<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 1, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
CLARK/BARDES HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
TEXAS 52-2103926
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2121 SAN JACINTO STREET, SUITE 2200
DALLAS, TEXAS 75201-7906
(Address of Principal (Zip Code)
Executive Offices)
CLARK/BARDES HOLDINGS, INC.
1998 STOCK OPTION PLAN
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
W.T. WAMBERG
CHAIRMAN OF THE BOARD
2121 SAN JACINTO, SUITE 2200
DALLAS, TEXAS 75201-7906
(Name and address of agent for service)
(214) 871-8717
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(3)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 2,300,000 $4.80, $7.00, $9.00
$16.12 $31,411,441.13 $8,732.38
==============================================================================================================================
Series A Junior Participating
Preferred Stock Purchase Rights 2,300,000 -- -- --
==============================================================================================================================
</TABLE>
(1) Of the amount to be registered, 2,300,000 shares are issuable upon exercise
of options available for grant under the Plans. Pursuant to Rule 416, this
registration statement also includes an indeterminable number of additional
shares that may become issuable pursuant to the antidilution adjustment
provisions of the Plans.
(2) Options for 140,830 shares of Common Stock have an exercise price of $4.80.
Options for 150,000 shares of Common Stock have an exercise price of $7.00.
Options for 380,689 shares of Common Stock have an exercise price of $9.00.
Pursuant to Rule 457(c) and (h), and solely for the purpose of calculating
the applicable registration fee, the proposed maximum offering price per
share for the remaining Common Stock to be registered hereunder has been
estimated at $16.125, which amount represents the average of the high and
low sales prices of the Common Stock of Clark/Bardes Holdings, Inc. on
November 24, 1998, as reported by the Nasdaq National Market.
(3) One Preferred Stock Purchase Right will be issued with each share of
Common Stock. As no additional consideration will be received for the
Preferred Stock Purchase Rights, no registration fee is required with
respect to them under Rule 457(i).
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to directors, officers, consultants, advisors and employees of
Clark/Bardes Holdings, Inc. (the "Company") as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(1) The Company's latest prospectus (the "Final Prospectus"), filed
August 20, 1998, filed with the Commission pursuant to Rule 424(b)(4) under
the Securities Act, which prospectus contains audited financial statements
for the fiscal year ended December 31, 1997.
(2) The Company's Current Report on Form 8-K, filed on October 2,
1998, and Form 8-A filed on August 10, 1998.
(3) The Company's Quarterly Report on Form 10-Q, filed on November
16, 1998, for the quarterly period ended September 30, 1998.
(4) The description of the Company's Common Stock contained in the
Company's registration statement on Form S-1 (No. 333-56799) filed with the
Commission on June 15, 1998, as amended by Amendment No. 1 thereto filed
with the Commission on July 27, 1998, Amendment No. 2 thereto filed with
the Commission on August 11, 1998, Amendment No. 3 thereto filed with the
Commission on August 14, 1998, Amendment No. 4 thereto filed with the
Commission on August 17, 1998, Amendment No. 5 thereto filed with the
Commission on August 19, 1998, and the Final Prospectus.
In addition, 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, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered
hereby have been sold or which registers all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof 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 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.
The validity of the issuance of the shares of Common Stock offered by this
Registration Statement will be passed upon for the Company by Akin, Gump,
Strauss, Hauer & Feld, L.L.P.
2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that The Company shall,
to the fullest extent permitted by Section 145 of the DGCL, as amended from time
to time, indemnify all persons whom it may indemnify pursuant thereto.
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents of the corporation, if
such directors, officers, employees or agents acted in good faith and in a
manner they 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 no
reason to believe their conduct was unlawful. In a derivative action, i.e., one
by or in the right of the corporation, indemnification may be made only for
expenses actually and reasonably incurred by directors, officers, employees or
agents in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant directors, officers, employees or
agents are fairly and reasonably entitled to indemnify for such expenses despite
such adjudication of liability.
The Company's Bylaws provide for indemnification by the Company of its
directors, officers and certain non-officer employees under certain
circumstances against expenses (including attorneys fees, judgments, fines and
amounts paid in settlement) reasonably incurred in connection with the defense
or settlement of any threatened, pending or completed legal proceeding in which
any such person is involved by reason of the fact that such person is or was an
officer or employee of the Company if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to criminal actions or proceedings,
if such person had no reasonable cause to believe his or her conduct was
unlawful. The Company's Certificate of Incorporation also provides that, to the
fullest extent permitted by the DGCL, no director shall be personally liable to
the Company or its stockholders for monetary damages resulting from breaches of
their fiduciary duty as directors.
Expenses for the defense of any action for which indemnification may be
available may be advanced by the Company under certain circumstances. The
general effect of the foregoing provisions may be to reduce the circumstances
which an officer or director may be required to bear the economic burden of the
foregoing liabilities and expenses. The Company's directors and officers will be
covered by liability insurance indemnifying them against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
In addition to the exhibits filed or incorporated by reference, the
following documents are filed as exhibits to this Registration Statement:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
4.7 Form of 1998 Non-Employee Director Stock Option Plan of the
Company.
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
3
<PAGE> 4
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in Exhibit 5.1).
23.3 Consent of Lane Gorman Trubitt, L.L.P.
24.1 Power of Attorney (included on the signature page hereto).
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;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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 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 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.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Dallas, State of Texas on December 1, 1998.
CLARK/BARDES HOLDINGS, INC.
By: /s/ MELVIN G. TODD
---------------------------------------
Melvin G. Todd
President and Chief Executive Officer
The undersigned directors and officers of Clark/Bardes Holdings, Inc.
hereby constitute and appoint Melvin G. Todd and Thomas M. Pyra, and each of
them, with full power to act without the other and with full power of
substitution and resubstitution, our true and lawful attorneys-in-fact with full
power to execute in our name and behalf in the capacities indicated below any
and all amendments (including post-effective amendments and amendments thereto)
to this Registration Statement and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission and hereby ratify and confirm all that such attorneys-in-fact, or
either of them, or their substitutes shall lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on December 1, 1998.
Signature Title
/s/ W.T. WAMBERG Chairman of the Board and Director
- ---------------------------------
W.T. Wamberg
/s/ MELVIN G. TODD President and Chief Executive Officer
- --------------------------------- (Principal Executive Officer)
Melvin G. Todd and Director
/s/ THOMAS M. PYRA Chief Financial Officer
- --------------------------------- (Principal Financial and Accounting Officer)
Thomas M. Pyra
/s/ LAWRENCE H. HENDRICKSON Director
- ---------------------------------
Lawrence H. Hendrickson
/s/ RANDOLPH A. POHLMAN Director
- ---------------------------------
Randolph A. Pohlman
/s/ L. WILLIAM SEIDMAN Director
- ---------------------------------
L. William Seidman
/s/ GEORGE D. DALTON Director
- ---------------------------------
George D. Dalton
5
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<S> <C>
4.1 Specimen Certificate for shares of Common Stock, $0.01 par
value, of the Company, incorporated herein by reference to
Exhibit 4.1 to the Company's Amendment No. 1 to Form S-1
(No. 333-56799) filed with the Commission on July 27, 1998.
4.2 Certificate of Incorporation of the Company incorporated
herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (No. 333-56799) filed
with the Commission on July 12, 1998.
4.3 Bylaws of the Company, incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1 (No.
333-56799) filed with the Commission on July 12, 1998.
4.4 Rights Agreement, by and between the Company and The Bank of
New York, dated as of July 10, 1998, incorporated herein by
reference to Exhibit 4 to the Company's Quarterly Report on
Form 10-Q filed with the Commission on November 16, 1998.
4.5 1998 Stock Option Plan of the Company, incorporated herein
by reference to Exhibit 10.1 to the Company's Amendment No.
2 to Form S-1 (No. 333-56799) filed with the Commission on
August 11, 1998.
4.6 Employee Stock Purchase Plan of the Company, incorporated
herein by reference to Exhibit 10.29 to the Company's
Amendment No. 1 to Form S-1 (No. 333-56799) filed with the
Commission on July 27, 1998.
4.7* Form of 1998 Non-Employee Director Stock Option Plan of the
Company.
5.1* Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in Exhibit 5.1).
23.3* Consent of Lane Gorman Trubitt, L.L.P.
24.1* Power of Attorney (included on the signature page hereto).
</TABLE>
- --------------------
* Filed herewith
<PAGE> 1
EXHIBIT 4.7
CLARK/BARDES HOLDINGS, INC.
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Section 1. Purpose. The purpose of the Clark/Bardes Holdings, Inc.
1998 Director Stock Option Plan (the "Plan") is to promote the interests of
Clark/Bardes Holdings, Inc., a Delaware corporation (the "Company"), and the
interests of the Company's stockholders by providing an opportunity to
nonemployee directors of the Company (other than Randolph A. Pohlman who has
already been granted option to purchase Common Stock in a Non-Qualified Stock
Option Agreement, dated as of December 30, 1997 and effective April 2, 1997) to
purchase Common Stock of the Company. By encouraging such stock ownership, the
Company seeks to attract, retain and motivate such nonemployee directors and to
encourage them to devote their best efforts to the business and financial
success of the Company. Under the Plan, the Committee shall automatically grant
"non-qualified stock options" to nonemployee directors of the Company under the
terms and conditions described below.
Section 2. Definitions. For purposes of the Plan, the following
terms used herein shall have the following meanings, unless a different meaning
is clearly required by the context.
2.1 "Board of Directors" shall mean the Board of Directors of the
Company.
2.2 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.3 "Committee" shall mean the committee of the Board of Directors
referred to in Section 5 hereof.
2.4 "Common Stock" shall mean the Common Stock, $.01 par value, of
the Company.
2.5 "Nonemployee Director" shall mean any director of the Company
on the date of an award hereunder who is not an employee or officer of the
Company or an employee or officer of any Parent or Subsidiary of the Company and
who has no other ongoing relationship with the Company, any Parent or
Subsidiary, other than as a director, excluding, however, Randolph A. Pohlman.
2.6 "Non-Qualified Options" or "Options" shall mean options
granted to a Participant pursuant to the Plan that are intended to be, and
qualify as, "nonqualified stock options" as described in Treasury Regulation
Section 1.83-7 or any successor regulation thereto and that shall not constitute
nor be treated as an incentive stock options (as defined in Section 422(b) of
the Code).
1
<PAGE> 2
2.7 "Participant" shall mean any Nonemployee Director, other than
Randolph A. Pohlman, to whom any Non-Qualified Options are granted under the
Plan.
2.8 "Parent of the Company" shall have the meaning set forth in
Section 424(e) of the Code.
2.9 "Subsidiary of the Company" shall have the meaning set forth
in Section 424(f) of the Code.
Section 3. Option Grants. Subject to the share limitations of Section
4.1 hereof, each Nonemployee Director, other than Randolph A. Pohlman, shall
automatically receive grants of Non-Qualified Options to purchase Common Stock
as follows:
(a) George Dalton, a Nonemployee Director, shall be granted
Non-Qualified Options to purchase 1,666 shares of Common Stock
on the first day of the month immediately following the date
of adoption of the Plan;
(b) thereafter, each Nonemployee Director (including the grantees
named in Section 3(a)) who is elected (or appointed to fill a
vacancy) as a director of the Company after the adoption of
Plan by the Company shall be granted Non-Qualified Options to
purchase 10,000 shares of Common Stock on the first day of the
month immediately following each date on which such
Nonemployee Director is elected or reelected (or appointed) as
a director of the Company for a three year term; and
(c) each Nonemployee Director who has previously been granted
Non-Qualified Options under the Plan shall be granted
additional Non-Qualified Options to purchase 4,000 shares of
Common Stock on the first day of the month immediately
following each annual meeting of shareholders of the Company
if such Nonemployee Director continues to serve as a Director
on such date of grant.
The Non-Qualified Options granted pursuant to this Section 3(a) and 3(b) shall
be hereinafter referred to as Appointment Non-Qualified Options, and
Non-Qualified Options granted pursuant to this Section 3(c) shall hereinafter be
referred to as Attendance Non-Qualified Options. In the event a Nonemployee
Director is elected, reelected or appointed for a term less than three years,
the 10,000 shares set forth in Section 3(b) shall be reduced as to such director
by multiplying it by a Fraction, the denominator of which is 36 and the
numerator of which is the number of whole months in the term (or remaining term)
to which the director is elected or appointed.
Section 4. Common Stock Subject to the Plan.
4.1 Number of Shares. The total number of shares of Common Stock for
which Non-Qualified Options may be granted under the Plan shall not exceed in
the aggregate 100,000 shares of Common Stock (subject to adjustment as provided
in section 6 hereof). If on any date upon which Non-Qualified Options are to be
granted hereunder, the number of shares of Common Stock remaining available for
issuance under the Plan is insufficient for the grant of the
2
<PAGE> 3
total number of Non-Qualified Options to all Nonemployee Directors otherwise
entitled thereto pursuant to Section 3 above, then each Nonemployee Director
shall receive Non-Qualified Options to purchase a proportionate number of the
available number of shares remaining (rounded down to the greatest number of
whole shares of Common Stock available).
4.2 Reissuance. The shares of Common Stock that may be subject to
Non-Qualified Options granted under the Plan may be either authorized and
unissued shares or shares reacquired at any time and now or hereafter held as
treasury stock as the Board of Directors may determine. In the event that any
outstanding Non-Qualified Options expire or are terminated for any reason, the
shares allocable to such Non-Qualified Options may again be subject to
Non-Qualified Options granted under the Plan.
Section 5. Administration of the Plan
5.1 Administration. The Plan shall be administered by the entire Board
of Directors or by a committee of the Board of Directors (the "Committee")
established by the Board of Directors. Any Committee shall be appointed from
time to time by, and shall serve at the pleasure of, the Board of Directors. To
the extent that the Plan is administered by the entire Board of Directors, the
term "Committee" shall be deemed to refer to the Board of Directors.
5.2 Grant of Non-Qualified Options. Upon each grant of Non-Qualified
Options hereunder, the Committee, on behalf of the Company, shall enter into,
execute, and deliver to the Participant a stock option agreement ("Non-Qualified
Stock Option Agreement") relating to such Non-Qualified Options, which agreement
shall contain the following terms and conditions, together with such other terms
and conditions which are determined by the Committee and are not inconsistent
with any of the following terms and conditions or with any other provision of
the Plan:
(a) Expiration. Appointment Non-Qualified Options shall expire on the
earlier of (i) the tenth anniversary of the date of grant thereof, or (ii) the
date the Participant ceases to be a director of the Company other than by reason
of death or disability. In the event the Participant ceases to be a director of
the Company by reason of death or disability, Appointment Non-Qualified Options
shall expire on the earlier of (i) the tenth anniversary of the date of grant or
(ii) one year from the date of such death or disability.
Attendance Non-Qualified Options shall expire on the earlier of (i) the
third anniversary of the date of grant thereof, or (ii) the date the Participant
ceases to be a director of the Company other than by reason of death or
disability. In the event the Participant ceases to be a director of the Company
by reason of death or disability, Attendance Non-Qualified Options shall expire
on the earlier of (i) the third anniversary of the date of grant or (ii) one
year from the date of such death or disability.
(b) Exercise Price. The exercise price for the options described at
Section 3(a) hereof shall be the greater of (i) $9.00 per share or (ii) the fair
market value on the date of grant of such Non-Qualified Options. The exercise
price of all other Non-Qualified Options granted under the
3
<PAGE> 4
Plan shall be equal to the fair market value on the date of grant of such
Non-Qualified Options. For purposes of the Plan, the fair market value per share
of Common Stock as of any day shall be deemed to be the average of the daily
closing prices per share of Common Stock for the 30 consecutive trading days
that such shares were traded ending on the 15th day before such date (or any
shorter period that the Common Stock has traded with respect to any
Non-Qualified Options granted prior to 45 days of trading of the Common Stock).
The closing price for each day shall be the reported closing price on the
principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading, or, if the shares of Common Stock are not listed
or admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotation National Market (the
"Nasdaq National Market"), or, if the shares of Common Stock are not quoted on
the Nasdaq National Market, the average of the highest reported bid and the
lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. (the "NASD") through NASDAQ, or, if not so reported
through NASDAQ as reported through the National Quotation Bureau, Incorporated
("NQBI") or a similar organization if NASDAQ or NQBI is no longer reporting such
information. If the Common Stock is not reported or quoted by any such
organization on any of the 30 consecutive days ending on the 15th day before the
date of grant, the fair market value of the shares of Common Stock subject to
Non-Qualified Options on the date the Options are granted shall be the fair
market value thereof determined in good faith by the Board of Directors. The
fair market value of Shares of Common Stock subject to Options shall be
determined without regard to any restriction other than a restriction which, by
its terms, will never lapse.
(c) Vesting. The Appointment Non-Qualified Options described at Section
3(a) hereof shall vest and become exercisable in increments of 277 shares on the
first day of every month, beginning with the month immediately after the date
such options were granted if Dalton continues to serve as a Nonemployee Director
on the first day of the month, and any such options remaining that are not
vested and not exercisable on the date that Dalton's term for which elected
expires and a successor has been elected and qualified shall vest and become
exercisable on such date. The remaining Appointment Non-Qualified Options
described at Section 3(b) shall vest and become exercisable by a Nonemployee
Director in increments of 277 shares on the first day of every month beginning
in the month immediately after the date the Appointment Non-Qualified Options
were granted pursuant to Section 3(b) hereof if such Nonemployee Director
continues to serve as a Nonemployee Director on such first day of the month, and
any such options remaining that are not vested and not exercisable on the date
that such Nonemployee Director's term for which elected expires and a successor
has been elected and qualified shall vest and become exercisable on such date.
The Attendance Non-Qualified Options shall vest and become exercisable
by a Nonemployee Director in increments of 1,000 shares for each regularly
scheduled quarterly meeting of the Board of Directors which such Nonemployee
Director attends in person.
(d) Transferability of Options. Subject to the prior consent of the
Committee, Options granted hereunder may be transferred by the Participant
thereof to one or more permitted transferees; provided that (i) there may be no
consideration for such transfer, (ii) the Participant (or such Participant's
estate or representative) shall remain obligated to satisfy all employment tax
4
<PAGE> 5
and other withholding tax obligations associated with the exercise of the
Options, (iii) the Participant shall notify the Company in writing that such
transfer has occurred, the identity and address of the permitted transferee and
the relationship of the permitted transferee to the Participant and (iv) such
transfer shall be effected pursuant to transfer documents approved from time to
time by the Committee. To the extent an Option transferred pursuant to this
Section 5.2(d) is not fully exercisable as of the date of transfer thereof, the
Participant shall specify in the transfer document whether and to what extent
the transferred Options (if less than all of the options subject to the
applicable Non-Qualified Stock Option Agreement) are exercisable, subject to the
limitations on exercisability contained in the applicable Non-Qualified Stock
Option Agreement. Furthermore, to the extent the Participant transfers Options
that are not exercisable as of the date of transfer and such Options are less
than all of the Options subject to the applicable Non-Qualified Stock Option
Agreement, the Participant shall specify in the transfer documents, subject to
the limitations on exercisability contained in the applicable Non-Qualified
Stock Option Agreement, when the transferred Options become exercisable as
Options under the applicable Non-Qualified Stock Option Agreement generally
become exercisable subsequent to such transfer. Any permitted transferee may not
further assign or transfer the transferred Option otherwise than by will or the
laws of the descent and distribution. Following any permitted transfer, any such
Options shall continue to be subject to the same terms and conditions as were
applicable immediately prior to transfer; provided that for purposes of Sections
5.2(e) and 8 hereof the term "Participant" shall be deemed to refer also to each
permitted transferee. The events of termination of relationship in Section
5.2(a) hereof shall continue to be applied with respect to the Participant,
following which the Options shall be exercisable by the transferee only to the
extent, and for the periods specified in Section 5.2(a). The term "permitted
transferees" shall mean one or more of the following: (i) any member of the
Participant's immediate family; (ii) a trust established for the exclusive
benefit of one or more members of such immediate family; or (iii) a partnership
in which such immediate family members are the only partners. The term
"immediate family" is defined for such purpose as spouses, children,
stepchildren and grandchildren, including relationships arising from adoption.
(e) Payment of Option Price. Shares of Common Stock purchased upon
exercise of Options shall at the time of purchase be paid for in full. The
Company shall satisfy its employment tax and other tax withholding obligations
by requiring the Participant (or such Participant's permitted transferee, estate
or representative) to pay the amount of employment tax and withholding tax, if
any, that must be paid under federal, state and local law due to the exercise of
the Option. To the extent that the right to purchase shares has accrued
hereunder, Options may be exercised from time to time by written notice to the
Company stating the full number of shares with respect to which the Option is
being exercised and the time of delivery thereof, which shall be at least
fifteen days after the giving of such notice unless an earlier date shall have
been mutually agreed upon by the Participant (or other person entitled to
exercise the Option) and the Company, accompanied by payment to the Company of
the purchase price in full and the amount of employment tax and withholding tax
due, if any, upon the exercise of the Option. Such payment shall be effected (i)
by certified or official bank check, (ii) if so permitted by the Company, by the
delivery of a number of shares of Common Stock (plus cash if necessary) having a
fair market value equal to the amount of such purchase price and employment or
withholding tax, or (iii) by delivery of the equivalent thereof acceptable to
the Company. The Company will, as soon as reasonably possible notify the
Participant (or such Participant's representative) of the amount of
5
<PAGE> 6
employment tax and other withholding tax that must be paid under federal, state
and local law due to the exercise of the Option. At the time of delivery, the
Company shall, without transfer or issue tax to the Participant (or other person
entitled to exercise the Option), deliver to the Participant (or to such other
person) at the principal office of the Company, or such other place as shall be
mutually agreed upon, a certificate or certificates for the shares of Common
Stock, provided, however, that the time of delivery may be postponed by the
Company for such period as may be required for it with reasonable diligence to
comply with any requirements of law.
(f) Conditions to Issuance of Shares. The obligation of the Company to
issue shares of Capital Stock under the Plan shall be subject to (i) the
effectiveness of a Registration Statement on Form S-8 under the Securities Act
of 1933, as amended, with respect to such shares, and (ii) the condition that
the shares shall have been listed (or authorized for listing upon official
notice of issuance) upon (x) each stock exchange, if any, on which the Common
Stock may then be listed or (y) if the common stock is not listed on any such
exchange, the Nasdaq National Market.
5.3 Interpretation. The Committee shall be authorized to interpret the
Plan and may, from time to time, adopt such rules and regulations, not
inconsistent with the provisions of the Plan, as it may deem advisable to carry
out the purposes of the Plan.
5.4 Finality. The interpretation and construction by the Committee of
any provisions of the Plan, any Options granted hereunder or any agreement
evidencing any such Options shall be final and conclusive upon all parties.
5.5 Voting. Subject to Sections 3 and 5.2 hereof, members of the
Committee may vote on any matter affecting the administration of the Plan or the
granting of Options under the Plan.
5.6 Expenses and Liabilities. All expenses and liabilities incurred by
the Committee in the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants or other persons in
connection with the administration of the Plan. The Company, and its officers
and directors, shall be entitled to rely upon the advice, opinions or valuations
of any such persons.
5.7 Indemnification. Neither the members of the Board of Directors nor
any member of the Committee shall be liable for any act, omission, or
determination taken or made in good faith with respect to the Plan or any
Options granted under it, and members of the Board of Directors and the
Committee shall be entitled to indemnification and reimbursement by the Company
in respect of any claim, loss, damage, or expense (including attorneys' fees,
the costs of settling any suit, provided such settlement is approved by
independent legal counsel selected by the Company, and amounts paid in
satisfaction of a judgment, except a judgment based on a finding of bad faith)
arising therefrom to the full extent permitted by law.
Section 6. Adjustments. In the event that, after the adoption of the
Plan by the Board of Directors, the outstanding shares of the Company's Common
Stock shall be changed into or
6
<PAGE> 7
exchanged for a different number or kind of shares of stock or other securities
of the Company or of another corporation through reorganization, merger or
consolidation, recapitalization, reclassification, stock split, split-up,
combination or exchange of shares or increased because of any dividends paid in
Common Stock, the Board of Directors shall appropriately adjust (i) the number
of shares of Common Stock (and the exercise price per share) subject to any
unexercised Options (to the nearest possible full share); and (ii) the number of
shares of Common Stock for which Options may be granted under the Plan, as set
forth in Section 4.1 hereof, and such adjustments shall be effective and binding
for all purposes of the Plan.
Section 7. Effect of the Plan on Participant's Relationship with the
Company. Neither the Plan nor any Options granted hereunder to a Participant
shall be construed as conferring upon such Participant any right to continue to
serve as a director of (or otherwise provide services to) the Company or limit
in any respect the right of the Company to terminate such Participant's
relationship with the Company at any time. No person or entity shall be entitled
to vote, receive dividends, or be deemed for any purpose the holder of any
Shares until the Options granted with respect to such Shares shall have been
exercised in accordance with the provisions of the Plan.
Section 8. Amendment of the Plan. The Board of Directors may amend the
Plan from time to time as it deems desirable; provided, however, that, (1) no
such amendment shall deprive any Participant of any Options theretofore granted
under the Plan, without the consent of such Participant, or of any of his or her
rights thereunder or with respect thereto; and (2) without the approval of the
holders of a majority of the stock of the Company present, or represented, and
entitled to vote thereon at a meeting, the Board of Directors may not amend the
Plan (i) to increase (except for increases due to adjustments in accordance with
Section 6 hereof) the aggregate number of shares of Common Stock for which
Options may be granted hereunder, or (ii) to make any other change requiring
stockholder approval under any applicable rule, regulation, or procedure of any
national securities exchange or securities association upon which any securities
of the Company are listed (or any listing agreement with any such securities
exchange or securities association).
Section 9. Termination of the Plan. The Board of Directors may
terminate the Plan at any time. Unless the Plan shall theretofore have been
terminated by the Board of Directors, the Plan shall terminate on December 31,
2008. No Options may be granted hereunder after termination of the Plan. The
termination of the Plan shall not alter or impair any rights or obligations
under any Options theretofore granted under the Plan.
Section 10. Effective Date of the Plan. The Plan is effective on
September ___, 1998, which was the date of its adoption by the Board of
Directors of the Company.
Section 11. Legal Restrictions. Nothing herein, in any agreement
entered into hereunder, or in any Options granted hereunder, shall require the
Company to sell or issue any Common Stock pursuant to an Option if such sale or
issuance would, in the opinion of counsel for the Company, constitute a
violation of the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes, or any other applicable federal or state
statute, rule, or
7
<PAGE> 8
regulation, as then in effect. At the time of any grant or exercise of any
Options, or sale or issuance of common Stock pursuant thereto, the Company may,
as a condition precedent to the sale or issuance of such Common Stock, require
from the holder of the Options (or in the event of his death, his legal
representatives, legatees, or distributees) such written representations, if
any, concerning his (or the transferee's) intentions with regard to the
retention or disposition of the Common Stock being acquired pursuant to such
Options, and such written covenants and agreements, if any, as to the manner of
disposal of such Common Stock as, in the opinion of counsel to the Company, may
be necessary to ensure that any disposition by such holder (or in the event of
his death, his legal representatives, legatees, or distributees) will not
involve a violation of the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes, or any other applicable federal or state
statute, rule, or regulation, as then in effect. Certificates for Common Stock,
when issued, shall have appropriate legends, or statements of other applicable
restrictions, endorsed thereon, and may or may not be immediately transferable.
Section 12. Governing Law. All questions arising with respect to the
provisions of the Plan or any agreement entered into hereunder or any Option
shall be determined by application of the laws of the State of Delaware except
to the extent Delaware law is preempted by federal law.
IN WITNESS WHEREOF, upon authorization of the Board of Directors, the
undersigned has caused the Clark/Bardes Holdings, Inc. 1998 Non-Employee Stock
Option Plan to be executed effective as of the _____ day of September, 1998.
-------------------------------------------
Melvin G. Todd
President and Chief Executive Officer
8
<PAGE> 1
EXHIBIT 5.1
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
December 1, 1998
Clark/Bardes Holdings, Inc.
2121 San Jacinto Street, Suite 2200
Dallas, Texas 75201-7906
Dear Gentlemen:
We have acted as counsel to Clark/Bardes Holdings, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration of
2,300,000 shares (the "Shares") of the Company's common stock, $.01 par value,
and 2,300,000 Series A Junior Participating Preferred Stock Purchase Rights (the
"Rights"), as described in a registration statement on Form S-8 (the
"Registration Statement") relating to the Shares and the Rights to be issued
under the Company's 1998 Stock Option Plan, 1998 Non-Employee Director Stock
Option Plan and Employee Stock Purchase Plan (collectively, the "Plans") which
Registration Statement is to be filed with the Securities and Exchange
Commission.
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed necessary,
relevant or appropriate to enable us to render the opinions listed below. In
rendering such opinions, we have assumed the genuineness of all signatures and
the authenticity of all documents examined by us. As to various questions of
fact material to such opinions, we have relied upon representations of the
Company.
Based upon such examination and representations, we advise you that, in
our opinion:
A. The Shares have been duly and validly authorized by the Company.
B. The Shares, when issued and delivered in accordance with any of
the Plans, will be validly issued, fully paid and non-assessable.
<PAGE> 2
Clark/Bardes Holdings, Inc.
December 1, 1998
Page 2
C. The Rights have been duly and validly authorized by the Company.
D. The Rights to be issued in connection with the Shares to be
issued and delivered pursuant to any of the Plans will, when issued, be validly
issued.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference therein to this firm under the
caption "Interests of Named Experts and Counsel."
Sincerely,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the 1998 Stock Option Plan, the 1998
Non-Employee Director Stock Option Plan and the Employee Stock Purchase Plan of
Clark/Bardes Holdings, Inc. of our report dated February 18, 1998 (except for
Note 15 as to which the date is July 10, 1998), with respect to the consolidated
financial statements of Clark/Bardes Holdings, Inc. included in its Registration
Statement (Form S-1 No. 333-56799) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Dallas, Texas
November 30, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF LANE GORMAN TRUBITT, L.L.P.
We consent to the incorporation by reference in this Registration Statement of
Clark/Bardes Holdings, Inc. on Form S-8 of our report dated February 7, 1997,
with respect to the Financial Statements of Clark/Bardes Inc. which appears in
Amendment No. 5 to the Registration Statement (Form S-1 No. 333-56799) and the
related Prospectus of Clark/Bardes Holdings, Inc.
/s/ LANE GORMAN TRUBITT, L.L.P.
LANE GORMAN TRUBITT, L.L.P.
Dallas, Texas
November 30, 1998
