As filed with the Securities and Exchange Commission on January 22, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRT GROUP INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 11-3914972
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
342 Madison Avenue, 11th Floor
New York, New York 10173
(Address of Principal Executive Offices, Including Zip Code)
PRT Group Inc. Amended And Restated 1996 Stock Incentive Plan
(Full Title of the Plan)
Leonard P. Ciriello, Esq.
PRT Group Inc.
342 Madison Avenue, 11th Floor
New York, New York 10173
(212) 922-0800
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Offering Proposed Maximum
Title Of Securities To Amount To Be Price Per Aggregate Amount Of
Be Registered(1) Registered Share(2) Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Common Stock, par value 394,750 $4.38 $1,735,575 $510.06
$.001 per share
2. " " 65,150 5.63 1,729,005 108.20
3. " " 698,275 12.00 366,795 2,471.89
4. " " 454,300 13.00 3,379,300 1,742.24
5. " " 2,689,525 12.25 32,946,681 9,719.27
Total: 4,302,000 $49,327,681 $14,551.66
=================================================================================================
</TABLE>
(1) The Common Stock being registered relates to (i) past option grants,
with option exercise prices as indicated, and (ii) option grants to
be undertaken in the future, with option exercise prices to be
determined.
(2) In accordance with Rule 457(h)(1) under the Securities Act, the
option exercise price.
(3) The registration fee has been calculated pursuant to Rule 457(c) and
(h) under the Securities Act on the basis of the average of the high
and low prices of the Registrant's Common Stock as reported on The
Nasdaq National Market on January 16,1998, a date within five
business days prior to the date of filing of this Registration
Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
The information called for in Part I of Form S-8 will be included in a
Prospectus which is to be distributed to participants in the Amended and
Restated 1996 Stock Incentive Plan of PRT Group Inc.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into
this Registration Statement:
(a) Final Prospectus dated November 20, 1997
pursuant to Rule 424(b) of the Securities
Act of 1933, as amended (the "Securities
Act") of PRT Group Inc. ("PRT" or the
"Company")
(d) Form 8-A (File No. 000-23315) of the
Company dated November 4, 1997, which
incorporates by reference the title and
description of the Company's Common
Stock, par value $.001 per share (the
"Common Stock"), which is contained under
the caption "Description of Capital
Stock" in the Regis tration Statement of
the Company on Form S-1 (File No.
333-36169), de clared effective by the
Commission on November 20, 1997, relating
to the initial public offering of the
Common Stock of the Company.
All documents hereafter filed by PRT pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securi ties Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment to
this Registration Statement 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 into this Registration
Statement from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for
purposes 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 by reference herein 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the offering of the
shares of Common Stock registered hereby will be passed upon for PRT by
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New
York 10022. Isaac Shapiro, a member of Skadden, Arps, Slate, Meagher &
Flom LLP, is a director and stockholder of the Company and has been
granted options pursuant to the Amended and Restated 1996 Stock Option
Plan of PRT Group Inc.
Item 6. Indemnification of Directors and Officers.
As authorized by Section 145 of the General Corporation
Law of the State of Delaware, each director and officer of PRT may be
indemnified by PRT against expenses (including attorney's fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred in connection with the defense or settlement of any threatened,
pending or completed legal proceedings in which he is involved by reason
of the fact that he is or was a director or officer of PRT if he acted in
good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of PRT and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe that his
conduct was unlawful. However, if the legal proceeding is by or in the
right of PRT, the director or officer may not be indemnified in respect
of any claim, issue or matter as to which he shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to
PRT unless a court determines otherwise.
In addition, PRT's By-Laws provide that PRT shall
indemnify and hold harmless, to the fullest extent permitted by
applicable law, any person who was or is made or is threatened to be made
a party to, or is otherwise involved in, any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding")
by reason of the fact that he or she, or a person for whom he or she is
the legal representative, is or was a director, officer, employee or
agent of PRT or is or was serving at the request of PRT as a director,
officer, employee or agent of another company or of a partnership, joint
venture, trust, enterprise or non-profit entity, including service with
respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. PRT shall be
required to indemnify a person in connection with a Proceeding initiated
by such person only if the Proceeding was authorized by the Board of
Directors of PRT.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated By-Laws of the Company.
5.1 Opinion and Consent of Skadden, Arps, Slate, Meagher &
Flom LLP.
10.1 Amended and Restated 1996 Stock Incentive Plan of the
Company.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Shulman, Cohen, Furst, Kramer and Rosen, P.C.
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.3 Power of Attorney (contained in, and incorporated by
reference to, Pages 6 and 7 of 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:
(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
the Registration Statement (or the most
recent post-effective amendment hereto)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
State ment or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a
post-effective amendment by those paragraphs is
con tained in periodic reports filed with or
furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the
Registration State ment.
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 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
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 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 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 Securities Act of 1933 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 of whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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 New York,
State of New York, on this 22nd day of January, 1998.
PRT GROUP INC.
By: /s/ Douglas K. Mellinger
____________________________
Name: Douglas K. Mellinger
Title: Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer or director
of PRT Group Inc. whose signature appears below constitutes and appoints
Douglas K. Mellinger, Lowell W. Robinson, and each of them, with full
power to act without the other, his true and lawful attorneys-in-fact and
agents, with full and several power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments), and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent 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
attorney-in-fact and agent or his or their substitute or substitutes, 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 by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Douglas K. Mellinger Chairman of the Board, January 22, 1998
- ------------------------ President and
Douglas K. Mellinger Chief Executive Officer
/s/ Lowell W. Robinson Chief Financial Officer January 22, 1998
- ----------------------
Lowell W. Robinson
/s/ Esther Dyson Director January 22, 1998
- ----------------------
Esther Dyson
/s/ Michael Enthoven Director January 22, 1998
- ----------------------
Michael Enthoven
/s/ Robert P. Forlenza Director January 22, 1998
- ----------------------
Robert P. Forlenza
/s/ Craig D. Goldman Director January 22, 1998
- --------------------
Craig D. Goldman
/s/ Gregory S. Mellinger Director January 22, 1998
- ------------------------
Gregory S. Mellinger
/s/ Isaac Shapiro Director January 22, 1998
- ----------------------
Isaac Shapiro
/s/ Irwin J. Sitkin Director January 22, 1998
- -------------------
Irwin J. Sitkin
/s/ Jack L. Rivkin Director January 22, 1998
- ------------------
Jack L. Rivkin
EXHIBIT INDEX
Exhibit.
Number
4.1 Amended and Restated Certificate of Incorporation of the Company.
4.2 Amended and Restated By-Laws of the Company.
5.1 Opinion and Consent of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1 Amended and Restated 1996 Stock Incentive Plan of the Company.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Shulman, Cohen, Furst, Kramer and Rosen, P.C.
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.3 Power of Attorney (contained in, and incorporated by reference
to, Pages 6 and 7 of this Registration Statement).
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PRT GROUP INC.
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
PRT Group Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law
of the State of Delaware (the "DGCL"), does hereby
certify as follows:
(1) The name of the Corporation is
PRT Group Inc. The original certificate of incorporation
of the Corporation was filed with the office of the
Secretary of State of the State of Delaware on September
18, 1996.
(2) This Amended and Restated Certificate of
Incorporation was duly adopted by the Board of Directors
of the Corporation (the "Board of Directors") and by the
stockholders of the Corporation in accordance with
Sections 228, 242 and 245 of the DGCL.
(3) This Amended and Restated Certificate of
Incorporation restates and integrates and further amends
the certificate of incorporation of the Corporation, as
heretofore amended or supplemented.
(4) The text of the Certificate of
Incorporation is amended and restated in its entirety as
follows:
FIRST: The name of the Corporation is PRT Group
Inc. (the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange
Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which a corporation may
be organized under the General Corporation Law of the
State of Delaware (the "DGCL").
FOURTH: (a) Authorized Capital Stock. The total
number of shares of stock which the Corporation shall
have authority to issue is 61,000,000 shares of capital
stock, consisting of (i) 50,000,000 shares of voting
common stock, par value $.001 per share (the "Voting
Common Stock"), (ii) 1,000,000 shares of non-voting
common stock, par value $.001 per share (the "Non-Voting
Common Stock" and, together with the Voting Common Stock,
the "Common Stock"), and (iii) 10,000,000 shares of
preferred stock, par value $.001 per share (the
"Preferred Stock").
(b) Common Stock. The powers, preferences and
rights, and the qualifications, limitations and
restrictions, of each class of the Common Stock are as
follows:
(1) Ranking. Except as otherwise
expressly provided in this Amended and Restated
Certificate of Incorporation, the powers, preferences and
rights of the holders of Voting Common Stock and holders
of Non-Voting Common Stock, and the qualifications,
limitations and restrictions thereof, shall be in all
respects identical.
(2) Voting. (A) Except as otherwise
expressly required by law or provided in this Amended and
Restated Certificate of Incorporation, and subject to any
voting rights provided to holders of Preferred Stock at
any time outstanding, the holders of any outstanding
shares of Voting Common Stock shall vote together as a
single class on all matters with respect to which
stockholders are entitled to vote under applicable law,
this Amended and Restated Certificate of Incorporation or
the By-Laws of the Corporation, or upon which a vote of
stockholders is otherwise duly called for by the
Corporation. At each annual or special meeting of
stockholders, each holder of record of shares of Voting
Common Stock on the relevant record date shall be
entitled to cast one vote in person or by proxy for each
share of the Voting Common Stock standing in such
holder's name on the stock transfer records of the
Corporation.
(B) Except as set forth herein or as
otherwise required by law, each outstanding share of Non-
Voting Common Stock shall not be entitled to vote on any
matter on which the stockholders of the Corporation shall
be entitled to vote, and shares of Non-Voting Common
Stock shall not be included in determining the number of
shares voting or entitled to vote on any such matters. On
any matter on which the holders of Voting Common Stock
and the holders of Non-Voting Common Stock are entitled
to vote, except as otherwise required by law, both
classes of Common Stock shall vote together as a single
class, and each holder of shares of Common Stock entitled
to vote shall be entitled to one vote for each share of
Voting Common Stock and one vote for each share of Non-
Voting Common Stock held by such holder; provided,
however, that notwithstanding the foregoing, holders of
shares of Non-Voting Common Stock shall be entitled to
vote as a separate class on any amendment to this
paragraph (2)(B) and on any amendment, repeal or
modification of any provision of this Amended and
Restated Certificate of Incorporation that adversely
affects the powers, preferences or special rights of
holders of Non-Voting Common Stock.
(C) In addition to any affirmative
vote required by law or by this Amended and Restated
Certificate of Incorporation, the affirmative vote or
written consent of the holders of not less than a
majority of the then outstanding shares of both classes
of Common Stock, voting together as a single class, shall
be required for any increase, reduction or other change
in the authorized number of shares of any class of Common
Stock.
(3) No Cumulative Voting. The holders of
shares of Voting Common Stock shall not have cumulative
voting rights.
(4) Conversion.
(A) Conversion of Voting Common
Stock. Upon compliance with the provisions of paragraph
(4)(C) below, any Regulated Stockholder (as defined
below) shall be entitled to convert, at any time and from
time to time, any or all of the shares of Voting Common
Stock held by such stockholder into the same number of
shares of Non-Voting Common Stock. The term "Regulated
Stockholder" shall mean (i) any stockholder that is
subject to the provisions of Regulation Y of the Board of
Governors of the Federal Reserve System (12 C.F.R. Part
225) or any successor to such regulation ("Regulation
Y"), and that holds shares of Voting Common Stock or Non-
Voting Common Stock originally issued pursuant to the
Warrant dated as of September 16, 1997 or shares of
Voting Common Stock or Non-Voting Common Stock issued
upon conversion(s) of such shares, so long as such
stockholder shall hold any such shares of Voting Common
Stock or Non-Voting Common Stock or shares issued upon
conversion(s) of such shares, (ii) any Affiliate (as
defined below) of any such Regulated Stockholder
specified in clause (i) above that is a transferee of any
of the foregoing shares, so long as such Affiliate shall
hold any such shares or shares issued upon conversion(s)
of such shares and (iii) any individual, partnership,
joint venture, corporation, limited liability company,
association, trust, or any other entity or organization,
including a government or political subdivision or an
agency or instrumentality thereof (a "Person") (x) to
which any such Regulated Stockholder specified in clause
(i) above or any of its Affiliates has transferred such
shares, so long as such transferee shall hold, and only
with respect to, any shares transferred by such Regulated
Stockholder or Affiliate or any shares issued upon
conversion(s) of such shares, and (y) which transferee
is, or any Affiliate of which is, subject to the
provisions of Regulation Y. As used in this Amended and
Restated Certificate of Incorporation, the term
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling,
controlled by or under common control with such Person.
For the purpose of this definition, the term "control"
(including with correlative meanings, the terms
"controlling", "controlled by" and "under common control
with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of such Person, whether through the ownership of
voting securities or by contract or otherwise.
(B) Conversion of Non-Voting Common
Stock. Upon compliance with the provisions of paragraph
(4)(C) below, each record holder of Non-Voting Common
Stock shall be entitled to convert, at any time and from
time to time, any and all shares of Non-Voting Common
Stock held by such stockholder into the same number of
shares of Voting Common Stock; provided, however, that no
holder of any shares of Non-Voting Common Stock shall be
entitled to convert any such shares into shares of Voting
Common Stock, to the extent that, as a result of such
conversion, such holder and its Affiliates, directly or
indirectly, would own, control or have the power to vote
a greater number of shares of Voting Common Stock or
other securities of any kind issued by the Corporation
than such holder and its Affiliates shall be permitted to
own, control or have the power to vote under any law,
regulation, rule or other requirement of any governmental
authority at the time applicable to such holder or its
Affiliates.
(C) Conversion Procedure. Each
conversion of shares of a class of Common Stock of the
Corporation into shares of another class of Common Stock
of the Corporation shall be effected by the surrender of
the certificate(s) evidencing the shares of the class of
stock to be converted (the "Converting Shares") at the
principal office of the Corporation (or such other office
or agency of the Corporation as the Corporation may
designate by notice in writing to the holders of Common
Stock) at any time during its usual business hours,
together with written notice by the holder of such
Converting Shares, (i) stating that the holder desires to
convert the Converting Shares or a specified number of
such Converting Shares, evidenced by such certificate(s)
into an equal number of shares of the class into which
such shares may be converted (the "Converted Shares"),
(ii) representing that the conversion of shares by such
holder is permitted under applicable law and (iii) giving
the name(s) (with addresses) and denominations in which
the certificate(s) evidencing the Converted Shares shall
be issued, and instructions for the delivery thereof.
The Corporation shall promptly notify each Regulated
Stockholder of record of its receipt of such notice.
Upon receipt of the notice described in the first
sentence of this paragraph (4)(C), together with the
certificate(s) evidencing the Converting Shares, the
Corporation shall be obligated to, and shall, issue and
deliver in accordance with such instructions the
certificate(s) evidencing the Converted Shares issuable
upon such conversion and a certificate (which shall
contain such legends, if any, as were set forth on the
surrendered certificate(s)) representing any shares which
were represented by the certificate(s) surrendered to the
Corporation in connection with such conversion but which
were not Converting Shares and, therefore, were not
converted. Such conversion, to the extent permitted by
law, shall be deemed to have been effected as of the
close of business on the date on which such
certificate(s) shall have been surrendered and such
written notice shall have been received by the
Corporation, and at such time the rights of the holder of
such Converting Shares as such holder shall cease, and
the person(s) in whose name or names any certificate(s)
evidencing the Converted Shares are to be issued upon
such conversion shall be deemed to have become the
holder(s) of record of the Converted Shares.
Notwithstanding any provision of this paragraph (4)(C) to
the contrary, the Corporation shall not be required to
record the conversion of, and no holder of shares shall
be entitled to convert, shares of Non-Voting Common Stock
into shares of Voting Common Stock unless such conversion
is permitted under applicable law; provided, however,
that the Corporation shall be entitled to rely without
independent verification upon the representation of any
holder that the conversion of shares by such holder is
permitted under applicable law, and in no event shall the
Corporation be liable to any such holder or any third
party arising from any such conversion whether or not
permitted by applicable law.
(D) No Charge. The issue of
certificates evidencing shares of any class of Common
Stock upon conversion of shares of any other class of
Common Stock shall be made without charge to the holders
of such shares for any issue tax in respect thereof or
other cost incurred by the Corporation in connection with
such conversion; provided, however, the Corporation shall
not be required to pay any tax that may be payable in
respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of
the holder of the shares of Common Stock converted.
(E) Reservation; Valid Issue;
Reissue. The Corporation hereby reserves and shall at
all times reserve and keep available, out of its
authorized and unissued shares of Voting Common Stock and
Non-Voting Common Stock, for the purposes of effecting
conversions, such number of duly authorized shares of
Non-Voting Common Stock and Voting Common Stock as are
then issuable upon conversion of all outstanding shares
of Voting Common Stock and Non-Voting Common Stock held
by any Regulated Stockholder. The Corporation covenants
that all of the shares of Voting Common Stock and Non-
Voting Common Stock so issuable shall, when so issued, be
duly and validly issued, fully paid and non-assessable,
and free from liens and charges. The Corporation shall
take all action as may be necessary to ensure that all
shares of Common Stock may be so issued without violation
of any applicable law or regulation, or, in the case of
Voting Common Stock, of any requirements of any national
securities exchange upon which the shares of Voting
Common Stock are or may be listed, or of any inter-dealer
quotation system of a registered national securities
association upon which the shares of Voting Common Stock
are or may be listed. Shares of Voting Common Stock and
Non-Voting Common Stock that are converted into shares of
any other class shall not be reissued, except for
reissuance in connection with the conversion of shares of
Voting Common Stock held by Regulated Stockholders into
Non-Voting Common Stock and shares of Non-Voting Common
Stock into Voting Common Stock.
(F) Stock Splits; Mergers; Other
Adjustments. If the Corporation shall in any manner
subdivide (by stock split, stock dividend or otherwise)
or combine (by reverse stock split or otherwise) the
outstanding shares of the Voting Common Stock or the Non-
Voting Common Stock, the outstanding shares of the other
class of Common Stock shall be proportionately subdivided
or combined, as the case may be, and effective provision
shall be made for the protection of all conversion rights
hereunder. In case of any reorganization,
reclassification or change of shares of Voting Common
Stock or Non-Voting Common Stock (other than a change in
par value, or from par value to no par value as a result
of a subdivision or combination), or in case of any
consolidation of the Corporation with one or more other
corporations or a merger of the Corporation with another
corporation (other than a consolidation or merger in
which the Corporation is the continuing corporation and
which does not result in any reclassification or change
of outstanding shares of Voting Common Stock or
Non-Voting Common Stock), or in case of any sale, lease
or other disposition to another corporation (other than a
wholly-owned subsidiary of the Corporation) of all or
substantially all the assets of the Corporation, each
holder of shares of Common Stock, irrespective of class,
shall have the right at any time thereafter, so long as
the conversion right hereunder with respect to such
shares of Common Stock would exist had such event not
occurred, to convert such shares into the kind and amount
of shares of stock and other securities and property
(including cash) receivable upon such reorganization,
reclassification, change, consolidation, merger, sale,
lease or other disposition by a holder of the number of
shares of the class of Common Stock into which such
shares of Common Stock might have been converted
immediately prior to such reorganization,
reclassification, change, consolidation, merger, sale,
lease or other disposition. In the event of such a
reorganization, reclassification, change, consolidation,
merger, sale, lease or other disposition, effective
provision shall be made in the certificate of
incorporation of the resulting or surviving corporation
or otherwise for the protection of the conversion rights
of the shares of Common Stock of each class that shall be
applicable, as nearly as reasonably may be, to any such
other shares of stock and other securities and property
deliverable upon conversion of shares of Common Stock
into which such shares of Common Stock might have been
converted immediately prior to such event. The
Corporation shall not be a party to any merger,
consolidation or recapitalization pursuant to which any
holder of shares of Non-Voting Common Stock would be
required to take (i) any voting securities which would
cause such holder to violate any law, regulation or other
requirement of any governmental body applicable to such
holder, or (ii) any securities convertible into voting
securities which if such conversion took place would
cause such holder to violate any law, regulation or other
requirement of any governmental body applicable to such
holder other than securities which are specifically
provided to be convertible only in the event that such
conversion may occur without any such violation.
(5) Dividends. Subject to the rights of the
holders of Preferred Stock, and subject to any other
provisions of this Amended and Restated Certificate of
Incorporation, as it may be amended from time to time,
holders of shares of Common Stock shall be entitled to
receive such dividends and other distributions in cash,
stock or property of the Corporation when, as and if
declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally
available therefor. If, at any time, a dividend or other
distribution in cash or other property is declared or
paid on the shares of Voting Common Stock or shares of
Non-Voting Common Stock, a like dividend or other
distribution in cash or other property shall also be
declared or paid, as the case may be, on shares of Non-
Voting Common Stock or shares of Voting Common Stock, as
the case may be, in an equal amount per share. If, at
any time, a dividend or other distribution payable in
shares of Common Stock or other securities of the
Corporation, or rights, options or warrants to purchase
shares of Common Stock or other securities of the
Corporation, or securities convertible into or
exchangeable for shares of Common Stock or other
securities of the Corporation is paid or declared on
shares of Voting Common Stock or Non-Voting Common Stock,
a like dividend or other distribution shall also be paid
or declared, as the case may be, on shares of Non-Voting
Common Stock or Voting Common Stock, as the case may be,
in an equal amount per share; provided, that, for this
purpose, if shares of Voting Common Stock, or rights,
options or warrants to purchase shares of Voting Common
Stock, or other securities convertible into or
exchangeable for shares of Voting Common Stock of the
Corporation or rights, options or warrants to purchase
shares of Voting Common Stock, are paid on shares of
Voting Common Stock, then shares of Non-Voting Common
Stock, or rights, options or warrants to purchase shares
of Non-Voting Common Stock, or other securities
convertible into or exchangeable for shares of Non-Voting
Common Stock of the Corporation or rights, options or
warrants to purchase shares of Non-Voting Common Stock,
shall be paid on shares of Non-Voting Common Stock (and
vice versa), in an equal amount per share of Voting
Common Stock and Non-Voting Common Stock, and such
dividend or other distribution shall be deemed to be a
like dividend or other distribution.
(6) Liquidation, Dissolution, etc. In
the event of any liquidation, dissolution or winding up
(either voluntary or involuntary) of the Corporation, the
holders of shares of Voting Common Stock and the holders
of shares of Non-Voting Common Stock shall be entitled to
receive the assets and funds of the Corporation available
for distribution after payments to creditors and to the
holders of any Preferred Stock of the Corporation that
may at the time be outstanding, in proportion to the
number of shares held by them, respectively, without
regard to class.
(7) No Preemptive or Subscription Rights.
No holder of shares of Voting Common Stock or Non-Voting
Common Stock shall be entitled to preemptive or
subscription rights.
(8) Power to Sell and Purchase Shares.
Subject to the requirements of applicable law, the
Corporation shall have the power to issue and sell all or
any part of any shares of any class of stock herein or
hereafter authorized to such persons, and for such
consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or
sale of the same number of shares of another class, and
as otherwise permitted by law. Subject to the
requirements of applicable law, the Corporation shall
have the power to purchase any shares of any class of
stock herein or hereafter authorized from such persons,
and for such consideration, as the Board of Directors
shall from time to time, in its discretion, determine,
whether or not less consideration could be paid upon the
purchase of the same number of shares of another class,
and as otherwise permitted by law.
(c) Preferred Stock. The Board of Directors
is hereby expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in
one or more classes or series, and to fix for each such
class or series such voting powers, full or limited, or
no voting powers, and such designations, preferences and
relative, participating, optional or other special rights
and such qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or
series, including, without limitation, the authority to
provide that any such class or series may be (i) subject
to redemption at such time or times and at such price or
prices; (ii) entitled to receive dividends (which may be
cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii)
entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or
(iv) convertible into, or exchangeable for, shares of any
other class or classes of stock, or of any other series
of the same or any other class or classes of stock, of
the Corporation at such price or prices or at such rates
of exchange and with such adjustments; all as may be
stated in such resolution or resolutions.
FIFTH: The following provisions are inserted for
the management of the business and the conduct of the
affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(a) The business and affairs of the
Corporation shall be managed by or under the direction of
the Board of Directors.
(b) The number of directors of the Corporation
shall be as from time to time fixed by, or in the manner
provided in, the By-Laws of the Corporation. Election of
directors need not be by written ballot unless the By-
Laws so provide.
(c) The directors shall be divided into three
classes, designated Class I, Class II and Class III.
Each class shall consist, as nearly as may be possible,
of one-third of the total number of directors
constituting the entire Board of Directors. The initial
division of the Board of Directors into classes shall be
made by the decision of the affirmative vote of a
majority of the entire Board of Directors. The term of
the initial Class I directors shall terminate on the date
of the 1998 annual meeting; the term of the initial Class
II directors shall terminate on the date of the 1999
annual meeting; and the term of the initial Class III
directors shall terminate on the date of the 2000 annual
meeting. At each succeeding annual meeting of
stockholders beginning in 1998, successors to the class
of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as
possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no
case will a decrease in the number of directors shorten
the term of any incumbent director.
(d) A director shall hold office until the
annual meeting for the year in which his term expires and
until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
(e) Subject to the terms of any one or more
classes or series of Preferred Stock, any vacancy on the
Board of Directors that results from an increase in the
number of directors may be filled by a majority of the
Board of Directors then in office, provided that a quorum
is present, and any other vacancy occurring on the Board
of Directors may be filled by a majority of the Board of
Directors then in office, even if less than a quorum, or
by a sole remaining director. Any director of any class
elected to fill a vacancy resulting from an increase in
the number of directors of such class shall hold office
for a term that shall coincide with the remaining term of
that class. Any director elected to fill a vacancy not
resulting from an increase in the number of directors
shall have the same remaining term as that of his
predecessor. Subject to the rights, if any, of the
holders of shares of Preferred Stock then outstanding,
any or all of the directors of the Corporation may be
removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the
Corporation's then outstanding capital stock entitled to
vote generally in the election of directors.
Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of Preferred Stock
issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features
of such directorships shall be governed by the terms of
this Amended and Restated Certificate of Incorporation
applicable thereto, and such directors so elected shall
not be divided into classes pursuant to this Article
FIFTH unless expressly provided by such terms.
(f) In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them,
the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be
exercised or done by the Corporation, subject,
nevertheless, to the provisions of the DGCL, this Amended
and Restated Certificate of Incorporation, and any By-
Laws adopted by the stockholders; provided, however, that
no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would
have been valid if such By-Laws had not been adopted.
(g) The Corporation expressly elects not to be
governed by Section 203 of the DGCL.
SIXTH: No director shall be personally liable to
the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL as the
same exists or may hereafter be amended. If the DGCL is
amended hereafter to authorize the further elimination or
limitation of the liability of directors, then the
liability of a director of the Corporation shall be
eliminated or limited to the fullest extent authorized by
the DGCL, as so amended. Any repeal or modification of
this Article SIXTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such
repeal or modification with respect to acts or omissions
occurring prior to such repeal or modification.
SEVENTH: The Corporation shall indemnify its
directors and officers to the fullest extent authorized
or permitted by law, as now or hereafter in effect, and
such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his heirs,
executors and personal and legal representatives;
provided, however, that, except for proceedings to
enforce rights to indemnification, the Corporation shall
not be obligated to indemnify any director or officer (or
his heirs, executors or personal or legal
representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the
Board of Directors. The right to indemnification
conferred by this Article SEVENTH shall include the right
to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in
advance of its final disposition.
The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation
similar to those conferred in this Article SEVENTH to
directors and officers of the Corporation.
The rights to indemnification and to the
advance of expenses conferred in this Article SEVENTH
shall not be exclusive of any other right which any
person may have or hereafter acquire under this Amended
and Restated Certificate of Incorporation, the By-Laws of
the Corporation, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article
SEVENTH by the stockholders of the Corporation shall not
adversely affect any rights to indemnification and to the
advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or
modification with respect to any acts or omissions
occurring prior to such repeal or modification.
EIGHTH: Any action required or permitted to be
taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of
stockholders of the Corporation, and the ability of the
stockholders to consent in writing to the taking of any
action is hereby specifically denied.
NINTH: Meetings of stockholders may be held within
or without the State of Delaware, as the By-Laws may
provide. The books of the Corporation may be kept
(subject to any provision contained in the DGCL) outside
the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or
in the By-Laws of the Corporation.
TENTH: In furtherance and not in limitation of the
powers conferred upon it by the laws of the State of
Delaware, the Board of Directors shall have the power to
adopt, amend, alter or repeal the Corporation's By-Laws.
The affirmative vote of at least a majority of the entire
Board of Directors shall be required to adopt, amend,
alter or repeal the Corporation's By-Laws. The
Corporation's By-Laws also may be adopted, amended,
altered or repealed by the affirmative vote of the
holders of at least eighty percent (80%) of the voting
power of the shares entitled to vote at an election of
directors.
ELEVENTH: The Corporation reserves the right to
amend, alter, change or repeal any provision contained in
this Amended and Restated Certificate of Incorporation in
the manner now or hereafter prescribed in this Amended
and Restated Certificate of Incorporation, the
Corporation's By-Laws or the DGCL, and all rights herein
conferred upon stockholders are granted subject to such
reservation; provided, however, that, notwithstanding any
other provision of this Amended and Restated Certificate
of Incorporation (and in addition to any other vote that
may be required by law), the affirmative vote of the
holders of at least eighty percent (80%) of the voting
power of the shares entitled to vote at an election of
directors shall be required to amend, alter, change or
repeal, or to adopt any provision as part of this Amended
and Restated Certificate of Incorporation inconsistent
with the purpose and intent of Articles FIFTH, EIGHTH and
TENTH of this Amended and Restated Certificate of
Incorporation or this Article ELEVENTH.
TWELFTH: This Amended and Restated Certificate of
Incorporation shall become effective on November 26, 1997
at 9:00 a.m.
IN WITNESS WHEREOF, the Corporation has caused
this Amended and Restated Certificate of Incorporation to
be executed and attested to on its behalf this 21st day
of November, 1997.
PRT GROUP INC.
By: /s/ Leonard P. Ciriello
Name: Leonard P. Ciriello
Title: Senior Vice President
and General Counsel
AMENDED AND RESTATED
BY-LAWS
of
PRT GROUP INC.
A Delaware Corporation
Effective as of November 26, 1997
TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . 2
Section 4. Quorum . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . 3
Section 6. Voting . . . . . . . . . . . . . 4
Section 7. Nature of Business at Meetings
of Stockholders . . . . . . . . . 4
Section 8. List of Stockholders Entitled
to Vote . . . . . . . . . . . . . 5
Section 9. Stock Ledger . . . . . . . . . . 6
Section 10. Record Date. . . . . . . . . . 6
Section 11. Inspectors of Election . . . . . 7
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . 7
Section 1. Number and Election of Directors 7
Section 2. Nomination of Directors . . . . . 8
Section 3. Vacancies . . . . . . . . . . . . 10
Section 4. Duties and Powers . . . . . . . . 10
Section 5. Organization . . . . . . . . . . 10
Section 6. Resignations and Removals
of Directors . . . . . . . . . . 10
Section 7. Meetings . . . . . . . . . . . . 11
Section 8. Quorum . . . . . . . . . . . . . 11
Section 9. Actions of Board . . . . . . . . 11
Section 10. Meetings by Means of Conference
Telephone . . . . . . . . . . . . 12
Section 11. Committees . . . . . . . . . . . 12
Section 12. Compensation . . . . . . . . . . 12
Section 13. Interested Directors . . . . . . 13
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . 13
Section 1. General . . . . . . . . . . . . . 13
Section 2. Election . . . . . . . . . . . . 14
Section 3. Voting Securities Owned by
the Corporation . . . . . . . . . 14
Section 4. Chairman of the Board of
Directors . . . . . . . . . . . . 14
Section 5. President . . . . . . . . . . . . 15
Section 6. Vice Presidents . . . . . . . . . 15
Section 7. Secretary . . . . . . . . . . . . 16
Section 8. Treasurer . . . . . . . . . . . . 16
Section 9. Assistant Secretaries . . . . . . 17
Section 10. Assistant Treasurers . . . . . . 17
Section 11. Other Officers . . . . . . . . . 18
ARTICLE V - STOCK . . . . . . . . . . . . . . . . . . 18
Section 1. Form of Certificates . . . . . . 18
Section 2. Signatures . . . . . . . . . . . 18
Section 3. Lost, Destroyed, Stolen or
Mutilated Certificates . . . . . 18
Section 4. Transfers . . . . . . . . . . . . 19
Section 5. Transfer and Registry Agents. . . 19
Section 6. Beneficial Owners . . . . . . . . 19
ARTICLE VI - NOTICES . . . . . . . . . . . . . . . . 20
Section 1. Notices . . . . . . . . . . . . . 20
Section 2. Waivers of Notice . . . . . . . . 20
ARTICLE VII - GENERAL PROVISIONS . . . . . . . . . . 20
Section 1. Dividends . . . . . . . . . . . . 20
Section 2. Disbursements . . . . . . . . . . 21
Section 3. Fiscal Year . . . . . . . . . . . 21
Section 4. Corporate Seal . . . . . . . . . 21
ARTICLE VIII - INDEMNIFICATION . . . . . . . . . . . 21
Section 1. Power to Indemnify in Actions,
Suits or Proceedings Other than
Those by or in the Right of the
Corporation . . . . . . . . . . . 21
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in
the Right of the Corporation . . 22
Section 3. Authorization of
Indemnification . . . . . . . . . 23
Section 4. Good Faith Defined . . . . . . . 23
Section 5. Indemnification by a Court . . . 24
Section 6. Expenses Payable in Advance . . . 24
Section 7. Nonexclusivity of
Indemnification and Advancement
of Expenses . . . . . . . . . . . 25
Section 8. Insurance . . . . . . . . . . . . 25
Section 9. Certain Definitions . . . . . . . 25
Section 10. Survival of Indemnification and
Advancement of Expenses . . . . . 26
Section 11. Limitation on Indemnification . . 26
Section 12. Indemnification of Employees and
Agents . . . . . . . . . . . . . 26
ARTICLE IX - AMENDMENTS . . . . . . . . . . . . . . . 27
Section 1. Amendments . . . . . . . . . . . 27
Section 2. Entire Board of Directors . . . . 27
AMENDED AND RESTATED
BY-LAWS
OF
PRT GROUP INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places, both within and
without the State of Delaware, as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual
meetings of stockholders shall be held on such date and
at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the
meeting, at which meetings the stockholders shall elect
directors, and transact such other business as may
properly be brought before the meeting. Written notice
of the annual meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the certificate of incorporation
of the Corporation, as amended and restated from time to
time (the "Certificate of Incorporation"), special
meetings of stockholders, for any purpose or purposes,
may be called by either (i) the Chairman of the Board of
Directors, (ii) the President, or (iii) the Board of
Directors. Such request shall state the purpose or
purposes of the proposed meeting. At a special meeting
of the stockholders, only such business shall be
conducted as shall be specified in the notice of meeting
(or any supplement thereto) given by or at the direction
of the Board of Directors. Written notice of a special
meeting stating the place, date and hour of the meeting
and the purpose or purposes for which the meeting is
called shall be given not less than ten nor more than
sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise
required by law or by the Certificate of Incorporation,
the holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction
of business. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less
than a quorum. If, however, such quorum shall not be
present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a
quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might
have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder
entitled to vote at the meeting not less than ten nor
more than sixty days before the date of the meeting.
Section 5. Proxies. Any stockholder entitled
to vote may do so in person or by his or her proxy
appointed by an instrument in writing subscribed by such
stockholder or by his or her attorney thereunto
authorized, delivered to the Secretary of the meeting;
provided, however, that no proxy shall be voted or acted
upon after three years from its date, unless said proxy
provides for a longer period. Without limiting the
manner in which a stockholder may authorize another
person or persons to act for him or her as proxy, either
of the following shall constitute a valid means by which
a stockholder may grant such authority:
(i) A stockholder may execute a
writing authorizing another person or persons
to act for him or her as proxy. Execution may
be accomplished by the stockholder or his or
her authorized officer, director, employee or
agent signing such writing or causing his or
her signature to be affixed to such writing by
any reasonable means, including, but not
limited to, by facsimile signature.
(ii) A stockholder may authorize
another person or persons to act for him or her
as proxy by transmitting or authorizing the
transmission of a telegram or other means of
electronic transmission to the person who will
be the holder of the proxy or to a proxy
solicitation firm, proxy support service
organization or like agent duly authorized by
the person who will be the holder of the proxy
to receive such transmission, provided that any
such telegram or other means of electronic
transmission must either set forth or be
submitted with information from which it can be
determined that the telegram or other
electronic transmission was authorized by the
stockholder.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission authorizing
another person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the
original writing or transmission for any and all purposes
for which the original writing or transmission could be
used; provided that such copy, facsimile
telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
Section 6. Voting. At all meetings of the
stockholders at which a quorum is present, except as
otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought
before any meeting of stockholders shall be decided by
the affirmative vote of the holders of a majority of the
total number of votes of the capital stock present in
person or represented by proxy and entitled to vote on
such question, voting as a single class. The Board of
Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in
his or her discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 7. Nature of Business at Meetings of
Stockholders. No business may be transacted at an annual
meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the
Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or
(c) otherwise properly brought before the annual meeting
by any stockholder of the Company (i) who is a
stockholder of record on the date of the giving of the
notice provided for in this Section 7 and on the record
date for the determination of stockholders entitled to
vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 7.
In addition to any other applicable
requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Company.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Company not less
than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of
business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Company which are owned beneficially or of record
by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set
forth in this Section 7, provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 7 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of
an annual meeting determines that business was not
properly brought before the annual meeting in accordance
with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought
before the meeting and such business shall not be
transacted.
Section 8. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of
stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and
the number of shares registered in the name of each
stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder of
the Corporation who is present.
Section 9. Stock Ledger. The stock ledger of
the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 8 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 10. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment
of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and
which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall not be more
than sixty nor less than ten days before the date of such
meeting; and (2) in the case of any other action, shall
not be more than sixty days prior to such other action.
If no record date is fixed: (1) the record date for
determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the
meeting is held; and (2) the record date for determining
stockholders for any other purpose shall be at the close
of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the
adjourned meeting.
Section 11. Inspectors of Election. In
advance of any meeting of stockholders, the Board by
resolution or the Chairman or President shall appoint one
or more inspectors of election to act at the meeting and
make a written report thereof. One or more other persons
may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate
is present, ready and willing to act at a meeting of
stockholders, the Chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers,
employees or agents of the Corporation. Each inspector,
before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and
according to the best of his or her ability. The
inspector shall have the duties prescribed by law and
shall take charge of the polls and, when the vote is
completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by
law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
five nor more than eleven members, the exact number of
which shall be determined from time to time by resolution
adopted by the Board of Directors. Except as provided in
Section 3 of this Article III, directors shall be elected
by the stockholders at the annual meetings of
stockholders, and each director so elected shall hold
office until such director's successor is duly elected
and qualified, or until such director's death, or until
such director's earlier resignation or removal.
Directors need not be stockholders.
Section 2. Nomination of Directors. Only
persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors of the Company, except as may be otherwise
provided in the Certificate of Incorporation with respect
to the right of holders of preferred stock of the
Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be
made at any annual meeting of stockholders, or at any
special meeting of stockholders called for the purpose of
electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Company (i) who
is a stockholder of record on the date of the giving of
the notice provided for in this Section 2 and on the
record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies
with the notice procedures set forth in this Section 2.
In addition to any other applicable
requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of
the Company.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Company (a) in the
case of an annual meeting, not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary
date, notice by the stockholder in order to be timely
must be so received not later than the close of business
on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting
was made, whichever first occurs; and (b) in the case of
a special meeting of stockholders called for the purpose
of electing directors, not later than the close of
business on the tenth (10th) day following the day on
which notice of the date of the special meeting was
mailed or public disclosure of the date of the special
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business
address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Company which are owned beneficially or of record
by the person and (iv) any other information relating to
the person that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice (i) the name
and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the
Company which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed
nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made
by such stockholder, (iv) a representation that such
stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice
and (v) any other information relating to such
stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a
director of the Company unless nominated in accordance
with the procedures set forth in this Section 2. If the
Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination
was defective and such defective nomination shall be
disregarded.
Section 3. Vacancies. Subject to the terms of
any one or more classes or series of preferred stock, any
vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a
majority of the directors then in office, provided that a
quorum is present, and any other vacancy occurring on the
Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a
quorum, or by a sole remaining director. Notwithstanding
the foregoing, whenever the holders of any one or more
class or classes or series of preferred stock of the
Corporation shall have the right, voting separately as a
class, to elect directors at an annual or special meeting
of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall
be governed by the Certificate of Incorporation.
Section 4. Duties and Powers. The business of
the Corporation shall be managed by or under the
direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws required
to be exercised or done by the stockholders.
Section 5. Organization. At each meeting of
the Board of Directors, the Chairman of the Board of
Directors, or, in his or her absence, a director chosen
by a majority of the directors present, shall act as
Chairman. The Secretary of the Corporation shall act as
Secretary at each meeting of the Board of Directors. In
case the Secretary shall be absent from any meeting of
the Board of Directors, an Assistant Secretary shall
perform the duties of Secretary at such meeting; and in
the absence from any such meeting of the Secretary and
all the Assistant Secretaries, the Chairman of the
meeting may appoint any person to act as Secretary of the
meeting.
Section 6. Resignations and Removals of
Directors. Any director of the Corporation may resign at
any time, by giving written notice to the Chairman of the
Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the
time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such
notice, the acceptance of such resignation shall not be
necessary to make it effective. Except as otherwise
required by law and subject to the rights, if any, of the
holders of shares of preferred stock then outstanding,
any director or the entire Board of Directors may be
removed from office at any time, but only for cause, and
only by the affirmative vote of the holders of at least a
majority in voting power of the issued and outstanding
capital stock of the Corporation entitled to vote in the
election of directors.
Section 7. Meetings. The Board of Directors
of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held at
such time and at such place as may from time to time be
determined by the Board of Directors and, unless required
by resolution of the Board of Directors, without notice.
Special meetings of the Board of Directors may be called
by the Chairman of the Board of Directors, the Vice
Chairman, if there be one, or a majority of the directors
then in office. Notice thereof stating the place, date
and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone, facsimile
or telegram on twenty-four (24) hours' notice, or on such
shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the
circumstances.
Section 8. Quorum. Except as may be otherwise
required by law, the Certificate of Incorporation or
these By-Laws, at all meetings of the Board of Directors,
a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business and
the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present
at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to
time, without notice other than announcement at the
meeting of the time and place of the adjourned meeting,
until a quorum shall be present.
Section 9. Actions of Board. Unless otherwise
provided by the Certificate of Incorporation or these By-
Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
Section 10. Meetings by Means of Conference
Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, and participation in a
meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. Committees. The Board of
Directors may, by resolution passed by a majority of the
entire Board of Directors, designate one or more
committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors
may designate one or more directors as alternate members
of any committee, who may replace any absent or
disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a
committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members
thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any
absent or disqualified member. Any committee, to the
extent permitted by law and provided in the resolution
establishing such committee, shall have and may exercise
all the powers and authority of the Board of Directors in
the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes
and report to the Board of Directors when required.
Section 12. Compensation. The directors may
be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of
Directors or a stated salary, or such other emoluments as
the Board of Directors shall from time to time determine.
No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
Section 13. Interested Directors. No contract
or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and
any other corporation, partnership, association, or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this
reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the
contract or transaction, or solely because such person's
or their votes are counted for such purpose if (i) the
material facts as to such person's or their relationship
or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be
less than a quorum; or (ii) the material facts as to such
person's or their relationship or interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders.
Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors and
shall be a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a
director) and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers.
Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation
nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the
Corporation.
Section 2. Election. The Board of Directors
at its first meeting held after each Annual Meeting of
Stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office
until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer
elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board
of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
The salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation
by the President or any Vice President and any such
officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which
the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights
and power incident to the ownership of such securities
and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be one,
shall preside at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the
President is required, the Chairman of the Board of
Directors shall possess the same power as the President
to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board
of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall
exercise all the powers and discharge all the duties of
the President. The Chairman of the Board of Directors
shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to
him or her by these By-Laws or by the Board of Directors.
Section 5. President. The President shall,
subject to the control of the Board of Directors and, if
there be one, the Chairman of the Board of Directors,
have general supervision of the business of the
Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. The
President shall execute all bonds, mortgages, contracts
and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and
executed and except that the other officers of the
Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or
the President. In the absence or disability of the
Chairman of the Board of Directors, or if there be none,
the President shall preside at all meetings of the
stockholders and the Board of Directors. If there be no
Chairman of the Board of Directors, the President shall
be the Chief Executive Officer of the Corporation. The
President shall also perform such other duties and may
exercise such other powers as from time to time may be
assigned to him or her by these By-Laws or by the Board
of Directors.
Section 6. Vice Presidents. At the request of
the President or in his or her absence or in the event of
his or her inability or refusal to act (and if there be
no Chairman of the Board of Directors), the Vice
President or the Vice Presidents if there is more than
one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice
President shall perform such other duties and have such
other powers as the Board of Directors from time to time
may prescribe. If there be no Chairman of the Board of
Directors and no Vice President, the Board of Directors
shall designate the officer of the Corporation who, in
the absence of the President or in the event of the
inability or refusal of the President to act, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall
attend all meetings of the Board of Directors and all
meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose;
the Secretary shall also perform like duties for the
standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or President, under
whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there
be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to
cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary
or any Assistant Secretary, if there be one, shall have
authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any
such Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his
or her signature. The Secretary shall see that all
books, reports, statements, certificates and other
documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall
have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and
of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties
of the office of Treasurer and for the restoration to the
Corporation, in case of the Treasurer's death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in the Treasurer's possession or under
control of the Treasurer belonging to the Corporation.
Section 9. Assistant Secretaries. Except as
may be otherwise provided in these By-Laws, Assistant
Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in
the absence of the Secretary or in the event of his or
her disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have
all the powers of and be subject to all the restrictions
upon the Secretary.
Section 10. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice President, if there be one, or the Treasurer, and in
the absence of the Treasurer or in the event of the
Treasurer's disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration
to the Corporation, in case of the Assistant Treasurer's
death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of
whatever kind in the Assistant Treasurer's possession or
under control of the Assistant Treasurer belonging to the
Corporation.
Section 11. Other Officers. Such other
officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors.
The Board of Directors may delegate to any other officer
of the Corporation the power to choose such other
officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation, (i)
by the Chairman of the Board of Directors, the President
or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of
shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or
Mutilated Certificates. The Board of Directors may
direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or
such person's legal representative, to advertise the same
in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be
made against the Corporation with respect to the
certificate alleged to have been lost, stolen or
destroyed.
Section 4. Transfers. Stock of the
Corporation shall be transferable in the manner
prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only
by the person named in the certificate or by such
person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly
endorsed for transfer and payment of all necessary
transfer taxes; provided, however, that such surrender
and endorsement or payment of taxes shall not be required
in any case in which the officers of the Corporation
shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of
cancellation, by the Secretary or Assistant Secretary of
the Corporation or the transfer agent thereof. No
transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
Section 5. Transfer and Registry Agents. The
Corporation may from time to time maintain one or more
transfer offices or agencies and registry offices or
agencies at such place or places as may be determined
from time to time by the Board of Directors.
Section 6. Beneficial Owners. The Corporation
shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person,
whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice
is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee
or stockholder, at such person's address as it appears on
the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United
States mail. Written notice may also be given personally
or by telegram, facsimile, telex or cable.
Section 2. Waivers of Notice.
(a) Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws,
to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed, by the
person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a
meeting, present by person or represented by proxy, shall
constitute a waiver of notice of such meeting, except
where the person attends the meeting for the express
purpose of objecting at the beginning of the meeting to
the transaction of any business because the meeting is
not lawfully called or convened.
(b) Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of
the stockholders, directors or members of a committee of
directors need be specified in any written waiver of
notice unless so required by law, the Certificate of
Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the
requirements of the Delaware General Corporation Law
("DGCL") and the provisions of the Certificate of
Incorporation, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at
any regular or special meeting of the Board of Directors,
and may be paid in cash, in property, or in shares of the
Corporation's capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of
capital stock, warrants, rights, options, bonds,
debentures, notes, scrip or other securities or evidences
of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property
of the Corporation, or for any other proper purpose, and
the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. All checks or
demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person
or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of
the Corporation shall be fixed by resolution of the Board
of Directors.
Section 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation,
the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions,
Suits or Proceedings Other than Those by or in the Right
of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the Corporation) by reason of the fact that such person
is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving
at the request of the Corporation as a director or
officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to
any criminal action or proceeding, such person had no
reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that such person did
not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII,
the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the
request of the Corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in
connection with the defense or settlement of such action
or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation; except
that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall
determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 3. Authorization of Indemnification.
Any indemnification under this Article VIII (unless
ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination
that indemnification of the director or officer is proper
in the circumstances because such person has met the
applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if
there are no such directors, or if such directors so
direct, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent,
however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense
of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such
person in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good
faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe
his or her conduct was unlawful, if such person's action
is based on the records or books of account of the
Corporation or another enterprise, or on information
supplied to such person by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or
records given or reports made to the Corporation or
another enterprise by an independent certified public
accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in
this Section 4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan
or other enterprise of which such person is or was
serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set
forth in Section 1 or 2 of this Article VIII, as the case
may be.
Section 5. Indemnification by a Court.
Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination
thereunder, any director or officer may apply to the
Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis
of such indemnification by a court shall be a
determination by such court that indemnification of the
director or officer is proper in the circumstances
because such person has met the applicable standards of
conduct set forth in Section 1 or 2 of this Article VIII,
as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII
nor the absence of any determination thereunder shall be
a defense to such application or create a presumption
that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon
the filing of such application. If successful, in whole
or in part, the director or officer seeking
indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance.
Expenses incurred by a director or officer in defending
or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled
to be indemnified by the Corporation as authorized in
this Article VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and
advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under the
Certificate of Incorporation or any By-Law, agreement,
contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to
action in such person's official capacity and as to
action in another capacity while holding such office, it
being the policy of the Corporation that indemnification
of the persons specified in Section 1 and 2 of this
Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of
any person who is not specified in Section 1 or 2 of this
Article VIII but whom the Corporation has the power or
obligation to indemnify under the provisions of the DGCL,
or otherwise.
Section 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted
against such person and incurred by such person in any
such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power
or the obligation to indemnify such person against such
liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would
have had power and authority to indemnify its directors
or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was
a director or officer of such constituent corporation
serving at the request of such constituent corporation as
a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as such
person would have with respect to such constituent
corporation if its separate existence had continued. For
purposes of this Article VIII, references to "fines"
shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to
"serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves
services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as
referred to in this Article VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who
has ceased to be a director or officer and shall inure to
the benefit of the heirs, executors and administrators of
such a person.
Section 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII
to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs,
executors or personal or legal representatives) or
advance expenses in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 12. Indemnification of Employees and
Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to
directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be
altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the Board of Directors or by
the stockholders as provided in the Certificate of
Incorporation.
Section 2. Entire Board of Directors. As used
in this Article IX and in these By-Laws generally, the
term "entire Board of Directors" means the total number
of directors which the Corporation would have if there
were no vacancies.
Exhibit 5.1
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Tel: (212) 735-3000
Fax: (212) 735-2000
January 22, 1998
PRT Group Inc.
342 Madison Avenue, 11th Floor
New York, New York 10173
Ladies and Gentlemen:
We have acted as special counsel to PRT Group Inc., a
Delaware corporation (the "Company"), in connection with the preparation
of a Registration Statement on Form S-8, which is being filed by the
Compa ny with the Securities and Exchange Commission (the "Commission")
on the date hereof (the "Registration Statement"), relating to an
aggregate of 4,302,000 shares (the "Plan Shares") of common stock, par
value $.001 per share, of the Company (the "Common Stock"), issuable
pursuant to the Company's Amended and Restated 1996 Stock Incentive Plan
(the "Plan").
This opinion is delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Act").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration Statement, (ii)
the Plan, (iii) the Company's Amended and Restated Certificate of
Incorporation as in effect on the date hereof, (iv) the Company's Amended
and Restated By-Laws as in effect on the date hereof, (v) certain
resolutions of the Board of Directors of the Company relating to, among
other things, the Plan Shares, the Plan and the Registration Statement,
(vi) certain resolutions of the stockholders of the Company relating to
the Plan, (vii) a specimen certificate evidencing the Common Stock and
(viii) such other documents as we have deemed necessary or appropriate as
a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties
other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon statements or representations of
officers and other representatives of the Company and others. In
rendering the opinion set forth below, we have assumed that the
certificates representing the Plan Shares will be manually signed by one
of the authorized officers of the transfer agent and registrar for the
Common Stock and registered by such transfer agent and registrar and will
conform to the specimen thereof examined by us. We have also assumed that
the consideration for the issuance of all the Plan Shares will be at
least equal to the par value thereof.
Isaac Shapiro, a member of this Firm, is a director of the
Company, owns jointly with his wife 254,230 shares of the Common Stock of
the Company and has been granted options to purchase an additional 4,500
Shares of Common Stock under the Plan.
Members of our Firm are admitted to the bar of the State of
New York, and we do not express any opinion as to the laws of any
jurisdiction other than the Delaware General Corporation Law as in effect
on the date hereof.
Based upon and subject to the foregoing, we are of the
opinion that the Plan Shares have been duly and validly authorized for
issuance and, when delivered and paid for upon exercise of options
granted in accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
PRT GROUP INC.
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
1. Purpose.
The purpose of the PRT Group Inc. 1996 Stock Incentive Plan
(the "Plan") is to align the interests of directors, officers, other
employees and consultants of PRT Group Inc., a Delaware corporation
("PRT") and its subsidiaries, now held or hereafter acquired
(collectively with PRT, the "Company"), with those of the stockholders of
PRT; to attract, motivate and retain the best available executive
personnel and key employees of the Company by permitting them to acquire
or increase their proprietary interest in PRT; and to reward the
performance of individual officers and other employees in fulfilling
their personal responsibilities for long-range achievements.
2. Definitions.
The following terms, as used herein, shall have the following
meanings:
(a) "Award" shall mean any Option granted pursuant
to the Plan.
(b) "Award Agreement" shall mean any written agreement,
contract or other instrument or document between PRT
and a Participant
evidencing an Award.
(c) "Board" shall mean the Board of Directors of PRT.
(d) "Cause" shall mean (i) the engaging by the
Participant in willful misconduct that is
materially injurious to the Company, (ii) the
embezzlement or misappropriation of funds or
property of the Company by the Participant or
the conviction of the Participant of a felony
or the entrance of a plea of guilty or nolo
contendere by the Participant to a felony, or
(iii) the willful failure or refusal by the
Participant to substantially perform his duties
or responsibilities that continues after being
brought to the attention of the Participant (other
than any such failure resulting from the
Participant's incapacity due to disability). For
purposes of this paragraph, no act, or failure to
act, on the Participant's part shall be considered
"willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that
his action or omission was in the best interest of
the Company. Determination of Cause shall be made by
the Committee in its sole discretion. Any such
determination shall be final and binding on a
Participant.
(e) "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
(f) "Committee" shall mean the committee of the Board
comprised of at least two Non-Employee Directors
which administers the Plan as
provided herein.
(g) "Common Stock" shall mean the Common Stock, par
value $0.001 per share, of PRT.
(h) "Company" shall have the meaning set forth in
Section 1 hereof.
(i) "Effective Date" shall have the meaning set forth in
Section 8(j) hereof.
(j) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(k) "Fair Market Value" of a share of Common Stock
on any date shall be the fair market value of
such Common Stock as determined by the
Committee in its sole discretion pursuant to
such policies as to valuation as may be adopted
be the Board; provided, that if the Options
granted pursuant to an Award are Incentive
Stock Options, the Fair Market Value of a share
of Common Stock shall be determined in
accordance with Section 422 of the Code;
provided, further, that (A) if the Common Stock
is admitted to trading on a national securities
exchange, Fair Market Value on any date shall
be the last sale price reported for the Common
Stock on such exchange on such date or, if none, the
next earlier date on which a sale was reported, (B)
if the Common Stock is admitted to quotation on the
Nasdaq National Market or other comparable quotation
system, Fair Market Value on any date shall be the
last sale price reported for the Common Stock on
such system on such date or, if none, the next
earlier date on which a sale was reported, or (C) if
the Common Stock is admitted to quotation on the
Nasdaq Stock Market, Fair Market Value on any date
shall be the average of the highest bid and lowest
asked prices of the Common Stock on such system on
such date or, if none, the next earlier date on
which a sale was reported.
(l) "Incentive Stock Option" shall mean an Option that
meets the requirements of Section 422 of the Code,
or any successor provision, and is designated by the
Committee as an Incentive Stock Option.
(m) "Initial Public Offering" shall mean a public
offering of Common Stock pursuant to a registration
statement under the Securities
Act.
(n) "Non-Employee Director" shall mean a member of the
Board who is not also an employee of the Company.
(o) "Nonqualified Stock Option" shall mean an Option
other than an Incentive Stock Option.
(p) "Option" shall mean the right, granted pursuant to
the Plan, of a holder to purchase shares of Common
Stock.
(q) "Participant" shall mean an officer, other employee
or consultant of the Company who is, pursuant to
Section 4 of the Plan, selected to participate in
the Plan and Non-Employee Directors eligible to
participate in the Plan pursuant to Section 7
hereof.
(r) "Plan" shall have the meaning set forth in Section 1
hereof.
(s) "Plan Year" shall mean PRT's fiscal year.
(t) "PRT" shall have the meaning set forth in Section 1
hereof.
(u) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time, and as now or
hereafter construed, interpreted and applied by
regulations, rulings and cases.
(v) "Ten Percent Stockholder" shall mean a
Participant who, at the time an Incentive Stock
Option is to be granted to such Participant,
owns (within the meaning of Section 422(b)(6)
of the Code) stock possessing more than ten
percent (10%) of the total combined voting
power of all classes of stock of the Company
within the meaning of Sections 422(e) and
422(f), respectively, of the Code.
3. Administration.
The Plan shall be administered by the Committee. The
Committee shall have the authority, in its sole discretion, subject to
and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authorities either
specifically granted to it under the Plan or necessary or advisable in
connection with the administration of the Plan, including, without
limitation, the authority to grant Awards; to determine the persons to
whom and the time or times at which Awards shall be granted; to determine
the type and number of Awards to be granted, the number of shares of
Common Stock to which an Award may relate and the terms, conditions,
restrictions and performance criteria relating to any Award; to determine
whether, to what extent, and under what circumstances an Award may be
settled, cancelled, adjusted, forfeited, exchanged, or surrendered or
accelerated or an Option or Options may be repriced to a lower exercise
price; to construe and interpret the Plan and any Award; to prescribe,
amend and rescind rules and regulations relating to the Plan; to
determine the terms and provisions of Award Agreements, consistent with
the terms and provisions of the Plan; and to make all other
determinations deemed necessary or advisable for the administration of
the Plan, consistent with the terms and provisions of the Plan. The
Committee shall consist of two or more persons who are intended to be
"disinterested persons" within the meaning of Rule 16b-3 under the
Exchange Act.
4. Eligibility.
Awards may be granted to officers, other employees and
consultants of the Company in the sole discretion of the Committee. In
determining the persons to whom Awards shall be granted and the type of
Award, the Committee shall take into account such factors as the
Committee shall deem relevant in connection with accomplishing the
purposes of the Plan. In addition, Non-Employee Directors of the Company
will be granted options as set forth herein.
5. Stock Subject to the Plan.
(a) Number of Shares. The maximum number of shares of Common
Stock reserved for issuance pursuant to the Plan shall be 4,302,000. All
such shares of Common Stock shall be subject to equitable adjustment as
provided herein. Such shares may, in whole or in part, be authorized but
unissued shares or shares that shall have been or may be reacquired by
the Company in the open market, in private transactions or otherwise. If
any shares subject to an Award are forfeited, cancelled, exchanged or
surrendered or if an Award otherwise terminates or expires without a
distribution of shares to the Participant, the shares of Common Stock
with respect to such Award shall, to the extent of any such forfeiture,
cancellation, exchange, surrender, termination or expiration, again be
available for Awards under the Plan.
(b) Equitable Adjustment. In the event that an extraordinary
transaction or other event or circumstance affecting the Common Stock
shall occur, including, but not limited to, any dividend or other
distribution (whether in the form of cash, stock or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, spin-off, combination, repurchase, share exchange,
sale of assets or other similar transaction or event, and the Committee
determines that a change or adjustment in the terms of any Award is
appropriate, then the Committee may, in its sole discretion, make such
equitable changes or adjustments or take any other actions that it deems
necessary or appropriate (which shall be effective at such time as the
Committee in its sole discretion determines), including, but not limited
to (A) causing changes or adjustments to any or all of (i) the number and
kind of shares of stock or other securities or property which may
thereafter be issued in connection with Awards (including Awards to
Non-Employee Directors pursuant to Section 7 hereof), (ii) the number and
kind of shares of stock or other securities or property issued or
issuable in respect of outstanding Awards, (iii) the exercise price
relating to any Award, and (iv) the limitation on Option grants pursuant
to Section 6(a)(9) hereof, and (B) cancelling outstanding Awards in
exchange for replacement awards or cash, it being understood that the
Committee shall have the authority to cause different changes or
adjustments to be made to any Awards held by Participants even if such
Awards are identical and such Participants are similarly situated;
further, provided, however, that with respect to Options which are
intended by the Committee to remain Incentive Stock Options subsequent to
any such adjustment, such adjustment shall be made in accordance with
Section 424 of the Code.
6. Stock Options.
Each Option granted pursuant to this Section 6 shall be
evidenced by an Award Agreement, in such form and containing such terms
and conditions as the Committee shall from time to time approve, which
Award Agreement shall comply with and be subject to the following terms
and conditions, as applicable.
(a) Stock Options
(1) Number of Shares. Each Award Agreement shall state
the number of shares of Common Stock to which the Option relates.
(2) Type of Option. Each Award Agreement shall state that
the Option constitutes an Incentive Stock Option or a Nonqualified Stock
Option.
(3) Option Exercise Price. Each Award Agreement shall
state the Option exercise price, which, except as provided in Section
6(a)(7)(B) below, or except as otherwise determined by the Committee,
shall not be less than one hundred percent (100%) of the Fair Market
Value of the shares of Common Stock covered by the Option on the date of
grant. The Option exercise price shall be subject to adjustment as
provided in Section 5 hereof. Unless otherwise expressly stated in the
Committee resolution expressly granting an Option, the date as of which
the Committee adopts the resolution expressly granting an Option shall be
considered the day on which such Option is granted.
(4) Method and Time of Payment. The Option exercise price
shall be paid in full, at the time of exercise, in cash (which may
include cash received from the Company as compensation or cash borrowed
from the Company), in shares of Common Stock having a Fair Market Value
equal to such Option exercise price, in a combination of cash and Common
Stock (or other consideration deemed acceptable by the Committee) or, in
the sole discretion of the Committee, through a cashless exercise
procedure.
(5) Term and Exercisability of Options. Each Award
Agreement shall provide that each Option shall become exercisable over a
period determined by the Committee in its discretion; provided, that the
Committee shall have the authority to accelerate the exercisability of
any outstanding Option at such time and under such circumstances as it,
in its sole discretion, deems appropriate. The exercise period shall be
not more than ten (10) years from the date of the grant of the Option, or
such shorter period as is determined by the Committee. The exercise
period shall be subject to earlier termination as provided in Section
6(a)(6) hereof. An Option may be exercised, as to any or all full shares
of Common Stock as to which the Option has become exercisable, by written
notice delivered in person or by mail to the Secretary of PRT, specifying
the number of shares of Common Stock with respect to which the Option is
being exercised, together with payment in full of the Option exercise
price. For purposes of the preceding sentence, the date of exercise will
be deemed to be the date upon which the Secretary of PRT receives both
the notification and such payment.
(6) Termination. If a Participant's employment by the
Company terminates, the Committee will have the exclusive authority to
determine if and for how long, and under what conditions, such Option may
be exercised after such termination; provided, however, that in no event
will an Option continue to be exercisable beyond the expiration date of
such Option; provided, further, that if an Award is of Incentive Stock
Options, such Incentive Stock Options must be exercised within ninety
(90) days after any termination which is not a result of death or
disability.
(7) Incentive Stock Options. Options granted as Incentive
Stock Options shall be subject to the following special terms and
conditions, in addition to the general terms and conditions specified in
this Section 6.
(A) Value of Shares. The aggregate Fair Market Value
(determined as of the date the Incentive Stock Option is
granted) of the shares of Common Stock with respect to which
Incentive Stock Options granted under this Plan and all other
plans of the Company become exercisable for the first time by
each Participant during any calendar year shall not exceed
$100,000.
(B) Ten Percent Stockholder. In the case of an Incentive
Stock Option granted to a Ten Percent Stockholder, (x) the
option exercise price shall not be less than one hundred ten
percent (110%) of the Fair Market Value of the shares of
Common Stock on the date of grant of such Incentive Stock
Option, and (y) the exercise period shall not exceed five (5)
years from the date of grant of such Incentive Stock Option.
(8) Nontransferability of Common Stock. Each Award
Agreement shall provide that upon receipt of any shares of Common Stock
acquired through the exercise of the Options granted hereby ("Option
Shares") prior to an Initial Public Offering, the Participant shall
execute a stockholders agreement (a "Stockholders Agreement") with
respect to the shares of Common Stock to which such Option relates, in
such form and containing such terms and conditions as the Committee shall
from time to time approve, including, without limiting the forgoing, any
restrictions on the transferability of such Option Shares.
(9) Maximum Grant of Options. No Plan Participant may
receive an Award or Awards of Options covering in excess of 200,000
shares of Common Stock in any Plan year.
(10) Option Shares Holding Period. In each Award
Agreement evidencing an Award granted to a Participant prior to an
Initial Public Offering, the Participant receiving the Award shall
covenant and agree to hold and not sell or otherwise dispose of any
shares of Company Common Stock acquired through the exercise of the
Options granted thereby ("Option Shares") for a period of not less than
six months after the exercise of the Options under which such Option
Shares were acquired; provided that any Option Shares acquired after an
Initial Public Offering shall be freely transferrable upon receipt of
such Option Shares, subject to applicable law.
(11) Right of First Refusal. If, prior to an Initial
Public Offering, a Participant shall determine to sell any Option Shares
after the end of any applicable holding period, the Company shall have a
right of first refusal to repurchase any such Option Shares at the Fair
Market Value of the Option Shares at the time the Participant so
determines to sell such Option Shares; provided, that the Company shall
be under no obligation to repurchase such Option Shares.
7. Non-Employee Director Options.
Notwithstanding any other provision of the Plan to the
contrary, the provisions of this Section 7 shall apply to and govern
grants of Options to Non-Employee Directors. Except as set forth in this
Section 7, the other provisions of the Plan shall apply to grants of
Options to Non-Employee Directors to the extent not inconsistent with
this Section. The provisions of this Section 7 shall not be amended more
than once every six months, other than to comport with changes in the
Code, the Employee Retirement Income Security Act of 1974, as amended, or
the rules promulgated thereunder.
(a) General. Non-Employee Directors shall receive Nonqualified
Stock Options in accordance with this Section 7. The purchase price per
share of Common Stock purchasable under Options granted to Non-Employee
Directors shall be the Fair Market Value of such share on the date of
grant. No Award Agreement with any Non-Employee Director may alter the
provisions of this Section 7 and no Option granted to a Non-Employee
Director may be subject to a discretionary acceleration of exercisability
or vesting.
(b) Initial Grant. As of August 1, 1996, each person who is
then a Non-Employee Director (an "Initial Director") shall be granted
automatically, without action by the Committee, an Option to purchase
3,000 shares of Common Stock.
(c) Grants to New Non-Employees Directors. Each person who,
after August 1, 1996, becomes a Non-Employee Director for the first time
(a "Subsequent Director"), shall, at the time such director is elected
and duly qualified, be granted automatically, without action by the
Committee, an Option to purchase 3,000 shares of Common Stock.
(d) Annual Grants to Continuing Directors. On the date of each
annual meeting of stockholders of the Company, commencing with the 1997
annual meeting of stockholders, each continuing Initial Director shall be
granted automatically, without action by the Committee, an Option to
purchase 3,000 shares of Common Stock. On the date of each annual meeting
of stockholders of the Company subsequent to a Subsequent Director's
becoming a Non-Employee Director, each continuing Subsequent Director
shall be granted automatically, without action by the Committee, an
Option to purchase 3,000 shares of Common Stock, unless such Non-Employee
Director received a grant pursuant to paragraph (c) above by reason of
being elected a Non-Employee Director at such annual meeting.
(e) Vesting. Each Option granted to a Non- Employee Director
shall vest and become exercisable with respect to fifty percent (50%) of
the shares of Common Stock subject thereto on the date of grant thereof
and fifty percent (50%) of the shares of Common Stock subject thereto on
the first anniversary of the date of grant thereof, provided that such
Non-Employee Director shall have continually served as such from such
date of grant through and on such anniversary date; provided, however,
that each Option shall become immediately vested and exercisable in full
upon the death of the Non-Employee Director. Sections 6(a)(5) and (6)
hereof shall not apply to Options granted to Non-Employee Directors.
(f) Duration. Subject to the immediately following sentence,
each Option granted to a Non-Employee Director shall remain outstanding
for a term of 10 years from the date of grant. Upon the cessation of a
Non-Employee Director's membership on the Board for any reason, Options
granted to such Non-Employee Director shall expire upon the earlier of
(i) three (3) years from the date of such cessation of Board membership
or (ii) expiration of the term of the Option. The Committee may not
provide for an extended exercise period beyond the periods set forth in
this Section 7(f).
8. General Provisions.
(a) Compliance with Legal Requirements. The Plan and the
granting and exercising of Awards, and the other obligations of the
Company under the Plan and any Award Agreement or other agreement shall
be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any regulatory or governmental
authority or agency as may be required. The Company, in its discretion,
may postpone the issuance or delivery of Common Stock under any Award as
the Company may consider appropriate and may require any Participant to
make such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of Common Stock
in compliance with applicable laws, rules and regulations.
(b) Nontransferability. Awards shall not be transferable by a
Participant other than by will or the laws of descent and distribution
or, if then permitted by Rule 16b-3 under the Exchange Act, pursuant to a
qualified domestic relations order as defined under the Code or Title I
of the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder, and shall be exercisable during the lifetime of a
Participant only by such Participant or his guardian or legal
representative.
(c) No Right To Continued Employment. Nothing in the Plan or
in any Award granted or any Award Agreement or other agreement entered
into pursuant hereto shall confer upon any Participant the right to
continue in the employ of the Company or to be entitled to any
remuneration or benefits not set forth in the Plan or such Award
Agreement or other agreement or to interfere with or limit in any way the
right of the Company to terminate such Participant's employment.
(d) Withholding Taxes. Where a Participant or other person is
entitled to receive shares of Common Stock pursuant to the exercise of an
Option or is otherwise entitled to receive shares of Common Stock or cash
pursuant to an Award hereunder, the Company shall have the right to
require the Participant or such other person to pay to the Company the
amount of any taxes which the Company may be required to withhold before
delivery to such Participant or other person of cash or a certificate or
certificates representing such shares.
Upon the disposition of shares of Common Stock acquired
pursuant to the exercise of an Incentive Stock Option, the Company shall
have the right to require the payment of the amount of any taxes which
are required by law to be withheld with respect to such disposition.
Unless otherwise prohibited by the Committee or by applicable
law, a Participant may satisfy any such withholding tax obligation by any
of the following methods, or by a combination of such methods: (a)
tendering a cash payment; (b) authorizing the Company to withhold from
the shares of Common Stock or cash otherwise payable to such Participant
(1) one or more of such shares having an aggregate Fair Market Value,
determined as of the date the withholding tax obligation arises, less
than or equal to the amount of the total withholding tax obligation or
(2) cash in an amount less than or equal to the amount of the total
withholding tax obligation; or (c) delivering to the Company previously
acquired shares of Common Stock (none of which shares may be subject to
any claim, lien, security interest, community property right or other
right of spouses or present or former family members, pledge, option,
voting agreement or other restriction or encumbrance of any nature
whatsoever) having an aggregate Fair Market Value, determined as of the
date the withholding tax obligation arises, less than or equal to the
amount of the total withholding tax obligation. A Participant's election
to pay his or her withholding tax obligation (in whole or in part) by the
method described in (b)(1) above is irrevocable once it is made, may be
disapproved by the Committee and, if made by any director, officer or
other person who is subject to Section 16(b) of the Exchange Act, must be
made (x) only during the period beginning on the third business day
following the date of release of the Company's quarterly or annual
summary statement of sales and earnings and ending on the twelfth
business day following the date of such release or (y) not less than six
months prior to the date such Participant's withholding tax obligation
arises.
(e) Amendment and Termination of the Plan. The Board or the
Committee may at any time and from time to time alter, amend, suspend, or
terminate the Plan in whole or in part; provided that, no amendment which
requires stockholder approval under applicable Delaware law or in order
for the Plan to continue to comply with Rule 16b-3 under the Exchange Act
shall be effective unless the same shall be approved by the requisite
vote of the stockholder(s) of PRT. Notwithstanding the foregoing, subject
to the other provisions of the Plan, no amendment shall affect adversely
any of the rights of any Participant, without such Participant's consent,
under any Award theretofore granted under the Plan. The power to grant
Options under the Plan will automatically terminate on July 31, 2006. If
the Plan is terminated, any unexercised Option shall continue to be
exercisable in accordance with its terms and the terms of the Plan in
effect immediately prior to such termination.
(f) Participant Rights. No Participant shall have any claim to
be granted any Award under the Plan, and there is no obligation for
uniformity of treatment for Participants. Except as provided specifically
herein, a Participant or a transferee of an Award shall have no rights as
a stockholder with respect to any shares of stock covered by any Award
until the date of the issuance of a certificate to him for such shares.
(g) Unfunded Status of Awards. 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 pursuant to an
Award, nothing contained in the Plan or any Award shall give any such
Participant any rights that are greater than those of a general creditor
of PRT.
(h) No Fractional Shares. No fractional shares of Common Stock
shall be issued or delivered pursuant to the Plan or any Award. The
Committee shall determine whether cash, other Awards or other property
shall be issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
(i) Governing Law. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State
of New York without giving effect to the conflict of laws principles
thereof.
(j) Effective Date. The Plan has been adopted by the Board.
After approval by the stockholders of PRT, the Plan shall become
effective on August 1, 1996, which shall be the Effective Date.
(k) Beneficiary. A Participant may file with the Committee a
written designation of a beneficiary on such form as may be prescribed by
the Committee and may, from time to time, amend or revoke such
designation. If no designated beneficiary survives the Participant, the
executor or administrator of the Participant's estate shall be deemed to
be the grantee's beneficiary.
(l) Interpretation. The Plan is designed and intended to
comply with Rule 16b-3 promulgated under the Exchange Act, and all
provisions hereof shall be construed in a manner to so comply.
Exhibit A
[FORM OF OPTION AGREEMENT]
STOCK OPTION AWARD AGREEMENT
AGREEMENT made on [ ], 19__ (the
"Date of Grant"), by and between PRT Group Inc., a Delaware corporation
(the "Company") and [ ] (the "Executive"["Employee"] ["Consultant"]).
WHEREAS, the Company has adopted the PRT Group
Inc. Amended and Restated 1996 Stock Incentive Plan (the
"Plan"); and
WHEREAS, the Company desires to grant to the
Executive options under the Plan to acquire an aggregate of [ ] shares of
common stock of the Company, par value $.01 per share (the "Stock"), on
the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as
follows:
1. Definitions. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Plan.
2. Grant of Options. The Executive is hereby
granted options (the "Options") to purchase an aggregate of [ ] shares of
Stock, pursuant to the terms of this Agreement and the provisions of the
Plan. The Options are intended to constitute [Incentive][Nonqualified]
Stock Options.
3. Option Price. The initial exercise price
per share of the Options shall be $_____, subject to
adjustment in accordance with the Plan.
4. Conditions to Exercisability. The Options shall
vest and become exercisable with respect to ____ percent (__%) of the
shares subject thereto on each of the first _______ anniversaries of the
Date of Grant, so long as the Executive continues to be employed by the
Company or any of its subsidiaries on such dates. In the event of death
or permanent disability of the Executive, all Options shall vest
immediately. In the event of approved retirement or partial disability of
the Executive, all Options shall vest upon the earlier of (i) ninety (90)
days or (ii) the regular vesting schedule set forth above. In the event
the Executive's employment is terminated other than as a result of the
death or permanent or partial disability or approved retirement of the
Executive, all unvested Options shall be forfeited.
5. Period of Options. The Options shall expire on
the earliest to occur of:
(a) the tenth anniversary of the Date of
Grant [five years in the case of 10% holders];
(b) the date of the Executive's
termination of employment with the Company or any of its
subsidiaries for Cause;
(c) the first anniversary of the
Executive's death or termination of employment with the Company or any of
its subsidiaries by reason of disability of the Executive or approved
retirement; and
(d) the first anniversary of the
Executive's termination of employment with the Company or
any of its subsidiaries for any other reason;
provided, that if the Options granted hereunder are Incentive Stock
Options, such Options must be exercised within ninety (90) days after any
termination which is not a result of death or disability.
[THE FOLLOWING SECTION 5A MAY BE ADDED TO CERTAIN
INDIVIDUAL AWARD AGREEMENTS AS DETERMINED BY THE
COMMITTEE.]
[5A. Change in Control. Notwithstanding any other
provision of the Plan or this Agreement to the contrary, if, [after an
Initial Public Offering and] while this Award remains outstanding under
the Plan, a Change in Control (as defined below) of PRT shall occur, then
all Options granted under this Award Agreement that are outstanding at
the time of such Change in Control shall become immediately exercisable
in full, without regard to the years that have elapsed from the date of
grant, and, at the option of the Committee, such Options may be cancelled
in exchange for a cash payment or a replacement award of equivalent
value.
For purposes of this Section 5A, a "Change in
Control" of PRT shall occur upon the happening of the earliest to occur
of the following:
(i) any "person," as such term is used in Sections
13(d) and 14(d) of the Exchange Act (other than (1) PRT, (2)
any trustee or other fiduciary holding securities under an
employee benefit plan of PRT or (3) any corporation owned,
directly or indirectly, by the stockholders of PRT in
substantially the same proportions as their ownership of the
common stock of PRT), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of PRT (not including in the
securities beneficially owned by such person any securities
acquired directly from PRT or its affiliates [or in an Initial
Public Offering]) representing [ ]% or more of the combined
voting power of PRT's then outstanding voting securities;
(ii) during any period of not more than two
consecutive years, individuals who at the beginning of such
period constitute the Board (such board of directors being
referred to herein as the "PRT Board"), and any new director
(other than a director designated by a person who has entered
into an agreement with PRT to effect a transaction described
in clause (i), (iii) or (iv) of this Section 5A) whose
election by the PRT Board or nomination for election by PRT's
stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved (other than
approval given in connection with an actual or threatened
proxy or election contest), cease for any reason to constitute
at least [70]% of such PRT Board;
(iii) the stockholders of PRT approve a merger or
consolidation of PRT with any other corporation, other than
(A) a merger or consolidation which would result in the voting
securities of PRT outstanding immediately prior thereto
continuing to represent (either by remaining outstanding
without conversion or by being converted into voting
securities of the surviving or parent entity) [ ]% or more of
the combined voting power of the voting securities of PRT or
such surviving or parent entity outstanding immediately after
such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of PRT (or similar
transaction) in which no "person" (as hereinabove defined)
acquires [ ]% or more of the combined voting power of PRT's
then outstanding securities; or
(iv) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets (or any transaction having a similar
effect).]
6. Exercise of Options. Options shall be exercised
in the following manner: the Executive shall deliver to the Company
written notice specifying the number of shares of Stock that he elects to
purchase. The Executive must include with such notice full payment of the
exercise price for the Stock being purchased pursuant to such notice. The
exercise price shall be paid in full at the time of exercise. The
exercise price may be paid in cash or by check; by the tender by the
Executive to the Company of shares of Common Stock outstanding prior to
the receipt of the Option Shares (as defined below) by the Executive; or
a combination of any of the foregoing, in an amount having a combined
value equal to such exercise price. The value of any Stock tendered
pursuant to the preceding sentence shall be the Fair Market Value of such
Stock as of the last trading day prior to the date of exercise.
Upon the delivery of shares of Stock acquired
pursuant to the exercise of Options, the Company shall have the right to
require the payment of the amount of any taxes that are required by law
to be withheld with respect to such delivery.
The Executive shall not be deemed to be a holder of
any shares of Stock pursuant to exercise of Options until the date of the
issuance of a stock certificate to him for such shares and until such
shares are paid for in full.
7. Holding Period. The Executive covenants and
agrees to hold and not sell or otherwise dispose of any shares of Company
Common Stock acquired through the exercise of the Options granted hereby
("Option Shares") for a period of not less than six months after the
exercise of the Options under which such Option Shares were acquired;
provided that any Option Shares acquired after an Initial Public Offering
shall be freely transferrable upon receipt of such Option Shares, subject
to applicable law.
8. Right of First Refusal. If the Executive shall
determine to sell any Option Shares after the end of any applicable
holding period, the Company shall have a right of first refusal to
repurchase any such Option Shares at the Fair Market Value of the Option
Shares at the time the Executive so determines to sell such Option
Shares; provided, that the Company shall be under no obligation to
repurchase such Option Shares.
9. Stockholders Agreement. Prior to or upon receipt
of any Option Shares hereunder prior to an Initial Public Offering, the
Executive covenants and agrees to enter into a Stockholders Agreement
relating to such Option Shares in such form and containing such terms and
conditions as the Committee shall from time to time approve, including,
without limiting the forgoing, any restrictions on the transferability of
such Option Shares.
10. Representations. The Company represents and
warrants that this Agreement has been authorized by all necessary
corporate action of the Company and is a valid and binding agreement of
the Company enforceable against them in accordance with its terms.
The Executive represents and warrants that he is not
a party to any agreement or instrument that would prevent him from
entering into or performing his duties in any way under this Agreement.
11. Entire Agreement. This Agreement and the Plan
contain all the understandings between the parties hereto pertaining to
the matters referred to herein, and supersedes all undertakings and
agreements, whether oral or in writing, previously entered into by them
with respect thereto. The Executive represents that, in executing this
Agreement, he does not rely and has not relied upon any representation or
statement not set forth therein made by the Company with regard to the
subject matter, bases or effect of this Agreement or otherwise.
12. Amendment or Modification, Waiver. Except as set
forth in the Plan, no provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed by
the Executive and by a duly authorized officer of the Company. No waiver
by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same time, any prior time or any subsequent time.
13. Notices. Any notice to be given hereunder shall
be in writing and shall be deemed given when delivered personally, sent
by courier or telecopy or registered or certified mail, postage prepaid,
return receipt requested, addressed to the party concerned at the address
indicated below or to such other address as such party may subsequently
give notice of hereunder in writing:
To Executive at:
To the Company at:
PRT Group Inc.
342 Madison Avenue
New York, New York 10173
Attn: Corporate Secretary
Any notice delivered personally or by courier under
this Section 13 shall be deemed given on the date delivered and any
notice sent by telecopy or registered or certified mail, postage prepaid,
return receipt requested, shall be deemed given on the date telecopied or
mailed.
14. Severability. If any provision of this Agreement
or the application of any such provision to any party or circumstances
shall be determined by any court of competent jurisdiction to be invalid
and unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances other than
those to which it is so determined to be invalid and unenforceable, shall
not be affected thereby, and each provision hereof shall be validated and
shall be enforced to the fullest extent permitted by law.
15. Survival. The respective rights and obligations
of the parties hereunder shall survive any termination of this Agreement
to the extent necessary to the intended preservation of such rights and
obligations.
16. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without regard to its conflicts of laws principles.
17. Headings. All descriptive headings of sections
and paragraphs in this Agreement are intended solely for convenience, and
no provision of this Agreement is to be construed by reference to the
heading of any section or paragraph.
18. Construction. This Agreement is made under and
subject to the provisions of the Plan, and all of the provisions of the
Plan are hereby incorporated herein as provisions of this Agreement. If
there is a conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Agreement shall govern. By
signing this Agreement, the Executive confirms that he has received a
copy of the Plan and has had an opportunity to review the contents
thereof.
19. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Confidentiality. The provisions, terms and
conditions of this Agreement shall be held confidential by the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
PRT GROUP INC.
By:
Name:
Title:
By:
Name:
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 pertaining to the Amended and Restated 1996 Stock
Option Plan of PRT Group Inc.) of our report dated October 27, 1997
with respect to the financial statements and schedule of PRT Group Inc.
included in its Registration Statement on Form S-1 (File No. 333-36169)
and the related Prospectus.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
January 21, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 pertaining to the Amended and Restated 1996 Stock Option Plan of
PRT Group Inc.) of our report dated August 28, 1997 with respect to the
financial statements of Computer Management Resources, Inc. included in PRT
Group Inc.'s Registration Statement on Form S-1 (File No. 333-36169) and
the related Prospectus.
ERNST & YOUNG LLP
New York, New York
January 21, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Amended and Restated 1996 Stock
Option Plan of PRT Group Inc. of our report dated February 11, 1995, with
respect to the financial statements and schedule of PRT Group Inc.,
included in its Registration Statement on Form S-1 (File No. 333-36169)
and the related Prospectus.
/s/ Shulman, Cohen, Furst, Kramer & Rosen P.C.
SHULMAN, COHEN, FURST, KRAMER & ROSEN P.C.
New York, New York
January 21, 1998
