As filed with the Securities and Exchange Commission on April 28, 2000
Registration No.333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
Registration Statement
Under
The Securities Act Of 1933
-----------------------------
AremisSoft Corporation
(Exact name of Registrant as specified in its charter)
Delaware 68-0413929
(State of incorporation) (IRS Employer Identification No.)
Goldsworth House
Denton Way
Woking, Surrey GU21 3LG
United Kingdom
(Address of Principal Executive Offices) (Zip Code)
-----------------------------
AremisSoft Corporation 1998 Stock Option Plan
AremisSoft Corporation 2000 Stock Option Plan
(Full title of the plans)
-----------------------------
Roys Poyiadjis
President and Vice Chairman
AremisSoft Corporation
Sentry Office Plaza
216 Haddon Avenue, Suite 607
Westmont, New Jersey 08108
(Name and address of agent for service)
-----------------------------
(212) 246-2141
(Telephone number, including area code, of agent for service)
- -----------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered(1) be Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------
Common Shares,
$.001 par value 4,550,000 $5.00 - $35.00(2) $73,217,128 $19,330(3)
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without the receipt of consideration which results in an increase in the
number of outstanding shares of Common Stock of AremisSoft Corporation,
Inc.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933, as amended (the "Securities Act"). The offering price per
share and the aggregate offering price are based upon (a) 1,246,200
shares issuable pursuant to outstanding options under the 1998 Stock
Option Plan (the "1998 Plan") with an exercise price of $5.00 per share,
(b) 60,000 shares issuable pursuant to the outstanding options under the
1998 Plan with an exercise price of $10.875, (c) 20,000 shares issuable
pursuant to outstanding options under the 1998 Plan with an exercise
price of $12.00 per share, (d) 150,000 shares issuable pursuant to
outstanding options under the 1998 Plan with an exercise price of $14.00
per share, (e) 800,000 shares issuable pursuant to stock options granted
under the 2000 Stock Option Plan (the "2000 Plan") with an exercise
price of $10.875 per share, (f) 750,000 shares issuable pursuant to
stock options granted under the 2000 Plan with an exercise price of
$35.00 per share, (g) 23,800 shares reserved for future grants under the
1999 Plan, and (g) 1,500,000 shares reserved for future grants under the
2000 Plan. For purposes of calculating the registration fee amount for
shares reserved for future grants under the 1999 Plan and 2000 Plan, the
average high and low prices of the Registrant's Common Stock, as
reported on the Nasdaq Stock Market on April 18, 2000 was $19.06 per
share.
<PAGE>2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this registration statement.
(1) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999.
(2) A description of the Registrant's Common Stock is incorporated by
reference to the Company's Prospectus filed pursuant to Rule
424(b) of the Securities Act, in connection with the Registration
Statement on Form S-1, described in item (a) above.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as
amended, 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 of this registration statement from the date of the filing 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 Registrant's Certificate of Incorporation contains provisions
eliminating or limiting director liability to the Registrant and its
stockholders for monetary damages arising from acts or omissions in the
director's capacity as a director. The provisions do not, however, eliminate the
personal liability of a director (i) for any breach of such director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under the Delaware statutory provision making directors personally
liable, under a negligence standard, for unlawful dividends or stock repurchases
or redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. This provision offers persons who serve on the Board
of Directors protection against awards of monetary damages resulting from
breaches of their duty of care, except as indicated above. As a result of this
provision, the ability of the Registrant or a stockholder to successfully
prosecute an action against a director for breach of his or her duty of care is
limited. However, the provision does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's breach of
his or her duty of care.
The Registrant's Certificate of Incorporation and Bylaws also provide
that the Registrant shall indemnify its directors and officers to the fullest
extent permitted by applicable law, subject to limited exceptions against
liabilities arising by reason of their status or services as an officer or
director.
The Registrant intends to enter into separate indemnification agreements
with its directors and certain of its officers that require the Registrant,
among other things, to advance their expenses as a result of any proceeding
against them as to which they could be indemnified. The Registrant believes that
the limitation of liability provision in its Certificate of Incorporation and
the indemnification agreements will facilitate the Registrant's ability to
continue to attract and retain qualified individuals to serve as directors and
officers of the Registrant. The Registrant may, from time to time, agree to
provide similar indemnification to certain employees and agents of the
Registrant.
The employment agreements with Dr. Kyprianou and Mr. Poyiadjis also
provide that the Registrant will indemnify such individuals for any losses,
costs, damages or expenses incurred as a direct consequence of the discharge of
their duties or by reason of their status as agents of the Registrant.
<PAGE>3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Bartel, Eng, Linn & Schroder, Counsel to the Registrant
10.1 1998 Stock Option Plan (1)
10.2 Form of Incentive Stock Option Agreement (1)
10.3 Form of Nonqualified Stock Option agreement (1)
10.16 2000 Stock Option Plan
23.1 Consent of Bartel, Eng, Linn & Schroder (included in Exhibit 5.1)
23.2 Consent of Pannell, Kerr & Forster, Chartered Accountants
(1) Incorporated by reference from the Registrant's Registration Statement
(File No. 333-58351) on Form S-1 filed with the Commission on July 1,
1998, together with any and all amendments thereto.
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 end 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 a 20% 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; provided,
however, that paragraphs A(1)(i) and A(1)(ii) shall not apply if the information
to be included in a post effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, 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
<PAGE>4
to the securities offered herein, 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 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.
<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 Nicosia, Cyprus on April 28, 2000.
AremisSoft Corporation,
a Delaware corporation
By: /s/ DR. LYCOURGOS K. KYPRIANOU
Dr. Lycourgos K. Kyprianou
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of AremisSoft Corporation, a
Delaware corporation, do hereby constitute and appoint Dr. Lycourgos K.
Kyprianou and Roys Poyiadjis, and either of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and things and
to execute any and all instruments which said attorneys and agents, and either
one of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys or agents, or either one of them, shall do or cause to
be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
/s/ DR. LYCOURGOS K. KYPRIANOU Dated: April 28, 2000
Dr. Lycourgos K. Kyprianou, Chairman of the
Board and Chief Executive Officer
/s/ ROYS POYIADJIS Dated: April 28, 2000
Roys Poyiadjis, President and Vice
Chairman of the Board
/s/ NOEL R. VOICE Dated: April 21, 2000
Noel R. Voice, Chief Operating Officer,
General Manager of Health Care Systems,
Secretary and Director
/s/ M.C. MATHEWS Dated: April 27, 2000
M.C. Mathews, General Manager of Group
Software Development and Director
<PAGE>6
/s/ DANN V. ANGELOFF Dated: April 27, 2000
Dann V. Angeloff, Director
/s/ GEORGE H. ELLIS Dated: April 21, 2000
George H. Ellis, Director
/s/ H. TATE HOLT Dated: April 25, 2000
H. Tate Holt, Director
/s/ THEODOROS FESSAS Dated: April 27, 2000
Theodoros Fessas, Director
/s/ GEORGE PAPADOPOULOS Dated: April 27, 2000
George Papadopoulos, Director
/s/ JOHN MALAMAS Dated: April 27, 2000
John Malamas, Director
EXHIBIT 5.1 AND 23.1
[LETTERHEAD OF BARTEL ENG LINN & SCHRODER]
Board of Directors
AremisSoft Corporation
200 Central Park South, #23-A
New York, NY 10019
Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by AremisSoft Corporation, a Delaware corporation
(the "Company") of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission covering the offering of
up to an aggregate of 4,550,000 shares of the Company's Common Stock (the
"Shares") that may be issued upon the exercise of stock options pursuant to the
Company's 1998 Stock Option Plan and 2000 Stock Option Plan (collectively
referred to as the "Plan").
For the purpose of rendering this opinion, we examined originals or
photostatic copies of such documents as we deemed to be relevant. In conducting
our examination, we assumed, without investigation, the genuineness of all
signatures, the correctness of all certificates, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies, and the accuracy and completeness
of all records made available to us by the Company. In addition, in rendering
this opinion, we assumed that the Shares will be offered in the manner and on
the terms identified or referred to in the prospectus, including all amendments
thereto.
Our opinion is limited solely to matters set forth herein. Attorneys
practicing in this firm are admitted to practice in the State of California and
we express no opinion as to the laws of any other jurisdiction other than the
laws of the State of Delaware and the laws of the United States.
Based upon and subject to the foregoing, after giving due regard to such
issues of law as we deemed relevant, and assuming that (i) the Registration
Statement becomes and remains effective, and the prospectus which is part
thereof (the "Prospectus"), and the Prospectus delivery procedures with respect
thereto, fulfill all of the requirements of the Securities and Exchange Act of
1933, as amended, throughout all periods relevant to the opinion, and (ii) all
offers and sales of the Shares have been and will be made in compliance with the
securities laws of the states, having jurisdiction thereof, we are of the
opinion that the Shares to be issued upon the exercise of stock options for
adequate consideration will be, validly issued, fully paid, and nonassessable.
We hereby consent in writing to the use of our opinion as an exhibit to
the Registration Statement and any amendment thereto.
Very truly yours,
BARTEL ENG LINN & SCHRODER
EXHIBIT 10.16
AREMISSOFT CORPORATION
2000 STOCK OPTION PLAN
1. Purpose; Definitions.
(a) Purpose. The purpose of the Plan is to attract, retain and
motivate employees, officers, directors, and consultants of the Company, or a
subsidiary of the Company, by giving them the opportunity to acquire Stock
ownership in the Company.
(b) Definitions. For purposes of the Plan, the following terms
have the following meanings:
(i) "Administrator" means the Compensation Committee
referred to in Section 4 in its capacity as administrator of the Plan, or the
Board in the event that it abolishes the Compensation Committee and reinvests
in the Board the administration of the Plan.
(ii) "Board" means the Board of Directors of the Company.
(iii) "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
(iv) "Commission" means the Securities and Exchange
Commission and any successor agency.
(v) "Company" means AremisSoft Corporation, a Delaware
corporation and its subsidiaries.
(vi) "Director" shall mean a member of the Board.
(vii) "Effective Date" has the meaning set forth in
Section 2.
(viii) "Eligible Person" means, in the case of the grant
of an Incentive Stock Option Plan, all employees of the Company or a subsidiary
of the Company and, in the case of a Nonqualified Stock Option, any director,
officer or employee of the Company or other person who, in the opinion of
the Board, is rendering valuable services to the Company, including without
limitation, an independent contractor, outside consultant, or advisor to the
Company.
(ix) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
(x) "Fair Market Value" means (i) if the Stock is listed
or admitted to trade on a national securities exchange, the closing price of
the Stock on the Composite Tape, as published in the Western Edition of the
Wall Street Journal, of the principal national securities exchange on
which the Stock is so listed or admitted to trade, on such date, or, if there
is no trading of the Stock on such date, then the closing price of the Stock as
quoted on such Composite Tape on the next preceding date on which there was
trading in such Stock; (ii) if the Stock is not listed or admitted to trade on
a national securities exchange, the closing price for the Stock on such
date, as furnished by the National Association of Securities Dealers, Inc.
<PAGE>2
("NASD") through the NASDAQ National Market System or a similar organization if
the NASD is no longer reporting such information; (iii) if the Stock is not
reported on the National Market System, the mean between the closing bid and
asked prices for the Stock on such date, as furnished by the NASD, and if no bid
and asked prices are quoted on such date, the bid and asked prices on the next
preceding day on which such prices were quoted; and (iv) if the Stock is not
reported on the National Market System and if bid and asked prices for the Stock
are not furnished by the NASD or a similar organization, the value established
by the Administrator for purposes of granting options under the Plan.
(xi) "Grant Date" means the date of grant of any Option.
(xii) "Incentive Stock Option" means an option which
is an option within the meaning of Section 422 of the Code, the award of
which contains such provisions as are necessary to comply with that section.
(xiii) "NASD Dealer" means a broker-dealer that is a
member of the National Association of Securities Dealers.
(xiv) "Non-Employee Director" has the meaning set forth in
Rule 16-3.
(xv) "Non-qualified Stock Option" means an option which is
designated a Non-qualified Stock Option.
(xvi) "Officer" means an officer of the Company who is
subject to Section 16 of the Exchange Act.
(xvii) "Option" means an option to purchase Common Stock
under this Plan. An Option shall be designated by the Committee as an
Incentive Stock Option or a Non-qualified Stock Option.
(xviii)"Option Agreement" means the written option
agreement covering an Option.
(xix) "Optionee" means the holder of an option.
(xx) "Plan" means this AremisSoft Corporation 2000 Stock
Option Plan as amended from time to time.
(xxi) "Rule 16b-3" means Rule 16b-3 under Section 16 (b)
of the Exchange Act, as amended from time to time, and any successor rule.
(xxii) "Stock" means the Common Stock, par value $0.001,
of the Company, and any successor entity.
(xxiii)"Subsidiary" means any corporation in an unbroken
chain of corporations beginning with the Company if, at the time of granting of
an Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
(xxiv) "Tax Date" means the date defined in Section 7.
<PAGE>3
(xxv) "Vesting Date" means the date on which an Option
becomes wholly or partially exercisable, as determined by the Administrator in
its sole discretion.
2. Effective Date; Term of Plan. The Effective Date of this Plan shall
be upon stockholder approval of this Plan within 12 months of the date of Board
approval. Any Options granted prior to stockholder approval of the Plan, shall,
upon stockholder approval, be deemed issued as of the grant date. This Plan, but
not Options already granted, shall terminate automatically ten years after its
adoption by the Board, unless terminated earlier by the Board under Section 13.
No Options shall be granted after termination of this Plan but all Options
granted prior to termination shall remain in effect in accordance with their
terms.
3. Number and Source of Shares of Stock Subject to the Plan. Subject to
the provisions of Section 8, the total number of shares of Stock with respect to
which Options may be granted under this Plan is three million fifty thousand
(3,050,000) shares of Stock. The shares of Stock covered by any canceled,
expired or terminated Option or the unexercised portion thereof shall become
available again for grant under this Plan. The shares of Stock to be issued
hereunder upon exercise of an Option may consist of authorized and unissued
shares or treasury shares.
4. Administration of the Plan. Authority to control and manage the
operation and administration of the Plan shall be vested in the Board, which may
delegate such responsibilities in whole or in part to a committee consisting of
two (2) or more members of the Board, all of whom shall be Non-Employee
Directors (the "Compensation Committee"). Members of the Compensation Committee
may be appointed from time to time by, and shall serve at the pleasure of, the
Board. As used herein, the term "Administrator" means the Board or, with respect
to any matter as to which responsibility has been delegated to the Compensation
Committee, the term Administrator shall mean the Compensation Committee.
Subject to the express provisions of this Plan, the Administrator shall
have the authority to construe and interpret this Plan and any agreements
defining the rights and obligations of the Company and Optionees under this
Plan; to further define the terms used in this Plan; to correct any defect or
supply any omission or reconcile any inconsistency in the Plan or in any Option
Agreement; to provide for rights of refusal and/or repurchase rights; to amend
outstanding Option Agreements to provide for, among other things, any change or
modification which the Administrator could have provided for upon the grant of
an Option or in furtherance of the powers provided for herein; to prescribe,
amend and rescind rules and regulations relating to the administration of this
Plan; to determine the duration and purposes of leaves of absence which may be
granted to Optionees without constituting a termination of their employment for
purposes of this Plan; to accelerate the vesting of any Option; and to make all
other determinations necessary or advisable for the administration of this Plan.
Any decision or action of the Administrator in connection with this Plan
or Options granted or shares of Stock purchased under this Plan shall be final
and binding. The Administrator shall not be liable for any decision, action or
omission respecting this Plan, or any Options granted or shares of Stock sold
under this Plan. The Board at any time may abolish the Compensation Committee
and reinvest in the Board the administration of the Plan.
To the extent permitted by applicable law in effect from time to time,
no member of the Compensation Committee or the Board of Directors shall be
liable for any action or omission of any other member of the Compensation
Committee or the Board of Directors nor for any act or omission on the member's
own part, excepting only the member's own willful misconduct or gross
negligence, arising out of or related to the Plan. The Company shall pay
expenses incurred by, and satisfy a judgment or fine rendered or levied against,
a present or former director or member of the Compensation Committee or Board
<PAGE>4
in any action against such person (whether or not the Company is joined as a
party defendant) to impose liability or a penalty on such person for an act
alleged to have been committed by such person while a director or member of the
Compensation Committee or Board arising with respect to the Plan or
administration thereof or out of membership on the Compensation Committee or
Board or by the Company, or all or any combination of the preceding; provided,
the director or Compensation Committee member was acting in good faith, within
what such director or Compensation Committee member reasonably believed to have
been within the scope of his or her employment or authority and for a purpose
which he or she reasonably believed to be in the best interests of the Company
or its stockholders. Payments authorized hereunder include amounts paid and
expenses incurred in settling any such action or threatened action. The
provisions of this section shall apply to the estate, executor, administrator,
heirs, legatees or devisees of a director or Compensation Committee member, and
the term "person" as used on this section shall include the estate, executor,
administrator, heirs, legatees, or devisees of such person.
5. Grant of Options; Terms and Conditions of Grant.
(a) Grant of Options. One or more Options may be granted to any
Eligible Person. Subject to the express provisions of the Plan, the
Administrator shall determine from the Eligible Persons those individuals to
whom Options under the Plan may be granted. Each Option so granted shall be
designated by the Administrator as either a Non-qualified Stock Option or an
Incentive Stock Option.
Subject to the express provisions of the Plan, the Administrator shall
specify the Grant Date, the number of shares of Stock covered by the Option, the
exercise price and the terms and conditions for exercise of the Options. If the
Administrator fails to specify the Grant Date, the Grant Date shall be the date
of the action taken by the Administrator to grant the Option. As soon as
practicable after the Grant Date, the Company will provide the Optionee with a
written Option Agreement in the form approved by the Administrator, which sets
out the Grant Date, the number of shares of Stock covered by the Option, the
exercise price and the terms and conditions for exercise of the Option.
The Administrator may, in its absolute discretion, grant Options under
this Plan at any time and from time to time before the expiration of ten years
from the Effective Date to an Eligible Person.
(b) General Terms and Conditions. Except as otherwise provided
herein, the Options shall be subject to the following terms and conditions and
such other terms and conditions not inconsistent with this Plan as the
Administrator may impose:
(i) Exercise of Option. In order to exercise all or
any portion of any Option granted under this Plan, an Optionee must remain
as an officer, employee, consultant or director of the Company, or a
Subsidiary, until the Vesting Date. The Option shall be exercisable on or
after each Vesting Date in accordance with the terms set forth in the
Option Agreement.
(ii) Option Term. Each Option and all rights or
obligations thereunder shall expire on such date as shall be determined by the
Administrator, but not later than 10 years after the grant of the Option (5
years in the case of an Incentive Stock Option when the Optionee owns more
than 10% of the total combined voting power of all classes of stock of the
Company), and shall be subject to earlier termination as hereinafter provided.
(iii) Exercise Price. The Exercise Price of any Option
shall be determined by the Administrator, but in the case of Incentive Stock
Options shall not be less than 100% (110% in the case of an Optionee who owns
more than 10% of the total combined voting power of all classes of stock of the
Company) of the Fair Market Value of the Stock on the date the Incentive Stock
Option is granted.
<PAGE>5
(iv) Method of Exercise. To the extent the right to purchase shares of
Stock has vested, Options may be exercised, in whole or in part, from time to
time in accordance with their terms by written notice from the Optionee to the
Company stating the number of shares of Stock with respect to which the Option
is being exercised. Payment of the exercise price may be made, in the discretion
of the Administrator, subject to any legal restrictions, by: (a) cash; (b)
check; (c) the surrender of shares of Stock owned by the Optionee that have been
held by the Optionee for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) the
Optionee's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Optionee; (f) provided that a public market for the Stock exists, a "same day
sale" commitment from the Optionee and an NASD Dealer whereby the Optionee
irrevocably elects to exercise the Option and to sell a portion of the shares so
purchased to pay for the Exercise Price and whereby the NASD Dealer irrevocably
commits upon receipt of such shares to forward the Exercise Price directly to
the Company; or (g) any combination of the foregoing methods of payment or any
other consideration or method of payment as shall be permitted by applicable
corporate law. The Administrator may provide, in an Agreement or otherwise, that
an Optionee who exercises an Option and pays the exercise price in whole or in
part with Stock then owned by the Optionee will be entitled to receive another
Option covering the same number of shares tendered and with a price of no less
than Fair Market Value on the date of grant of such additional Option ("Reload
Option"). Unless otherwise provided in the Agreement, an Optionee, in order to
be entitled to a Reload Option, must pay with Stock that has been owned by the
Optionee for at least the preceding 180 days.
(v) Restrictions on Stock; Option Agreement. At the time it grants Options
under this Plan, the Company may retain, for itself or others, rights to
repurchase the shares of Stock acquired under the Option or impose other
restrictions on such shares. The terms and conditions of any such rights or
other restrictions shall be set forth in the Option Agreement evidencing the
Option. No Option shall be exercisable until after execution of the Option
Agreement by the Company and the Optionee.
(vi) Transferability of Options. Except as otherwise provided below for
Non-qualified Stock Options, no Option shall be transferable other than by will
or by the laws of descent and distribution and during the lifetime of an
Optionee, only the Optionee, his guardian or legal representative may exercise
an Option. An Optionee may designate a beneficiary to exercise his or her
Options after the Optionee's death. The Administrator may provide for transfer
of an Option (other than an Incentive Stock Option), without payment of
consideration, to the following family members of the Optionee, including
adoptive relationships: a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law, niece, nephew, former spouse
(whether by gift or pursuant to a domestic relations order), any person sharing
the employee's household (other than a tenant or employee), an Optionee or
family-controlled partnership, corporation, limited liability company and trust,
or a foundation in which the Optionee or family members heretofore described
control the management of assets. The assigned portion may only be exercised by
the person or persons who acquire a proprietary interest in the option pursuant
to the assignment. The terms applicable to the assigned portion shall be the
same as those in effect for the option immediately prior to such assignment and
shall be set forth in such documents issued to the assignee as the Administrator
may deem appropriate.
(vii) Exercise After Certain Events.
(1) Termination of Employment/Consulting/Directorship. If for any
reason other than permanent and total disability or death (as defined below) an
Optionee ceases to be employed by or to be a consultant or director of the
Company, or a Subsidiary, Incentive Stock Options held at the date of such
termination (to the extent then exercisable) may be exercised, in whole or in
part, at any time within three months after the date of such termination or such
lesser period specified in the Option
<PAGE>6
Agreement (but in no event after the earlier of (i) the expiration date of the
Option as set forth in the Option Agreement, and (ii) ten years from the Grant
Date) and Non-qualified Stock Options held at the date of such termination (to
the extent then exercisable) may be exercised, in whole or in part, at any time
within the period specified in the Option Agreement (but in no event after the
earlier of (i) the expiration date of the Option as set forth in the Option
Agreement, and (ii) ten years from the Grant Date), or such lesser period
specified by the Administrator.
If an Optionee granted an Incentive Stock Option terminates
employment but continues as a consultant, advisor or in a similar capacity to
the Company or a Subsidiary, Optionee need not exercise the Option within three
months of termination of employment but shall be entitled to exercise within
three months of termination of services to the Company or the Subsidiary (one
year in the event of permanent disability or death). However, if Optionee does
not exercise within three months of termination of employment, the Option will
not qualify as an Incentive Stock Option.
(2) Permanent Disability and Death. If an Optionee becomes
permanently and totally disabled (within the meaning of Section 22(e)(3) of the
Code), or dies while employed by the Company, or while acting as an officer,
consultant or director of the Company, or a Subsidiary, (or, if the Optionee
dies within the period that the Option remains exercisable after termination of
employment or affiliation), Incentive Stock Options then held (to the extent
then exercisable) may be exercised by the Optionee, the Optionee's personal
representative, or by the person to whom the Incentive Stock Option is
transferred by will or the laws of descent and distribution, in whole or in
part, at any time within one year after the disability or death or any lesser
period specified in the Option Agreement (but in no event after the earlier of
(i) the expiration date of the Option as set forth in the Option Agreement, and
(ii) ten years from the Grant Date). Non-qualified Stock Options shall not be
limited to such one year exercise period upon permanent disability or death and
may be exercised at any time specified in the Option Agreement (but in no event
after the earlier of (i) the expiration date of the Option as set forth in the
Option Agreement, and (ii) ten years from the Grant Date) or such lesser period
specified by the Administrator.
(viii) Compliance with Securities Laws. The Company shall not be obligated
to issue any shares of Stock upon exercise of an Option unless such shares are
at that time effectively registered or exempt from registration under the
federal securities laws and the offer and sale of the shares of Stock are
otherwise in compliance with all applicable securities laws. Upon exercising all
or any portion of an Option, an Optionee may be required to furnish
representations or undertakings deemed appropriate by the Company to enable the
offer and sale of the shares of Stock or subsequent transfers of any interest in
such shares to comply with applicable securities laws. Evidences of ownership of
shares of Stock acquired upon exercise of Options shall bear any legend required
by, or useful for purposes of compliance with, applicable securities laws, this
Plan or the Option Agreement evidencing the Option.
6. Limitations on Grant of Incentive Stock Options.
(a) The aggregate Fair Market Value (determined as of the Grant
Date) of the Stock for which Incentive Stock Options may first become
exercisable by any Optionee during any calendar year under this Plan, together
with that of Stock subject to Incentive Stock Options first exercisable (other
than as a result of acceleration pursuant to Section 9(a)) by such Optionee
under any other plan of the Company or any Subsidiary, shall not exceed
$100,000.
(b) There shall be imposed in the Option Agreement relating to
Incentive Stock Options such terms and conditions as are required in order that
the Option be an "incentive stock option" as that term is defined in Section 422
of the Code.
<PAGE>7
(c) No Incentive Stock Option may be granted to any person who,
at the time the Incentive Stock Option is granted, owns shares of outstanding
Stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company, unless the exercise price of such Option is at least
110% of the Fair Market Value of the Stock (determined as of the Grant Date)
subject to the Option and such Option by its terms is not exercisable after the
expiration of five years from the Grant Date.
(d) No Incentive Stock Option may be granted to any person who is
not an employee of the Company or a Subsidiary of the Company.
7. Payment of Taxes. Upon the disposition by an Optionee or other person
of shares of an Option prior to satisfaction of the holding period requirements
of Section 422 of the Code, or upon the exercise of a Non-qualified Stock
Option, the Company shall have the right to require such Optionee or such other
person to pay by cash, or check payable to the Company, the amount of any
required withholding on applicable federal, state, and local taxes and FICA or
any such other applicable tax regulations and laws with respect to such
transactions. Any such payment must be made promptly when the amount of such
obligation becomes determinable (the "Tax Date"). To the extent permissible
under applicable tax, securities and other laws, the Administrator may, in its
sole discretion and upon such terms and conditions as it may deem appropriate,
permit an Optionee to satisfy his or her obligation to pay any such tax, in
whole or in part, up to an amount not greater than the Optionee's estimated
withholding, by (a) directing the Company to apply shares of Stock to which the
Optionee is entitled as a result of the exercise of an Option, or (b) delivering
to the Company shares of Stock owned by the Optionee. The shares of Stock so
applied or delivered in satisfaction of the Optionee's tax withholding
obligation shall be valued at their Fair Market Value as of the date of
measurement of the amount of income subject to withholding.
8. Adjustment for Changes in Capitalization. The existence of
outstanding Options shall not affect the Company's right to effect adjustments,
recapitalizations, reorganizations or other changes in its or any other
corporation's capital structure or business, any merger or consolidation, any
issuance of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Stock, the dissolution or liquidation of the Company's or any
other corporation's assets or business or any other corporate act whether
similar to the events described above or otherwise. Subject to Section 9, if the
outstanding shares of the Stock are increased or decreased in number or changed
into or exchanged for a different number or kind of securities of the Company or
any other corporation by reason of a recapitalization, reclassification, stock
split, combination of shares, stock dividend or other event, an appropriate
adjustment of the number and kind of securities with respect to which Options
may be granted under this Plan, the number and kind of securities as to which
outstanding Options may be exercised, and the exercise price at which
outstanding Options may be exercised will be made.
9. Dissolution, Liquidation, Merger.
(a) Company Not The Survivor. In the event of a dissolution or
liquidation of the Company, a merger, consolidation, combination or
reorganization in which the Company is not the surviving corporation, or a sale
of substantially all of the assets of the Company (as determined in the sole
discretion of the Board of Directors), the Administrator, in its absolute
discretion, may cancel each outstanding Option upon payment in cash to the
Optionee of the amount by which any cash and the fair market value of any other
property which the Optionee would have received as consideration for the shares
of Stock covered by the Option if the Option had been exercised before such
liquidation, dissolution, merger, consolidation, combination, reorganization or
sale exceeds the exercise price of the Option or negotiate to have such option
assumed by the surviving corporation. In addition to the foregoing, in the event
of a dissolution or liquidation of the Company, or a merger, consolidation,
combination or reorganization, in which the Company is not the
<PAGE>8
surviving corporation, the Administrator, in its absolute discretion, may
accelerate the time within which each outstanding Option may be exercised or
negotiate to have such option assumed by the surviving corporation.
(b) Company is the Survivor. In the event of a merger,
consolidation, combination or reorganization in which the Company is the
surviving corporation, the Board of Directors shall determine the appropriate
adjustment of the number and kind of securities with respect to which
outstanding Options may be exercised, and the exercise price at which
outstanding Options may be exercised. The Board of Directors shall determine, in
its sole and absolute discretion, when the Company shall be deemed to survive
for purposes of this Plan.
10. Change of Control. If there is a "change of control" in the Company,
all outstanding Options shall fully vest immediately upon the Company's public
announcement of such a change. A "change of control" shall mean an event
involving one transaction or a related series of transactions, in which (i) the
Company issues securities equal to 25% or more of the Company's issued and
outstanding voting securities, determined as a single class, to any individual,
firm, partnership, limited liability company, or other entity, including a
"group" within the meaning of SEC Exchange Act Rule 13d-3, (ii) the Company
issues voting securities equal to 25% or more of the issued and outstanding
voting stock of the Company in connection with a merger, consolidation other
business combination, (iii) the Company is acquired in a merger or other
business combination transaction in which the Company is not the surviving
company, or (iv) all or substantially all of the Company's assets are sold or
transferred. See Section 9 with respect to Options vesting upon the occurrence
of either of the events described in (iii) or (iv) of this Section 10 and the
result upon the non-exercise of the Options.
11. Suspension and Termination. In the event the Board or the
Administrator reasonably believes an Optionee has committed an act of misconduct
including, but limited to acts specified below, the Administrator may suspend
the Optionee's right to exercise any Option granted hereunder pending final
determination by the Board or the Administrator. If the Administrator determines
that an Optionee has committed an act of embezzlement, fraud, breach of
fiduciary duty or deliberate disregard of the Company rules or rules made by a
supervisor, or if an Optionee makes an unauthorized disclosure of any Company
trade secret or confidential information, engages in any conduct constituting
unfair competition, induces any Company customer to breach a contract with the
Company or induces any principal for whom the Company acts as agent to terminate
such agency relationship, neither the Optionee nor his estate shall be entitled
to exercise any Option hereunder. In making such determination, the Board or the
Administrator shall give the Optionee an opportunity to appear and present
evidence on the Optionee's behalf. The determination of the Board or the
Administrator shall be final and conclusive.
12. No Rights as Stockholder or to Continued Employment. An Optionee
shall have no rights as a stockholder with respect to any shares of Stock
covered by an Option. An Optionee shall have no right to vote any shares of
Stock, or to receive distributions of dividends or any assets or proceeds from
the sale of Company assets upon liquidation until such Optionee has effectively
exercised the Option and fully paid for such shares of Stock. Subject to
Sections 8 and 9, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date title to the shares of Stock has been
acquired by the Optionee. The grant of an Option shall in no way be construed so
as to confer on any Optionee the rights to continued employment by the Company.
13. Termination; Amendment. The Board may amend, suspend or terminate
this Plan at any time and for any reason, but no amendment, suspension or
termination shall be made which would impair the right of any person under any
outstanding Options without such person's consent not unreasonably withheld.
Further, the Board may also amend this Plan to materially increase the benefits
accruing to Option holders
<PAGE>9
under this Plan; provided, however, that any such amendment shall be subject to
the approval of the Company's stockholders if so required to maintain the status
of the Plan as an Incentive Stock Option Plan.
14. Governing Law. This Plan and the rights of all persons under this
Plan shall be construed in accordance with and under applicable provisions of
the laws of the State of California.
See Exhibit 5.1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement on Form S-8 for AremisSoft Corporation.
Pannell Kerr Forster
/s/ Pannell Kerr Forster
London, England
April 18, 2000
