As filed with the Securities and Exchange Commission on May 21, 1998
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DATAPOINT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-16015174
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4 Rue' D Aguesseau, 75008 Paris, France
and
8410 Datapoint Drive, San Antonio, Texas, U.S.A. 78229-8500
(Address of Principal Executive Offices, including zip code)
DATAPOINT CORPORATION
1996 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
Gerald N. Agranoff
8410 Datapoint Drive
San Antonio, Texas 78229-8500
(Name and address of agent for service)
(210) 593-7000
(Telephone number, including area code, of agent for service)
Copy to:
BUTLER & BINION, L.L.P.
112 E. Pecan, Suite 2700
San Antonio, Texas 78205
Attn: James M. Hughes
(210) 227-2200
Fax No.: (210) 223-6730
Calculation of Registration Fee
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ------------------------- ---------------- ------------------ -------------------- -------------------
Title of Securities Amount Proposed Proposed maximum Amount of
to be registered to be maximum offering aggregate offering registration
registered price per share* price fee*
- ------------------------- ---------------- ------------------ -------------------- -------------------
Common 2,000,000 $2.09 $4,180,000 $1,233.10
Stock shares
- ------------------------- ---------------- ------------------ -------------------- -------------------
</TABLE>
* Computed pursuant to Rule 457(h) based on the average of the high and low
reported prices on May 19, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the Note to
Part I of Form S-8 and Rule 428 promulgated under the Securities Act of
1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, and all documents subsequently filed by
Datapoint Corporation (the "Company") pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
prior to the filing of a post-effective amendment to the Registration Statement
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 shall be deemed to be a part hereof
from the date of the filing of such documents:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended August 2, 1997 (SEC File No. 001-07636);
(b) the Company's Quarterly Reports on Form 10-Q for the quarterly
period ended November 1, 1997 and January 31, 1998 (File No.
001-07636); and
(c) Description of Registrant's Securities Registered" in the
Company's Registration Statement on Form 8-A (File No.
1-17630) describing the Company's Common Stock; which
references the Company's Prospectus dated February 26, 1976
filed under Registration No. 2-55430, as supplemented by the
description contained in the Company's Registration Statement
on Form S-16 (Registration No. 2-72395).
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides generally and in pertinent part that a Delaware corporation may
indemnify its directors and officers against expenses, judgments, fines, and
settlements actually and reasonably incurred by them in connection with any
civil, criminal, administrative, or investigative suit or action except actions
by or in the right of the corporation if, in connection with the matters in
issue, they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, and in connection
with any criminal suit or proceeding, if in connection with the matters in
issue, they had no reasonable cause to believe their conduct was unlawful.
Section 145 further provides that in connection with the defense or settlement
of any action by or in the right of the corporation, a Delaware corporation may
indemnify its directors and officers against expenses actually and reasonably
incurred by them if, in connection with the matters in issue, they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect to any claim, issue, or matter as to which such person has been adjudged
liable to the corporation unless the Delaware Court of Chancery or other court
in which such action or suit is brought approves such indemnification. Section
145 further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and otherwise, and
to purchase indemnity insurance on behalf of its directors and officers. Article
Eight of the Certificate of Incorporation and Section 7.7 of the Bylaws of the
Company provide, in general, that the Company may and shall, respectively,
indemnify its officers and directors to the full extent permitted by Delaware
law. Article Nine of the Certificate of Incorporation of the Company further
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages or breach of fiduciary duty as
a director except for any breach of the director's duty of loyalty, for acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, for unlawful payment of dividends or unlawful stock
purchases or redemptions, or for any transaction from which the director derived
a personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit Number
and Description
(4) Instruments defining the rights of security holders, including
indentures
4.1 Specimen Stock Certificate
4.2 The Company's 1996 Employee Stock Option Plan
(5) Opinion re legality
5.1 Opinion of Butler & Binion, L.L.P.
(23) Consents of experts and counsel
23.1 Consent of Butler & Binion, L.L.P. (included in its
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
(24) Power of attorney (included on the signature page hereof)
<PAGE>
Item 9. Undertakings.
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 to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 San Antonio, State of Texas, on April 28, 1998.
DATAPOINT CORPORATION
By: /s/ Gerald N. Agranoff
Gerald N. Agranoff, Vice President,
General Counsel and Corporate Secretary
<PAGE>
FRONT SIDE:
COMMON This Certificate is Transferable in
STOCK New York, New York and Jersey City, New Jersey
PAR VALUE
TWENTY-FIVE CENTS
DS 6823
Number
Incorporated Under CUSIP 238100 20 0
the Laws of Delaware SEE REVERSE FOR CERTAIN DEFINITIONS
DATAPOINT CORPORATION
THIS CERTIFIES THAT________________________________________________________
IS THE OWNER OF ___________________________________________________________
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Datapoint Corporation transferable on the books of the company by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar. Witness the
seal of the company and the signatures of its duly authorized officers. Dated
DATAPOINT
CORPORATE
SEAL COUNTERSIGNED AND REGISTERED:
DELAWARE CONTINENTAL STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT
AND REGISTRAR
Secretary Chairman of the Board
and Chief Executive Officer AUTHORIZED SIGNATURE
BACK SIDE:
DATAPOINT CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS, THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE
CORPORATION, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. SUCH REQUEST MAY BE MADE TO THE CORPORATION OR TO THE
TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face of
the certificate, shall be construed as though they were written out in full
according to applicable law or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT - ..Custodian.
TEN ENT -as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act____________
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________ HEREBY SELL, ASSIGN AND TRANSFER UNTO
Please Insert Social Security or Other
Identifying Number of Assignee
_____________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________
___________________________________________________________________ Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_____________________________________________________________________________
Attorney to transfer the said stock on the books of the within named Company
with full power of substitution in the premises.
Dated_______________
___________________________________
DATAPOINT CORPORATION
1996 EMPLOYEE STOCK OPTION PLAN
ARTICLE I
Purpose
The purpose of the Datapoint Corporation 1996 Employee Stock Option Plan is
to provide certain selected employees of Datapoint Corporation and its
subsidiaries an opportunity to purchase or receive shares of Common Stock of
Datapoint Corporation or to benefit from the appreciation thereof, thus
providing an increased incentive for these employee to contribute to the future
success and prosperity of Datapoint Corporation, enhancing the value of the
stock for the benefit of the stockholders, and increasing the ability of
Datapoint Corporation to attract and retain individuals of exceptional skills.
ARTICLE II
Definitions
The following capitalized terms used in the Plan shall have the respective
meanings set forth in this Article:
2.1 Board: The Board of Directors of Datapoint Corporation.
2.2 Code: The Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
2.3 Committee: The Committee, appointed by the Board and described in
Section 3.2 of the Plan, that shall be responsible for administering the Plan
and making Option Grants hereunder.
2.4 Common Stock: The common stock of Datapoint Corporation.
2.5 Company: Datapoint Corporation and any of its Subsidiaries, if any.
2.6 Disability: Disability within the meaning of section 22(e)(3) of the
Code, as determined by the Committee.
2.7 Employer: The corporation that employs the employee or Optionee.
2.8 Fair Market Value: The average of the high and low reported sales
prices of Common Stock on the New York Stock Exchange-Composite Tape as reported
in the Southwest edition of The Wall Street Journal. If there were no Common
Stock sales on such day, then:
a. in the case of an Option grant, Fair Market Value is the average of the
high and low reported sales prices on the last preceding day on which sales
occurred; and
b. in the case of the exercise of an Option, the Fair Market Value is the
"Weighted Average" of the average of the high and low reported sales prices on
the last preceding day on which sales occurred and such average on the first
succeeding day on which sales occurred. The Weighted Average is determined by
first multiplying (i) the average between the high and low sales prices on the
last preceding day on which sales occurred by the number of days after exercise
until the first subsequent sales occurred, and (ii) the average between the high
and low sales prices on the next succeeding day on which sales occurred by the
number of days before exercise of the last preceding day on which sales
occurred.
2.9 ISO: An incentive stock option within the meaning of section 422 of the
Code.
2.10 Non-Employee Director: A director who: (i) is not currently an officer
or employee of Datapoint Corporation or of any Subsidiary; (ii) (A) does not
receive compensation, either directly or indirectly, for any non-director
service in an amount that would be required to be disclosed under Item 404(a) of
Regulation S-K or (B) possess an interest in any other transaction requiring
disclosure under such Item; and (iii) is not engaged in a business relationship
disclosable under Item 404(b) of Regulation S-K.
2.11 Non-ISO: A stock option that is not an ISO.
2.12 Option: A stock option granted under the Plan.
2.13 Option Price: The purchase price of a share of Common Stock under an
Option.
2.14 Optionee: An employee of the Company who has been granted one or more
Options.
2.15 Parent Corporation: A parent corporation, as defined in section 424(e)
of the Code.
2.16 Plan: The Datapoint Corporation 1996 Employee Stock Option Plan, as
from time to time amended. 2.17 Restricted Period: A period beginning on the
date the Option is granted and ending on a date determined by the Committee.
2.18 Restricted Stock: Common Stock subject to the restrictions described
in Section 6.11 of the Plan, so long as such restrictions are in effect.
2.19 Retirement: Retirement on or after age sixty-five, or, with the
advance consent of the Company, at an earlier age.
2.20 Stock Appreciation Right: A Stock Appreciation Right as defined in
Section 6.7 of the Plan.
2.21 Subsidiary: A subsidiary corporation, as defined in section 424(f) of
the Code.
2.22 Termination Date: a date fixed by the Committee but not later, with
respect to an ISO, than the day preceding the tenth anniversary of the date on
which the Option is granted or, with respect to a Non-ISO, than the day
following the tenth anniversary of the date on which the Option is granted.
ARTICLE III
Administration
3.1 Except as otherwise provided in the Plan, the Committee shall
administer the Plan and shall have full power to grant Options, construe and
interpret the Plan, establish and amend rules and regulations for its
administration, and perform all other acts relating to the Plan, including the
delegation of administrative responsibilities, which it believes reasonable and
proper.
3.2 The Committee shall consist of not less than three members of the
Board, all of whom shall be Non-Employee Directors, and appointed by the Board.
The members of the Committee shall serve at the pleasure of the Board, which
shall have the power, at any time and from time to time, to remove members from
the Committee or to add members thereto. Vacancies on the Committee, however
caused, shall be filled by the Board. The Board shall take all steps necessary
to assure that the Committee is composed of Non-Employee Directors within the
meaning of Rule 16b-3 as promulgated under the Securities Exchange Act of 1934,
as amended, and that Options granted under this Plan comply in all respects with
the requirements of Rule 16b-3. Options granted hereunder shall be approved in
advance by the Committee. However, if the Committee, for whatever reason, is
unable to act, then Options granted under this Plan shall be approved in advance
by the Board.
3.3 Subject to the provisions of the Plan, the Committee shall establish
the policies and criteria pursuant to which it shall grant Options and
administer the Plan. Subject to the provisions of the Plan, the Committee shall,
in its discretion, determine which employees of the Company shall be granted
Options, the number of shares subject to option under any such Options, the
dates after which Options may be exercised, in whole or in part, and the terms
and conditions of the Options. This shall include Options granted with terms and
conditions that will permit their designation in accordance with the wishes of
the prospective Optionee as ISOs or Non-ISOs.
3.4 The Committee may at any time, with the consent of the Optionee, in its
sole discretion, cancel any Option and issue to the Optionee a new Option for an
equivalent or lesser number of Common Stock shares, and at a lesser Option
Price.
3.5 Any decision made, or action taken, by the Committee or the Board
arising out of or in connection with the interpretation and administration of
the Plan shall be final and conclusive.
ARTICLE IV
Shares Subject to the Plan
4.1 The total number of shares of Common Stock available for grants of
Options under the Plan shall be 2,000,000, subject to adjustment in accordance
with Article VIII of the Plan. These shares may be either authorized but
unissued or reacquired shares of Common Stock. If an Option or portion thereof
shall expire, terminate or be cancelled for any reason without having been
exercised in full, the unpurchased shares covered by such Option shall be
available for future grants of Options. An Option, or portion thereof, exercised
through the exercise of a Stock Appreciation Right pursuant to Section 6.7 of
the Plan shall be treated, for the purposes of this Article IV, as though the
Option, or portion thereof, had been exercised through the purchase of Common
Stock, with the result that the shares of Common Stock subject to the Option, or
portion thereof, that was so exercised shall not be available for future grants
of Options.
ARTICLE V
Eligibility
5.1 Options may be granted to employees of the Company or, with respect to
Non-ISO's, to persons who have been engaged to become employees of the Company.
Members of the Board who are not employees of the Company shall not be eligible
for Option grants hereunder.
ARTICLE VI
Terms of Options
6.1 Option Agreements. All Options shall be evidenced by written agreements
executed by the Company and the Optionee. Such Options shall be subject to the
applicable provisions of the Plan, and shall contain such provisions as are
required by the Plan and any other provisions the Committee may prescribe. All
agreements evidencing Options shall specify the total number of shares subject
to each grant, the Option Price and the Termination Date. Those Options that
comply with the requirements for an ISO set forth in section 422 of the Code at
the request of the Optionee shall be designated ISOs, and all other Options
shall be designated Non-ISOs.
6.2 Option Price. The Option Price shall not be less than seventy-five
percent (75%) of the Fair Market Value of a share of Common Stock on the date
the Option is granted. However, if the Option is intended to be an ISO, the
Option Price shall not be less than the Fair Market Value of a share of Common
Stock on the date the Option is granted.
6.3 Period of Exercise. The Committee shall determine the dates after which
Options may be exercised in whole or in part for any reason whatsoever. If
Options are exercisable in installments, installments or portions thereof that
are exercisable and not exercised shall accumulate and remain exercisable. The
Committee may also amend an Option to accelerate the dates after which Options
may be exercised in whole or in part. However, no Option or portion thereof
shall be exercisable after the Termination Date; in addition, no Option or
portion thereof granted to any Optionee subject to the restrictions of Section
16(b) of the Securities Exchange Act of 1934, as amended, shall be made
exercisable during the six month period beginning on the date such Option was
granted.
6.4 Special Rules Regarding ISOs Granted to Certain Employees.
Notwithstanding any contrary provisions of Section 6.2 and 6.3 of the Plan, no
ISO shall be granted to any employee who, at the time the Option is granted,
owns (directly, or within the meaning of section 424(d) of the Code) more than
ten percent of the total combined voting power of all classes of stock of the
Employer or of any Subsidiary or Parent Corporation thereof, unless (a) the
Option Price under such Option is at least one hundred and ten percent (110%) of
the Fair Market Value of a share of Common Stock on the date the Option is
granted and (b) the Termination Date of such Option is a date not later than the
day preceding the fifth anniversary of the date on which the Option is granted.
6.5 Manner of Exercise and Payment. An Option, or portion thereof, shall be
exercised by delivery of a written notice of exercise to the Company and payment
of the full price of the shares being purchased pursuant to the Option. An
Optionee may exercise an Option with respect to less than the full number of
shares for which the Option may then be exercised, but an Optionee must exercise
the Option in full shares of Common Stock. The price of Common Stock purchased
pursuant to an Option, or portion thereof, may be paid in United States dollars
in cash or by check, bank draft or money order payable to the order of the
Company, or, if specifically permitted under the terms of the Option, through
the delivery of shares of Common Stock with an aggregate Fair Market Value on
the date of exercise equal to the Option Price, or by any combination of the
above methods of payment. The Committee shall determine acceptable methods for
tendering Common Stock as payment upon exercise of an Option and may impose such
limitations and prohibitions on the use of Common Stock to exercise an Option as
it deems appropriate, including, without limitation, any limitation or
prohibition designed to avoid certain accounting consequences which may result
from the use of Common Stock as payment upon exercise of an option.
6.6 Withholding Taxes. The Company may, in its discretion, require an
Optionee to pay to the Company the amount, or make such other arrangements, at
the time of exercise or thereafter, that the Company deems necessary to satisfy
its obligation to withhold Federal, state or local income or other taxes
incurred by reason of the exercise.
6.7 Stock Appreciation Rights. At or after the grant of an Option, the
Committee, in its discretion, may provide an Optionee with an alternate means of
exercising an Option, or a designated portion thereof, by granting the Optionee
a Stock Appreciation Right. A Stock Appreciation Right is a right to receive,
upon exercise of an Option or any portion thereof, in the Committee's
discretion, an amount of cash equal to and/or shares of Common Stock having a
Fair Market Value on the date of exercise equal to the excess of the Fair Market
Value of a share of Common Stock on the date of exercise over the Option Price,
multiplied by the number of shares of Common Stock that the Optionee would have
received had the Option or such portion thereof been exercised through the
purchase of shares of Common Stock at the Option Price, provided that (a) such
Option or portion thereof has been designated as exercisable in this alternative
manner, (b) such Option or portion thereof is otherwise exercisable, and (c) the
Fair Market Value of a share of Common Stock on the date of exercise exceeds the
Option Price.
6.8 Nontransferability of Options. Each Option shall, during the Optionee's
lifetime, be exercisable only by the Optionee, and neither it nor any right
hereunder shall be transferable otherwise than by will, the laws of descent and
distribution, or, solely with respect to Non-ISO's, a qualified domestic
relations order (as defined in the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder) nor will any Option granted
hereunder be subject to attachment, execution or other similar process. In the
event of any attempt by the Optionee to alienate, assign, pledge, hypothecate or
otherwise dispose of an Option or of any right hereunder, except as provided for
herein, or in the event of any levy or any attachment, execution or similar
process upon the rights of interests hereby conferred, the Company may terminate
the Option by notice to the Optionee and the Option shall thereupon become null
and void.
6.9 Cessation of Employment of Optionee.
(a) Cessation of Employment other than by Reason of Retirement, Disability,
or Death. If an Optionee shall cease to be employed by the Company otherwise
than by reason of Retirement, Disability, or death, each Option held by the
Optionee, together with all rights hereunder, shall be exercisable only to the
extent exercisable on the date of the cessation of employment, and shall
terminate on the earlier of the Termination Date or the one hundred and
eightieth day following the date of cessation of employment, to the extent not
previously exercised; provided, however, that in the event the Optionee's
employment with the Company is terminated due to his gross misconduct, the
Options granted to such Optionee hereunder shall be null and void after such
termination occurs or such determination is made by the Committee.
(b) Cessation of Employment by Reason of Retirement or Disability. If an
Optionee shall cease to be employed by the Company by reason of Retirement or
Disability, each Option held by the Optionee shall remain exercisable, to the
extent it was exercisable at the time of cessation of employment, until the
earliest of:
i. the Termination Date,
ii. the death of the Optionee, or such later date not more
than one year after the death of the Optionee as the Committee, in its
discretion, may provide pursuant to section 6.9(c) of the Plan, or
iii. the first anniversary of the date of the cessation of
the Optionee's employment,
and thereafter all such Options shall terminate together with all rights
hereunder, to the extent not previously exercised.
(c) Cessation of Employment by Reason of Death. In the event of the death
of the Optionee, while employed by the Company, an Option may be exercised at
any time or from time to time prior to the earlier of the Termination Date or
the first anniversary of the date of the Optionee's death, by the person or
persons to whom the Optionee's rights under each Option shall pass by will or by
the applicable laws of descent and distribution, to the extent that the Optionee
was entitled to exercise it on the Optionee's date of death. In the event of the
death of the Optionee while entitled to exercise an option pursuant to Section
6.9(b), the Committee, in its discretion, may permit such Option to be exercised
at any time or from time to time prior to the Termination Date during a period
of up to one year from the death of the Optionee, as determined by the
Committee, by the person or persons to whom the Optionee's rights under each
Option shall pass by will or by the applicable laws of descent and distribution,
to the extent that the Option was exercisable at the time of cessation of the
Optionee's rights under an Option have passed by will or by the applicable laws
of descent and distribution shall be subject to all terms and conditions of the
Plan and the Option applicable to the Optionee.
6.10 Notification of Sales of Common Stock. Any Optionee who disposes of
shares of Common Stock acquired upon the exercise of an ISO: (a) within two
years after date of the grant of the ISO under which the shares were acquired;
(b) within one year after the transfer of such shares to the Optionee; or (c)
more than three months after his termination of employment with the Company,
shall notify the Company of such disposition and of the amount realized upon
such disposition. In the event an Optionee terminates employment with the
Company due to Disability, the words "three months" in Section 6.10(c) shall be
replaced with the words "one year."
6.11 Restrictions Upon Shares of Common Stock Acquired Upon Exercise of an
Option:
(a) Provisions Concerning Restricted Stock. An Option may provide, in the
discretion of the Committee, that all or a portion of the Common Stock to be
received by the Optionee upon exercise of the Option (including exercise of a
Stock Appreciation Right) shall be Restricted Stock. None of the shares of
Common Stock acquired by the Optionee upon the exercise of an Option shall be
Restricted Stock unless the Option agreement expressly provides that all or a
portion of such shares shall be shares of Restricted Stock and the Restricted
Period with respect to such shares is stated in the Option agreement. The
Committee may establish different Restricted Periods with respect to different
shares of Common Stock acquired pursuant to an Option. The Committee may also
accelerate the dates at which the Restricted Period ends or otherwise waive or
modify the restrictions on Restricted Stock with the consent of the Optionee
before or after an Option is exercised, Common Stock delivered to an estate,
heir or beneficiary of an Optionee pursuant to the exercise of an Option after
the Optionee's death shall not be Restricted Stock.
(b) Restrictions on Transferability. During the Restricted Period shares of
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered, except as provided herein. Except for such restrictions, the
Optionee, as owner of such shares, shall have all the rights of a stockholder,
including (but not limited to) the right to receive all dividends paid on such
shares and the right to vote such shares. Restricted Stock may be transferred to
the Company in satisfaction of the Company's obligation to withhold taxes
pursuant to Section 6.6 of the Plan, or be placed into escrow to secure the
Company's ability to satisfy such obligation, and any restrictions with respect
to shares transferred in satisfaction of such obligation shall terminate. Each
certificate issued in respect of shares of Restricted Stock acquired pursuant to
the exercise of an Option shall be registered in the name of the Optionee, shall
be deposited by him with the Company together with stock power endorsed in blank
and shall be the following (or similar legend):
"The shares represented by this certificate are subject to restrictions on
transferability imposed by that certain instrument entitled 'Datapoint
Corporation 1996 Employee Stock Option Plan', which grants to the Company an
option to purchase such shares in certain instances. A copy of such Plan is on
file at the principal office of the Company."
At the end of the Restricted Period, or when the restrictions have
otherwise terminated with respect to one or more shares of Restricted Stock, the
Company shall deliver to the Optionee (or his legal representative, beneficiary
or heir) one share of Common Stock without the legend referred to herein for
each such share of Restricted Stock deposited with it by the Optionee.
(c) Company's Option to Repurchase upon Cessation of Employment. If an
Optionee cease to be an employee of the Company during the restricted Period for
any reason, the Company shall have an option, with respect to Options exercised
otherwise than pursuant to a Stock Appreciation Right, to purchase all or a
portion of the shares of Restricted Stock acquired by the Optionee pursuant to
the exercise of an Option, at a price equal to the price originally paid
therefor by the Optionee. With respect to shares of Restricted Stock acquired
pursuant to the exercise of a Stock Appreciation Right, the Company shall have
the option to reacquire such shares without the payment of any consideration.
The Company may exercise its option to purchase or reacquire the Restricted
Stock within ninety days of the date on which the Optionee ceases to be employed
by the Company. The Company shall exercise its option by giving notice to the
Optionee in writing of such exercise. The Company shall pay in cash the purchase
price for shares of Restricted Stock within five (5) days after exercising its
option pursuant to this paragraph. If the Company does not exercise its option
to purchase or reacquire shares of Restricted Stock, upon the expiration of the
period during which the Company may exercise its option to purchase such shares
of Restricted Stock, the Company shall deliver to the Optionee (or the
Optionee's legal representative, beneficiary or heir) one share of Common Stock
without the legend referred to herein for each share of Restricted Stock
deposited with it by the Optionee.
6.12 Change in Control.
Upon the occurrence of a Change in Control, each Stock Option outstanding
on the date on which the Change in Control occurs will immediately become
exercisable in full for the remainder of its term (regardless of employment
status) and each participant holding Stock Options will have the right, at his
or her election made during a period of sixty (60) days following the date on
which the Change in Control occurs, to have the Company purchase any or all such
Stock Options for an immediate lump-sum cash payment equal to the product of (1)
the excess, if any, of the higher of (i) the fair market value on the date
immediately prior to the date of payment, or if shares of Common Stock did not
trade on such date, on the last previous day on which shares of Common Stock
traded prior to such date, or (ii) the highest per share price for Common Stock
actually paid in connection with the Change in Control, over the per share
exercise price of each such Stock Option held, and (2) the number of shares of
Common Stock covered by each such Stock Option. For purposes of the Plan, the
term 'Change of Control' is defined as (i) any change in the person or group
that possess, directly or indirectly, the power to direct or cause the direction
of the management and the policies of the Company, whether through the ownership
of voting securities, by contract or otherwise; (ii) the acquisition, directly
or indirectly, of at least 20 percent of the outstanding securities of the
Company (other than by the Company, or any employee benefit plan of the Company)
together with a change in the majority of the Board in existence prior to the
first public announcement relating to any cash tender offer, exchange offer,
merger or other business combination, sale, lease or disposition of assets,
proxy or consent solicitation (other than by the Board of Directors of the
Company), contested election or substantial stock accumulation; (iii) certain
mergers and consolidations involving the Company; (iv) the sale, lease or other
disposition of all or substantially all of the Company's assets; and/or (v) a
liquidation or dissolution of the Company approved by its stockholders; and (vi)
a change in the majority of the Board in existence prior to the first public
announcement relating to any cash tender offer, exchange offer, merger or other
business combination, sale, lease or disposition of assets, proxy or consent
solicitation (other than by the Board of Directors of the Company), contested
election or substantial stock accumulation.
ARTICLES VII
Limitation on Grants of ISOs
7.1 The aggregate Fair Market Value (determined as of the date the Option
is granted) of the Common Stock which any employee may exercise for the first
time in any calendar year under this or any other stock option plan maintained
by the Employer or by any Subsidiary or Parent Corporation of the Employer as an
ISO shall be limited to $100,000 or such higher amount as may be permitted from
time to time under the Code.
ARTICLE VIII
Adjustments
8.1 If (a) the Company shall at any time be involved in a transaction to
which section 424(a) of the Code is applicable; (b) the Company shall declare a
dividend payable in, or shall subdivide or combine, its Common Stock; or (c) any
other event shall occur which in the judgment of the Committee necessitates
action by way of adjusting the terms of the outstanding Options, the Committee
shall take any such action, including price adjustment, as in its judgment shall
be necessary to preserve the Optionee's rights substantially proportionate to
the rights existing prior to such event, and to the extent that such action
shall include an increase or decrease in the number of shares of Common Stock
subject to outstanding Options, the number of shares available under Article IV
above shall be increased or decreased, as the case may be, proportionately. The
judgment of the Committee with respect to any matter referred to in this Article
shall be conclusive and binding upon each Optionee.
ARTICLE IX
Amendment and Termination of Plan
9.1 The Board may at any time, or from time to time, suspend or terminate
the Plan in whole or in part or amend it in such respects as the Board may deem
appropriate.
9.2 No amendment, suspension or termination of this Plan shall, with out
the Optionee's consent, alter or impair any of the rights or obligations under
any Option theretofore granted to an Optionee under the Plan.
9.3 The Board may amend this Plan, subject to the limitations cited above,
in such matter as it deems necessary to permit the granting of Options meeting
the requirements of future amendments or issued regulations, if any, to the Code
and Rule 16b-3.
ARTICLE X
Government and Other Regulations
10.1 The obligation of the Company to issue, or transfer and deliver shares
for Options exercised under the Plan shall be subject to all applicable laws,
regulations, rules, orders and approvals which shall then be in effect and
required by governmental entities and any stock exchanges on which Common Stock
is traded.
10.2 In addition to, and without limiting, the Company's rights under the
preceding paragraph, the Committee may postpone any exercise of an Option or
Stock Appreciation Right for such time as the Committee in its discretion may
deem necessary in order to permit the Company with reasonable diligence (i) to
effect or maintain the listing of the Common Stock in the New York Stock
Exchange or to effect or maintain registration under the Securities Act of 1933,
as amended, of the Plan or the shares issuable upon the exercise of the Option
or the Stock Appreciation Right, (ii) to determine that such shares and Plan are
exempt from registration, or (iii) to comply with any applicable laws,
regulations, rules, orders, or approval requirements then in effect and required
by governmental entities of any stock exchange on which the Common Stock is
traded. Any such postponement shall not extend the term of an Option, and
neither the Company nor its directors or officers shall have any obligation or
liability to any Optionee or Optionee's successor with respect to any shares
subject to an Option or Stock Appreciation Right that lapses unexercised because
of such postponement.
ARTICLE XI
Miscellaneous Provisions
11.1 Plan Does Not Confer Employment or Stockholder Rights. The right of
the Company to terminate (whether by dismissal or otherwise) the Optionee's
employment with it at any time at will, or as otherwise provided by any
agreement between the Company and the Optionee, is specifically reserved.
Neither the Optionee nor any person entitled to exercise the Optionee's rights
in the event of the Optionee's death shall have any rights of a stockholder with
respect to the shares subject to each Option, except to the extent that, and
until, such shares shall have been issued upon the exercise of each Option.
11.2 Plan Expenses. Any expenses of administering this Plan shall be borne
by the Company.
11.3 Use of Exercise Proceeds. Payments received from Optionees upon the
exercise of Options shall be used for the general corporate purposes of the
Company, except that any Common Stock received in payment may be retired, or
retained in the Company's treasury and reissued.
11.4 Indemnification. In addition to such other rights of indemnification
as they may have as members of the Board, or the Committee, the members of the
Committee and the Board shall be indemnified by the Company against all costs
and expenses reasonably incurred by them in connection with any action, suit or
proceeding to which they or any of them may be party by reason of any action
taken or failure to act under or in connection with the Plan or any Option
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except a judgment based upon a finding of bad faith;
provided that upon the institution of any such action, suit or proceeding a
Committee or Board member shall, in writing, give the Company notice thereof and
an opportunity, at its own expenses, to handle and defend the same before such
Committee or Board member undertakes to handle and defend it on such member's
own behalf.
ARTICLE XII
Shareholder Approval and Effective Dates
12.1 The Plan shall become effective when it is adopted by the Board.
However, if the Plan is not approved within one year after the Plan is adopted
by the Board by the vote at a meeting of the stockholders of Datapoint
Corporation of the holders of a majority of the outstanding shares of Datapoint
Corporation entitled to vote, the Plan and all Options shall terminate at the
time of that meeting of stockholders or, if no such meeting is held, after the
passage of one year from the date the Plan was adopted by the Board. Options may
not be granted under the Plan after November 1, 2006.
<PAGE>
EXHIBIT 5.1
Datapoint Corporation
8410 Datapoint Drive
San Antonio, Texas 78229-8500
Re: Distribution of up to 2,000,000 additional shares of Common Stock of
Datapoint Corporation pursuant to the 1996 Employee Stock Option Plan
Gentlemen:
We have acted as legal counsel for Datapoint Corporation, a Delaware
corporation ("Company"), in connection with the offer to certain selected
employees of the Company and its subsidiaries of a total of up to 2,000,000
additional shares (the "Shares") of the Company's common stock, $.01 par value
per share ("Common Stock"), issuable pursuant to the Company's 1997 Employee
Stock Option Plan ("Plan"), which were made available for distribution by the
shareholder's approval of the Plan on December 16, 1996.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purposes of giving the opinion
hereinafter set forth, including the examination of executed or conformed
counterparts, or copies certified or otherwise proved to our satisfaction of the
following:
(i) the Certificate of Incorporation of the Company as filed with
the Secretary of State of Delaware on September 20, 1976, as amended;
(ii) the Bylaws of the Company as of the date of this opinion;
(iii) the Company's Registration Statement on Form S-8 covering the Shares
("Registration Statement");
(iv) the Plan; and
(v) such other documents, corporate records, certificates and
other instruments as we have deemed necessary or appropriate
for the purpose of this opinion.
We have assumed the genuineness and authenticity of all signatures on
all original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation are prerequisites to
the effectiveness thereof.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
The Shares of Common Stock covered by the Registration Statement have
been duly authorized and when issued and sold in accordance with the Plan, will
be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Butler & Binion, L.L.P.
BUTLER & BINION, L.L.P.
Houston, Texas
May 21, 1998
<PAGE>
Datapoint Corporation
8410 Datapoint Drive
San Antonio, Texas 78229-8500
Re: Distribution of up to 2,000,000 additional shares of Common Stock of
Datapoint Corporation pursuant to the 1996 Employee Stock Option Plan
Gentlemen:
We have acted as legal counsel for Datapoint Corporation, a Delaware
corporation ("Company"), in connection with the offer to certain selected
employees of the Company and its subsidiaries of a total of up to 2,000,000
additional shares (the "Shares") of the Company's common stock, $.01 par value
per share ("Common Stock"), issuable pursuant to the Company's 1997 Employee
Stock Option Plan ("Plan"), which were made available for distribution by the
shareholder's approval of the Plan on December 16, 1996.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purposes of giving the opinion
hereinafter set forth, including the examination of executed or conformed
counterparts, or copies certified or otherwise proved to our satisfaction of the
following:
(i) the Certificate of Incorporation of the Company as filed with
the Secretary of State of Delaware on September 20, 1976, as amended;
(ii) the Bylaws of the Company as of the date of this opinion;
(iii) the Company's Registration Statement on Form S-8 covering the Shares
("Registration Statement");
(iv) the Plan; and
(v) such other documents, corporate records, certificates and
other instruments as we have deemed necessary or appropriate
for the purpose of this opinion.
We have assumed the genuineness and authenticity of all signatures on
all original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation are prerequisites to
the effectiveness thereof.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
The Shares of Common Stock covered by the Registration Statement have
been duly authorized and when issued and sold in accordance with the Plan, will
be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Butler & Binion, L.L.P.
BUTLER & BINION, L.L.P.
Houston, Texas
May 21, 1998
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the 1996 Employee Stock Option
Plan of Datapoint Corporation and to the incorporation by reference therein of
our report dated October 3, 1997, with respect to the consolidated financial
statements and schedule of Datapoint Corporation included in its Annual Report
(Form 10-K) for the year ended August 2, 1997, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
May 18, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald N. Agranoff, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
Chairman of the Board of Directors April 28, 1998
/s/ Asher B. Edelman and Chief Executive Officer
Asher B. Edelman (Principal Executive Officer)
/s/ Blake D. Thomas President, Chief Operating Officer and April 28, 1998
- ----------------------------
Blake D. Thomas Director (Principal Executive Officer)
/s/ Ronald G. Conn Vice President and Chief Financial April 28, 1998
- ----------------------------
Ronald G. Conn Officer (Principal Financial and
Accounting Officer)
/s/ Gerald N. Agranoff Vice President, General Counsel, April 28, 1998
- ----------------------------
Gerald N. Agranoff Corporate Secretary and Director
/s/ Phillip P. Krumb Vice President, Special Assistant to April 28, 1998
- ----------------------------
Phillip P. Krumb the Chairman and Director
/s/ Dnaiel R. Kail Director April 28, 1998
- ----------------------------
Daniel R. Kail
/s/ Didier M.M. Ruffat Director April 28, 1998
- ----------------------------
Didier M.M. Ruffat
/s/ Irving J. Garfinkel Director April 28, 1998
- ----------------------------
Irving J. Garfinkel
/s/ Robert D. Summer Director April 28, 1998
- ----------------------------
Robert D. Summer
/s/ Charles F. Robinson Director April 28, 1998
- ----------------------------
Charles F. Robinson
</TABLE>
