As filed with the Securities and Exchange Commission on January 10, 1995
Registration No. 33-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement Under The Securities Act of 1933
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INTERGRAPH CORPORATION
(Exact Name of Issuer as Specified in Its Charter)
DELAWARE 63-0573222
(State of Incorporation) (IRS Employer Identification No.)
One Madison Industrial Park
Huntsville, Alabama 35894-0001
(Address of Principal Executive Offices)
-----------------------------
INTERGRAPH CORPORATION
ASSUMPTION OF OPTIONS UNDER INTERCAP GRAPHICS SYSTEMS, INC.
1989 STOCK OPTION PLAN
and
1994 NONQUALIFIED STOCK OPTION PROGRAM
(Full Title of the Plan)
John W. Wilhoite
Vice President
Intergraph Corporation
One Madison Industrial Park
Huntsville, Alabama 35894-0001
(Name and Address of Agent for Service)
(205) 730-2000
(Telephone Number, including area code, of Agent for Service)
-------------------------------
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
Being Being Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
- -------------------------------------------------------------------------------
Common Stock
(par value $.10 148,718 $9.625 $1,431,410.75 $493.59
per share)
- -------------------------------------------------------------------------------
(1) Pursuant to Rule 457, the offering price is estimated solely for the
purpose of determining the registration fee and is based on the average
of the bid and asked prices of the Common Stock on January 4, 1995.
===============================================================================
PART I
EXPLANATORY NOTE
----------------
This Registration Statement relates to the offering by Intergraph
Corporation (the "Company") of a maximum of 148,718 shares of common stock,
$.10 par value, of the Company ("Company Common Stock") to holders of options
("Options") originally granted by Intercap Graphics Systems, Inc. ("Intercap")
to purchase shares of Intercap common stock, $.01 par value ("Intercap Common
Stock"), pursuant to Intercap's 1989 Stock Option Plan and its 1994
Nonqualified Stock Option Program (the "Intercap Plans").
Pursuant to an Agreement and Plan of Reorganization, dated as of
September 30, 1994, as amended, among the Company, Intergraph DC Corporation
- - Subsidiary 7, a wholly owned subsidiary of the Company ("Intergraph Sub"),
and Intercap, Intergraph Sub will be merged with and into Intercap, and
Intercap will survive as a wholly owned subsidiary of the Company (the
"Merger"). At the effective time of the Merger, the Company will assume all
of the then outstanding Options granted under the Intercap Plans, and Company
Common Stock will be substituted for the Intercap Common Stock previously
covered by the assumed options.
A prospectus meeting the requirements of Part I of Form S-8 and
containing the statement required by Item 2 of Form S-8 has been prepared.
Such prospectus is not included in this Registration Statement but will be
delivered to all participants in the Plan pursuant to Rule 428(b)(1) under
the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission by the
Company are incorporated herein by reference and made a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993, as amended by the Form 10-K/A Amendment No. 1
filed by the Company on December 1, 1994 and the Form 10-K/A
Amendment No. 2 filed by the Company on December 9, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994, filed May 12, 1994, as amended by the
Form 10-Q/A Amendment No. 1 filed by the Company on December 1,
1994 and the Form 10-Q/A Amendment No. 2 filed by the Company
on December 9, 1994;
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1994, filed August 11, 1994 as amended by the
Form 10-Q/A Amendment No. 1 filed by the Company on December 1,
1994;
(4) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1994, filed October 26, 1994;
(5) The description of the Company's Common Stock contained in
Intergraph's Form 8-A Registration Statement filed on May 1,
1981, as amended by the Form 8 filed by the Company on
July 23, 1986;
(6) The Company's Current Report on Form 8-K filed August 25, 1993;
and
(7) The Company's definitive Proxy Statement for the Annual Meeting
of Stockholders held May 12, 1994.
Each document or report subsequently 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 hereof and prior to the termination of the offering of the
Company Stock shall be deemed to be incorporated by reference herein and to be
a part hereof from the date of filing of such document.
Any statement contained herein, or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VIII(d) of the Certificate of Incorporation of the Company
permits indemnification of directors and officers to the full extent permitted
by the Delaware General Corporation Law.
Article IX of the Certificate of Incorporation of the Company
eliminates a director's personal liability for monetary damages for breaches of
his fiduciary duty, except for liability for: (a) breaches of the duty of
loyalty to the Company or its shareholders, (b) acts or omissions not in good
faith or involving intentional misconduct or knowing violations of the law, (c)
the payment of unlawful dividends or unlawful stock repurchases or redemptions,
or (d) transactions in which the director received an improper personal
benefit. Liability arising out of acts or omissions which occurred before the
enactment of Article IX are not covered by the provision.
Article IX of the Certificate of Incorporation of the Company also
authorizes the Company to indemnify an officer, director, employee, or agent of
the Company for all expenses, liability, and losses incurred in connection with
any action, suit, or proceeding in which he is or was a party or is threatened
to be made a party by reason of the fact that he is or was an officer or
director of the Company, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent, or in any
other capacity while serving as a director, officer, employee, or agent. This
provision permits indemnification only upon a finding by the disinterested
directors or the shareholders that he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company. Article IX also authorizes the Company to advance litigation expenses
to an officer or director prior to the final disposition of the action. The
making of such advance is conditioned upon the officer or director giving the
Company an undertaking to repay the amount advanced if indemnification is
ultimately deemed unavailable. If indemnification or advancement of expenses
is authorized, it will not exclude any rights to indemnification or advancement
of expenses which a director, officer, employee, or agent may have under a
by-law, agreement, board or shareholder resolution, or otherwise. The
indemnification or advancement of expenses provided by Article IX will continue
as to a person who ceases to be a director, officer, employee, or agent, and
inures to the benefit of his heirs, executors, and administrators.
Section 145 of the Delaware General Corporation Law permits
indemnification by the Company of any director, officer, employee or agent of
the Company or person who is serving or was serving at the Company's request as
a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with the defense of any threatened, pending or completed action
(whether civil, criminal, administrative or investigative), to which he is or
may be a party by reason of having been such director, officer, employee or
agent, provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal action or proceeding, he had no reasonable cause
to believe his conduct was unlawful. The Company also has the power under
Section 145 to indemnify the persons identified above from threatened, pending
or completed actions or suits by or in the right of the Company to procure a
judgment in its favor by reason of the fact that such person was a director,
officer, employee or agent of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or enterprise against expenses actually and reasonably incurred by him in
connection with the defense or settlement of the action if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the Company, except that no indemnification can be made with
regard to any claim, issue or matter as to which the person has been adjudged
to be liable for negligence or misconduct in the performance of his duty to the
Company unless and only to the extent that the Delaware Court of Chancery or
the court in which the action was brought determines that the person was fairly
and reasonably entitled to indemnity. Any indemnification (unless ordered by a
court) must be made by the Company only as authorized in the specific case upon
a determination that indemnification of the person is proper under the
circumstances because he has met the applicable standards of conduct.
The determination must be made by the Board of Directors by a majority vote of
a quorum consisting of directors who are not parties to the action, or if a
quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs, by independent counsel in a written opinion, or by the
stockholders. The Company may pay the expenses of an action in advance of
final disposition if authorized by the Board of Directors in a specific case
upon receipt of an undertaking by the person to be indemnified to repay any
such advances unless it shall ultimately be determined that such person is
entitled to be indemnified by the Company as authorized by law.
Article IX of the registrant's Bylaws provides for indemnification of
the registrant's directors, officers, employees or agents to the extent
permitted by Section 145 of the Delaware General Corporation Law. Article IX
of the registrant's Bylaws further provides that the registrant may purchase
and maintain insurance on behalf of those persons described above as eligible
for indemnification for liability arising out of such person's duties or status
with the registrant whether or not indemnification in respect of such liability
would be permissible.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
The following exhibits are filed herewith or incorporated by
reference herein as part of this Registration Statement:
Sequential Description
- ---------- ------------------------------------------------------------------
Exhibit
- -------
3(a) Certificate of Incorporation of the Company (Incorporated by
reference to exhibits filed with the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1984, File No. 0-9722).
3(b) Certificate of Amendment to Certificate of Incorporation of the
Company (Incorporated by reference to exhibits filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1987, File No. 0-9722).
3(c) Bylaws of the Company (Restated as of August 11, 1993)
(Incorporated by reference to exhibits filed with the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993,
File No. 0-9722).
4(a) Agreement and Plan of Reorganization, dated as of September 30,
1994, between the Company, Intergraph DC Corporation - Subsidiary
7 ("Intergraph Sub"), and InterCAP Graphics Systems, Inc.
("InterCAP") (Incorporated by reference to exhibits filed with the
Company's Registration Statement on Form S-4, Registration No.
33-85740, filed on October 28, 1994, File No. 0-9722).
4(b) Amendment No. 1 to Agreement and Plan of Reorganization, dated as
of December 7, 1994, between the Company, Intergraph Sub and
InterCAP (Incorporated by reference to exhibits filed with
Pre-Effective Amendment No. 3 to the Company's Registration
Statement on Form S-4, Registration No. 33-85740, filed on
December 8, 1994, File No. 0-9722).
4(c) Intercap Graphics Systems, Inc. 1989 Stock Option Plan.
4(d) Intercap Graphics Systems, Inc. 1994 Nonqualified Stock Option
Program.
4(e) Shareholder Rights Plan, dated August 25, 1993 (Incorporated by
reference to exhibits filed with the Company's Current Report on
Form 8-K dated August 25, 1993, File No. 0-9722).
5 Opinion and Consent of B. Judson Hennington III as to the validity
of the shares of the Company's Common Stock.
23(a) Consent of B. Judson Hennington III (included in the opinion in
Exhibit 5).
23(b) Consent of Ernst & Young LLP.
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; 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 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 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.
SIGNATURES
----------
The Registrant. 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 Huntsville, State of Alabama, on
January 9, 1995.
INTERGRAPH CORPORATION
By:
------------------------------------
James W. Meadlock
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------------------------- -------------------------------- ----------------
/s/ James W. Meadlock Chairman of the Board, Chief January 9, 1995
- --------------------------- Executive Officer and Director
James W. Meadlock (Principal Executive Officer)
/s/ Larry J. Laster Executive Vice President, Chief January 9, 1995
- --------------------------- Financial Officer and Director
Larry J. Laster (Principal Financial Officer)
/s/ Roland E. Brown Director January 9, 1995
- --------------------------
Roland E. Brown
/s/ Nancy B. Meadlock Executive Vice President and January 9, 1995
- -------------------------- Director
Nancy B. Meadlock
/s/ Keith H. Schonrock, Jr. Director January 9, 1995
- ---------------------------
Keith H. Schonrock, Jr.
/s/ James F. Taylor, Jr. Director January 9, 1995
- --------------------------
James F. Taylor, Jr.
/s/ Robert E. Thurber Executive Vice President and January 9, 1995
- -------------------------- Director
Robert E. Thurber
/s/ John W. Wilhoite Vice President and Controller January 9, 1995
- -------------------------- (Principal Accounting Officer)
John W. Wilhoite
INDEX TO EXHIBITS
Sequential
Exhibit Description Page Number
- ---------- ------------------------------------------------------ -----------
3(a) Certificate of Incorporation of the Company (Incorporated
by reference to exhibits filed with the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1984, File No. 0-9722).
3(b) Certificate of Amendment to Certificate of Incorporation
of the Company (Incorporated by reference to exhibits
filed with the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1987, File No. 0-9722).
3(c) Bylaws of the Company (Restated as of August 11, 1993)
(Incorporated by reference to exhibits filed with the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1993, File No. 0-9722).
4(a) Agreement and Plan of Reorganization, dated as of
September 30, 1994, between the Company, Intergraph DC
Corporation - Subsidiary 7 ("Intergraph Sub"), and
InterCAP Graphics Systems, Inc. ("InterCAP") (Incorporated by
reference to exhibits filed with the Company's
Registration Statement on Form S-4, Registration No.
33-85740, filed on October 28, 1994, File No. 0-9722).
4(b) Amendment No. 1 to Agreement and Plan of Reorganization, dated as
of December 7, 1994, between the Company, Intergraph Sub and
InterCAP (Incorporated by reference to exhibits filed with
Pre-Effective Amendment No. 3 to the Company's Registration
Statement on Form S-4, Registration No. 33-85740, filed on
December 8, 1994, File No. 0-9722).
4(c) Intercap Graphics Systems, Inc. 1989 Stock Option Plan.
4(d) Intercap Graphics Systems, Inc. 1994 Nonqualified Stock
Option Program.
4(e) Shareholder Rights Plan, dated August 25, 1993
(Incorporated by reference to exhibits filed with the
Company's Current Report on Form 8-K dated August 25,
1993, File No. 0-9722).
5 Opinion and Consent of B. Judson Hennington III as to
the validity of the shares of the Company's Common Stock.
23(a) Consent of B. Judson Hennington III (included in the
opinion in Exhibit 5).
23(b) Consent of Ernst & Young LLP.
EXHIBIT 4(c)
INTERCAP GRAPHICS SYSTEMS, INC.
1989 STOCK OPTION PLAN
InterCAP Graphics Systems, Inc., a Delaware corporation (the "Company"), in
order to retain and attract personnel for positions of responsibility with the
Company and its subsidiaries and to provide an additional incentive to such
personnel by offering them an opportunity to obtain a proprietary interest in
the Company, hereby authorizes options to be granted to eligible employees (as
hereinafter defined) of the Company and its subsidiaries to purchase shares of
Common Stock of the Company ("shares") upon the terms and conditions described
below in this InterCAP Graphics Systems, Inc., 1989 Stock Option Plan (the
"Plan").
1. Administration of the Plan. The Plan shall be administered, and the
options under the Plan shall be granted, by the Compensation Committee of the
Company (the "Committee") as appointed by the Board of Directors of the
Company. The members of the Committee shall serve, without compensation, at
the pleasure of the Board. Subject to the provisions of the Plan, the
Committee shall be authorized to interpret the Plan and the options granted
under the Plan, to establish, amend and rescind any rules and regulations
relating to the Plan, to determine the terms and provisions of the options
described in Section 4 hereof, and to make all other decisions necessary or
advisable for the administration of the Plan. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or in
any option in the manner and to the extent the Committee deems desirable to
carry it into effect. Any decision of the Committee in the administration of
the Plan, as described herein, shall be final and conclusive. The Committee
may act only by a majority of its members in office, except that the members
thereof may authorize any one or more of their number or any officer of the
Company to execute and deliver documents on behalf of the Committee. No member
of the Committee shall be liable for anything done or omitted to be done by him
or by any other member of the Committee in connection with the Plan, except for
his own willful misconduct or as expressly provided by statute.
2. Number of Shares Subject to Option. The aggregate number of shares which
may be issued under the Plan is 255,590 shares of Common Stock of the Company.
Such shares may be either authorized but unissued or reacquired shares. If the
Company effects one or more stock splits, stock dividends, combinations,
exchanges of shares or similar capital adjustments, the number and kind of
shares with respect to which options may be granted under the Plan, the number
and kind of shares subject to each outstanding option and the option price per
share under each such option shall be proportionately and appropriately
adjusted by the Committee so that each optionee shall be entitled to receive
such number of shares or other securities which the optionee would have been
entitled to receive had the option been exercised prior to the occurrence of
such event. If any option granted under the Plan, or any portion thereof,
shall expire or terminate for any reason without having been exercised in full,
the shares with respect to which it has not been exercised shall be available
for further options under the Plan.
Under this Plan and under all stock option plans of the Company and its parent
and subsidiary corporations, the aggregate fair market value (determined at the
time the option is granted) of the shares with respect to which incentive stock
options are exercisable for the first time by the optionee during any calendar
year shall not exceed $100,000.
3. Eligible Employees. Options may be granted only to officers, other
employees, or consultants of the Company and of such other corporations as are
subsidiary corporations of the Company at the time of grant who, in the
judgment of the Committee, are in a position to contribute significantly to the
Company's success ("eligible employees"). The Committee is hereby given the
authority to select the particular eligible employees to whom options under the
Plan are to be granted, to determine the number of shares to be optioned to
each such employee and the exercise period of such options, and to grant one or
more options under the Plan to any such employee from time to time. Nothing in
the Plan or in any option granted under the Plan shall confer any rights on any
officer or other employee to continue in the employ of the Company or any of
its subsidiary corporations or shall interfere in any way with the right of the
Company or any of its subsidiary corporations, as the case may be, to determine
his employment at any time.
4. Terms of Options. Options granted under the Plan, irrespective of the
date of grant thereof, may be "incentive stock options" meeting the
requirements for such options prescribed by Section 422A of the Internal
Revenue Code, as amended, or may be options not so qualifying as incentive
stock options ("nonqualified options"). The determination as to whether or not
an option granted under the Plan shall be an incentive stock option shall be
made by the Committee.
Each option granted under the Plan shall comply with the following terms and
conditions:
(a) The option price shall not be less than the fair market value of the
shares subject to the option at the time the option is granted, as
determined in good faith by the Committee, or less than the par value of
the shares. In the case of incentive stock options granted to an employee
owning stock which represents more than 10% of the voting power of all
classes of the Company's stock, the option price shall not be less than
110% of the fair market value of the shares subject to such option at the
time the option is granted, as determined in good faith by the Committee.
(b) The option shall not be transferable by the optionee otherwise than
by will or the laws of descent and distribution, and shall be exercisable
during his lifetime only by him.
(c) An option shall not be exercisable
(i) after the expiration of ten years from the date it is granted,
or in the case of incentive stock options granted to an employee
owning stock which represents more than 10% of the voting power of
all classes of the Company's stock, after the expiration of five
years from the date it is granted;
(ii) unless the shares subject to the option are registered under the
Securities Act of 1933, as amended, and applicable state laws or the
Company shall be satisfied that the issuance of shares upon exercise
will be exempt from registration under said Act and applicable state
laws;
(iii) unless written notice of exercise, in form satisfactory to the
Committee, is given to the Company;
(iv) unless the person exercising the option has been, at all times
during the period beginning with the date of the granting of the
option and ending on the date of such exercise, an officer or
employee of the Company or of one of its subsidiary corporations, or
of a corporation or a parent or subsidiary or a corporation assuming
the option in a transaction to which Section 425(a) of the Code
applies, except
(A) if such person shall cease to be such an officer or
employee by reason of his disability or retirement under an
approved retirement program of the Company or subsidiary thereof
or by reason of his involuntary termination by the Company
without cause while holding an option which has not expired and
has not been fully exercised, such person, at any time within
ninety (90) days of the date he ceased to be such an officer or
employee (but in no event after the option has expired under the
provisions of Paragraph 4(c)(i) hereof or, if earlier, under the
provisions of the option) may exercise the option with respect
to any shares as to which he could have exercised the option on
the date he ceased to be such an officer or employee, or
(B) if any person to whom an option has been granted shall die
holding an option which has not been fully exercised, his estate
or any person who acquired the right to exercise the option by
bequest or inheritance or by reason of the death of such person
may, at any time within one year after the date of such death
(but in no event after the option has expired under the
provisions of Paragraph 4(c)(i) hereof or, if earlier, under the
provisions of the option) exercise the option with respect to
any shares as to which the decedent could have exercised the
option at the time of his death; and
(v) unless the person exercising the option makes payment to the
Company in full in United States dollars by cash or check of such
amount as is sufficient to satisfy to Company's obligation, if any,
to withhold federal, state and local taxes by reason of such exercise
or makes such other arrangement satisfactory to the Committee as will
enable the Company to satisfy such obligation.
(d) Each option granted under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time
in accordance with the Plan and all applicable laws and regulations and
shall be subject to such terms and conditions relating to the time at
which the option may first be exercised and the number of shares with
respect to which it may thereafter be exercised from time to time (for
example, in cumulative annual or other periodic installments), and to such
additional terms and conditions not inconsistent with the Plan or
applicable laws and regulations, as the Committee may in its discretion
determine. Each option granted under the Plan shall require that the
person exercising the option shall, at the time notice of exercise is
given pursuant to Section 4(c)(iii) hereof, make full payment in United
States dollars by cash or certified bank cashier's check of the option
exercise price of the shares being acquired.
(e) The Committee is authorized in its discretion and with the consent of
the optionee to make amendments, not in conflict with the Plan or any
applicable law or regulation, in the terms of any option granted under the
Plan.
5. Interpretation. The words "employee", "own", "outstanding", and
"disposition", the term "subsidiary corporation" and any other words or terms
used in the Plan or in the options granted under the Plan which are defined or
used in Sections 422A or 425 of the Code shall, unless the context clearly
requires otherwise, have the meanings assigned to them therein, irrespective of
whether or not such options are incentive stock options.
6. Amendment. The Plan may be amended at any time and from time to time by
the Board of Directors of the Company, but no amendment (i) altering the
definition of eligible employees, (ii) increasing the aggregate number of
shares which may be issued under options granted pursuant to the Plan affecting
this sentence, (iii) reducing the minimum option price, or (iv) increasing the
maximum term of options, or any other amendment requiring shareholder approval
under the Delaware General Corporation Law or the Code, shall be effective
unless the same be approved by the stockholders of the Company not later than
the date 12 months after the Board adopts the amendment (or such earlier date
as may be required by the Delaware General Corporation Law). No amendment of
the Plan shall alter or impair any of the rights or obligations of any person,
without his consent, under any option theretofore granted under the Plan.
7. Termination. The Plan shall terminate upon the earlier of the following
dates or events to occur:
(a) Upon the adoption of a resolution of the Board of Directors of the
Company terminating the Plan; or
(b) On the day preceding the tenth anniversary of the date on which the
Plan is adopted by the Board of Directors of the Company.
No termination of the Plan shall alter or impair any of the rights or
obligations of any person, without his consent, under any option theretofore
granted under the Plan.
EXHIBIT 4(d)
INTERCAP GRAPHICS SYSTEMS INC.
1994 NONQUALIFIED STOCK OPTION PROGRAM
1. Purpose. This program (the "Program") is adopted to
reward certain employees and officers of InterCAP Graphics Systems
Inc., a Delaware corporation (the "Company") for past service and
to induce those persons to remain in the employ of the Company
following its merger (the "Merger") with Intergraph DC Corporation
- - Subsidiary 7 ("Intergraph Sub"), a Delaware corporation and a
wholly-owned subsidiary of Intergraph Corporation ("Intergraph"),
a Delaware corporation.
2. Administration of the Program. The Program shall be
administered by the Board of Directors; provided, however, that to
the extent required by Rule 16b-3 of the Securities and Exchange
Commission ("Rule 16b-3") under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), with respect to specific
grants of options, the Program shall be administered by a
disinterested administrator or administrators within the meaning of
Rule 16b-3. Subject to the provisions of the Program, the Board
shall have full and final authority, in its discretion, to take any
action with respect to the Program. No member of the Board of
Directors or the Board shall be liable for any action or
determination made in good faith with respect to the Program or any
option or right granted under it.
3. Effective Date. The effective date of the Program is
September [26], 1994. Options may be granted under the Program on
and after the effective date, but not after September [25], 2004.
4. Options; Shares of Stock Subject to the Program. Only
options which are not intended to qualify as incentive stock
options under Section 422 of the Internal Revenue Code of 1986
("nonqualified options") may be granted under the Program. For
purposes of the Program, 391,562 shares of Common Stock of the
Company, par value $.01 per share (the "Shares") may be issued
pursuant to the exercise of options granted hereunder (subject to
adjustment as provided below), and the Company has reserved
sufficient authorized Shares to provide for the exercise of such
options. Any Share subject to an option which, for any reason,
expires or is terminated unexercised may not be subjected to
another option granted hereunder.
5. Eligibility for Nonqualified Stock Options. An option
may be granted under this Program only to an individual who
satisfies all of the following eligibility requirements on the date
the option is granted: (a) the individual is an employee or
officer of the Company or a related corporation; (b) the individual
holds options to acquire Shares granted pursuant to the Company's
1989 Stock Option Plan (the "1989 Plan"); and (c) the individual,
being otherwise eligible under this Paragraph 5, is selected by the
Board as an individual to whom an option shall be granted (an
"Optionee"). Nothing herein shall confer upon any Optionee any
right to continue in the employ of the Company or a related
corporation or to interfere in any way with the right of the
Company or a related corporation to terminate such employment at
any time.
6. Option Price. The price per share at which an option may
be exercised (the "option price") shall be established by the Board.
7. Stock Option Agreement. The grant of any option under
the Program shall be evidenced by the execution of an agreement
(the "Agreement") between the Company and the Optionee in the form
attached hereto as Exhibit A. Such Agreement shall also set forth
the restrictions, if any, to which Shares purchased thereunder
shall be subject, and such other terms and conditions as the Board
in its discretion shall determine are consistent with the
provisions of the Program and applicable law and regulations.
Reference is made to the form of Agreement attached hereto for the
terms and conditions of the Program relating to when an option
shall be considered to be granted, the period during which an
option may be exercised and the procedure which shall govern the
exercise of each option granted under the Program.
8. Nontransferability of Options. No option shall be
assignable or transferable by the Optionee except as may be
specifically provided to the contrary in the Agreement.
9. Dilution or Other Adjustments. The Shares subject to any
option granted pursuant to this Program shall be subject to
adjustment as provided in the Agreement upon any change in the
outstanding shares of common stock of Intergraph following the
Merger.
10. Restriction of Shares. The Company may impose such
restrictions on any Shares purchased under the Program as it may
deem advisable, including, without limitation, under the Securities
Act of 1933, as amended, and under any blue sky or securities laws
applicable to such Shares.
11. Amendment or Termination. The Program may be amended or
terminated by action of the Board; provided, that: (a) any change
in (i) the aggregate number of Shares which may be issued under the
Program (other than changes described in Paragraph 9), (ii) the
description of the class of employees eligible to receive options
under the Program, or (iii) the expiration date of the Program to
a date after September [25], 2004, shall be made only with the
approval of holders of a majority of all of the shares of capital
stock of the Company that are entitled to vote thereon, obtained
within twelve months before or after the Board adopts a resolution
authorizing any of the preceding actions; (b) no option shall be
adversely affected by a subsequent amendment or termination of the
Program; and (c) no option shall be amended without the consent of
the Optionee.
12. Applicable Law. Except as otherwise provided herein, the
Program shall be construed and enforced according to the laws of
the State of Delaware.
SUGGESTED RESOLUTIONS
FOR THE BOARD OF DIRECTORS OF
INTERCAP GRAPHICS SYSTEMS, INC.
---------------------------------
WHEREAS, the Company has received a bid for the sale of the
Company to Intergraph Corporation ("Intergraph"), a Delaware
corporation, in a transaction in which the Company would become a
wholly-owned subsidiary corporation of Intergraph through a merger
of an existing subsidiary of Intergraph, Intergraph DC Corporation
- - Subsidiary 7, a Delaware corporation (the "Intergraph Sub"), with
and into the Company (the "Merger") on the terms and subject to the
conditions set forth in the form of the Agreement and Plan of
Reorganization (the "Merger Agreement") by and among the Company,
Intergraph and the Intergraph Sub distributed to the Directors in
advance of the meeting;
WHEREAS, following discussion by the Directors of the
information presented at this meeting and at prior meetings of the
Board of Directors concerning the proposed transaction, and upon
their review of the materials presented and reviewed at this
meeting, the Board of Directors deems it desirable and in the best
interest of the Company and of the stockholders to authorize and
direct the officers of the Company to execute and deliver the
Merger Agreement in order to preserve and realize the value of the
offer presented and the transaction negotiated on behalf of the
stockholders of the Company; and
WHEREAS, the Board of Directors deems it desirable and in the
best interest of the Company and of the stockholders to authorize
and direct the officers of the Company to execute and deliver such
additional agreements and instruments ancillary to the execution
and delivery of the Merger Agreement and to take such additional
actions as are necessary or appropriate in connection with the Merger;
NOW, THEREFORE, BE IT RESOLVED, that the Merger is hereby
approved and the Merger Agreement is hereby adopted and approved,
and the Board of Directors hereby directs that consideration of the
Merger and the Merger Agreement be submitted for adoption and
approval by the stockholders of the Company as soon as practicable;
FURTHER RESOLVED, that the President of the Company, and such
additional officers of the Company as he may designate (the
President and such additional officers are sometimes referred to as
the "Authorized Officers"), are hereby authorized and directed to
execute and deliver for and on behalf of the Company, and to cause
its subsidiary corporations as appropriate (the "Subsidiaries"), to
execute and deliver the Merger Agreement in substantially the form
reviewed by the Directors in connection with this meeting, and with
such additional terms and conditions as the Authorized Officers
shall in their discretion approve, such approval to be evidenced
conclusively by their execution and delivery thereof;
FURTHER RESOLVED, that the Authorized Officers are hereby
authorized and directed to execute and deliver for and on behalf of
the Company, and further to cause the Subsidiaries to execute and
deliver, such additional and ancillary agreements, instruments,
documents or certificates, and to execute and deliver such other
documents described in or attached as an exhibit to the Merger
Agreement, as the Authorized Officers may in their discretion
determine to be necessary, proper or convenient; and that the
Authorized Officers are hereby authorized and directed to execute
and cause to be filed on behalf of the Company, and further to
cause the Subsidiaries to execute and cause to be filed, all
necessary or appropriate certificates, including but not limited to
executing and filing upon stockholder approval of the Merger a
Certificate of Merger in the form attached as an Exhibit to the
Merger Agreement, and requests for approvals required of all
governmental authorities to consummate the transactions
contemplated by the Merger Agreement, on such forms and with such
terms as specified in the Merger Agreement or as otherwise
determined by such officers in their discretion to be necessary,
proper or convenient;
FURTHER RESOLVED, that the Authorized Officers are hereby
authorized and directed to execute and deliver for and on behalf of
the Company an agreement by and between the Company and certain of
the holders of the issued and outstanding shares of Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock of the Company (the "Preferred Stock Agreement"), in
substantially the form as reviewed by the Directors in connection
with this meeting; that the resolution set forth in the form of
Certificate of Amendment to the Certificate of Incorporation of the
Company (the "Amendment") which appears as an Exhibit to the
Preferred Stock Agreement be and hereby is adopted and approved;
that such Amendment be submitted for adoption and approval by the
stockholders of the Company as soon as practicable; and that, upon
approval by the stockholders of the Amendment, the
Authorized Officers are hereby authorized and directed to execute
and cause the Amendment to be filed on behalf of the Company with
the Secretary of State of Delaware;
FURTHER RESOLVED, that, the resolution adopted by the Board of
Directors on March 1, 1991, authorizing the grant of options for
shares of Common Stock remaining for grant under the InterCAP
Graphics Systems, Inc. 1989 Employee Stock Option Plan (the "Plan")
in the event of a change of control of the Company, to be made on
a pro rata basis among then outstanding options at a weighted
average exercise price of all options then outstanding, shall be
and hereby is rescinded, and that, from and as of the date hereof,
no new options shall be granted under the Plan, and all shares of
Common Stock reserved for issuance pursuant to options granted
under the Plan that have not been allocated to options granted
prior to this date, being 391,562 shares, shall be and hereby are
released from reservation under the Plan;
FURTHER RESOLVED, that there is hereby adopted the InterCAP
Graphics Systems, Inc. 1994 Nonqualified Stock Option Program (the
"Program"), in the form of such Program and accompanying form of
Nonqualified Stock Option Agreement (the "NQSO Agreement") attached
hereto as Schedule A, and in connection with the adoption of the
Program, there are hereby reserved for issuance under the Program
a total of 391,562 shares of Common Stock of the Company;
FURTHER RESOLVED, that there are hereby granted pursuant to
the Program options to acquire up to 391,562 shares of Common Stock
of the Company to the individuals listed on Schedule B hereto, in
such amounts and at the exercise prices set forth on such Schedule
opposite their names, and that the proper officers of the Company,
acting for and on behalf of the Company, are authorized and
directed to execute and deliver one or more NQSO Agreements to
provide for the grant of options hereunder;
FURTHER RESOLVED, that the Company is hereby authorized and
directed to make loans to those employees and officers of the
Company listed on Schedule C hereto (each such employee and
officer, a "Borrower"), in the amounts set forth on such schedule
(collectively, the "Loans"), provided that the proceeds of each
Loan be used by the respective Borrower to repay all of his or her
indebtedness to the Company arising under and evidenced by a
promissory note made by such Borrower to the Company on September
13, 1993; and that each Loan be evidenced by delivery by the
Borrower to the Company of a promissory note in the principal
amount of the Loan to such Borrower in substantially the form of
note attached as Schedule D;
FURTHER RESOLVED, that Mr. Mills and Mr. Gebhardt are each
hereby authorized and directed to execute and deliver for and on
behalf of the Company the form of amendment agreement provided to
the Board of Directors in advance of this meeting which amends the
employment agreement by and between the Company and A. G. W.
Biddle, III of September 10, 1990 (the "Biddle Employment
Agreement") to confirm the revised termination date of the Biddle
Employment Agreement and to clarify the bonus payable to Mr. Biddle
under the Biddle Employment Agreement in connection with a
termination without cause; and
FURTHER RESOLVED, that the Authorized Officers are hereby
authorized and directed to do and perform all such acts and things
and execute and deliver and cause to be filed such additional
documents or certificates for and on behalf of the Company, and
further to cause the Subsidiaries to do and perform all such acts
and things and execute and deliver and cause to be filed such
additional documents or certificates, as may be necessary, proper
or convenient in order to carry out the intent of the foregoing
resolutions, and the Company hereby ratifies, adopts and agrees to
be bound by all such acts performed by any such officer prior to
the adoption of the foregoing resolutions.
EXHIBIT 5
[Letterhead of Intergraph Corporation]
January 10, 1995
Board of Directors
Intergraph Corporation
One Madison Industrial Park
Huntsville, Alabama 35894-0001
Re: Intergraph Corporation -- Registration of 148,718
Shares of $.10 Par Value Common Stock on Securities
and Exchange Commission Form S-8
Gentlemen:
In connection with the registration under the Securities
Act of 1933, as amended, of 148,718 shares of common stock, $.10
par value (the "Company Stock") of Intergraph Corporation, a
Delaware corporation (the "Company"), for issuance and sale in the
manner described in the Company's registration statement on Form S-8
filed with the Securities and Exchange Commission, to which this
opinion will be an exhibit (the "Registration Statement"), I, as
Associate General Counsel to the Company, have examined such
corporate records, certificates, other documents, proceedings, and
matters of law as I have considered necessary or appropriate for
the purposes of rendering this opinion.
Based on the foregoing, I am of the opinion that the
shares of Company Stock offered pursuant to the Registration
Statement have been duly and validly authorized and, when issued in
accordance with appropriate corporate proceedings and the terms of
the respective governing documents, will be duly and validly
issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Yours very truly,
\s\ B. Judson Hennington
B. Judson Hennington III
Assistant General Counsel
BJHIII:
Exhibit 23 (b)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to Intergraph Corporation's assumption
of options under InterCAP Graphics Systems, Inc. 1989 Stock Option Plan
and 1994 Nonqualified Stock Option Program of our reports dated January
28, 1994, with respect to the consolidated financial statements of
Intergraph Corporation incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1993 and the related financial
statement schedules included therein, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Birmingham, Alabama
January 9, 1995
