<PAGE> 1
<TABLE>
<S> <C>
As filed with the Securities and Exchange Commission on May 12, 2000 Registration No. 333-________________
====================================================================================================================================
</TABLE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
T/R SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Georgia 58-1958870
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1300 Oakbrook Drive
Norcross, Georgia 30093
(Address of principal executive offices) (Zip Code)
---------------
T/R SYSTEMS, INC. 1995 STOCK OPTION PLAN
(Full title of the plan)
---------------
Michael E. Kohlsdorf
President and Chief Executive Officer
T/R Systems, Inc.
1300 Oakbrook Drive
Norcross, Georgia 30093
(Name and address of agent for service)
(770) 448-9008
(Telephone number, including area code, of agent for service)
With a copy to:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee(2)
- ------------------------------- ---------------- ---------------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,117,235 shares $2.782003 $3,108,151.1217 $821
=============================================================================================================================
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the "Act").
Because all of the shares to be registered are subject to outstanding options,
the offering price is calculated based on the weighted average exercise price of
those options.
(2) The registration fee of $821 is calculated by multiplying the
product of $2.782003, the weighted average exercise price per share, and
1,117,235, the number of shares subject to options, by .000264.
===============================================================================
<PAGE> 2
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified in
Part I of Form S-8 has been omitted from this Registration Statement.
1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by T/R Systems, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's annual report on Form 10-K for the fiscal year
ended January 31, 2000;
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since January 31, 2000; and
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A dated January 21, 2000,
including the information incorporated by reference into that
registration statement from the Registration Statement on Form
S-1, as amended, File No. 333-88439.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Article VII of the Company's Second Restated Articles of Incorporation
(the "Articles of Incorporation") provides that, except to the extent allowable
pursuant to the Georgia Business Corporation Code (the "Georgia Code"), as such
provisions exist from time to time, no director of the Company shall be liable
to the Company or its shareholders for, or with respect to, any acts or
omissions in the performance of his duties as a director. The Company's Articles
of Incorporation further provide that in discharging the duties of their
respective positions and in determining what is believed to be in the best
interests of the Company, the Board of Directors, committees of the Board of
Directors, and individual directors, in addition to considering the effects of
any action on the Company or its shareholders, may consider the interests of the
employees, customers, suppliers, and creditors of the Company and its
subsidiaries, the communities in which offices or other establishments of the
Company and its subsidiaries are located, and all other factors such directors
consider pertinent, provided, however, that this provision shall be deemed
solely to grant discretionary authority to the directors and shall not be deemed
to provide to any constituency any right to be considered.
Article VIII of the Articles of Incorporation and Article 8.10 of the
Company's Restated Bylaws (the "Bylaws") provide that the Company shall
indemnify, to the fullest extent permitted by the Georgia Code or any other laws
presently or hereafter in effect, each person who is or was or had agreed to
become a director or officer of the Company or is or was serving or had agreed
to serve at the request of the Board of Directors or an officer of the Company
as an employee or agent of the Company, as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including the heirs, executors, administrators or estate of such
person. The right to indemnification conferred by Article 8.10 of the Company's
Bylaws is a contract right and includes the right to be paid by the Company the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Georgia Code requires, the payment
of such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service
2
<PAGE> 4
was or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Company of
an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified.
The Georgia Code provides that a company may indemnify an individual
who was or is a party to a proceeding because he is or was a director or officer
against liability incurred in the proceeding if he acted in a manner he believed
in good faith to be in or not opposed to the best interests of the company, and,
in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct unlawful. The termination of a proceeding by judgment, order,
settlement, conviction, or a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director or officer did not meet the standard
of conduct set forth in the Georgia Code. However, no indemnification shall be
made of an officer or director in connection with a proceeding by or in the
right of the company in which the director or officer was adjudged liable to the
company or in connection with any other proceeding in which he was adjudged
liable on the basis that personal benefit was improperly received by him.
Indemnification in connection with a proceeding by or in the right of the
company is limited to reasonable expenses incurred in connection with the
proceeding.
The Georgia Code further provides that a company shall not indemnify an
officer or director unless authorized in the specific case upon a determination
that indemnification of the director or officer is permissible in the
circumstances because he has met the applicable standard of conduct set forth
above and prescribes the persons who may make such determination.
To the extent that a director or officer has been successful, on the
merits or otherwise, in defense of any proceeding to which he was a party or in
defense of any claim, issue or matter therein, he shall be indemnified against
reasonable expenses (including attorneys' fees) incurred by him in connection
therewith. The Company shall pay for the reasonable expenses incurred by a
director or officer who is a party to a proceeding in advance of the final
disposition of the proceeding if the director or officer furnishes the Company
notice as required under that director's or officer's indemnification agreement,
if one exists, a written affirmation of his good faith belief that he has met
the standard of conduct set forth above, and the director or officer furnishes
the Company a written undertaking, executed personally or on his behalf, to
repay any advances if it is ultimately determined that he is not entitled to
indemnification by the Company as authorized in Article 8.10 of the Company's
Bylaws.
The Company has entered into agreements dated March 4, 1994 with E.
Neal Tompkins and Charles H. Phipps, directors of the Company, which obligate
the Company to indemnify each such director to the fullest extent permitted by
Georgia law if such director acted in a manner he believed in good faith to be
in or not opposed to the best interests of the Company, or in any criminal
action, if such director had no reasonable cause to believe his conduct giving
rise to such action was unlawful (the "Indemnification Agreements"). The right
to indemnification under the Indemnification Agreements is in addition to, and
not in lieu of, any other rights to indemnification such directors may have.
Pursuant to the terms of the Indemnification Agreements, for the purposes of
pursuing his rights to indemnification, the director must submit a sworn
statement of a request for indemnification to the Company and shall present to
the Company reasonable evidence of all expenses for which payment is requested.
The Company maintains insurance for its directors and officers of
$10,000,000.
Item 7. Exemption from Registration Claimed.
Inapplicable.
3
<PAGE> 5
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4 T/R Systems, Inc. 1995 Stock Option Plan
5 Opinion of Jones, Day, Reavis & Pogue re: legality
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP, independent auditors
24 Power of Attorney (included in the signature page)
</TABLE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the effective date of
the registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement;
(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 sub-paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
or 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions,
4
<PAGE> 6
or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such
issue.
5
<PAGE> 7
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 Atlanta, State of Georgia, on the 11 day of May,
2000.
T/R SYSTEMS, INC.
By: /s/ Michael E. Kohlsdorf
----------------------------------------
Michael E. Kohlsdorf
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, Michael E. Kohlsdorf and Lyle W.
Newkirk, jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments 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, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may 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 by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
President and Chief Executive Officer
/s/ Michael E. Kohlsdorf (Principal Executive Officer) May 11, 2000
--------------------------
Michael E. Kohlsdorf
Vice President, Chief Financial Officer,
Secretary and Treasurer (Principal
/s/ Lyle W. Newkirk Financial and Accounting Officer) May 11, 2000
--------------------------
Lyle W. Newkirk
/s/ Charles H. Phipps
-------------------------- Director May 11, 2000
Charles H. Phipps
-------------------------- Director
C. Harold Gaffin
</TABLE>
6
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Philip T. Gianos Director May 11, 2000
--------------------------
Philip T. Gianos
/s/ Kevin J. McGarity Director May 11, 2000
--------------------------
Kevin J. McGarity
/s/ Peter S. Sealey Director May 5, 2000
--------------------------
Peter S. Sealey
/s/ E. Neal Tompkins Director May 11, 2000
--------------------------
E. Neal Tompkins
</TABLE>
7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4 T/R Systems, Inc. 1995 Stock Option Plan
5 Opinion of Jones, Day, Reavis & Pogue re: legality
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23.2 Consent of Deloitte & Touche, independent public accountants
24 Power of Attorney (included in signature page)
</TABLE>
8
<PAGE> 1
EXHIBIT 4
- --------------------------------------------------------------------------------
T/R SYSTEMS, INC.
1995 STOCK OPTION PLAN
- --------------------------------------------------------------------------------
<PAGE> 2
T/R SYSTEMS, INC.
1995 STOCK OPTION PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
I. DEFINITIONS.................................................................................................. 1
1. Definitions............................................................................................... 1
II. THE PLAN..................................................................................................... 3
1. Purpose................................................................................................... 3
2. Administration............................................................................................ 3
3. Participation............................................................................................. 3
4. Stock Subject to the Plan................................................................................. 4
5. Grant of Options.......................................................................................... 4
6. Exercise of Options....................................................................................... 4
III. OPTIONS...................................................................................................... 4
1. Grants.................................................................................................... 4
2. Option Price.............................................................................................. 4
3. Option Period............................................................................................. 5
4. Exercise of Options....................................................................................... 5
5. Limitations on Grant of Incentive Stock Options........................................................... 5
IV. OTHER PROVISIONS............................................................................................. 6
1. Rights of Eligible Employees, Participants and Beneficiaries.............................................. 6
2. Adjustments Upon Changes in Capitalization................................................................ 6
3. Option to Purchase Stock Upon Termination of Employment................................................... 7
4. Termination of Service.................................................................................... 9
5. Acceleration of Options................................................................................... 9
6. Government Regulations.................................................................................... 10
7. Tax Withholding........................................................................................... 10
8. Amendment, Termination, and Suspension.................................................................... 10
9. Privileges of Stock Ownership; Nondistributive Intent..................................................... 11
10. Effective Date of the Plan................................................................................ 11
11. Term of the Plan.......................................................................................... 11
12. Governing Law............................................................................................. 11
</TABLE>
<PAGE> 3
I. DEFINITIONS.
1. Definitions.
(a) "Award" shall mean an Option, which may be designated as a
Nonqualified Stock Option or an Incentive Stock Option granted under this Plan.
(b) "Award Agreement" shall mean a written agreement
evidencing the grant of Options by the Corporation to a Participant, which
agreement shall identify whether the Options granted are Incentive Stock Options
or Nonqualified Stock Options.
(c) "Award Date" shall mean the date upon which the Committee
took the action granting an Award or such later date as is prescribed by the
Committee.
(d) "Award Period" shall mean the period beginning on an
Award Date and ending on the expiration date of such Award.
(e) "Beneficiary" shall mean the person, persons, trust or
trusts entitled by will or the laws of descent and distribution to receive the
benefits specified under this Plan in the event of a Participant's death.
(f) "Board" shall mean the Board of Directors of the
Corporation.
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(h) "Common Stock" or "Stock" shall mean the Common Stock,
$.01 par value, of the Corporation.
(i) "Commission" shall mean the Securities and Exchange
Commission.
(j) "Committee" shall mean the committee appointed by the
Board and consisting of three or more members or if no such committee has been
appointed, the Board.
(k) "Company" shall mean, collectively, the Corporation and
its Subsidiaries.
(l) "Corporation" shall mean T/R Systems, Inc., a Georgia
corporation, and its successors.
(m) "Eligible Employee" shall mean an officer or key employee
of the Company.
(n) "Event" shall mean approval by the stockholders of the
Corporation of (i) the dissolution or liquidation of the Corporation; (ii) an
agreement to merge or consolidate, or otherwise reorganize, with or into one or
more entities which are not Subsidiaries, as a result of which less than 50% of
the outstanding voting securities of the surviving or resulting entity are, or
are to be, owned by former stockholders of the Corporation; (iii) the sale of
substantially all of the Corporation's business and/or assets to a person or
entity which is not a Subsidiary; or (iv) a
<PAGE> 4
tender offer pursuant to which the offeror acquires more than 50% of the
Corporation's outstanding voting securities.
(o) "Fair Market Value" shall mean (i) the closing sales price of the
Common Stock first preceding the time at which Fair Market Value is to be
determined on the national securities exchange having the greatest volume of
trading in the stock during the 30-day period immediately preceding that time as
reported in The Wall Street Journal; (ii) if the stock is not listed or admitted
to trade on any national securities exchange, the closing sales price of the
Common Stock first preceding the time at which Fair Market Value is to be
determined, as quoted in the National Association of Securities Dealers
Automated Quotation (NASDAQ) National Market Reporting System, or any successor
system, as reported in The Wall Street Journal; (iii) if the Common Stock is not
listed or admitted to trade on any national securities exchange and is not
quoted on the NASDAQ National Market Reporting System, the average of the
closing bid and asked sales prices of the stock on the over-the-counter market
first preceding the time at which Fair Market Value is to be determined, as
quoted on NASDAQ or such other national reporting service, as reported in The
Wall Street Journal; or (iv) if the Common Stock is not listed or admitted to
trade on a national securities exchange, is not quoted on the NASDAQ National
Market Reporting System and if the bid and asked sales prices for the stock are
not furnished by the National Association of Securities Dealers, Inc. or a
similar organization, the Fair Market Value established by the Committee for
purposes of granting Options under the Plan based on such relevant facts, which
may include opinions of independent experts, as may be available to the
Committee.
(p) "Incentive Stock Option" shall mean an option which is designated
as an incentive stock 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.
(q) "Nonqualified Stock Option" shall mean an option which is
designated as a Nonqualified Stock Option.
(r) "Option" shall mean an option to purchase Common Stock under this
Plan. An Option shall be designated by the Committee as a Nonqualified Stock
Option or an Incentive Stock Option.
(s) "Option Stock" shall mean shares of Common Stock acquired upon
exercise of an Option.
(t) "Participant" shall mean an Eligible Employee who has been awarded
an Award.
(u) "Personal Representative" shall mean the person or persons who,
upon the disability or incompetence of a Participant, shall have acquired on
behalf of the Participant by legal proceeding or otherwise the power to exercise
the rights and receive the benefits specified in this Plan.
(v) "Plan" shall mean the T/R Systems, Inc. 1995 Stock Option Plan, as
amended from time to time in accordance herewith.
2
<PAGE> 5
(w) "Securities Act" shall mean the Securities Act of 1933, as amended.
(x) "Subsidiary" shall mean any corporation or other entity a majority
or more of whose outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Corporation.
II. THE PLAN
1. Purpose.
The purpose of this Plan is to promote the success of the
Company by providing an additional means to attract and retain key personnel
through added long term incentives for high levels of performance and for
significant efforts to improve the financial performance of the Company by
granting Awards.
2. Administration.
(a) This Plan shall be administered by the Committee. Action
of the Committee with respect to the administration of this Plan shall be taken
pursuant to a majority vote or the written consent of a majority of its members.
In the event action by the Committee is taken by written consent, the action
shall be deemed to have been taken at the time specified in the consent or, if
none is specified, at the time of the last signature. The Committee may delegate
administrative functions to individuals who are officers or employees of the
Company.
(b) Subject to the express provisions of this Plan, the
Committee shall have the authority to construe and interpret this Plan and any
agreements defining the rights and obligations of the Company and Participants
under this Plan, to further define the terms used in this Plan, 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 Participants without constituting a termination of their employment
for purposes of this Plan and to make all other determinations necessary or
advisable for the administration of this Plan. The determinations of the
Committee on the foregoing matters shall be conclusive.
(c) Any action taken by, or inaction of, the Corporation, any
Subsidiary, the Board or the Committee relating to this Plan shall be within the
absolute discretion of that entity or body and shall be conclusive and binding
upon all persons. No member of the Board or Committee, or officer of the
Corporation or Subsidiary, shall be liable for any such action or inaction of
the entity or body, of another person or, except in circumstances involving bad
faith, of himself or herself. Subject only to compliance with the express
provisions hereof, the Board and Committee may act in their absolute discretion
in matters related to this Plan.
3. Participation.
Awards may be granted only to Eligible Employees. An Eligible
Employee who has been granted an Award may, if otherwise eligible, be granted
additional Awards if the Committee shall so determine. Members of the Board who
are not officers or employees of the Company shall not be eligible to receive
Awards.
3
<PAGE> 6
4. Stock Subject to the Plan.
The stock to be offered under this Plan shall be shares of the
Corporation's authorized but unissued Common Stock. The aggregate amount of
Common Stock that may be issued or transferred pursuant to Awards granted under
this Plan shall not exceed 1,650,000 shares, subject to adjustment as set forth
in Section 4.2. If any Option shall lapse or terminate (either by its terms or
as a result of the repurchase by the Company of such Option) without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for purposes of this Plan.
5. Grant of Options.
Subject to the express provisions of the Plan, the Committee
shall determine from the class of Eligible Employees those individuals to whom
Options under the Plan shall be granted, the terms of Options (which need not be
identical) and the number of shares of Common Stock subject to each Option. Each
Option shall be subject to the terms and conditions set forth in the Plan and
such other terms and conditions established by the Committee as are not
inconsistent with the purpose and provisions of the Plan. The grant of an Option
is made on the Award Date. Each Option shall be evidenced by minutes of a
meeting of the Committee or the written consent of the Committee, and by an
Award Agreement dated as of the date of grant and executed by the Corporation
and the Optionee.
6. Exercise of Options.
An Option shall be deemed to be exercised when the Secretary
or Assistant Secretary of the Corporation receives written notice of such
exercise from the Participant, together with payment of the purchase price made
in accordance with Section 3.2(a). Notwithstanding any other provision of this
Plan, the Committee may impose, by rule or in Award Agreements, such conditions
upon the exercise of Options (including, without limitation, vesting of exercise
rights and conditions limiting the time of exercise to specified periods) as may
be required to satisfy applicable regulatory requirements or as may be deemed
necessary or advisable by the Committee.
III. OPTIONS.
1. Grants.
One or more Options may be granted to any Eligible Employee.
Each Option so granted shall be designated by the Committee as either a
Nonqualified Stock Option or an Incentive Stock Option.
2. Option Price.
The purchase price per share of the Common Stock covered by
each Option shall be determined by the Committee, but in no event shall be less
than 85% of the Fair Market Value of the Common Stock on the date of grant and
in the case of Incentive Stock Options shall not be less than 100% (110% in the
case of a Participant 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
4
<PAGE> 7
Common Stock on the date the Incentive Stock Option is granted. The purchase
price of any shares purchased shall be paid in full at the time of each purchase
in one or a combination of the following methods: (i) in cash, or by certified
or cashier's check payable to the order of the Corporation, (ii) if authorized
by the Committee or specified in the Option being exercised, by a promissory
note made by the Participant in favor of the Corporation, upon the terms and
conditions determined by the Committee, and secured by the Common Stock issuable
upon exercise in compliance with applicable law (including, without limitation,
state corporate law and federal margin requirements), or (iii) by shares of
Common Stock of the Corporation already owned by the Participant; provided,
however, the Committee may in its absolute discretion limit the Participant's
ability to exercise an Option by delivering shares. Shares of Common Stock used
to satisfy the exercise price of an Option shall be valued at their Fair Market
Value on the date of exercise.
3. Option Period.
Each Option and all rights or obligations thereunder shall
expire on such date as shall be determined by the Committee, but not later than
10 years after the Award Date in the case of an Incentive Stock Option (five
years in the case of a person described in Section 3.5(c)), and shall be subject
to earlier termination as hereinafter provided or as provided in any Award
Agreement.
4. Exercise of Options.
Except as otherwise provided in Section 4.4, an Option may
become exercisable, in whole or in part, on the date or dates specified in the
Award Agreement which date(s) shall not be earlier than six months after the
Award Date and thereafter shall remain exercisable until the expiration or
earlier termination of the Participant's Option. The Committee may, at any time
after grant of the Option and from time to time, increase the number of shares
purchasable at any time so long as the total number of shares subject to the
Option is not increased. No Option shall be exercisable except in respect of
whole shares, and fractional share interests shall be disregarded. Not less than
1,000 shares of Common Stock may be purchased at one time unless the number
purchased is the total number at the time available for purchase under the terms
of the Option.
5. Limitations on Grant of Incentive Stock Options.
(a) The aggregate Fair Market Value (determined as of the
Award Date) of the Common Stock for which Incentive Stock Options may first
become exercisable by any Participant during any calendar year under this Plan,
together with that of Common Stock subject to incentive stock options first
exercisable (other than as a result of acceleration pursuant to Section 4.2 or
4.4) by such Participant under any other plan of the Corporation or any
Subsidiary, shall not exceed $100,000.
(b) There shall be imposed in the Award 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.
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(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 Common 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 subject to the
Option and such Option by its terms is not exercisable after the expiration of
five years from the date such Option is granted.
IV. OTHER PROVISIONS.
1. Rights of Eligible Employees, Participants and Beneficiaries.
(a) Status as an Eligible Employee shall not be construed as a
commitment that any Award will be made under this Plan to an Eligible Employee
or to Eligible Employees generally.
(b) Nothing contained in this Plan (or in Award Agreements or
in any other documents related to this Plan or to Options) shall confer upon any
Eligible Employee or Participant any right to continue in the employ of the
Company or constitute any contract or agreement of employment, or interfere in
any way with the right of the Company to reduce such person's compensation or to
terminate the employment of such Eligible Employee or Participant, with or
without cause, but nothing contained in this Plan or any document related
thereto shall affect any other contractual right of any Eligible Employee or
Participant.
(c) Other than by will or the laws of descent and
distribution, no interest in this Plan or in any Option shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge and any such attempted action shall be void and no such
benefit or interest shall be, in any manner, liable for, or subject to, debts,
contracts, liabilities, engagements or torts of any Eligible Employee,
Participant or Beneficiary. The Committee shall disregard any attempted
transfer, assignment or other alienation prohibited by the preceding sentence
and shall pay or deliver such cash or shares of Common Stock in accordance with
the provisions of this Plan.
(d) No Participant, Beneficiary or other person shall have any
right, title or interest in any fund or in any specific asset (including shares
of Common Stock) of the Company by reason of any Option granted hereunder.
Neither the provisions of this Plan (or of any documents related hereto), nor
the creation or adoption of this Plan, nor any action taken pursuant to the
provisions of this Plan shall create, or be construed to create, a trust of any
kind or a fiduciary relationship between the Company and any Participant,
Beneficiary or other person. To the extent that a Participant, Beneficiary or
other person acquires a right to receive an Option hereunder, such right shall
be no greater than the right of any unsecured general creditor of the Company.
2. Adjustments Upon Changes in Capitalization.
(a) If the outstanding shares of Common Stock are increased,
decreased or changed into, or exchanged for, a different number or kind of
shares or securities of the Corporation through a reorganization or merger in
which the Corporation is the surviving entity, or through a combination,
recapitalization, reclassification, stock split, stock dividend, stock
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consolidation or otherwise, an appropriate adjustment shall be made in the
number and kind of shares that may be issued pursuant to Options. A
corresponding adjustment to the consideration payable with respect to Options
granted prior to any such change shall also be made. Any such adjustment,
however, shall be made without change in the total payment, if any, applicable
to the portion of the Option not exercised but with a corresponding adjustment
in the price for each share.
(b) Upon the dissolution or liquidation of the Corporation, or
upon a reorganization, merger or consolidation of the Corporation with one or
more corporations as a result of which the Corporation is not the surviving
corporation, the Plan shall terminate, and any outstanding Options shall,
subject to the provisions of Section 4.5, terminate and be forfeited.
Notwithstanding the foregoing, the Committee may provide in writing in
connection with, or in contemplation of, any such transaction for any or all of
the following alternatives (separately or in combinations): (i) for the
assumption by the successor corporation of the Options theretofore granted or
the substitution by such corporation for such Options of Options covering the
stock of the successor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices; (ii) for
the continuance of the Plan by such successor corporation in which event the
Plan and the Options shall continue in the manner and under the terms so
provided; or (iii) for the payment in cash or shares of Common Stock in lieu of
and in complete satisfaction of such Awards.
(c) In adjusting Options to reflect the changes described in
this Section 4.2, or in determining that no such adjustment is necessary, the
Committee may rely upon the advice of independent general counsel and
accountants of the Corporation, and the determination of the Committee shall be
conclusive. No fractional shares of stock shall be issued under this Plan on
account of any such adjustment.
3. Option to Purchase Stock Upon Termination of Employment.
(a) In the event any Participant's employment by the Company
terminates for any reason, whether voluntarily or involuntarily and whether for
cause or not for cause, or whether by death or disability, and if at such time
of termination the Common Stock is not then registered with the Securities and
Exchange Commission pursuant to and under the Securities Exchange Act of 1934,
as amended, then the Company shall have the right and option to elect to
purchase, and the Participant whose employment has terminated (the "Terminating
Participant") shall sell in the event such option is exercised, all, but not
less than all, the Option Stock then held by such Participant, or later acquired
by the Terminating Participant upon the exercise of the Option. This option to
acquire Common Stock must be exercised by the Company within ninety (90) days of
any such termination of employment (or within ninety (90) days of any subsequent
exercise of the Option by the Terminating Participant) by the Company tendering
to the Participant in exchange for such Common Stock, an amount equal to the
Fair Market Value (as such term is defined in Subsection 4.3(b) below) of each
share of Common Stock so purchased.
(b) For the purposes of this Section 4.3 the term "Fair Market
Value" per share of Stock shall mean either:
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(i) in the event that any third party makes a bona fide,
written offer to the Terminating Participant within
the period specified for election of the Company to
purchase the Terminating Participant's Stock, which
offer is binding, subject only to the purchase rights
granted by this Section 4.3, and a copy of such
written offer is delivered to the Company, the price
per share specified in such written offer. In the
event that such a written offer is received within
ten (10) days prior to the expiration of such period,
the Company shall be entitled to ten (10) additional
days following receipt by the Company thereof in
which to exercise the right granted it in this
Section 4.3.
or
(ii) in the absence of a bona fide offer as described in
clause (i) above, the fair market value of a share of
Common Stock as determined by the Board of Directors
of the Company in the exercise of its good faith
judgment with the concurrence of at least one of the
directors nominated by the holders of Series A
Preferred Stock or Series B Preferred Stock;
provided, however, that if the Board is unable to
make such determination, or if the Board makes such
determination and the Terminating Participant
disagrees therewith by delivering notice of such
disagreement to the Company within ten (10) business
days after the Board's determination thereof is
communicated to the Terminating Participant (such
notice to specify the Terminating Participant's
determination of such fair market value), then the
Fair Market Value shall be determined by one
appraiser chosen by the Company and the Terminating
Participant, who shall determine the value of the
Terminating Participant's Stock for these purposes
without applying any discount for illiquidity or
minority interest. In the event that the parties are
unable to agree upon such an appraiser, the parties
agree that the American Arbitration Association shall
be employed to choose an appraiser, and such person
shall determine the Fair Market Value of the
Terminating Participant's Stock for these purposes.
In the event the appraisal process is utilized, the
party whose valuation of the Terminating
Participant's Stock less closely approximated the
value selected pursuant to the above described
appraisal process, measured by dollar amounts and not
by percentages, shall pay all costs of the appraisal
process.
(c) The purchase price for any Stock acquired pursuant to
Section 4.3 shall be paid, at the option of the Company, wholly in cash or by
delivery at the closing of such purchase of one-third of such price in cash
together with a promissory note requiring the payment of the principal in two
(2) equal annual installments commencing one (1) year after the purchase, and
secured by the Stock so purchased, with simple interest payable quarterly in
arrears at the
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applicable federal rate (as defined in Section 1274 of the Internal Revenue Code
of 1986, as amended) as in effect as of the date of the closing of the purchase.
(d) If an entity ceases to be a Subsidiary, such action shall
be deemed for purposes of this Section 4.3 and for Section 4.4 to be a
termination of employment of each employee of that entity.
4. Termination of Service.
(a) Except as otherwise provided in paragraph (b) below, in
the event of termination of the employment of a Participant by the Company for
any reason, voluntarily or involuntarily, any Option held by such Participant,
to the extent not theretofore exercised, shall forthwith terminate unless the
Committee, in its sole discretion, provides in the Award Agreement that the
Option shall be exercisable after such termination (but only to the extent of
the number of shares of Stock with respect to which the Option may be exercised
at the date of his termination of employment), and provided further, that in no
event shall any Award Agreement provide for the extension of the period during
which the Option may be exercised beyond the earlier of (i) the expiration of
the period of exercisability of such Option as specified in the Award Agreement,
or (ii) twelve (12) months from the date of termination.
(b) In the event any Participant dies while he is an employee
of the Company, or his employment by the Company terminates by reason of
disability, any Option held by him may be exercised (but only to the extent of
the number of shares with respect to which the Option may be exercised at the
time of his death or termination of employment by reason of disability) by him
or his legatee or legatees under his will, or by his personal representative or
distributees, within twelve (12) months following the date of his termination of
employment due to death or disability, or such shorter period as may be
specified in the Award Agreement, but in no event after the expiration of the
period of exercisability of such Option as specified in the Award Agreement.
If an Option granted hereunder shall be exercised by the legal
representative of a deceased or disabled Participant, or by a person who
acquired an Option granted hereunder by bequest or inheritance by reason of the
death of any Participant, written notice of such exercise shall be accompanied
by a certified copy of letters testamentary or equivalent proof of the right of
such legal representative or other person to exercise such Option.
5. Acceleration of Options.
Unless prior to an Event the Board determines that, upon its
occurrence, there shall be no acceleration of Options or determines those
Options which shall be accelerated and the extent to which they shall be
accelerated, upon the occurrence of an Event each Option shall become
immediately exercisable to the full extent theretofore not exercisable.
Acceleration of Options shall comply with applicable regulatory requirements,
including without limitation, Section 422 of the Code. For purposes of this
Section 4.5 only, the Board shall mean the Board as constituted immediately
prior to the Event.
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6. Government Regulations.
This Plan, the granting of Options under this Plan and the
issuance or transfer of shares of Common Stock (and/or the payment of money)
pursuant thereto are subject to all applicable federal and state laws, rules
and regulations and to such approvals by any regulatory or governmental agency
(including without limitation "no action" positions of the Commission) which
may, in the opinion of counsel for the Corporation, be necessary or advisable
in connection therewith. Without limiting the generality of the foregoing, no
Options may be granted under this Plan, and no shares shall be issued by the
Corporation, pursuant to any such Option, unless and until, in each such case,
all legal requirements applicable to the issuance have, in the opinion of
counsel to the Corporation, been complied with. In connection with any stock
issuance or transfer, the person acquiring the shares shall, if requested by
the Corporation, give assurances satisfactory to counsel to the Corporation in
respect of such matters as the Corporation may deem desirable to assure
compliance with all applicable legal requirements.
7. Tax Withholding.
Upon the disposition by a Participant or other person of
shares of Common Stock acquired pursuant to the exercise of an Incentive Stock
Option prior to satisfaction of the holding period requirements of Section 422
of the Code, or upon the exercise of a Nonqualified Stock Option, the Company
shall have the right to require such Participant or such other person to pay by
cash, or certified or cashier's check payable to the Company, the amount of any
taxes which the Company may be required to withhold with respect to such
transactions. The above notwithstanding, in any case where a tax is required to
be withheld in connection with the issuance or transfer of shares of Common
Stock under this Plan, the Participant may elect, pursuant to such rules as the
Committee may establish, to have the Company reduce the number of such shares
issued or transferred by the appropriate number of shares to accomplish such
withholding; provided, the Committee may impose such conditions on the payment
of any withholding obligation as may be required to satisfy applicable
regulatory requirements.
8. Amendment, Termination, and Suspension.
(a) The Board may, at any time, terminate or, from time to
time, amend, modify or suspend this Plan (or any part hereof). In addition, the
Committee may, from time to time, amend or modify any provision of this Plan
except Section 4.5 and, with the consent of the Participant, make such
modifications of the terms and conditions of such Participant's Option as it
shall deem advisable. The Committee, with the consent of the Participant, may
also amend the terms of any Option to provide that the Option price of the
shares remaining subject to the original Option shall be reestablished at a
price not less than 100% of the Fair Market Value of the Common Stock on the
effective date of the amendment. No modification of any other term or provision
of any Option which is amended in accordance with the foregoing shall be
required, although the Committee may, in its discretion, make such further
modifications of any such Option as are not inconsistent with or prohibited by
the Plan. No Options may be granted during any suspension of this Plan or after
its termination.
(b) If an amendment would (i) increase the aggregate number of
shares which may be issued under this Plan, or (ii) modify the requirements of
eligibility for participation in
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this Plan, the amendment shall be approved by the Board or the Committee and by
a majority of the stockholders.
(c) In the case of Options issued before the effective date of
any amendment, suspension or termination of this Plan, such amendment,
suspension or termination of the Plan shall not, without specific action of the
Board and consent of the Participant, in any way modify, amend, alter or impair
any rights or obligations under any Option previously granted under the Plan.
9. Privileges of Stock Ownership; Nondistributive Intent.
A Participant shall not be entitled to the privilege of stock
ownership as to any shares of Common Stock not actually issued to him. Upon the
issuance and transfer of shares to the Participant, unless a registration
statement is in effect under the Securities Act, relating to such issued and
transferred Common Stock and there is available for delivery a prospectus
meeting the requirements of Section 10 of the Securities Act, the Common Stock
may be issued and transferred to the Participant only if he represents and
warrants in writing to the Corporation that the shares are being acquired for
investment and not with a view to the resale or distribution thereof. No shares
shall be issued and transferred unless and until there shall have been full
compliance with all of the applicable regulatory requirements (including those
of exchanges upon which the Common Stock may be listed).
10. Effective Date of the Plan.
This Plan shall be effective upon its approval by the Board,
subject to approval by the stockholders of the Corporation within 12 months from
the date of such Board approval.
11. Term of the Plan.
Unless previously terminated by the Board, this Plan shall
terminate at the close of business on the tenth anniversary of the date the Plan
is approved by the Board, and no Options shall be granted under it thereafter,
but such termination shall not affect any Option theretofore granted.
12. Governing Law.
This Plan and the documents evidencing Options and all other
related documents shall be governed by, and construed in accordance with, the
laws of the State of Georgia. If any provision shall be held by a court of
competent jurisdiction to be invalid and unenforceable, the remaining provisions
of this Plan shall continue to be fully effective.
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EXHIBIT 5
JONES, DAY, REAVIS & POGUE
303 Peachtree Street, N.E.
3500 SunTrust Plaza
Atlanta, Georgia 30308
May 11, 2000
T/R Systems, Inc.
1300 Oakbrook Parkway
Norcross, Georgia 30093
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to T/R Systems, Inc., a Georgia corporation
(the "Company"), in connection with the registration by the Company of up to
1,117,235 shares of common stock, par value $0.01 per share ("Common Stock") to
be issued in accordance with the Company's 1995 Stock Option Plan (the "Plan")
pursuant to the Company's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission (the "Registration Statement") to which this
opinion appears as Exhibit 5.
As counsel for the Company, we have examined such documents, records
and matters of law as we have deemed necessary for purposes of this opinion.
We have assumed, without independent verification, the genuineness and
authorization of all signatures and the conformity to the originals of all
copies submitted to us or inspected by us as certified, conformed or photostatic
copies. Based on such examination, we are of the following opinion:
The Common Stock, when issued in the manner contemplated by the Plan,
will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the State of Georgia and the federal laws of the
United States of America, as in effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
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JONES, DAY, REAVIS & POGUE
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
T/R Systems, Inc. on Form S-8 of our report dated March 10, 2000 appearing in
the Annual Report on Form 10-K of T/R Systems, Inc. for the fiscal year ended
January 31, 2000.
/s/ Deloitte & Touche LLP
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DELOITTE & TOUCHE LLP
May 12, 2000
