<PAGE>
As filed with the Securities and Exchange Commission on October 2, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-----------
IVI CHECKMATE CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2375201
(State of incorporation) (IRS Employer Identification No.)
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(Address of principal Executive Offices) (Zip Code)
IVI CHECKMATE CORP. 1998 LONG-TERM INCENTIVE PLAN
IVI CHECKMATE CORP. AMENDED AND RESTATED 1998 DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
MR. JOHN J. NEUBERT
IVI CHECKMATE CORP.
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(770) 594-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
M. HILL JEFFRIES MARK A. CONVERY
ALSTON & BIRD LLP MEIGHEN DEMERS
ONE ATLANTIC CENTER MERRILL LYNCH CANADA TOWER
1201 WEST PEACHTREE STREET 200 KING STREET WEST, SUITE 1100
ATLANTA, GEORGIA 30309-3424 TORONTO, ONTARIO
(404) 881-7000 CANADA M5H 3T4
(416) 977-8400
-----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) SHARE(2) PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 910,600 $6.81 $ 6,201,186 $1,830
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 1,839,400 $5.25 $ 9,656,850 $2,848
- ----------------------------------------------------------------------------------------------------------------------
TotaL 2,750,000 $15,858,036 $4,679
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of the adjustment provisions of the
IVI Checkmate Corp. 1998 Long-Term Incentive Plan and the IVI Checkmate
Corp. Amended and Restated 1998 Directors Stock Option Plan (collectively,
the "Plans").
(2) Determined in accordance with Rule 457(h), the registration fee is based on
the average option price per share for shares presently subject to options
and, for those shares not presently subject to options, on the average of
the high and low prices of the Registrant's Common Stock reported on the
Nasdaq National Market on September 29, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(i) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended.
(ii) Upon written or oral request, the Company will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information, should be
directed to John J. Neubert, Corporate Secretary, at (770) 594-6000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by IVI Checkmate Corp. (the "Company") with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference and deemed to be a part hereof from the date of
the filing of such documents:
(i) The Company's proxy statement/prospectus dated May 26, 1998
which forms a part of the Company's Registration Statement on
Form S-4 (Registration No. 333-53629);
(ii) The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1998;
(iii) The Company's Current Report on Form 8-K filed on July 9, 1998;
and
(iv) The Company's Current Report on Form 8-K filed on October 1,
1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide for indemnification of directors and officers of
the Company to the full extent permitted by Delaware law.
Section 145 of the General Corporation Law of the State of Delaware provides
generally that a corporation may 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, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at its request in such capacity in another
corporation or business association, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
be the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to
<PAGE>
believe his conduct was unlawful. In addition, pursuant to the authority of
Delaware law, the Certificate of Incorporation of the Company also eliminates
the monetary liability of directors to the fullest extent permitted by Delaware
law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.*
5 Opinion of counsel of Registrant.
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Coopers & Lybrand.
99 (a) IVI Checkmate Corp. 1998 Long-Term Incentive Plan hereby
incorporated by reference from Exhibit 10.5.1 to the Registrant's Registration
Statement on Form S-4 dated May 26, 1998 with Registration No. 333-53629.
99 (b) IVI Checkmate Corp. Amended and Restated 1998 Directors Stock
Option.
- -------------------------
* Exhibits are numbered in accordance with Item 601 of Regulation S-K.
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 thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement;
and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change in such information in the registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not
-------- -------
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned issuer hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of l934 (and, where applicable, each filing of an
employee benefit plan's annual report
II-2
<PAGE>
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 Registration pursuant to the foregoing provisions, or otherwise, the
Registration 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the registrant,
IVI Checkmate Corp., 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 Atlanta, Georgia as of October 1, 1998.
IVI CHECKMATE CORP.
By: /s/ J. Stanford Spence
------------------------
J. Stanford Spence
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities on October 1, 1998.
SIGNATURE TITLE
--------- -----
/s/ J. Stanford Spence Chairman of the Board
- -----------------------------
J. Stanford Spence
/s/ George Whitton Vice Chairman of the Board
- -----------------------------
George Whitton
/s/ L. Barry Thomson President, Chief Executive Officer and Director
- -----------------------------
L. Barry Thomson
/s/ Gregory A. Lewis Director
- -----------------------------
Gregory A. Lewis
/s/ John J. Neubert Executive Vice President and Chief Financial
- ----------------------------- Officer
John J. Neubert
/s/ Gerard Compain
- ----------------------------- Director
Gerard Compain
/s/ Paul W. Noblett Director
- -----------------------------
Paul W. Noblett
/s/ Bertil D. Nordin Director
- -----------------------------
Bertil D. Nordin
/s/ Gareth Owen
- ----------------------------- Director
Gareth Owen
/s/ Peter E. Roode Director
- -----------------------------
Peter E. Roode
II-4
<PAGE>
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
EXHIBITS FILED WITH
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------
IVI CHECKMATE CORP.
1003 MANSELL ROAD
ROSWELL, GEORGIA 30076
(770) 594-6000
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER* DESCRIPTION
- -------------- -----------
5 Opinion of counsel to Registrant.
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Coopers & Lybrand.
99(b) IVI Checkmate Corp. Amended and Restated 1998
Directors Stock Option Plan.
- --------------
*Exhibits are numbered in accordance with Item 601 of Regulation S-K.
II-6
<PAGE>
EXHIBIT 5
---------
Opinion of Alston & Bird LLP regarding the legality of
the securities being registered
<PAGE>
[LETTERHEAD OF ALSTON & BIRD LLP APPEARS HERE]
October 1, 1998
IVI Checkmate Corp.
1003 Mansell Road
Roswell, Georgia 30076
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel to IVI Checkmate Corp., a Delaware
corporation (the "Company"), in connection with the filing of the above-
referenced Registration Statement on Form S-8 (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"). The
Registration Statement is to register under the Securities Act of 1933, as
amended (the "Act"), 2,500,000 shares of Common Stock, $.01 par value per share
("Common Stock"), of the Company issued or issuable pursuant to the IVI
Checkmate Corp. 1998 Long-Term Incentive Plan and 250,000 shares of Common Stock
issued or issuable pursuant to the IVI Checkmate Corp. 1998 Amended and Restated
Directors Stock Option Plan. Such 2,750,000 shares of Common Stock are referred
to herein collectively as the "Shares." This opinion letter is rendered
pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law and
of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of officers of the Company and public officials and such
other documents as we have deemed appropriate as a basis for the opinion
hereinafter set forth.
Our opinion set forth below is limited to the laws of the State of Delaware,
and we do not express any opinion herein concerning any other laws.
On the basis of the foregoing, we are of the opinion that the Shares, when
issued and delivered in accordance with the terms and conditions of the above-
referenced plans and related agreements with participants in the plans, will be
validly issued, fully paid and nonassessable by the Company.
<PAGE>
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus constituting a part thereof. In giving such consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
This opinion letter is being furnished by us to the Company and the
Commission solely for the benefit of the Company and the Commission in
connection with the Registration Statement and is not to be used, circulated,
quoted or otherwise relied upon by any other person, or by the Company or the
Commission for any other purpose, without our express written consent. The only
opinion rendered by us consists of those matters set forth in the fourth
paragraph hereof, and no opinion may be implied or inferred beyond those
expressly stated. This opinion letter is rendered as of the date hereof, and we
have no obligation to update this opinion letter.
Sincerely,
ALSTON & BIRD LLP
By: /s/ M. Hill Jeffries
---------------------------
M. Hill Jeffries, Partner
2
<PAGE>
EXHIBIT 23(B)
-------------
Consent of Ernst & Young LLP
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (No. 333- ) pertaining to the IVI Checkmate Corp. 1998 Long-Term
Incentive Plan and the IVI Checkmate Corp. Amended and Restated 1998 Directors
Stock Option Plan of our report dated February 18, 1998, with respect to the
financial statements of Checkmate Electronics, Inc. for the year ended December
31, 1997 and our report dated May 4, 1998, with respect to the financial
statements of IVI Checkmate Corp. for the period from January 15, 1998 (date of
inception) through March 31, 1998, both included in the IVI Checkmate Corp.
Proxy Statement/Prospectus dated May 26, 1998 which forms a part of the
Registration Statement on Form S-4 (No. 333-53629), and of our report dated
September 29, 1998 with respect to the supplemental consolidated financial
statements of IVI Checkmate Corp. included in its Current Report on Form 8-K
dated October 1, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
September 29, 1998
<PAGE>
EXHIBIT 23(C)
-------------
Consent of Coopers & Lybrand
<PAGE>
EXHIBIT 23(C)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (No. 333-______) pertaining to the IVI Checkmate Corp. 1998 Long-Term
Incentive Plan and the IVI Checkmate Corp. Amended and Restated 1998 Directors
Stock Option Plan of our report dated February 12, 1998, on our audits of the
consolidated financial statements of International Verifact Inc. as of
December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and
1995, which report is included in the IVI Checkmate Corp. Proxy Statement/
Prospectus dated May 26, 1998 which forms a part of the Registration Statement
on Form S-4 (File No. 333-53629) and the IVI Checkmate Corp. Current Report on
Form 8-K dated October 1, 1998, filed with the Securities and Exchange
Commission.
Coopers & Lybrand
Chartered Accountants
Toronto, Ontario
September 30, 1998
<PAGE>
EXHIBIT 99(B)
-------------
IVI CHECKMATE CORP.
AMENDED AND RESTATED 1998 DIRECTORS STOCK OPTION PLAN
ARTICLE 1
PURPOSE
1.1 General Purpose. The purpose of this Plan is to further the growth and
---------------
development of the Company by encouraging directors who are not employees of the
Company or any parent or subsidiary corporation of the Company to obtain a
proprietary interest in the Company by owning its stock. The Company intends
that the Plan will provide such persons with an added incentive to continue to
serve as Directors and will stimulate their efforts in promoting the growth,
efficiency and profitability of the Company. The Company also intends that the
Plan will afford the Company a means of attracting persons of outstanding
quality to service on the Board.
1.2 Intended Tax Effects of Options. It is intended that the tax effects of
-------------------------------
any Option granted hereunder should be determined under Code (S)83.
ARTICLE 2
DEFINITIONS
The following words and phrases as used in this Plan shall have the meanings
set forth in this Article unless a different meaning is clearly required by the
context:
2.1 1993 Act shall mean the Securities Act of 1933, as amended.
--------
2.2 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
--------
2.3 Beneficiary shall mean, with respect to an Optionee, the Person or
-----------
Persons who acquire the Options of such Optionee by bequest or inheritance. To
the extent that
<PAGE>
an Option has not yet been distributed to such Person or Persons from a deceased
Optionee's estate, an Option may be exercised by the executor or administrator
(as applicable) of the deceased Optionee's estate.
2.4 Board shall mean the Board of Directors of the Company.
-----
2.5 Cause shall mean (i) the willful and continued failure of an Optionee to
-----
perform substantially his or her duties with the Company or a parent or
subsidiary of the Company (other than any such failure resulting from incapacity
due to physical or mental illness), after a written demand for substantial
performance is delivered to the Optionee by the Board which specifically
identifies the manner in which the Board believes that the Optionee has not
substantially performed his or her duties, or (ii) the willful engaging by the
Optionee in illegal conduct or gross misconduct which is materially and
demonstrably injurious to the Company.
2.6 Change of Control means and includes each of the following:
-----------------
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 33
1/3% or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (i), the following acquisitions shall
not constitute a Change of Control: (A) any acquisition by a Person who is
on the Effective Date the beneficial owner of 33 1/3% or more of the
Outstanding Company Voting Securities, (B) any acquisition directly from
the Company, (C) any acquisition by the Company, (D) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (E) any
acquisition by any corporation pursuant to a transaction which complies
with clauses (A), (B) and (C) of subsection (iii) of this definition; or
(b) Individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Effective Date whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
2
<PAGE>
(c) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 33 1/3% or more of the combined voting power of the then
outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination, and (C) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination.
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
2.7 Code shall mean the Internal Revenue Code of 1986, as amended.
----
2.8 Committee shall mean the committee appointed by the Board to administer
---------
and interpret the Plan in accordance with Article 3 below.
2.9 Common Stock shall mean the common stock of the Company.
------------
2.10 Company shall mean IVI Checkmate Corp., a Delaware corporation.
-------
2.11 Director shall mean an individual who is serving as a member of the
--------
Board (i.e., a director of the Company).
3
<PAGE>
2.12 Disability shall mean, with respect to an individual, the total and
----------
permanent disability of such individual as determined by the Committee in its
sole discretion.
2.13 Effective Date shall mean the date on which this Plan is approved by the
--------------
stockholders of the Company. See Article 9 herein.
2.14 Fair Market Value, on any date, means (i) if the Common Stock is listed
-----------------
on a securities exchange or is traded over the Nasdaq National Market System,
the closing sales price on such exchange or over such system on such date, or,
in the absence of reported sales on such date, the closing sales price on the
immediately preceding date on which sales were reported, or (ii) if the Common
Stock is not listed on a securities exchange or traded over the Nasdaq National
Market System, the mean between the bid and offered prices as quoted by Nasdaq
for such date, provided that if it is determined that the fair market value is
not properly reflected by such Nasdaq quotations, Fair Market Value will be
determined by such other method as the Committee determines in good faith to be
reasonable.
2.15 Non-Employee Director shall mean a person described in Section 5.1
---------------------
hereof.
2.16 NQSO shall mean an option to which Code (S)421 (relating generally to
----
certain incentive stock options and certain other options) does not apply.
2.17 Option shall mean NQSOs granted to individuals pursuant to the
------
terms and provision of this Plan.
2.18 Option Agreement shall mean a written agreement, executed and dated
----------------
by the company and an Optionee, evidencing an Option granted under the terms and
provisions of this Plan, setting forth the terms and conditions of such Option,
and specifying the name of the Optionee and the number of shares of stock
subject to such Option.
2.19 Option Price shall mean the purchase price of the shares of Common
------------
Stock underlying an Option.
2.20 Optionee shall mean an individual who is granted an Option pursuant
--------
to the terms and provisions of this Plan.
2.21 Person shall mean any individual, organization, corporation,
------
partnership or other entity.
2.22 Plan shall mean this IVI Checkmate Corp. Amended and Restated 1998
----
Directors Stock Option Plan.
4
<PAGE>
ARTICLE 3
ADMINISTRATION
3.1 General Administration. The Plan shall be administered and
----------------------
interpreted by the Committee. Subject to the express provisions of the Plan, the
Committee shall have authority to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to the Plan, to determine the terms and
provisions of the Option Agreements by which Options shall be evidenced (which
shall not be inconsistent with the terms of the Plan), and to make all other
determinations necessary or advisable for the administration of the Plan, all of
which determinations shall be final, binding and conclusive.
3.2 Appointment. The Board shall appoint the Committee from among its
-----------
members to serve at the pleasure of the Board. The Board from time to time may
remove members from or add members to, the Committee and shall fill all
vacancies thereon. The Committee at all times shall be composed of two or more
directors.
3.3 Organization. The Committee may select one of its members as its
------------
chairman and shall hold its meetings at such times and at such places as it
shall deem advisable. A majority of the Committee shall constitute a quorum,
and such majority shall determine its actions. The Committee shall keep minutes
of its proceedings and shall report the same to the Board at the meeting next
succeeding.
3.4 Indemnification. In addition to such other rights of indemnification
---------------
as they have as directors or as members of the Committee, the members of the
Committee, to the extent permitted by applicable law, shall be indemnified by
the Company against reasonable expenses (including, without limitation,
attorneys' fees) actually and necessarily incurred in connection with the
defense of any action, suit or proceedings, or in connection with any appeal, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Options granted
hereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved to the extent required by and in the manner provided
by the articles or certificate of incorporation or the bylaws of the company
relating to indemnification of directors) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member or members did not act in good faith and in a manner he or they
reasonably believed to be in or not opposed to the best interest of the Company.
ARTICLE 4
STOCK
The stock subject to the Options and other provisions of the Plan shall be
authorized but unissued or reacquired shares of Common Stock. Subject to
readjustment in accordance with the provisions of Article 7, the total number of
shares of Common Stock for which Options may be granted to persons participating
in the Plan shall not
5
<PAGE>
exceed in the aggregate 250,000 shares of Common Stock. Notwithstanding the
foregoing, shares of Common Stock allocable to the unexercised portion of any
expired or terminated Option again may become subject to Options under the Plan.
ARTICLE 5
ELIGIBILITY TO RECEIVE AND GRANT OF OPTIONS
5.1 Individuals Eligible for Grants of Options. The individuals eligible to
------------------------------------------
receive Options hereunder shall be solely those individuals who are elected as a
Director and who are not employees of the Company or any parent or subsidiary
corporation of the Company. Such individuals shall receive Options hereunder in
accordance with the provisions of Section 5.2 below.
5.2 Grant of Options. On first date prior to 2002 on which a Person first
----------------
becomes a Non-Employee Director, and on each of the dates of the Annual Meeting
of the stockholders of the Company held in 1999, 2000, 2001 and 2002, each Non-
Employee Director then serving in such capacity shall be granted an Option to
purchase 10,000 shares of Common Stock, with such Option subject to the
provisions of Article 6 below.
ARTICLE 6
TERMS AND CONDITIONS OF OPTIONS
Options granted hereunder and Option Agreements shall comply with and be
subject to the following terms and conditions:
6.1 Option Agreement. Each Option granted hereunder shall be evidenced by an
----------------
Option Agreement which sets forth the terms of the Option as specified herein.
6.2 Optionee and Number of Shares. Each Option Agreement shall state the
-----------------------------
name of the Optionee and the total number of shares of the Common Stock to which
it pertains.
6.3 Vesting.
-------
(a) Each Option granted under this Plan shall first become exercisable
(i.e., vested) with respect to all shares subject to such Option as of the
first anniversary of the date the Option is granted; provided, if an
Optionee ceases to be a Director, his rights with regard to all non-vested
Options shall cease immediately except as provided in Subsections (b) and
(c) below.
(b) Notwithstanding the above, any Options previously granted to an
Optionee shall become immediately vested and exercisable for 100% of the
number of shares subject to the Options upon the Optionee's Disability or
death.
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(c) Notwithstanding the above, the Options previously granted to an
Optionee shall become immediately vested and exercisable for 100% of the
number of shares subject to the Options upon a Change of Control.
6.4 Option Price. The Option Price of the shares of Common Stock underlying
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each Option shall be the Fair Market Value of the Common Stock as of the date
the Option is granted.
6.5 Terms of Options. Terms of Options granted under the Plan shall commence
----------------
on the date of grant and shall expire and no longer be exercisable after five
years from the date the Option is granted. No Option shall be granted hereunder
after the grant of Options at the 2002 Annual Meeting of Stockholders.
6.6 Terms of Exercise. The exercise of an Option may be for less than the
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full number of shares of Common Stock subject to such Option, but such exercise
shall not be made for less than (i) 100 shares or (ii) the total remaining
shares subject to the Option, if such total is less than 100 shares. Subject to
the other restrictions on exercise set forth herein, the unexercised portion of
an Option may be exercised at a later date by the Optionee.
6.7 Method of Exercise. All Options granted hereunder shall be exercised by
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written notice directed to the Secretary of the Company at its principal place
of business or to such other person as the Committee may direct. Each notice of
exercise shall identify the Option which the Optionee is exercising (in whole or
in part) and shall be accompanied by payment of the Option Price for the number
of shares specified in such notice and by any documents required by Section 8.1.
The Company shall make delivery of such shares within a reasonable period of
time; provided, if any law or regulation requires the Company to take any action
(including, but not limited to, the filing of a registration statement under the
1933 Act and causing such registration statement to become effective) with
respect to the shares specified in such notice before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to take such action.
6.8 Medium and Time of Payment.
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(a) The Option Price shall be payable upon the exercise of the Option
in an amount equal to the number of shares then being purchased times the
per share Option Price. Payment, at the election of the Optionee (or his
successors as provided in subsection (c) of Section 6.9), shall be (A) in
cash; (B) by delivery to the Company of a certificate or certificates for
shares of the Common Stock duly endorsed for transfer to the Company; or
(C) by a combination of (A) and (B).
(b) If all or part of the Option Price is paid by delivery of shares
of the Common Stock, on the date of such payment, the Optionee must have
held such shares for at least six months; and the value of such Common
Stock (which shall
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be the Fair Market Value of such Common Stock on the date of exercise)
shall be less than or equal to the total Option Price payment. If the
Optionee delivers Common Stock with a value that is less than the total
Option Price, then such Optionee shall pay the balance of the total Option
Price in cash.
6.9 Effect of Termination of Service or Death. Except as provided in
-----------------------------------------
subsections (a), (b) and (c) below, no Option shall be exercisable unless the
Optionee thereof shall have been a Director from the date of the granting of the
Option until the date of exercise.
(a) Termination of Service. In the event an Optionee ceases to be a
Director for any reason other than death or Disability, any Option or
unexercised portion thereof granted to him shall terminate on and shall not
be exercisable after the earliest to occur of (i) the expiration date of
the Option, (ii) one year after the date the Optionee ceases to be a
Director or (iii) the date on which the Company gives notice to such
Optionee of termination of his service as a Director if service is
terminated by the Company or by its stockholders for Cause (an Optionee's
resignation in anticipation of termination of service by the Company or by
its stockholders for Cause shall constitute a notice of termination by the
Company). Notwithstanding the foregoing, in the event that an Optionee's
service as a Director terminates for a reason other than death or
Disability at any time after a Change of Control, the term of all Options
of that Optionee shall be extended through the earlier to occur of (i) the
expiration date of the Option, (ii) one year after the date the Optionee
ceases to be a Director. Prior to the earlier of the dates specified in the
preceding sentences of this subsection (a), the Option shall be exercisable
only in accordance with its terms and only for the number of shares
exercisable on the date of termination of service as a Director. The
question of whether an authorized leave of absence or absence for military
or government service or for any other reason shall constitute a
termination of service as a Director for purposes of the Plan shall be
determined by the Committee, which determination shall be final and
conclusive.
(b) Disability. Upon the termination of an Optionee's service as a
Director due to Disability, any Option or unexercised portion thereof
granted to him which is otherwise exercisable shall terminate on and shall
not be exercisable after the earlier to occur of (i) the expiration date of
such Option, or (ii) one year after the date on which such Optionee ceases
to be a Director due to Disability. Prior to the earlier of such date, such
Option shall be exercisable only in accordance with its terms and only for
the number of shares exercisable on the date such Optionee's service as a
Director ceases due to Disability.
(c) Death. In the event of the death of the Optionee (i) while he is a
Director, (ii) within one year after the date on which such Optionee's
service as a Director is terminated (for a reason other than Cause) as
provided in subsection (a) above, or (iii) within one year after the date
on which such Optionee's service
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as a Director terminated due to his Disability, any Option or unexercised
portion thereof granted to him which is otherwise exercisable may be
exercised by the Optionee's Beneficiary at any time prior to the expiration
of one year from the date of death of such Optionee, but in no event later
than the date of expiration of the Option period. Such exercise shall be
effected pursuant to the terms of this Section as if such Beneficiary is
the named Optionee.
6.10 Restrictions on Transfer and Exercise of Options. No Option shall be
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assignable or transferable by the Optionee except by will or by the laws of
descent and distribution, and any purported transfer shall be null and void.
During the lifetime of an Optionee, the Option shall be exercisable only by him;
provided, however, that in the event the Optionee is incapacitated and unable to
exercise Options, such Options may be exercised by such Optionee's legal
guardian, legal representative, fiduciary or other representative whom the
Committee deems appropriate based on applicable facts and circumstances.
6.11 Rights as a Stockholder. An Optionee shall have no rights as a
-----------------------
stockholder with respect to shares covered by his Option until date of the
issuance of the shares to him and only after the Option Price of such shares is
fully paid. Unless specified in Article 7, no adjustment will be made for
dividends or other rights for which the record date is prior to the date of such
issuance.
6.12 No Obligation to Exercise Option. The granting of an Option shall
--------------------------------
impose no obligation upon the Option to exercise such Option.
6.13 Acceleration. The Committee shall at all times have the power to
------------
accelerate the vesting date of Options previously granted under this Plan.
ARTICLE 7
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
7.1 Recapitalization. In the event that the outstanding shares of the Common
----------------
Stock of the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company by reason of a recapitalization, reclassification, stock split,
combination of shares or dividend payable in shares of the Common Stock, the
following rules shall apply:
(a) The Committee shall take an appropriate adjustment in the number
and kind of shares available for the granting of Options under the Plan.
(b) The Committee also shall make an appropriate adjustment in the
number and kind of shares as to which outstanding Options, or portions
thereof then unexercised, shall be exercisable; any such adjustment in any
outstanding Options shall be made without change in the total price
applicable to the unexercised portion of such Option and with a
corresponding adjustment in the
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Option Price per share. No fractional shares shall be issued or optioned in
making the foregoing adjustments, and the number of shares available under
the Plan or the number of shares subject to any outstanding Options shall
be the next lower number of shares, rounding all fractions downward.
(c) If any rights or warrants to subscribe for additional shares are
given pro rata to holders of outstanding shares of the class or classes of
stock then set aside for the Plan, each Optionee shall be entitled to the
same rights or warrants on the same basis as holders of the outstanding
shares with respect to such portion of his Option as is exercised on or
prior to the record date for determining stockholders entitled to receive
or exercise such rights or warrants.
7.2 Reorganization. Subject to any required action by the stockholders. if
--------------
the Company shall be a party to any reorganization involving merger,
consolidation, acquisition of the stock or acquisition of the assets of the
Company which does not constitute a Change of Control, the Committee, in its
discretion, may declare that:
(a) any Option granted but not yet exercised shall pertain to and
apply, with appropriate adjustments as determined by the Committee, to the
securities of the resulting corporation to which a holder of the number of
shares of the Common Stock subject to such Option would have been entitled;
(b) any or all outstanding Options granted hereunder shall become
immediately nonforfeitable and fully exercisable or vested (to the extent
permitted under federal or state securities laws); and/or
(c) any or all outstanding Options granted hereunder shall become
immediately nonforfeitable and fully exercisable or vested (to the extent
permitted under federal or state securities laws) and are to be terminated
after giving at least 30 days' notice to the Optionees to whom such Options
have been granted.
7.3 Limits on Adjustments. Any issuance by the Company of stock of any
---------------------
class, or securities convertible into shares of stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of the Common Stock subject to any Option, except as
specifically provided otherwise in this Article. The grant of Options pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge, consolidate or dissolve, or to liquidate,
sell or transfer all or any part of its business or assets. All adjustments the
Committee makes under this Article shall be conclusive.
ARTICLE 8
AGREEMENT BY OPTIONEE AND SECURITIES REGISTRATION
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8.1 Agreement. If, in the opinion of counsel to the Company, such action is
---------
necessary or desirable, no Options shall be granted to any Optionee, and no
Option shall be exercisable, unless, at the time of grant or exercise, as
applicable, such Optionee (i) represents and warrants that he will acquire the
Common Stock for investment only and not for purposes of resale or distribution,
and (ii) makes such further representations and warranties as are deemed
necessary or desirable by counsel to the Company with regard to holding and
resale of the Common Stock. The Optionee shall, upon the request of the
Committee, execute and deliver to the Company an agreement or affidavit to such
effect. Should the Committee have reasonable cause to believe that such
Optionee did not execute such agreement or affidavit in good faith, the Company
shall not be bound by the grant of the Option or by the exercise of the Option.
All certificates representing shares of Common Stock issued pursuant to the Plan
shall be marked with the following restrictive legend or similar legend, if such
marking, in the opinion of counsel to the Company, is necessary or desirable:
The shares represented by this certificate [have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any state
and] are held by an "affiliate" (as such term is defined in Rule 144
promulgated by the Securities and Exchange Commission under the Securities
Act of 1933, as amended) of the Company. Accordingly, these shares may not
be sold, hypothecated, pledged or otherwise transferred except (i) pursuant
to an effective registration statement under the Securities Act of 1933, as
amended, and any applicable securities laws or regulations of any state
with respect to such shares, (ii) in accordance with Securities and
Exchange Commission Rule 144, or (iii) upon the issuance to the Company of
a favorable opinion of counsel or the submission to the Company of such
other evidence as may be satisfactory to the Company that such proposed
sale, assignments encumbrance or other transfer will not be in violation of
the Securities Act of 1933, as amended, or any applicable securities laws
of any state or any rules or regulations thereunder. Any attempted transfer
of this certificate or the shares represented hereby which is in violation
of the preceding restrictions will not be recognized by the Company, nor
will any transfer be recognized as the owner thereof by the Company.
If the Common Stock is (A) held by an Optionee who ceases to be an "affiliate,"
as that term is defined in Rule 144 of the 1933 Act, and (B) registered under
the 1933 Act and all applicable state securities laws and regulations as
provided in Section 8.2, the Committee, in its discretion and with the advice of
counsel, may dispense with or authorize the removal of the restrictive legend
set forth above or the portion thereof that is inapplicable.
8.2 Registration. In the event that the Company in its sole discretion shall
------------
deem it necessary or advisable to register, under the 1933 Act or any state
securities laws or regulations, any shares with respect to which Options have
been granted hereunder, then the Company shall take such action at its own
expense before delivery of the certificates representing such shares to an
Optionee. In such event, and if the shares of Common Stock of the Company shall
be listed on any national securities exchange or on
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Nasdaq at the time of the exercise of any Option, the Company shall make prompt
application at its own expense for the listing on such stock exchange or Nasdaq
of the shares of Common Stock to be issued.
ARTICLE 9
EFFECTIVE DATE
The Plan shall be effective as of the Effective Date upon the adoption of the
Plan by the stockholders of the Company, and no Option shall be granted
hereunder prior to said date. Failure to obtain such approval shall render the
Plan null and void ab initio.
ARTICLE 10
AMENDMENT AND TERMINATION
10.1 Amendment and Termination by the Board. The Board may, at any time and
--------------------------------------
from time to time, amend, modify or terminate the Plan without stockholder
approval; provided, however, that the Board may condition any amendment or
modification on the approval of stockholders of the Company if such approval is
necessary or deemed advisable with respect to tax, securities or other
applicable laws, policies or regulations. No amendment modification or
termination of the Plan shall adversely affect, in any way, the rights of the
Optionees who have outstanding Options without the consent of such Optionees.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Application of Funds. The proceeds received by the Company from the
--------------------
sale of the Common Stock subject to the Options granted hereunder will be used
for general corporate purposes.
11.2 Notices. All notices or other communications by an Optionee to the
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Committee pursuant to or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Committee at the
location, or by the person, designated by the Committee for the receipt thereof.
11.3 Term of Plan. Subject to the terms of Article 10, the Plan shall
------------
terminate upon the later of (i) the complete exercise or lapse of the last
outstanding Option, or (ii) the last date upon which Options may be granted
hereunder.
11.4 Governing Law. The Plan shall be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
11.5 Plan Document Controls. In the event of any conflict between the
----------------------
provisions of an Option Agreement and the Plan, the Plan shall control.
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11.6 Gender and Number. Wherever applicable, the masculine pronoun shall
-----------------
include the feminine pronoun, and the singular shall include the plural.
11.7 Headings. The titles in this Plan are inserted for convenience of
--------
reference; they constitute no part of the Plan and are not to be considered in
the construction hereof.
11.8 Legal References. Any references in this Plan to a provision of law
----------------
which is subsequent to the Effective Date of this Plan, revised, modified,
finalized or redesignated, shall automatically be deemed a reference to such
revised, modified, finalized or redesignated provision of law.
11.9 No Rights to Perform Services. Nothing contained in the Plan, or any
-----------------------------
modification thereof, shall be construed to give any individual any rights to
perform services for the Company or any parent or subsidiary corporation of the
Company.
11.10 Unfunded Arrangement. The Plan shall not be funded, and except for
--------------------
reserving a sufficient number of authorized shares to the extent required by law
to meet the requirements of the Plan, the Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any grant under the Plan.
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