal or Early Retirement, any Incentive
Stock Option held by such optionee may thereafter be exercised to the
extent it was exercisable at the time of such Retirement (or on such
accelerated basis as the Board or the Committee shall determine at or
after grant), but may not be exercised after three years from the date
of such termination of employment or the expiration of the stated term
of such Incentive Stock Option, whichever period is the shorter;
provided, however, that, if the optionee dies within such three-year
period any unexercised Incentive Stock Option held by such optionee
shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of twelve months from
the date of such death or for the stated term of the Incentive Stock
Option, whichever period is the shorter. In the event of termination
of employment by reason of Retirement, if an Incentive Stock Option is
exercised after the exercise periods that apply for purposes of
Section 422 of the Code, such Stock Option will thereafter be treated
as a Non-Qualified Stock Option.
(h) Other Termination. Unless otherwise determined by the Board
or the Committee at grant, if an optionee's employment with the
Company, any Subsidiary and any Affiliate terminates for any reason
other than death, Disability or Normal or Early Retirement, the
Incentive Stock Option shall thereupon terminate, except that such
option may be exercised for the lesser of three months from the date
of termination or the balance of such option's term if the optionee's
employment with the Company, any Subsidiary and any Affiliate is
involuntarily terminated by the optionee's employer without Cause.
(i) Limit on Value of Incentive Stock Option First Exercisable
Annually. To the extent that the aggregate Fair Market Value
(determined at the time the option is granted) of shares of Stock with
respect to which Incentive Stock Options are exercisable for the first
time by an individual during any calendar year (under all of the
Company's option plans) exceeds $100,000, such options shall be
treated as Non-Qualified Stock Options.
SECTION 6. NON-QUALIFIED STOCK OPTIONS.
The Board or the Committee may grant to Eligible Participants options
under the Plan which are not Incentive Stock Options under the provisions of
Section 422 of the Code. Such Non-Qualified Stock Options shall be evidenced by
agreements in such form and consistent with this Plan as the Board or the
Committee shall approve from time to time, which agreements shall contain in
substance the same terms and conditions
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as set forth in Section 5 hereof with respect to Incentive Stock Options
(except that references to employment with the Company shall be deemed to mean
service on the Board); provided, however, that the limitations set forth in
Sections 5(a), 5(b) or 5(i) shall not be applicable to Non-Qualified Stock
Options. Payment of the option exercise price for a Non-Qualified Stock Option
may be made in the form of Restricted Stock owned by the optionee, in which
case the shares received upon the exercise of such Non-Qualified Stock Option
shall be restricted or deferred, as the case may be, in accordance with the
original term of the Restricted Stock award in question, except that the Board
or the Committee may direct that such restrictions or deferral provisions shall
apply only to the number of such shares equal to the number of shares of
Restricted Stock surrendered upon the exercise of such option. No shares of
unrestricted Stock shall be issued until full payment therefor has been made.
SECTION 7. STOCK APPRECIATION RIGHTS.
(a) Grant and Exercise When Granted in Conjunction With Stock
Options. Stock Appreciation Rights may be granted in conjunction with all or
part of any Stock Option granted under the Plan and may contain terms and
conditions different from those of the related Stock Option, except as
otherwise provided below. In the case of a Non-Qualified Stock Option, such
rights may be granted either at or after the time of the grant of such
Non-Qualified Stock Option. In the case of an Incentive Stock Option, such
rights may be granted only at the time of the grant of such Incentive Stock
Option.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that,
unless otherwise provided by the Board or the Committee at the time of grant, a
Stock Appreciation Right granted with respect to less than the full number of
shares covered by a related Stock Option shall only be reduced if and to the
extent that the number of shares covered by the exercise or termination of the
related Stock Option exceeds the number of shares not covered by the Stock
Appreciation Right.
A Stock Appreciation Right may be exercised by an optionee, in
accordance with paragraph (d) of this Section 7, by surrendering the applicable
portion of the related Stock Option. Upon such exercise and surrender, the
optionee shall be entitled to receive an amount determined in the manner
prescribed in paragraph (d) of this Section 7. Stock Options which have been so
surrendered, in whole or in part, shall no longer be exercisable to the extent
the related Stock Appreciation Rights have been exercised.
(b) Grant and Exercise When Granted in Tandem With Stock Option.
Stock Appreciation Rights may be granted in tandem either at the time of grant
of a Non-Qualified Stock Option or at any time during the term of such Stock
Option. Stock Appreciation Rights are not permitted to be granted in tandem
with an Incentive Stock Option under this Plan.
A Stock Appreciation Right may be exercised at any time to the extent
that the Stock Option to which it relates is then exercisable, and shall be
subject to the conditions applicable to such Stock Option. When a Stock
Appreciation Right is exercised in accordance with Section 7(d), the Stock
Option to which it relates shall cease to be exercisable to the extent of the
number of shares with respect to which the Stock Appreciation Right is
exercised. Similarly, when an option is exercised, the Stock Appreciation Right
relating to the shares covered by such Stock Option exercise shall terminate.
Any Stock Appreciation Right which is outstanding on the last day of the term
of the Stock Option to which it is related shall be automatically exercised on
such date for cash or Stock, as determined by the Board or the Committee,
without any action by the optionee.
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<PAGE> 8
(c) Grant and Exercise When Granted Alone. Stock Appreciation Rights
may be granted at the discretion of the Board or the Committee in a manner not
related to an award of a Stock Option. A Stock Appreciation Right granted under
this Section 7(c) is not exercisable for a period of six months from the date
of grant, unless a longer period is otherwise determined by the Board or the
Committee. The Stock Appreciation Right, granted under Section 7(c), shall be
exercisable in accordance with Section 7(d) over a period not to exceed ten
years. Any Stock Appreciation Right which is outstanding on the last day of the
exercisable period shall be automatically exercised on such date for cash or
Stock, as determined by the Board or the Committee, without any action by the
holder.
(d) Terms and Conditions. Stock Appreciation Rights shall be subject
to such terms and conditions, not inconsistent with the provisions of the Plan,
as shall be determined from time to time by the Board or the Committee,
including the following:
(i) Stock Appreciation Rights granted pursuant to Section 7(a)
and 7(b) shall be exercisable only at such time or times and to the
extent that the Stock Options to which the Stock Appreciation Rights
relate shall be exercisable in accordance with the provisions of
Sections 5 and 6 and this Section 7 of the Plan; provided, however,
that any Stock Appreciation Right granted subsequent to the grant of
the related Stock Option shall not be exercisable during the first six
months of the term of the Stock Appreciation Right, except that this
additional limitation shall not apply in the event of death or
Disability of the optionee prior to the expiration of the six-month
period.
(ii) Upon the exercise of a Stock Appreciation Right granted
pursuant to Section 7(a) or 7(b), an optionee shall be entitled to
receive an amount in cash or shares of Stock equal in value to the
excess of the Fair Market Value of one share of Stock over the option
price per share specified in the related Stock Option multiplied by
the number of shares in respect of which the Stock Appreciation Right
shall have been exercised, with the Board or the Committee having the
right to determine the form of payment. Upon the exercise of a Stock
Appreciation Right granted pursuant to Section 7(c), the holder shall
be entitled to receive an amount in cash or shares of Stock equal in
value to the excess of the Fair Market Value of one share of Stock
over the Fair Market Value of one share of Stock at the date the Stock
Appreciation Right was granted multiplied by the number of shares in
respect of which the Stock Appreciation Right shall have been
exercised, with the Board or the Committee having the right to
determine the form of payment.
(iii) No Stock Appreciation Right shall be transferable by the
holder otherwise than by will or the laws of descent and distribution.
All Stock Appreciation Rights shall be exercisable, during the
holder's lifetime, only by the holder.
(iv) Upon the exercise of a Stock Appreciation Right granted
pursuant to Section 7(a) or Section 7(b), the Stock Option or part
thereof to which such Stock Appreciation Right is related shall be
deemed to have been exercised for the purpose of the limitation set
forth in Section 3 of the Plan on the number of shares of Stock to be
issued under the Plan.
(v) A Stock Appreciation Right granted in connection with an
Incentive Stock Option pursuant to Section 7(a), may be exercised only
if and when the market price of the Stock subject to the Incentive
Stock Option exceeds the exercise price of such Stock Option.
(vi) In its sole discretion, the Board or the Committee may
provide, at the time of grant of a Stock Appreciation Right under this
Section 7, that such Stock Appreciation Right can be exercised
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<PAGE> 9
only in the event of a "Change of Control" and/or a "Potential Change
of Control" (as defined in Section 14 below).
(vii) The Board or the Committee, in its sole discretion, may
also provide that in the event of a "Change of Control" and/or a
"Potential Change of Control" (as defined in Section 14 below) the
amount to be paid upon the exercise of a Stock Appreciation Right
shall be based on the "Change of Control Price" (as defined in Section
14 below).
(viii) Any exercise by a participant of all or a portion of a
Stock Appreciation Right for cash, may only be made during the period
beginning on the third business day following the date of the
Company's release of its quarterly or annual summary statements of
sales and earnings to the public and ending on the twelfth business
day following such date; provided, however, that the foregoing shall
not apply to any exercise by a participant of a Stock Appreciation
Right for cash where the date of exercise is automatic or fixed in
advance under the Plan and is outside the control of the participant.
SECTION 8. RESTRICTED STOCK.
(a) Administration. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Board or the
Committee shall determine the Eligible Participants to whom, and the time or
times at which, grants of Restricted Stock will be made, the number of shares
to be awarded, the price, if any, to be paid by the recipient of Restricted
Stock (subject to Section 8(b) hereof), the time or times within which such
awards may be subject to forfeiture, and all other conditions of the awards.
However, in no event shall any restriction, including risk of forfeiture,
attach to the Restricted Stock for a term to exceed ten years from the date
such Stock was granted. The Board or the Committee may also condition the grant
of Restricted Stock upon the attainment of specified performance goals, or such
other criteria as the Board or the Committee may determine, in its sole
discretion. The provisions of Restricted Stock awards need not be the same with
respect to each recipient.
(b) Awards and Certificates. The prospective recipient of an award
of shares of Restricted Stock shall not have any rights with respect to such
award, unless and until such recipient has executed an agreement evidencing the
award (a "Restricted Stock Award Agreement") and has delivered a fully executed
copy thereof to the Company, and has otherwise complied with the then
applicable terms and conditions.
(i) Awards of Restricted Stock must be accepted within a period
of 60 days (or such shorter period as the Board or the Committee may
specify) after the award date by executing a Restricted Stock Award
Agreement and paying whatever price, if any, is required.
(ii) Each participant who is awarded Restricted Stock shall be
issued a stock certificate in respect of such shares of Restricted
Stock. Such certificate shall be registered in the name of the
participant, and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award,
substantially in the following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and conditions
(including forfeiture) of the E Holdings, Inc. 1997 Incentive
Plan and a Restricted Stock Agreement entered into between the
registered owner and EduTrek International, Inc. Copies of such
Plan and Agreement are on file in the offices of EduTrek
International, Inc., 3340 Peachtree Road, Suite 2000, Atlanta,
Georgia 30326."
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<PAGE> 10
(iii) The Board or the Committee shall require that the stock
certificates evidencing such shares be held in custody by the Company
until the restrictions thereon shall have lapsed, and that, as a condition
of any Restricted Stock award, the participant shall have delivered a
stock power, endorsed in blank, relating to the Stock covered by such
award.
(c) Restrictions and Conditions. The shares of Restricted Stock
awarded pursuant to this Section 8 shall be subject to the following
restrictions and conditions:
(i) Subject to the provisions of this Plan and Restricted Stock
Award Agreements, during the period of six months after the award or
such longer period as may be set by the Board or the Committee
commencing on the grant date (the "Restriction Period"), the
participant shall not be permitted to sell, transfer, pledge or assign
shares of Restricted Stock awarded under the Plan. Within these
limits, the Board or the Committee may, in its sole discretion,
provide for the lapse of such restrictions in installments and may
accelerate or waive such restrictions in whole or in part based on
performance and/or such other factors as the Board or the Committee
may determine, in its sole discretion.
(ii) Except as provided in paragraph (c)(i) of this Section 8,
the participant shall have, with respect to the shares of Restricted
Stock, all of the rights of a stockholder of the Company, including
the right to receive any dividends.
Dividends paid in cash with respect to shares of Restricted
Stock shall not be subject to any restrictions or subject to
forfeiture. Dividends paid in stock of the Company or stock received
in connection with a stock split with respect to Restricted Stock
shall be subject to the same restrictions as on such Restricted Stock.
Certificates for shares of unrestricted Stock shall be delivered to
the participant promptly after, and only after, the period of
forfeiture shall expire without forfeiture in respect of such shares
of Restricted Stock.
(iii) Subject to the provisions of the Restricted Stock Award
Agreement and this Section 8, upon termination of employment for any
reason during the Restriction Period, all shares still subject to
restriction shall be forfeited by the participant, and the participant
shall only receive the amount, if any, paid by the participant for
such forfeited Restricted Stock.
(iv) In the event of special hardship circumstances of a
participant whose employment is involuntarily terminated (other than
for Cause), the Board or the Committee may, in it sole discretion,
waive in whole or in part any or all remaining restrictions with
respect to such participant's shares of Restricted Stock.
SECTION 9. PERFORMANCE AWARDS.
(a) Administration. Shares of Stock or a payment in cash may be
distributed under the Plan upon the attainment of achievement objectives to a
participant as a Performance Award. The Board or the Committee shall determine
the Eligible Participants to whom the Performance Award is granted, the terms
and conditions of the achievement objectives, the term of the performance
period, and the level and form of the payment of the Performance Award.
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<PAGE> 11
(b) Achievement Objectives. The Board or the Committee, at its sole
discretion may establish, under this Section 9, achievement objectives either
in terms of Company-wide objectives or in terms of objectives that are related
to the specific performance of the participant or the division, subsidiary,
department or function within the Company in which the participant is engaged.
A minimum level of acceptance, at the discretion of the Board or the Committee,
may be established.
If at the end of the performance period the specified objectives have
been attained, the participant is deemed to have fully earned the Performance
Award. If such achievement objectives have not been attained, the participant
is deemed to have partly earned the Performance Award and becomes eligible to
receive a portion of the total award, as determined by the Board or the
Committee. If a required minimum level of achievement has not been met, the
participant is entitled to no portion of the Performance Award. The Company may
adjust the payment of awards or the achievement objectives if events occur or
circumstances arise which would cause a particular payment or set of
achievement objectives to be inappropriate as a measure of performance.
(c) Terms and Conditions. A participant to whom a Performance Award
has been granted is given achievement objectives to be reached over a specified
period, the "performance period." Generally this period shall be not less than
one year but in no case shall the period exceed five years.
Any participant granted a Performance Award pursuant to this Section 9
who by reason of death, disability or retirement terminates his position with
the Company before the end of the performance period is entitled to receive a
portion of any earned Performance Award.
A participant who terminates his position with the Company for any
other reason forfeits all rights under the Performance Award.
SECTION 10. PARTICIPATION OF NON-EMPLOYEE DIRECTOR COMMITTEE MEMBERS.
Each Non-Employee Director serving on the Committee shall be eligible
to receive awards granted pursuant to Sections 6, 7, 8 and 9 of the Plan only
upon authorization and approval of the Board or the stockholders of the
Company.
SECTION 11. LOAN PROVISIONS.
With the consent of the Board or the Committee, the Company may make,
or arrange for, a loan or loans to an Eligible Employee or Eligible Participant
with respect to the exercise of any Stock Option granted under the Plan and/or
with respect to the payment of the purchase price, if any, of any Restricted
Stock awarded hereunder. The Board or the Committee shall have full authority
to decide whether to make a loan or loans hereunder and to determine the
amount, term and provisions of any such loan or loans, including the interest
rate to be charged in respect of any such loan or loans, whether the loan or
loans are to be with or without recourse against the borrower, the terms on
which the loan is to be repaid and the conditions, if any, under which the loan
or loans may be forgiven.
SECTION 12. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made which would impair the right of an
optionee or participant under a Stock
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<PAGE> 12
Option, Stock Appreciation Right, Restricted Stock, or Performance Award
theretofore granted, without the optionee's or participant's consent, or which
without the approval of the shareholders would:
(a) except as expressly provided in this Plan, increase the
total number of shares reserved for the purpose of the Plan;
(b) decrease the option price of any Stock Option to less than
100% of the Fair Market Value on the date of the granting of the
option;
(c) change the participants or class of participants eligible
to participate in the Plan so as to add directors or executive
officers to the class of Eligible Participants;
(d) extend the maximum option period under paragraph (b) of
Section 5 of the Plan;
(e) otherwise materially modify the requirements as to
eligibility for participation in the Plan; or
(f) otherwise materially increase the benefits accruing to
participants under the Plan.
The Plan may at any time or from time to time be terminated, modified
or amended by the affirmative vote of not less than a majority of the votes
entitled to be cast thereon by the Company's stockholders. The Board or the
Committee may amend the terms of any award or option theretofore granted,
prospectively or retroactively, but no such amendment shall impair the rights
of any holder without his consent. The Board or the Committee may also
substitute new Stock Options for previously granted Stock Options including
options granted under other plans applicable to the participant and previously
granted Stock Options having higher option prices.
SECTION 13. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing set forth herein shall give any
such participant or optionee any rights that are greater than those of a
general creditor of the Company. In its sole discretion, the Board or the
Committee may authorize the creation of trusts or other arrangements to meet
the obligations created under the Plan to deliver Stock or a payment in lieu of
or with respect to awards hereunder, provided, however, that the existence of
such trusts or other arrangements is consistent with the unfunded status of the
Plan.
SECTION 14. CHANGE OF CONTROL.
The following acceleration and valuation provisions shall apply in the
event of a "Change of Control" or "Potential Change of Control," as defined in
this Section 14:
(a) In the event of a "Change of Control" as defined in paragraph (b)
of this Section 14, unless otherwise determined by the Board or the Committee
in writing at or after grant, but prior to the occurrence of such Change of
Control, or, if and to the extent so determined by the Board or the Committee
in writing at or after grant (subject to any right of approval expressly
reserved by the Board or the Committee at the time of such determination) in
the event of a "Potential Change of Control," as defined in paragraph (c) of
this Section 14:
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(i) any Stock Appreciation Rights and any Stock Options awarded under
the Plan which have been outstanding for at least six months, if not
previously exercisable and vested shall become fully exercisable and
vested;
(ii) with the exception of the six month restriction in Section
8(c)(i), the restrictions and deferral limitations applicable to any
Restricted Stock award under the Plan shall lapse and such shares and
awards shall be deemed fully vested; and
(iii) the value of all outstanding Stock Options, Stock Appreciation
Rights, Restricted Stock or Performance Awards shall, to the extent
determined by the Board or the Committee at or after grant, be cashed out
on the basis of the "Change of Control Price" (as defined in paragraph (d)
of this Section 14) as of the date the Change of Control occurs or
Potential Change of Control is determined to have occurred, or such other
date as the Board or the Committee may determine prior to the Change of
Control or Potential Change of Control.
(b) For purpose of paragraph (a) of this Section 14, a "Change of
Control" means the happening of any of the following:
(i) when any "person," as such term used in Section 13(d) and 14(d)
of the Exchange Act (other than Steven Bostic or any affiliate of Steven
Bostic, the Company or a Subsidiary or any Company employee benefit plan
(including its trustee)), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly of
securities of the Company representing 20 percent or more of the combined
voting power of the Company's then outstanding securities;
(ii) when, during any period of two consecutive years during the
existence of the Plan, the individuals who, at the beginning of such
period, constitute the Board cease, for any reason other than death, to
constitute at least a majority thereof, unless each director who was not a
director at the beginning of such period was elected by, or on the
recommendation of, at least two-thirds of the directors at the beginning
of such period; or
(iii) the occurrence of a transaction requiring stockholder approval
for the acquisition of the Company by an entity other than the Company or
a Subsidiary through purchase of assets, or by merger, or otherwise.
(c) For purposes of paragraph (a) of this Section 14, a "Potential Change
of Control" means the happening of any of the following:
(i) the entering into an agreement by the Company, the consummation
of which would result in a Change of Control of the Company as defined in
paragraph (b) of this Section 14; or
(ii) the acquisition of beneficial ownership, directly or indirectly,
by any entity, person or group (other than Steven Bostic or any affiliate
of Steven Bostic, the Company or a Subsidiary or any Company employee
benefit plan (including its trustee)) of securities of the Company
representing five percent or more of the combined voting power of the
Company's outstanding securities and the adoption by the Board of
Directors of a resolution to the effect that a Potential Change of Control
of the Company has occurred for purposes of this Plan.
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<PAGE> 14
(d) For purposes of this Section 14, "Change of Control Price" means
the highest price per share paid in any transaction reported on the Nasdaq
Stock Market or the New York Stock Exchange Composite Tape, whichever then
applies to the Stock, or paid or offered in any transaction related to a
potential or actual Change of Control of the Company at any time during the
preceding 60 day period as determined by the Board or the Committee, except
that in the case of Incentive Stock Options and Stock Appreciation Rights
relating to Incentive Stock Options, such price shall be based only on
transactions reported for the date on which the Board or the Committee decides
to cash out such options.
SECTION 15. GENERAL PROVISIONS.
(a) All certificates for shares of Stock delivered under the Plan
shall be subject to such stock transfer orders and other restrictions as the
Board or the Committee may deem advisable under the rules, regulations, and
other requirements of the Commission, any stock exchange upon which the Stock
is then listed, and any applicable federal or state securities law, and the
Board or the Committee may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions.
(b) Nothing set forth in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of the
Plan shall not confer upon any employee or director of the Company, any
Subsidiary or any Affiliate, any right to continued employment (or, in the case
of a director, continued retention as a director) with the Company, a
Subsidiary or an Affiliate, as the case may be, nor shall it interfere in any
way with the right of the Company, a Subsidiary or an Affiliate to terminate
the employment of any of its employees at any time.
(c) Each participant shall, no later than the date as of which the
value of an award first becomes includable in the gross income of the
participant for federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Board or the Committee regarding payment of,
any federal, state, or local taxes of any kind required by law to be withheld
with respect to the award. The obligations of the Company under the Plan shall
be conditional on such payment or arrangements and the Company (and, where
applicable, its Subsidiaries and Affiliates), shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant. A participant may irrevocably elect to have
the withholding tax obligations or, in the case of all awards hereunder except
Stock Options which have related Stock Appreciation Rights, if the Board or the
Committee so determines, any additional tax obligation with respect to any
awards hereunder satisfied by (a) having the Company withhold shares of Stock
otherwise deliverable to the participant with respect to the award or (b)
delivering to the Company shares of unrestricted Stock.
(d) At the time of grant or purchase, the Board or the Committee may
provide in connection with any grant or purchase made under this Plan that the
shares of Stock received as a result of such grant or purchase shall be subject
to a right of first refusal, pursuant to which the participant shall be
required to offer the Company any shares that the participant wishes to sell,
with the price being the then Fair Market Value of the Stock, subject to
provisions of Section 15 hereof and to such other terms and conditions as the
Board or the Committee may specify at the time of grant.
(e) No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the Committee, shall
be personally liable for any action, determination, or interpretation taken or
made in good faith with respect to the Plan, and all members of the Board or
the
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<PAGE> 15
Committee and each and any officer or employee of the Company acting on their
behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.
SECTION 16. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the date it is approved by a majority
vote of the Company's stockholders.
SECTION 17. TERM OF PLAN.
No Stock Option, Stock Appreciation Right, Restricted Stock or
Performance Award shall be granted pursuant to the Plan on or after the tenth
anniversary of the date of stockholder approval, but awards theretofore granted
may extend beyond that date.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement of EduTrek International, Inc. on Form S-8 of our report dated June
18, 1997 appearing in EduTrek International, Inc.'s 424(b) Prospectus dated
September 23, 1997 and to the reference to us under the heading Experts
included in this Registration Statement.
/s/Deloitte & Touche LLP
Atlanta, Georgia
December 2, 1997
