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As filed with the Securities and Exchange Commission
on December 12, 1995
Registration Number 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CERIDIAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-0278528
(State of incorporation) (I.R.S. Employer
Identification Number)
8100 34th Avenue South
Minneapolis, Minnesota 55425
(Address of principal executive offices)
COMDATA HOLDINGS CORPORATION
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
(Full title of the plan)
John A. Haveman
Vice President and Secretary
Ceridian Corporation
8100 34th Avenue South
Minneapolis, Minnesota 55425
(612) 853-7425
(Name, address and telephone number of agent for service)
Calculation of Registration Fee
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
to be to be price per offering Registration
registered registered (1) share(2) price (2) fee
Common Stock,
$.50 par value 1,083,195 shares $42.31 $45,829,980 $15,803.44
(1) In addition, pursuant to Rule 416 under the Securities Act
of 1933, as amended, this Registration Statement includes an
indeterminate number of additional shares as may be issuable
as a result of anti-dilution provisions described herein.
(2) Estimated solely for the purpose of calculating the amount
of the registration fee, based on the average of the high
and low sale prices reported for the Registrant's Common
Stock on the New York Stock Exchange on December 12, 1995.
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Part II Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Ceridian Corporation (the
"Company") are incorporated in this Registration Statement by
reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995, June 30, 1995 and September
30, 1995;
(3) The Company's Current Reports on Form 8-K dated January 19,
1995 and August 24, 1995;
(4) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
("Exchange Act") since December 31, 1994; and
(5) The description of the Company's Common Stock, par value
$.50 per share, contained in the Company's Registration
Statement on Form S-4, File No. 33-64089.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this Registration Statement and 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 in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
The Company's Common Stock is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
John A. Haveman, Vice President, Secretary and Associate
General Counsel for the Company, has provided an opinion as to
the legality of the securities being registered hereby. Mr.
Haveman holds options granted under the Company's stock based
compensation plans to acquire 10,966 shares of the Company's
Common Stock, holds 13,000 shares of the Company's Common Stock
that are subject to restrictions on transferability and possible
forfeiture, and is not eligible to participate in the Comdata
Holdings Corporation Stock Option and Restricted Stock Purchase
Plan.
The consolidated financial statements and financial
statement schedules of the Company for each of the years in the
three-year period ended December 31, 1994 have been incorporated
by reference in this registration statement in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. To
the extent that KPMG Peat Marwick LLP examines and reports on
financial statements of the Company issued at future dates, and
consents to the use of their reports thereon, such financial
statements also will be incorporated by reference in this
registration statement in reliance upon their reports and said
authority.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware ("DGCL") grants each corporation organized thereunder,
such as the Company, the power to indemnify its directors and
officers against liability for certain of their acts. Section
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102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder
eliminating or limiting, with certain exceptions, the personal
liability of a director to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
The Company's certificate of incorporation contains such a
provision. The foregoing statements are subject to the detailed
provisions of Sections 145 and 102(b)(7) of the DGCL.
Article VI of the Company's Bylaws provides that the Company
shall indemnify its officers, directors and employees to the
fullest extent permitted by the DGCL in connection with
proceedings with which any such person is involved by virtue of
his or her status as an officer, director or employee. The
Company has also by contract agreed to indemnify its directors
against damages, judgments, settlements and costs arising out of
any actions against the directors brought by reason of the fact
that they are or were directors. The Company maintains
directors' and officers' liability insurance, including a
reimbursement policy in favor of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following is a complete list of Exhibits filed or
incorporated by reference as part of this registration statement:
Exhibit Description
4.1 Restated Certificate of Incorporation of Ceridian
Corporation (incorporated by reference to Exhibit 4.01
to the Company's Registration Statement on Form S-8
(File No. 33-54379))
4.2 Bylaws of Ceridian Corporation, as amended
(incorporated by reference to Exhibit 3.01 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1993 (File No. 1-1969))
5.1 Opinion and Consent of John A. Haveman
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of John A. Haveman (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 5 of this
Registration Statement)
99.1 Comdata Holdings Corporation Stock Option and
ricted Stock Purchase Plan, as amended
Rest
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;
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(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 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 of
1933, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final adjudication of such
issue.
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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 Minneapolis, State of Minnesota, on December 12,
1995.
CERIDIAN CORPORATION
By: /s/J. R. Eickhoff
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Ceridian
Corporation, hereby severally constitute John R. Eickhoff and
John A. Haveman, and either of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to
sign for us and in our name in the capacities indicated below any
and all amendments to this Registration Statement on Form S-8
filed by Ceridian Corporation with the Securities and Exchange
Commission, and generally to do all such things in our name and
behalf in such capacities as may be necessary to enable Ceridian
Corporation to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys, or either
of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed as of December 12,
1995 by the following persons in the capacities indicated.
/s/Lawrence Perlman /s/Ruth M. Davis
Lawrence Perlman Ruth M. Davis, Director
Chairman, President and
Chief Executive Officer /s/Allen W. Dawson
(Principal Executive Allen W. Dawson, Director
Officer and Director)
/s/Ronald James
Ronald James, Director
/s/J. R. Eickhoff
J. R. Eickhoff /s/Richard G. Lareau
Executive Vice President Richard G. Lareau, Director
and Chief Financial
Officer (Principal /S/George R. Lewis
Financial Officer) George R. Lewis, Director
/s/Loren D. Gross Charles Marshall, Director
Loren D. Gross
Vice President and Corporate /s/Carole J. Uhrich
Controller (Principal Carole J. Uhrich, Director
Accounting Officer)
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Richard W. Vieser, Director
/s/Paul S. Walsh
Paul S. Walsh, Director
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EXHIBIT INDEX
Exhibit Description Code
4.1 Restated Certificate of Incorporation of IBR
Ceridian Corporation
4.2 Bylaws of Ceridian Corporation, as amended IBR
5.1 Opinion and Consent of John A. Haveman E
23.1 Consent of KPMG Peat Marwick LLP E
23.2 Consent of John A. Haveman
(included in Exhibit 5.1)
24.1 Power of Attorney (included on page 5
of the Registration Statement)
99.1 Stock Option and Restricted Stock E
Purchase Plan, as amended
Legend: E Electronic Filing
IBR Incorporated by Reference
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EXHIBIT 5.1
December 12, 1995
Ceridian Corporation
8100 34th Avenue South
Minneapolis, MN 55425
Ceridian Corporation
Re:
Registration Statement on Form S-8
Dear Sir or Madam:
I have acted as counsel to Ceridian Corporation, a Delaware
corporation (the "Company") in connection with the registration
by the Company of 1,083,195 shares of the Company's Common Stock,
$.50 par value (the "Shares"), pursuant to the Company's
registration statement on Form S-8 which refers to the Comdata
Holdings Corporation Stock Option and Restricted Stock Purchase
Plan, as amended, and which is to be filed with the Securities
and Exchange Commission on December 12, 1995 (the "Registration
Statement").
In this connection, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of such
corporate records, certificates, and written and oral statements
of officers and accountants of the Company and of public
officials, and other documents that I have considered necessary
and appropriate for this opinion and, based thereon, I advise you
that, in my opinion:
1. The Company has been duly incorporated and is validly
existing under the laws of the State of Delaware.
2. The Company has corporate authority to issue the Shares
in the manner and under the terms set forth in the Registration
Statement.
3. The Shares have been duly authorized and, when issued
in accordance with the Plan referred to in the Registration
Statement, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement and to its use as part of the
Registration Statement.
Very truly yours,
/s/John A. Haveman
Vice President, Secretary, and
Associate General Counsel
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ceridian Corporation:
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm in Part II, Item 5
hereof.
/s/KPMG Peat Marwick LLP
Minneapolis, Minnesota
December 12, 1995
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EXHIBIT 99.1
As Amended 6/21/95
COMDATA HOLDINGS CORPORATION
Stock Option and Restricted Stock Purchase Plan
Section 1. Purpose. The purpose of the Comdata Holdings
Corporation Stock Option and Restricted Stock Purchase Plan (the
"Plan) is to promote the interests of Comdata Holdings
Corporation, A Delaware corporation (the "Company") and its
stockholders by providing an opportunity to selected employees,
officers and directors of the Company or any Subsidiary thereof
as of the date of the adoption of this Plan or at any time
thereafter to purchase Common Stock of the Company. By
encouraging such stock ownership, the Company seeks to attract,
retain and motivate such employees and persons and to encourage
such employees and persons to devote their best efforts to the
business and financial success of the Company. It is intended
that this purpose will be effected by the granting of "non-
qualified stock options" and/or "incentive stock options" to
acquire the common stock of the Company and/or by the granting of
rights to purchase the common stock of the Company on a
"restricted stock" basis. Under this Plan, the Board of
Directors (or the Committee) shall have the authority (in its
sole discretion) to grant "incentive stock options" as
described in Treasury Regulation Section 1.83-7 or any successor
regulation thereto, or "restricted stock" awards.
Section 2. Definitions. For purposes of this Plan, the
following terms used herein shall have the following meanings,
unless a different meaning is clearly required by the context.
2.1. "Award" shall mean an award of the right to purchase
Common Stock granted under the provisions of Section 7 of the
Plan.
2.2. "Board of Directors" shall mean the Board of
Directors of the Company.
2.3. "Code" shall mean the Internal Revenue Code of l956
as amended.
2.4. "Committee" shall mean the committee of the Board of
Directors referred to in Section 5 hereof.
2.5. "Common Stock" shall mean the Common Stock, $.01 par
value, of the Company.
2.6. "Employee" shall mean (i) with respect to an ISO,
any person including an officer or director of the Company, who,
at the time an ISO is granted to such person hereunder, is
employed on a full-time basis by the Company or any Subsidiary of
the Company, and (ii) with respect to a Non-Qualified Option
and/or an Award shall mean any person employed by the company or
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any Subsidiary of the Company, including, without limitation,
directors and officers.
2.7. "ISO" shall mean an Option granted under the Plan
which constitutes and shall be treated as an "incentive stock
option" as defined in Section 422A(b) of the Code.
2.8. "Non-Qualified Option" shall mean an Option granted
to a Participant pursuant to the Plan which is extended to be,
and qualifies as, a "non-qualified stock option" as described
in Treasury Regulation Section 1.83-7 and which shall not
constitute nor be treated as an ISO.
2.9. "Option" shall mean any ISO or Non-Qualified Option
granted to an Employee pursuant to this Plan.
2.10. "Participant" shall mean any Employee to whom an
Award and/or an Option is granted under this Plan.
2.11 "Parent of the Company" shall have the meaning set
forth in Section 425(e) of the Code.
2.12. "Subsidiary of the Company" shall have the meaning
set forth in Section 425(f) of the Code.
Section 3 Eligibility. Awards and/or Options may be
granted to any Employee. The Board of Directors (or the
Committee) shall have the sole authority to select the persons to
whom Awards and/or Options are to be granted hereunder, and to
determine whether a person is to be granted a Non-Qualified
Option, an ISO or an Award or any combination thereof. No person
shall have any right to participate in the Plan Any person
selected by the Board of Directors for participation during any
one period will not by virtue of such participation have the
right to be selected as a Participant for any other period.
Section 4. Common Stock Subject to the Plan.
4.1. The total number of shares of Common stock for which
Options and/or Awards may be granted under this Plan shall not
exceed in the aggregate three million two hundred fifty thousand
(3,250,000) shares of Common Stock.
4.2. The shares of Common stock that may be subject to
Options and/or Awards granted under this Plan may be either
authorized and unissued shares or shares reacquired at any time
and now or hereafter held as treasury stock as the Board of
Directors may determine. In the event that any outstanding
Option expires or is terminated for any reason, the shares
allocable to the unexercised portion of such Option may again be
subject to an Option an/or Award granted under this Plan. If any
shares of Common Stock acquired pursuant to an Award or the
exercise of an Option shall have been repurchased by the Company,
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then such shares shall again become available for issuance
pursuant to the Plan.
4.3. 0. (a) The aggregate fair market value (determined as
of the date an ISO is granted) of the shares of Common Stock with
respect to which ISOs are exercisable for the first time by an
Employee during any calendar year (under all Incentive Stock
Option Plans of the Company or any Parent or Subsidiary of the
Company) shall not exceed $100,000.
(b) No ISO shall be granted to an Employee who, at the time
the ISO is granted, owns (actually or constructively under the
provisions of Section 425[d3 of the Code) stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Company or any Parent or Subsidiary of the Company,
unless the option price is at least 110% of the fair market value
(determined as of the time the ISO is granted) of the shares of
Common Stock subject to the ISO and the ISO by its terms is not
exercisable more than five years from the date it is granted.
4.4. Notwithstanding any other provision of the Plan, the
provisions of Sections 4.3(a) and (b) shall not apply, nor shall
be construed to apply, to any Non-Qualified Option or Award
granted under the Plan.
Section 5. Administration of the Plan.
5.1. The Plan shall be administered by the Board of
Directors or, if established at any time by the Board of
Directors, by a committee thereof (the "Committee"). The
Committee shall be appointed from time to time by, and shall
serve at the pleasure of, the Board of Directors. Each member of
the Committee and each member of the Board of Directors who shall
participate in any decision with respect to the Plan shall be a
"disinterested person" within the meaning of Rule 16b-3 as
promulgated under the Securities Exchange Act of 1934, as
amended.
5.2. (a) Option. The Board of Directors (or the
Committee) shall have the sole authority and discretion under
this Plan:
(i) to select the Participants who are to be granted
Options hereunder;
(ii) to designate whether any Option to be granted
hereunder is to be an ISO or a Non-Qualified Option;
(iii)to establish the number of shares of Common Stock that
may be issued under each Option;
(iv) to determine the time and the conditions subject to
which Options may be exercised in whole or in part;
(v) to determine the form of the consideration that may be
used to purchase share of Common Stock upon exercise
of any Option (including the circumstances under which
the Company's issued and outstanding shares of Common
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Stock may be used by a Participant to exercise an
Option);
(vi) to impose restrictions and/or conditions with respect
to shares of Common stock acquired upon exercise of an
Option;
(vii)to determine the circumstances and conditions subject
to which shares acquired upon exercise of an Option
may be sold or otherwise transferred, including,
without limitation, the circumstances and conditions
subject to which a proposed sale of share of Common
stock acquired upon exercise of an Option may be
subject to the Company's right of first refusal (as
well as the terTns and conditions of any such right of
first refusal);
(ix) to establish a vesting provision for any Option
relating to the time (or the circumstance) when the
Option may be exercised by a Participant, including
vesting provision which may be contingent upon the
Company meeting specified financial goals;
(x) to accelerate the time when outstanding Options may be
exercised, provided, however, that any ISOs shall be
"accelerate" within the meaning of Section 425(h) of
the code; and
(xi) to establish any other terms, restrictions and/or
conditions applicable to any Option not inconsistent
with the provisions of this Plan.
(b) Awards. The Board of Directors (or the Committee)
shall have the sole authority and discretion under this Plan:
(i) to select the Participants who are to be granted
Awards hereunder;
(ii) to determine the amount to be paid by a Participant
to acquire share of Common Stock pursuant to an
Award, which amount may be equal to, more than, or
less than 100% of the fair market value of such
shares on the date the Award is granted (but in no
event less than the par value of such shares);
(iii) to determine the time or times and the conditions
subject to which Awards may be made;
(iv) to determine the time or times and the conditions
subject to which the shares of Common stock subject
to an Award are to become vested and no longer
subject to repurchase by the Company;
(v) to establish transfer restrictions and the terms and
conditions on which any such transfer restrictions
with respect to an Award shall lapse;
(vi) to establish vesting provisions with respect to any
share of Common stock subject to an Award, including
vesting provisions which may be contingent upon the
Company meeting specified financial goals;
(vii) to determine the circumstances under which share of
Common Stock acquired pursuant to an Award may be
subject to repurchase by the Company;
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(viii)to determine the time or times and the conditions
subject to which any share of Common stock subject
to an Award may be repurchased by the Company (as
well as the terms and conditions of any such
repurchase);
(ix) to determine the circumstances and conditions subject
to which a proposed sale of shares of Common Stock
subject to an Award may be subject to the Company's
right of first refusal (as well as the terms an
conditions of any such right of first refusal);
(x) to determine the form of consideration that may be
used to purchase shares of common Stock pursuant to
an Award (including the circumstances under which
the Company's issued and outstanding shares of
Common Stock may be used by a Participant to
purchase the Common stock subject to an Award);
(xi) to accelerate time at which any or all restrictions
imposed with respect to any shares of Common stock
subject to an Award will lapse or other wise remove
any or all such restrictions; and
(xii) to establish any other terms, restrictions and/or
conditions applicable to any Award not inconsistent
with the provisions of this Plan.
5.3. The Board of Directors (or the committee) shall be
authorized to interpret the Plan and may, from time to time,
adopt such rules and regulations, not inconsistent with the
provisions of the Plan, as it may deem advisable to carry out the
purpose of this Plan.
5.4. The interpretation and construction by the Board of
Directors (or the Committee) of any provision of the Plan, any
Option and/or Award granted hereunder or any agreement evidencing
any such Option and/or Award shall be final and conclusive upon
all parties.
5.5. Directors of the Company (or members of the Committee,
if established) who are "disinterested person" within the
meaning of Rule 16b-3 as promulgated under the Securities
Exchange Act of 1934, as amended, may vote on any matter
affecting the administration of the Plan or the granting of
Options and/or Awards under the Plan.
5.6. All expenses and liabilities incurred by the Board of
Directors (or the Committee) in the administration of the Plan
shall be borne by the Company. The Board of Directors (or the
Committee) may employ attorneys, consultants, accountants or
other persons in connection with the administration of the Plan.
The Company, and its officers and directors, shall be entitled to
rely upon the advice, opinions or valuations of any such persons.
No member of the Board of Directors (or the Committee) shall be
liable for any action, determination or interpretation taken or
made in good faith with respect to the Plan or any Option and/or
Award granted hereunder.
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Section 6. Terms and Conditions of Option.
6.1. ISOs. The terms an conditions of each ISO granted
under the Plan shall be specified by the Board of Directors (or
the Committee) and shall be set forth in an ISO agreement between
the Company and the Participant in such form as the ?Board of
Directors (or the Committee) shall approve. The terms and
conditions of each ISO shall be such that each ISO issued
hereunder shall constitute and shall be treated as an "incentive
stock option" as defined in Section 422A of the Code. The terms
and conditions of any ISO granted hereunder need not be identical
to those of any other ISO granted hereunder.
The terms and conditions of each ISO shall include the
following:
(a) The option price shall be fixed by the Board of
Directors (or the Committee) but shall in no event be less than
100% or (110% in the case of an Employee referred to in Section
4.3 [b] hereof) or the fair market value of the shares of Common
Stock subject to the ISO on the date the ISO is granted. For
purposes of this Plan, the fair market value per share of Common
Stock as of any day shall mean the average of the closing prices
of sales of shares of Common Stock on all national securities
exchanges on which the common stock may at the time be listed or
if there shall have been no sales on any such day, the average of
the highest bid and lowest asked prices on all such exchanges at
the end of such day or, if on any day the Common Stock shall not
be so listed the average of the representative bid and asked
prices quoted in the NASDAQ system as of 3:30 p.m., New York
time, on such day or, if on any day the Common stock shall not be
quoted in the NASDAQ system, the average of the high and low bid
and asked prices on such day in the over-the-counter market as
reported by National Quotation Bureau Incorporated, or any
similar successor organization. If at any time the Common Stock
is not listed on any national securities exchange or quoted in
the NASDAQ system or the over-the-counter market, the fair market
value of the shares of Common Stock subject to an Option on the
date the ISO is granted shall be the fair market value thereof
determined in good faith by the Board of Directors.
(b) ISOs, by their terms, shall not be transferable
otherwise than by will or the laws of descent and distribution,
and during an Optionee's lifetime, an ISO shall be exercisable
only by the Optionee.
(c) The Board of Directors (or the Committee shall fix the
term of all ISOs granted pursuant to the Plan, including the date
on which such ISO shall expire and terminate, provided, however,
that such term shall in no event exceed ten years from the date
on which such ISO is granted (or, in the case of an ISO granted
to an Employee referred to in Section 4.3[b] hereof, such term
shall in no event exceed five years from the date on which such
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ISO is granted.). Each ISO shall be exercisable in such amount
or amounts, under such conditions and at such times or intervals
or in such installments as shall be determined by the Board of
Directors (or the Committee) in its sole discretion.
(d) In the event that the Company or any Parent or
Subsidiary of the Company is required to withhold any Federal,
state or local taxes in respect of any compensation income
realized by the Participant as a result of any "disqualifying
disposition" of any shares of Common Stock acquired upon
exercise of an ISO granted hereunder, the Company shall deduct
from any payments of any kind otherwise due to such Participant
the aggregate amount of such Federal, state or local taxes
required to be so withheld or, if such payments are insufficient
to satisfy such Federal, state or local taxes, such Participant
will be required to pay to the Company, or make other
arrangements satisfactory to the Company regarding payment to the
Company of the aggregate amount of any such taxes. All matters
with respect to the total amount of taxes to be withheld in
respect of any such compensation income shall be determined by
the Board of Directors in its sole discretion.
(e) In the sole discretion of the Board of Directors (or
the Committee) the terms and conditions of any ISO may (but need
not) include any of the following provisions:
(i) In the event a Participant shall cease to be
employed by the Company or any Parent or Subsidiary of the
Company on a full-time basis for any reason other than as a
result of his death or "disability" (within the meaning of
Section 22[e][3] of the code), the unexercised portion of
any ISO held by such Participant at that time may only be
exercised within one month after the date on which the
Participant ceased to be so employed, and only to the extent
that the Participant could have otherwise exercised such ISO
as of the date on which the ceased to be so employed.
(ii) In the event a Participant shall cease to be
employed by the Company or any Parent or Subsidiary of the
Company on a full-time basis by reason of his "disability"
(within the meaning of Section 22[e][3] of the Code), the
unexercised portion of any ISO held by such Participant at
that time may only be exercised within one year after the
date on which the Participant ceased to be so employed, and
only to the extent that the Optionee could have otherwise
exercised such ISO as of the date on which he ceased to be
so employed.
(iii) In the event a Participant shall die while in
the full-time employ of the Company or a Parent or
Subsidiary of the Company (or within a period of one month
after ceasing to be an Employee for any reason other than
such "disability" or within a period of one year after
ceasing to be an Employee by reason of such "disability"),
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the unexercised portion of any ISO held by such Participant
at the time of his death may only be exercised within one
year after the date of such Participant's death, and only to
the extent that the Participant could have otherwise
exercised such ISO at the time of his death. In such event,
such ISO may be exercised by the executor or administrator
of the Participant's estate or by any person or persons who
shall have acquired the ISO directly from he participant by
bequest or inheritance.
6.2 Non-qualified Options. The Terms and conditions of
each Non-Qualified Option granted under the Plan shall be
specified by the Board of Directors (or the Committee), in its
sole discretion, and shall be set forth in a written option
agreement between the Company and Participant in such form as the
Board of Directors (or the Committee) shall approve. The terms
and conditions of each Option will be such that each Option
issued hereunder shall not constitute nor be treated as an
"incentive stock option" as defined in Section 422A of the Code
and will be a "non-qualified stock option" for Federal income
tax purposes. The terms and conditions of any Option granted
hereunder need not be identical to those of any other Option
granted hereunder.
The terms and conditions of each Option Agreement shall
include the following:
(a) The option (exercise) price shall be fixed by the Board
of Directors (or the Committee) and may be equal to, more than or
less than 100% of the fair market value of the shares of Common
Stock subject to the Non-Qualified Option on the date such Non-
qualified Option is granted.
(b) The Board of Directors (or the Committee) shall fix the
term of all non-qualified options granted pursuant to the Plan
(including the date on which such Non-qualified Option shall
expire and terminate). Such term may be more than ten years from
the date on which such Non-Qualified Option is granted. Each
Non-Qualified Option shall be exercisable in such amount or
amounts, under such conditions, and at such times or intervals or
in such installments as shall be determined by the Board of
Directors (or the Committee) in its sole discretion.
(c) Non-Qualified Options shall not be transferable
otherwise than by will or the laws of descent and distribution,
and during a Participant's lifetime a Non-Qualified Option shall
be exercisable only by the Participant.
(d) In the event that the Company is required to withhold
any Federal, state or local taxes in respect of any compensation
income realized by the Participant in respect of a Non-Qualified
Option granted hereunder or in respect of any shares of Common
Stock acquired upon exercise of a Non-Qualified Option, the
Company shall deduct from any payments of any kind otherwise due
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to such Participant the aggregate amount of such Federal, state
or local taxes required to be so withheld or, if such payments
are insufficient to satisfy such Federal, state or local taxes,
or if no such payments are due or to become due to such
Participant, then such Participant will be required to pay to the
Company, or make other arrangements satisfactory to the Company
regarding payment to the Company of, the aggregate amount of any
such taxes. All matters with respect to the total amount of
taxes to be withheld in respect of any such compensation income
shall be determined by the Board of Directors in its sole
discretion.
7. Terms and Conditions of Awards.
The terms and conditions of each Award granted under the
Plan shall be specified by the Board of Directors (or the
Committee), in its sole discretion, and shall be set forth in a
written agreement between the Participant and the Company, in
such form as the Board of Directors (or the Committee) shall
approve The terms and provisions of any Award granted hereunder
need not be identical to those of any other award granted
hereunder.
The terms and conditions of each Award shall include the
following:
(a) The amount to be paid by a Participant to acquire the
Shares of Common Stock pursuant to an Award shall be fixed by the
Board of Directors (or the Committee) and may be equal to, more
than or less than 100% of the fair market value of the shares of
common Stock subject to the Award on the date the Award is
granted.
(b) Each Award shall contain such vesting provision, such
transfer restrictions and such other restrictions and conditions
as the Board of Directors (or the Committee), in its sole
discretion, may determine, including, without limitation, the
circumstances under which the Company shall have the right and
option to repurchase shares of Common Stock acquired pursuant to
an Award.
(c) Stock certificates representing Common Stock acquired
pursuant to an Award shall bear a legend referring to the
restrictions imposed on such Stock and such other matters as the
Board of Directors may determine.
(d) In the event that the Company is required to withhold
any Federal, state or local taxes in respect of any compensation
income realized by the Participant in respect of any Award
granted hereunder, or in respect of any shares acquired pursuant
to an Award, or in respect of the vesting of any such shares of
Common Stock, the Company shall deduct from any payments of any
kind otherwise due to such participant the aggregate amount of
such Federal, state or local taxes, or if no such payments are
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due or to become due to such Participant, then such Participant
will be required to pay to the Company, or make other
arrangements satisfactory to the Company regarding payment to the
Company of, the aggregate amount of any such taxes. All matters
with respect to the total amount of taxes to be withheld in
respect of any such compensation income shall be determined by
the Board of Directors in its sole discretion.
Section 8. Adjustments. In the event that, after the
adoption of the Plan by the Board of Directors, the outstanding
shares of the Company's Common Stock shall be increased or
decreased or changed into or exchanged for a different number or
kin of shares of stock or other securities of the Company or of
another corporation through reorganization, merger or
consolidation, recapitalization, reclassification, stock split,
split-up, combination or exchange of shares or declaration of
any dividends payable in Common Stock, the Board of Directors
shall appropriately adjust (i) the number of shares of Common
Stock (and the option price per share) subject to the
unexercised portion of any outstanding Option (to the nearest
possible full share), provided, however, that the limitations of
Section 425 of the Code shall apply with respect to adjustments
made to ISOs; (ii) the number of shares of Common Stock to be
acquired pursuant to an Award which have not become vested; and
(ii) the number of shares of Common Stock for which Options
and/or Awards may be granted under this Plan, as set forth in
Section 4.1 hereof, and such adjustments shall be effective and
binding for all purposes of this Plan.
Section 9. Effect of the Plan on Employment Relationship.
Neither this Plan nor any Option and/or Award granted hereunder
to a Participant shall be construed as conferring upon such
Participant any right to continue in the employ of the Company
or the service of the Company or any subsidiary as the case may
be, or limit in any respect the right of the Company or any
Subsidiary to terminate such Participant's employment or other
relationship with the Company or any Subsidiary, as the case may
be, at any time.
Section 10. Amendment of the Plan. The Board of Directors
may amend the Plan from time to time as it deems desirable;
provided, however, that, without the approval of the holders of
a majority of the outstanding stock of the Company entitled to
vote thereon at a meeting, the Board of Directors may not amend
the Plan to increase (except for increases due to adjustments in
accordance with Section 8 hereof) the aggregate number of shares
of Common Stock for which Options and/or Awards may be granted
hereunder, (ii) to decrease the minimum exercise price specified
by the Plan in respect of ISOs, or (iii) change the class of
Employees eligible to receive ISOs under the Plan.
Section 11. Termination of the Plan. The Board of
Directors may terminate the Plan at any time. Unless the Plan
shall theretofore have been terminated by the Board of
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Directors, the Plan shall terminate ten years after the date of
its initial adoption by the Board of Directors. No Option
and/or Award may be granted hereunder after termination of the
Plan. The termination or amendment of the Plan shall not alter
or impair any rights or obligations under any Option and/or
Award theretofore granted under the Plan.
Section 12. Effective Date of the Plan. This Plan shall
be effective as of September 9, 1987, the date on which the Plan
was adopted by the Board of Directors of the Company and
approved by the unanimous written consent of holders of all the
outstanding stock of the Company.
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