<PAGE> 1
As filed with the Securities and Exchange Commission on June 12, 1995
REGISTRATION NO. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
JOHN H. HARLAND COMPANY
(Exact Name of Registrant as Specified in Charter)
GEORGIA 58-0278260
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2939 MILLER ROAD
DECATUR, GEORGIA 30035
(404) 981-9460
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JOHN H. HARLAND COMPANY EMPLOYEE STOCK PURCHASE PLAN
JOHN H. HARLAND COMPANY 1981 INCENTIVE STOCK OPTION PLAN,
AS EXTENDED
(Full title of the Plans)
ROBERT R. WOODSON
CHAIRMAN, CHIEF EXECUTIVE OFFICER
AND PRESIDENT
JOHN H. HARLAND COMPANY
2939 MILLER ROAD
DECATUR, GEORGIA 30035
(404) 981-9460
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
RANDOLPH C. COLEY, ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303
(404) 572-4600
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Title of Each Proposed Proposed
Class of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share(1) Offering Price(1) Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $23.125 $34,687,500 $11,962
par value $1.00
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
reported sales price of the Registrant's Common Stock on the New York
Stock Exchange on June 7, 1995.
<PAGE> 2
PART II
This Registration Statement on Form S-8 relates to (i) an additional seven
hundred fifty thousand (750,000) shares of common stock, par value $1.00 (the
"Common Stock"), of John H. Harland Company (the "Company") to be issued to
employees of the Company and certain subsidiaries pursuant to the John H.
Harland Company 1981 Incentive Stock Option Plan, as Extended and (ii) an
additional seven hundred fifty thousand (750,000) shares of Common Stock to be
issued to employees of the Company and certain subsidiaries pursuant to the
John H. Harland Company Employee Stock Purchase Plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference into this Registration
Statement:
1. The Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1994;
2. All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1994; and
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated April 28, 1970, filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company subsequent to the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents.
Item 4. Description of Securities
Inapplicable
Item 5. Interest of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers
Article 8, Part 5 of the Georgia Business Corporation Code, Article
XI of the Company's Restated Articles of Incorporation, as amended, as well as
Article VI of the Company's Amended and Restated Bylaws provide for the
indemnification by the Company of, and advancement of expenses to, its
directors, officers, employees and agents.
<PAGE> 3
Statutory Authority
14-2-850. PART DEFINITIONS.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in
which the predecessor's existence ceased upon consummation of
the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the corporation's request if his duties to the corporation also
impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of the plan.
Director includes, unless the context requires otherwise, the
estate or personal representative of a director.
(3) "Expenses" include attorneys' fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses incurred with
respect to a proceeding.
(5) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
14-2-851. AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsections (d) and (e) of this Code
section, a corporation may indemnify or obligate itself to
indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the
proceeding if he acted in a manner he believed in good faith to
be in or not opposed to the best interests of the corporation
and, in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose he believed in good faith to be in the interests
of the participants in and beneficiaries of the plan is conduct
that satisfies the requirement of subsection (a) of this Code
section.
(c) The termination of a proceeding by judgment, order, settlement,
or conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director
did not meet the standard of conduct set forth in subsection (a)
of this Code section.
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<PAGE> 4
(d) A corporation may not indemnify a director under this Code
section:
(1) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged
liable to the corporation; or
(2) In connection with any other proceeding in which he
was adjudged liable on the basis that personal
benefit was improperly received by him.
(e) Indemnification permitted under this Code section in connection
with a proceeding by or in the right of the corporation is
limited to reasonable expenses incurred in connection with the
proceeding.
14-2-852. MANDATORY INDEMNIFICATION.
Unless limited by its articles of incorporation, to the extent that a
director has been successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party, or in defense of any claim, issue, or
matter therein, because he is or was a director of the corporation, the
corporation shall indemnify the director against reasonable expenses incurred
by him in connection therewith.
14-2-853. ADVANCE FOR EXPENSES.
(a) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance
of final disposition of the proceeding if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has met the
standard of conduct set forth in subsection (a) of Code
Section 14-2-851; and
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Code section must be an unlimited general obligation of the
director but need not be secured and may be accepted without
reference to financial ability to make repayment.
14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification or advances for expenses to the court conducting the proceeding
or to another court of competent jurisdiction. On receipt of an application,
the court after giving any notice the court considers necessary may order
indemnification or advances for expenses if it determines:
(1) The director is entitled to mandatory indemnification under
Code Section 14-2-852, in which case the court shall also
order the corporation to pay the director's reasonable
expenses incurred to obtain court ordered indemnification;
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set
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<PAGE> 5
forth in subsection (a) of Code Section 14-2-851 or was
adjudged liable as described in subsection (d) of Code
Section 14-2-851, but if he was adjudged so liable his
indemnification is limited to reasonable expenses incurred
unless the articles of incorporation or a bylaw, contract,
or resolution approved or ratified by the shareholders
pursuant to Code Section 14-2-856 provides otherwise; or
(3) In the case of advances for expenses, the director is
entitled, pursuant to the articles of incorporation,
bylaws, or any applicable resolution or agreement, to
payment or reimbursement of his reasonable expenses
incurred as a party to a proceeding in advance of final
disposition of the proceeding.
14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Code Section
14-2-851 unless authorized thereunder and a determination has
been made in the specific case that indemnification of the
director is permissible in the circumstances because he has met
the standard of conduct set forth in subsection (a) of Code
Section 14-2-851.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under paragraph (1) of this
subsection, by majority vote of a committee duly designated
by the board of directors (in which designation directors
who are parties may participate), consisting solely of two
or more directors not at the time parties to the
proceeding;
(3) By special legal counsel:
(A) Selected by the board of directors or its committee
in the manner prescribed in paragraph (1) or (2) of
this subsection; or
(B) If a quorum of the board of directors cannot be
obtained under paragraph (1) of this subsection and a
committee cannot be designated under paragraph (2) of
this subsection, selected by majority vote of the
full board of directors (in which selection directors
who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify
and evaluation as to reasonableness of expenses shall be made in
the same manner as the determination that indemnification is
permissible, except that if the determination is made by special
legal counsel, authorization of indemnification and evaluation
as to reasonableness of expenses shall be made by those entitled
under paragraph (3) of subsection (b) of this Code section to
select counsel.
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<PAGE> 6
14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION.
(a) If authorized by the articles of incorporation or a bylaw,
contract, or resolution approved or ratified by the shareholders
by a majority of the votes entitled to be cast, a corporation
may indemnify or obligate itself to indemnify a director made a
party to a proceeding including a proceeding brought by or in
the right of the corporation, without regard to the limitations
in other Code sections of this part.
(b) The corporation shall not indemnify a director under this Code
section for any liability incurred in a proceeding in which the
director is adjudged liable to the corporation or is subjected
to injunctive relief in favor of the corporation:
(1) For any appropriation, in violation of his duties, of any
business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct
or a knowing violation of law;
(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he received an improper
personal benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Code section, a corporation may advance
or reimburse expenses incurred in advance of final disposition
of the proceeding only if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that his conduct does
not constitute behavior of the kind described in subsection
(b) of this Code section; and
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification under this Code section.
14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES AND AGENTS.
Unless a corporation's articles of incorporation provide otherwise:
(1) An officer of the corporation who is not a director is
entitled to mandatory indemnification under Code Section
14-2-852 and is entitled to apply for court ordered
indemnification under Code Section 14-2-854, in each case
to the same extent as a director; and
(2) A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided
by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract.
14-2-858. INSURANCE.
A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of the
corporation or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust,
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<PAGE> 7
employee benefit plan, or other enterprise against liability asserted against
or incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the corporation would have power to
indemnify him against the same liability under Code Section 14-2-851 or Code
Section 14-2-852.
14-2-859. APPLICATION OF PART.
(a) A provision treating a corporation's indemnification of or
advance for expenses to directors that is contained in its
articles of incorporation, bylaws, a resolution of its
shareholders or board of directors, or in a contract or
otherwise, is valid only if and to the extent the provision is
consistent with this part. If articles of incorporation limit
indemnification or advance for expenses, indemnification and
advance for expenses are valid only to the extent consistent
with the articles.
(b) This part does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his
appearance as a witness in a proceeding at a time when he has
not been made a named defendant or respondent to the proceeding.
Articles of Incorporation Authority
ARTICLE XI OF THE COMPANY'S RESTATED ARTICLES OF INCORPORATION, AS
AMENDED, PROVIDES:
No Director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a Director, except for liability (i) for any appropriation, in
violation of his duties, of any business opportunity of the corporation, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for the types of liabilities set forth in
Section 14-2-832 [formerly Section 14-2-154] of the Georgia Business
Corporation Code, or (iv) for any transaction from which the Director derived
an improper personal benefit.
Bylaw Authority
ARTICLE VI OF THE COMPANY'S AMENDED AND RESTATED BYLAWS PROVIDES:
Section 1. Action Against Directors. The Corporation shall indemnify to
the fullest extent permitted by the Georgia Business Corporation Code, any
individual, made a party to a proceeding (as defined in the Georgia Business
Corporation Code) because he is or was a director, against liability (as
defined in the Georgia Business Corporation Code), incurred in the proceeding,
if he acted in a manner he believed in good faith to be in or not opposed to
the best interests of the Corporation and, in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
Section 2. Advance for Expenses of Directors. The Corporation shall pay
for or reimburse the reasonable expenses incurred by a director who is a party
to a proceeding if:
(a) The director furnishes the Corporation a written affirmation of
his good faith belief that he has met the standard of conduct
set forth in Section 1 above; and
(b) The director furnishes the Corporation a written undertaking,
executed personally on his behalf to repay any advances if it is
ultimately determined that he is not entitled to
indemnification.
The written undertaking required by paragraph (b) above must be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
-6-
<PAGE> 8
Item 7. Exemptions from Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit Description
4.1 Amended and Restated Articles of Incorporation filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993, and incorporated
herein by reference.
4.2 Restated Bylaws, as amended, filed as Exhibit 3(D) to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1990, and incorporated herein by reference.
4.3 Form of Rights Agreement dated as of June 9, 1989, between
the Registrant and Citizens and Southern Trust Company,
filed as Exhibit 1 to Form 8-K dated June 9, 1989 and
incorporated by reference herein.
4.4 First Amendment dated June 12, 1992 to Rights Agreement
dated June 9, 1989 between the Registrant and NationsBank
of Georgia, Inc., N.A., successor to Citizens and Southern
Trust Company, filed as Exhibit 4.1 on Form 10-Q for the
quarter ended September 30, 1992 and incorporated by
reference herein.
4.5 Second Amendment dated July 24, 1992 to Rights Agreement
dated June 9, 1989 between the Registrant and Trust Company
Bank, successor to NationsBank of Georgia, Inc., N.A. and
to Citizens and Southern Trust Company, filed as Exhibit
4.2 on Form 10-Q for the quarter ended September 30, 1992
and incorporated by reference herein.
5.1 Opinion of King & Spalding.
23.1 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page).
99.1 John H. Harland Company 1981 Incentive Stock Option Plan,
as Extended.
99.2 John H. Harland Company Employee Stock Purchase Plan.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
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<PAGE> 9
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(A) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(B) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(C) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement; provided,
however, that paragraphs (a)(1)(A) and (a)(1)(B) do not
apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the
Registration Statement.
(2) That for purposes 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.
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<PAGE> 10
EXPERTS
The financial statements and the related financial statement schedules of
the Company incorporated in this Registration Statement by reference from the
Company's Annual Report on Form 10-K for the year ended December 31, 1994 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report appearing in such Form 10-K (which report expresses an unqualified
opinion and includes an explanatory paragraph as to the change in method of
accounting for income taxes), and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Decatur, State of Georgia on the 12th day of
June, 1995.
JOHN H. HARLAND COMPANY
By:/s/ Robert R. Woodson
----------------------
Robert R. Woodson
Chairman, Chief Executive Officer
and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert R. Woodson and William M. Dollar and
each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for such persons and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and to perform each
and every act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacity indicated on the 12th day of June, 1995.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Robert R. Woodson Chairman, Chief Executive Officer
- --------------------------------------- and President (Principal Executive Officer)
Robert R. Woodson
/s/ William M. Dollar Vice President, Treasurer and
- -------------------------------------- Chief Financial Officer
William M. Dollar (Principal Financial and Accounting Officer)
/s/ Juanita P. Baranco Director
- --------------------------------------
Juanita P. Baranco
</TABLE>
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<PAGE> 12
<TABLE>
<CAPTION>
Signature Title
- ---------- -----
<S> <C>
/s/ Lawrence L. Gellerstedt, Jr. Director
- -----------------------------------------
Lawrence L. Gellerstedt, Jr.
/s/ Edward J. Hawie Director
- -----------------------------------------
Edward J. Hawie
/s/ John J. McMahon Director
- -----------------------------------------
John J. McMahon
/s/ G. Harold Northrop Director
- -----------------------------------------
G. Harold Northrop
/s/ H.G. Pattillo Director
- -----------------------------------------
H. G. Pattillo
/s/ Larry L. Prince Director
- -----------------------------------------
Larry L. Prince
/s/ John H. Weitnauer, Jr. Director
- -----------------------------------------
John H. Weitnauer, Jr.
/s/ Robert A. Yellowlees Director
- -----------------------------------------
Robert A. Yellowlees
</TABLE>
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<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page No.
- ------- ----------- --------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, filed as
Exhibit 3.1 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1993, and
incorporated herein by reference.
4.2 Restated Bylaws, as amended, filed as Exhibit 3(D) to
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1990, and incorporated herein by
reference.
4.3 Form of Rights Agreement dated as of June 9, 1989,
between the Registrant and Citizens and Southern Trust
Company, filed as Exhibit 1 to Form 8-K dated June 9,
989 and incorporated herein by reference.
4.4 First Amendment dated June 12, 1992 to Rights Agreement
dated June 9, 1989 between the registrant and
NationsBank of Georgia, Inc., N.A. successor to Citizens
and Southern Trust Company, filed as Exhibit 4.1 on Form
10-Q for the quarter ended September 30, 1992 and
incorporated herein by reference.
4.5 Second Amendment dated July 24, 1992 to Rights Agreement
dated June 9, 1989 between the Registrant and Trust
Company Bank, successor to NationsBank of Georgia, Inc.,
N.A. and to Citizens and Southern Trust Company, filed
as Exhibit 4.2 on Form 10-Q for the quarter ended
September 30, 1992 and incorporated herein by reference.
5.1 Opinion of King & Spalding
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
</TABLE>
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<PAGE> 14
<TABLE>
<S> <C>
99.1 John H. Harland Company 1981 Incentive Stock Option
Plan, as Extended
99.2 John H. Harland Company Employee Stock Purchase Plan
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
<PAGE> 2
(LETTERHEAD)
June 12, 1995
John H. Harland Company
2939 Miller Road
Decatur, Georgia 30035
Re: John H. Harland Company -- Form S-8
Registration Statement
Gentlemen:
We have acted as counsel for John H. Harland Company, a Georgia
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission. The Registration Statement
relates to (i) an additional 750,000 shares of the Company's common stock, par
value $1.00 per share ("Common Stock"), to be issued upon the exercise of
options ("Options") granted pursuant to the John H. Harland Company 1981
Incentive Stock Option Plan, As Extended (the "Stock Option Plan") and (ii) an
additional 750,000 shares of Common Stock that may be issued pursuant to the
John H. Harland Company Employee Stock Purchase Plan (the "Stock Purchase
Plan") (all such shares referred to in clauses (i) and (ii) are referred to
herein as the "Shares").
As such counsel, we have examined and relied upon such records, documents,
certificates and other instruments as in our judgment are necessary or
appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to
be accurate.
For purposes of the opinion set forth in clause (ii) below, we have
assumed the following: (i) the Shares that may be issued pursuant to the Stock
Purchase Plan and upon exercise of the Options will continue to be duly
authorized on the dates of such issuance and (ii) on the date on which any
Option is exercised, such Option will have been duly executed, issued and
delivered by the Company and will constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in
granting equitable remedies.
The opinions expressed herein are limited in all respects to the federal
laws of the United States of America and the laws of the State of Georgia, and
no opinion is expressed with respect to the laws of any other jurisdiction or
any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(a) The Shares are duly authorized; and
(b) When the Shares are issued pursuant to the Stock Purchase Plan or
upon exercise of the Options against payment therefor, as provided in
the Stock Option Plan, as the case may be, such Shares will be
validly issued, fully paid and nonassessable.
<PAGE> 3
This opinion is given as of the date hereof, and we assume no obligation
to advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions
contained herein. This letter is being rendered solely for the benefit of John
H. Harland Company in connection with the matters addressed herein. This
opinion may not be furnished to or relied upon by any person or entity for any
purpose without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ King & Spalding
KING & SPALDING
-2-
<PAGE> 1
EXHIBIT 23.1
Deloitte & Touche LLP Consent
We consent to the incorporation by reference in this Registration
Statement of John H. Harland Company on Form S-8 of our report dated January
27, 1995 (which report includes an explanatory paragraph as to the change in
the method of accounting for income taxes), appearing in the Annual Report on
Form 10-K of John H. Harland Company for the year ended December 31, 1994.
/s/DELOITTE & TOUCHE LLP
- ------------------------
DELOITTE & TOUCHE LLP
Atlanta, Georgia
June 9, 1995
<PAGE> 1
EXHIBIT 99.1
John H. Harland Company 1981
Incentive Stock Option Plan, as Extended
<PAGE> 2
JOHN H. HARLAND COMPANY
1981 INCENTIVE STOCK OPTION PLAN,
AS EXTENDED
Section 1.
BACKGROUND
The John H. Harland Company 1981 Incentive Stock Option Plan was
adopted effective as of September 21, 1981 and expired by its terms on
September 20, 1991. There were 435,995 shares of $1.00 par value Common Stock
("Stock") of the John H. Harland Company ("Company") available for options
under such plan at that time. This John H. Harland Company 1981 Incentive
Stock Option Plan, as Extended ("Plan") represents a reactivation of the 1981
Incentive Stock Option Plan and extends the life of such plan effective as of
November 18, 1992.
Section 2.
PURPOSE
The purpose of this Plan is to promote the interests of the Company
and its subsidiaries by encouraging its key employees to continue their
association with the Company and by providing such employees with the
additional incentive for industry and efficiency inherent in an opportunity to
participate in the ownership of the Company and in its future growth.
Section 3.
OPTION SHARES
The shares of the Company's Stock which may be subject to stock
options granted pursuant to this Plan shall be an aggregate number of 435,955
shares of authorized but unissued Stock. In the event that a stock option
granted pursuant to this Plan to purchase any of such shares of Stock shall
expire or be exchanged for a new option for any reason before being exercised
in full, the shares of Stock reserved for the unexercised portion of such
option again shall become available for stock options granted pursuant to this
Plan.
Section 4.
EFFECTIVE DATE OF PLAN
The effective date of this Plan shall be November 18, 1992, the date
as of which the Company's Board of Directors adopted this Plan, provided the
shareholders of the Company (acting at a duly called meeting of such
shareholders) also approve this Plan on or before November 18, 1993. All
options granted before such shareholder approval shall be granted subject to
such approval.
Section 5.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by a Stock Option Committee
("Committee") of not less than three (3) members appointed by the Board of
Directors of the Company from among its members. No member of such Board of
Directors shall be appointed or serve as a member of the Committee, and any
<PAGE> 3
such appointment or service immediately and automatically shall terminate, in
the event that (1) such person is, or becomes, a key employee (as described in
Section 6 of this Plan), (2) such person is, or becomes, eligible for the
allocation of stock or the grant of any option or stock appreciation right
under any other plan of the Company or any of its affiliates (as such term is
defined in the General Rules and Regulations under the Securities Exchange Act
of 1934, as amended) or (3) such person was described in clause (1) or clause
(2) of this Section 5 within the immediately preceding year.
Section 6.
ELIGIBILITY
Only key employees of the Company and of each of its subsidiaries (as
defined in Section 424(f) of the Internal Revenue Code of 1986, as amended
("Code")) and as hereinafter referred to as "subsidiaries") shall be eligible
for the grant of an incentive stock option pursuant to this Plan. A key
employee can be a member of the Board of Directors of the Company, but no
member of the Board of Directors of the Company shall be a key employee under
this Plan solely by reason of his membership on such Board of Directors.
Section 7.
GRANT OF OPTIONS
Stock options shall be granted by the Company acting through the
Committee to key employees pursuant to the terms of this Plan from time to time
to purchase shares of Stock; provided, however, if the Committee intends that
such option qualify as an incentive stock option under Section 422 of the
Code, the aggregate fair market value (as determined as of the date an
incentive stock option is granted) of the Stock covered by such option and the
stock covered by any other incentive stock options granted to such key employee
(pursuant to any other plans of the Company or its subsidiaries) which first
become exercisable in any calendar year shall not exceed $100,000. Such fair
market value figure shall be determined by the Committee on the date such
incentive stock option is granted, and the Committee shall interpret and
administeer the limitation set forth in this paragraph in accordance with
Section 422(d) of the Code. A stock option may be granted by a key employee
in exchange for the cancellation of any option to purchase Stock or under any
other circumstances under which the Committee deems appropriate.
Each grant of a stock option pursuant to this Plan shall be evidenced
by a written stock option agreement ("option agreement"), signed by a member of
the Committee or by a duly authorized officer of the Company, and each option
agreement shall incorporate such terms and conditions as the Committee acting
in its discretion deems consistent with the terms of this Plan and, if the
Committee intends such option to qualify as an incentive stock option, which
are not inconsistent with the provisions of Section 422 of the Code. The
Committee (with the written consent of a key employee) also shall have the
power to amend an option agreement to the extent that the Committee acting in
its discretion deems consistent with the terms of this Plan. The stock option
agreement for an option which the Committee intends to qualify as an incentive
stock option shall state that such option is an incentive stock option.
Section 8.
OPTION PRICE
The price for each share of Stock subject to purchase under a stock
option granted pursuant to this Plan ("option price") shall be determined by
the Committee but in no event shall be less than the fair market value of the
Stock on the date of the grant of the option; provided, however, (1) if a key
employee owns (after taking into account the attribution rules in Section
424(d) of the Code) stock of the Company or its subsidiaries which possesses
more than ten percent of the total combined voting power of all classes of
stock of the Company or a subsidiary, the option price for a stock option
granted to such key employee
<PAGE> 4
which the Committee intends to qualify as an incentive stock option shall in no
event be less than one hundred ten percent of the fair market value of the
Stock on the date the option is granted to such key employee and (2) if the
Committee grants an option to a key employee under this Plan for a number of
shares of Stock in exchange for the cancellation of any option (whether or not
granted under this Plan) to purchase the same number of shares of Stock, the
option price under such option for such shares shall be the same as the option
price for such shares under the option which is cancelled. An option agreement
at the discretion of the Committee can provide for the payment of the option
price (upon the exercise of a stock option) in cash, in Stock or in a
combination of cash and Stock. A payment by a check acceptable to the
Committee shall be treated as a payment in cash under this Plan.
Section 9.
LIFE OF OPTION
Each stock option granted pursuant to this Plan shall be exercisable
on or, if so provided in the option agreement which evidences such option,
after the date the option is granted and shall expire automatically on the date
the option is exercised in full or, if earlier, shall expire according to the
terms of such option agreement; provided, however, the terms of each such
option agreement shall make each stock option (to the extent not fully
exercised) expire no later than on or before the first to occur of (1) the end
of the three consecutive month period which immediately follows the last day
(in his current period of employment) that the key employee is employed by the
Company or its subsidiaries (or the end of such longer period as the Committee
(subject to the rules in Section 9(2) and Section 9(3) in its discretion
deems appropriate under the circumstances), (2) the date which is the tenth
anniversary of the date the option is granted or (3) the date which is the
fifth anniversary of the date the option is granted in the event that (a) the
option is granted to a key employee who owns (after taking into account the
attribution rules in Section 424(d) of the Code) stock which possesses more
than ten percent of the total combined voting power of all classes of stock of
the Company or a subsidiary and (b) the Committee intends that such option
qualify as an incentive stock option. A transfer of employment from the
Company to a subsidiary or from a subsidiary to the Company or between two
subsidiaries shall not be treated as a termination of employment under this
Plan.
Section 10.
DEATH OR DISABILITY
In the event that the employment of a key employee by the Company or
its subsidiaries terminates because he dies or becomes disabled (within the
meaning of Section 23(e)(3) of the Code), the three consecutive month period
described in Section 9(l) of this Plan automatically shall become a twelve
consecutive month period.
Section 11.
NON-TRANSFERABILITY
No stock option granted pursuant to this Plan shall be transferable
by a key employee otherwise than by will or by the laws of descent and
distribution, and such option shall be exercisable during the key employee's
lifetime only by the key employee. The restriction on transfer described in
this Section 11 shall be incorporated in each option agreement.
<PAGE> 5
Section 12.
SECURITIES REGISTRATION
Each stock option agreement shall provide that, upon the receipt of
shares of Stock pursuant to the exercise of a stock option granted under this
Plan, the key employee shall, if so requested by the Company, hold such shares
of Stock for investment and not with a view to resale or distribution to the
public and, if so requested by the Company, shall deliver to the Company a
written undertaking satisfactory to the Company to that effect. As for Stock
issued pursuant to this Plan, the Company at its expense shall take such action
as it deems necessary or appropriate to register the original issuance of such
Stock to a key employee under the Securities Act of 1933, as amended, or under
any other applicable securities laws or to qualify any such Stock for an
exemption under any such laws prior to the issuance of such Stock to a key
employee; however, the Company shall have no obligation whatsoever to take any
such action in connection with the transfer, resale or other disposition of
such Stock by a key employee.
Section 13.
LIFE OF PLAN
This Plan shall terminate on November 17, 2002 or, if earlier, on the
date on which all of the Stock reserved under Section 3 of this Plan has been
issued as a result of the exercise of stock options granted pursuant to this
Plan. No options to purchase Stock shall be granted under this Plan after the
date the Plan terminates but, as for any stock options granted pursuant to this
Plan which are outstanding on such date, the Committee and its full
administrative powers shall survive (the termination of this Plan) until all
such options have been exercised in full or otherwise have expired.
Section 14.
ADJUSTMENT
The number of shares of Stock available for the granting of options
under Section 3 of this Plan and the number of shares of Stock subject to
stock options granted pursuant to this Plan and the related option price shall
be adjusted by the Committee in an equitable manner to reflect any change in
the capitalization of the Company, including, but not limited to, such changes
as stock dividends or stock splits. Furthermore, the Committee shall have the
right to adjust (in a manner which satisfies the requirements of Section
424(a) of the Code) the number of shares of Stock available for the granting of
options under Section 3 of this Plan and the number of shares of Stock covered
by stock options granted under this Plan and the related option price in the
event of any corporate transaction described in 424(a) of the Code which
provides for the substitution or assumption of such options. If any adjustment
under this Section 14 would create a fractional share of Stock or a right to
acquire a fractional share of Stock, such fractional share shall be disregarded
and the number of shares of Stock available under this Plan and the number
subject to any options granted pursuant to this Plan shall be the next lower
number of shares of Stock, rounding all fractions downward. An adjustment made
under this Section 14 by the Committee shall be conclusive and binding on all
affected persons.
Section 15.
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell all or substantially all of its assets
for cash or property or for a combination of cash and property or agrees to any
merger, consolidation, reorganization, division or other corporate transaction
in which Stock is converted into another security or into the right to receive
securities or property and such agreement does not provide for the assumption
or substitution of stock options granted under this Plan, each option agreement
at the direction and discretion of the Company's Board of Directors
<PAGE> 6
may be cancelled unilaterally by the Company if (1) any restrictions on the
exercise of a stock option are waived before the stock option agreement is
cancelled such that the key employee has the opportunity to exercise the option
in full before such cancellation, (2) the Company transfers to the key employee
shares of Stock, the number of which shall be determined by the Company by
dividing the excess of (a) the fair market value of the number of shares which
remain subject to the exercise of such option as of any date over the total
option price for such shares by (b) the fair market value of a share of Stock
on such date, which number shall be rounded down to the nearest whole number,
or (3) the Company transfers to a key employee the same consideration which the
key employee otherwise would receive as a shareholder of the Company in
connection with such sale or other corporate transaction if he held the number
of shares of Stock which would have been transferrable to him under Section
15(2) if such number had been determined immediately before such sale or other
corporate transaction.
Section 16.
AMENDMENT OR TERMINATION
This Plan may be amended by the Company's Board of Directors from
time to time to the extent that such Board of Directors deems necessary or
appropriate in light of, and consistent with, the provisions of Section 422 of
the Code; provided, however, no such amendment shall be made absent the
approval of the shareholders of the Company (1) to increase the number of
shares of Stock available under Section 3 for granting stock options, (2) to
extend the maximum life of the Plan under Section 12 or the maximum life of an
option under Section 9, (3) to decrease the minimum option price under Section
8, (4) to change the class of employees eligible for stock options under
Section 6 or to otherwise materially modify (within the meaning of Rule 16b-3
of the Securities Exchange Act of 1934, as amended) the requirements as to
eligibility for participation in this Plan or (5) to otherwise materially
increase (within the meaning of Rule 16b-3 of the Securities Exchange Act of
1934, as amended) the benefits accruing to a key employee under this Plan. The
Company's Board of Directors also may suspend the granting of stock options
pursuant to this Plan at any time and may terminate this Plan at any time;
provided, however, the Board of Directors shall not have the right to modify,
amend or cancel any stock option granted before such suspension or termination
unless (1) the key employee consents in writing to such modification, amendment
or cancellation or (2) there is a dissolution or liquidation of the Company or
a transaction described in Section 15 of this Plan.
Section 17.
MISCELLANEOUS
The headings to sections in this Plan have been included for
convenience of reference only. The masculine pronoun shall include the
feminine and the singular the plural whenever appropriate.
<PAGE> 1
EXHIBIT 99.2
John H. Harland Company
Employee Stock Purchase Plan
<PAGE> 2
041795
JOHN H. HARLAND COMPANY
EMPLOYEE STOCK PURCHASE PLAN
EFFECTIVE JULY 1, 1995
<PAGE> 3
THE JOHN H. HARLAND COMPANY
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
This document amends and restates the John H. Harland Company Employee
Stock Purchase Plan (the "Plan") effective for offerings beginning on or after
July 1, 1995. The Plan is intended as an incentive and to encourage stock
ownership by all employees of John H. Harland Company (the "Company") and
(subject to the conditions hereinafter set forth) of its Subsidiaries, so that
they may acquire or increase their proprietary interest in the success of the
Company, and to encourage them to remain in the employ of the Company and its
Subsidiaries. It is further intended that the Plan qualify as an "employee
stock purchase plan" within the meaning of Section 423 of the Internal Revenue
Code of 1986 (the "Code"). However, this Plan is not intended to constitute a
plan described in Section 401 of the Code or to constitute an "employee benefit
plan" as described in the Employee Retirement Income Security Act of 1974, as
amended.
As used herein, the term "Subsidiary" shall be determined as of each
Offering Date and shall include any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations in such chain other than the last corporation owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
2. ADMINISTRATION
The Plan shall be administered by a committee (the "Committee") appointed
by the Board of Directors of the Company (the "Board"). The Committee shall
consist of not less than three members of the Board. Each member must be a
"disinterested person" under Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, or any successor to such rule ("Rule 16b-3").
The Board may from time to time remove members from, or add eligible
individuals as members to, the Committee who are "disinterested persons" under
Rule 16b-3. Vacancies on the Committee, howsoever caused, shall be filled by
the Board. The Committee shall select one of its members as Chairman, and
shall hold meetings at such times and places as it may determine. Minutes of
all meetings shall be made and preserved. A majority of the Committee shall
control its actions at any meeting.
The Committee shall have the power to delegate the duty to perform
recordkeeping, and such other administrative functions as the Committee deems
appropriate under the circumstances, to an officer of the Company, a third
party administrator (a "Third Party Administrator") or to any other person or
entity. Any person or entity to whom the duty to perform an administrative
function is delegated shall act on behalf of and shall be responsible to the
Committee for such function.
3. ELIGIBILITY
Any employee, as defined below, of the Company or any Subsidiary of the
Company shall be eligible to participate in the Plan on an Offering Date if, on
such date, such employee has been employed continuously by the Company or any
Subsidiary for at least one year. An employee shall be considered to have been
employed for at least one year by the Company or any Subsidiary, if during a
relevant one-year period the employee has been employed continuously by any
combination of the Company and its Subsidiaries or by any combination of its
Subsidiaries.
The term "employee" shall have the same meaning as the term "employee" as
defined by Section 3401(c) of the Code and shall include officers and directors
who are also employees but shall exclude individuals whose customary employment
is for not more than twenty hours per week or for not more than five months in
any calendar year.
<PAGE> 4
Any provision of the Plan to the contrary notwithstanding, no employee
shall be granted an option:
(i) if, immediately after the grant, such employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of the
Company, of any parent corporation of the Company or of any Subsidiary,
determinations of employee stock ownership being made for this purpose in
accordance with Section 423(b)(3) of the Code; or
(ii) which permits his or her rights to purchase stock under all
employee stock purchase plans of the Company, of any parent corporations
of the Company and of any Subsidiaries to accrue at a rate which exceeds
$25,000 of fair market value of such stock (determined at the time such
option is granted) for each calendar year in which such stock option would
be outstanding at any time, within the meaning of Section 423(b)(8) of the
Code.
4. COMMON STOCK
The stock to be sold to participants under the Plan (the "Common Stock")
shall be $1 par value common stock of the Company and may, at the election of
the Company, be either treasury stock or stock originally issued for such
purpose. The maximum number of shares of Common Stock which shall be made
available for sale under the Plan during all offerings under the Plan shall be
4,350,000 shares subject to adjustment upon changes in capitalization of the
Company as provided in paragraph 16.
The participant will have no interest in Common Stock covered by his or
her option until such option has been exercised.
Any shares which are subject to sale pursuant to an option granted under
the Plan but which are not purchased on the Termination Date of the related
offering shall again become available for sale pursuant to options granted
under the Plan.
5. OFFERING DATES
The Plan will be implemented by a continuous series of offerings, each of
which shall commence on the first business day of a calendar quarter (the
"Offering Date") and shall terminate on the last business day of such quarter
(the "Termination Date").
No offering shall be made if in the opinion of the Committee the Common
Stock made available under the Plan has been so substantially exhausted as to
make an offering to all eligible employees impractical under the Plan.
6. PARTICIPATION
An eligible employee may become a participant by properly completing and
filing with his or her employer an authorization for payroll deductions to
purchase shares of Common Stock on the form approved by the Committee or its
delegate.
Payroll deductions shall become effective on the first Offering Date after
a participant has filed his or her authorization and shall terminate upon the
earlier to occur of (a) the participant's written request to withdraw or
terminate participation in the Plan as described in paragraph 11 or (b) the
participant's failure to satisfy the eligibility requirements described in
paragraph 3. As long as an eligible employee continues to authorize payroll
deductions, he or she shall receive an option on each Offering Date.
<PAGE> 5
7. PAYROLL DEDUCTIONS
At the time a participant files his or her authorization for a payroll
deduction, he or she shall elect to have deductions made from his or her
Annualized Cash Compensation, as hereinafter defined, on each payday during the
time he or she is a participant in an offering at the annual rate of 3, 4, 5,
6, 7, 8, 9, or 10% of his or her Annualized Cash Compensation.
The term "Annualized Cash Compensation" shall mean the participant's
current annualized cash compensation from the Company or any Subsidiary,
including overtime, bonuses, commissions and other cash incentives and any
pre-tax deferrals under the Company's or any Subsidiary's employee benefit
plans.
All payroll deductions made for a participant shall be credited to the
bookkeeping account (the "payroll account") maintained for such participant by
the Company or a Subsidiary. A participant may not make any contributions
under the Plan other than by payroll deduction.
A participant may withdraw from an offering at any time and thereby have
further payroll deductions discontinued as provided in paragraph 11, but no
other change can be made during an offering and, specifically, a participant
may not otherwise alter the rate of his or her payroll deduction for that
offering.
A participant may change the amount of his or her payroll deductions for
any future offering by filing a new authorization with his or her employer in
accordance with this paragraph prior to commencement of the offering.
8. GRANTING OF OPTION
On each Offering Date, each participant shall be granted an option to
purchase the lesser of 1800 shares of Common Stock or the number of full and
partial shares of Common Stock equal to the quotient obtained by dividing $6250
by the fair market value of a share of Common Stock as determined below as of
the Offering Date. However, if the number of shares of Common Stock available
for purchase under the Plan is insufficient to grant to each participant an
option to purchase the maximum number of shares determined under the preceding
sentence or if on the Termination Date the number of shares available for
purchase is insufficient to permit each participant to purchase such maximum
number of shares, then each option shall be reduced to equal the total number
of available shares multiplied by a fraction the numerator of which is such
participant's Annualized Cash Compensation and the denominator of which is the
total Annualized Cash Compensation of all participants.
The option price of each share of Common Stock for a particular offering
shall be the lower of:
(i) 85% of the fair market value per share of the Common Stock on
the Offering Date of such offering, or
(ii) 85% of the fair market value per share of the Common Stock on
the Termination Date of such offering.
The fair market value per share shall be (a) the mean of the highest and
lowest quoted selling prices of a share of Common Stock on the New York Stock
Exchange on the applicable valuation date as reported by The Wall Street
Journal or, if the Common Stock is no longer traded on The New York Stock
Exchange, under the quotation system under which such prices are reported or,
if The Wall Street Journal no longer reports such prices, the mean of such
prices as reported by a newspaper or trade journal selected by the Committee,
or, if no such prices are available on such date, (b) the mean of the highest
and lowest selling prices of a share of Common Stock as so reported or quoted
in accordance with clause (a) above for the immediately preceding business day,
or, if no newspaper or trade journal reports such prices or if no such price
quotations are available, (c) the price which the Committee acting in good
faith determines through any
<PAGE> 6
reasonable valuation method that a share of Common Stock might change hands
through a willing buyer and a willing seller, neither being under any
compulsion to buy or to sell and both having reasonable knowledge of the
relevant facts.
9. EXERCISE OF OPTION
Unless a participant elects to withdraw from the offering as provided in
paragraph 11, his or her option will be exercised automatically for him or her
on the Termination Date for the purchase of as many full and partial shares of
Common Stock subject to the option granted to him or her (determined in
accordance with paragraph 8) as the accumulated payroll deductions in his or
her payroll account at that time will purchase at the option price for such
offering.
The amount credited to a participant's payroll account in excess of that
which will purchase the number of shares for which his or her option was
granted shall be paid over to the participant (without interest) as soon as
practicable following the Termination Date for the offering period.
No participant may use more than $5,000.00 of the amount credited to his
or her payroll account for purchase of Common Stock during any calendar year.
When this amount has been used to purchase Common Stock, any excess shall be
returned to him or her (without interest), payroll deductions for him or her
shall cease, and he or she shall be ineligible to participate in any additional
offering during that calendar year. Unless, however, the participant withdraws
his or her authorization for payroll deductions, the participant's
authorization shall become effective again on the first Offering Date beginning
in the next calendar year.
10. DELIVERY
As promptly as practicable after each Termination Date, any Common Stock
purchased upon the exercise of a participant's option will be registered in the
name of the participant or, if the participant so directs, in the names of the
participant and one such other person as may be designated by the participant
as joint tenants with rights of survivorship, but no certificates will be
issued until requested by the participant or as required under paragraph 11. A
bookkeeping account will be maintained for each Participant (the "stock
account"), which may consist of one or more accounts to record his or her
shares purchased under the Plan. Statements shall be provided to each
participant showing the shares purchased for his or her stock account and such
other information as the Committee or its delegate deems appropriate to satisfy
any reporting obligations under the Plan.
A participant will be a fully vested, beneficial owner of all shares of
Common Stock registered to him or her (or to him or her and another person as
permitted under this paragraph) under the Plan.
Proxy material, meeting announcements, tender offer materials and other
communications distributed to holders of Common Stock will be distributed to
participants with respect to their shares purchased under this Plan in the same
manner and at the same time as such materials are distributed to other holders
of Common Stock while they remain the registered owners of such shares.
A participant at any time may request that certificates be issued to him
or her with respect to any number of whole shares credited to his or her stock
account. No fees will be charged to the participant for such certificates.
If a Third Party Administrator that maintains the stock account for a
participant also provides brokerage services, the participant may request that
the Third Party Administrator arrange for the sale of any whole shares of
Common Stock registered to him or her under the Plan; provided, all transaction
costs of such sale will be paid by the participant.
<PAGE> 7
11. WITHDRAWAL AND TERMINATION OF EMPLOYMENT
A participant may withdraw from an offering at any time by giving written
notice to his or her employer. All of the payroll deductions credited to the
participant's payroll account during such offering will be paid to him or her
(without interest) after receipt of his or her notice of withdrawal.
A participant who withdraws from an offering shall be deemed to have given
notice of his or her intention to cease to be a participant for that offering,
as well as the immediately following offering. Such participant may recommence
participation in the second offering following the offering during which he or
she withdrew or in any succeeding offering for which he or she is otherwise
eligible in accordance with paragraph 3 if he or she files with his or her
employer an authorization for payroll deductions in accordance with paragraph
7.
Upon termination of a participant's employment with the Company and all
Subsidiaries for any reason, including retirement or death, he or she shall
immediately cease to be a participant, any option which he or she may have been
granted under the Plan shall immediately expire and shall not be exercised, and
the payroll deductions credited to his or her payroll account will be returned
to him or her within 30 days after the effective date of the termination
(without interest), or, in the case of his or her death, to the personal
representative of his or her estate. Certificates representing the whole
shares of Common Stock credited to the participant's stock account and a check
for the value of any partial shares will be issued to the participant. In the
event of the participant's death prior to the issuance of such certificates,
the shares shall be issued to the personal representative of the participant's
estate or if the shares were registered to the participant and another person
as joint tenants, to the surviving joint tenant or if both the participant and
the joint tenant are deceased, to the personal representative of the estate of
the last to die. If a Third Party Administrator that maintains the stock
account for the participant also provides brokerage services and if so
requested by the participant within 60 days of the termination, the Third Party
Administrator will arrange for the sale of the whole shares credited to the
participant's stock account and issue a check to the participant for the value
of any partial shares credited to his or her stock account and the proceeds of
the sale of whole shares less any transaction costs of the sale.
12. DIVIDENDS
Any dividend with respect to the shares of Common Stock credited to a
participant's stock account under the Plan will be paid to the participant to
the extent such dividend is paid in cash or credited to his or her stock
account to the extent such dividend is paid in Common Stock. However, upon the
participant's written request, cash dividends will be reinvested in additional
shares of Common Stock pursuant to the Company's dividend reinvestment plan.
13. TRANSFERABILITY
Neither payroll deductions credited to a participant's payroll account nor
any rights with regard to the exercise of an option or to receive stock under
the Plan may be assigned, transferred, pledged, or otherwise disposed of in any
way by the participant. Any such attempted assignment, transfer, pledge, or
other disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with paragraph 11.
14. USE OF FUNDS
All payroll deductions received or held by the Company (or by any
Subsidiary as agent for the Company) under the Plan may be used by the Company
for any corporate purpose and the Company shall not be obligated to segregate
such payroll deductions.
<PAGE> 8
15. CHANGES IN CAPITALIZATION
The number of shares of Common Stock covered by each outstanding option
and the price per share thereof in each such option and the number of shares of
Common Stock issuable through options granted pursuant to the Plan for which
options have not been granted shall be proportionately adjusted for any
increase or decrease in the number of issued and outstanding shares of Common
Stock of the Company resulting from a subdivision or consolidation of shares or
the payment of a Common Stock dividend (but only such a payment with respect to
the Common Stock of the Company) or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company. If any adjustment to the number of shares of Common Stock
issuable through options granted pursuant to the Plan would create a fractional
share, such fractional share shall be disregarded and the number of shares
available under the Plan shall be the next lower number of whole shares,
rounding all fractions downward.
16. SECURITIES REGISTRATION
In the event that the Company shall deem it necessary to register under
the Securities Act of 1933 or other applicable statutes any shares with respect
to which an option shall have been exercised, or to qualify any such shares for
exemption from the Securities Act of 1933, then the Company shall take such
action at its own expense before delivery of such shares. In the event the
shares of Common Stock shall be listed on any national stock exchange at the
time of the exercise of an option under the Plan, then whenever required, the
Company shall make prompt application for the listing on such stock exchange of
such shares, at the sole expense of the Company.
17. AMENDMENT OR TERMINATION
The Board may at any time terminate or amend the Plan. No such
termination can affect options previously granted, nor may an amendment make
any change in any option theretofore granted which would adversely affect the
rights of any participant unless (a) each participant consents in writing to
such amendment or (b) the Board acting in good faith deems that such action is
required under applicable law. No amendment may be made without prior written
approval of the shareholders of the Company if such amendment would:
(i) permit the sale of more shares of Common Stock than are
authorized under paragraph 4 of the Plan;
(ii) effect any change in the designation of eligible employees under
paragraph 3 of the Plan;
(iii) permit payroll deductions at a rate in excess of 10% of a
participant's Annualized Cash Compensation; or
(iv) be subject to shareholder approval under the laws of the State of
Georgia or Rule 16b-3.
Finally, no provision of this Plan shall be amended more than once every 6
months if more frequent amendment of such provision would result in a loss of
exemption under Rule 16b-3.
18. COMPLIANCE WITH RULE 16B-3
All elections and transactions under the Plan by persons subject to
Section 16 of the Securities Exchange Act of 1934 involving shares of Common
Stock are intended to comply with all exemptive conditions under Rule 16b-3.
The Committee may establish and adopt written administrative guidelines,
designed to facilitate compliance with Rule 16b-3, as it may deem necessary or
proper for the administration and operation of the Plan and the transaction of
business thereunder. To the extent that any provision of the
<PAGE> 9
Plan, the administrative guidelines or any action or omission with respect to
the Plan (including any action by an eligible employee) does not satisfy the
exemptive conditions under Rule 16b-3 or otherwise is inconsistent with Rule
16b-3, the provision, guidelines or action or omission shall be deemed null and
void, as permitted by applicable law.
19. NOTICES
All notices or other communications by a participant under or in
connection with the Plan shall be deemed to have been duly given when received
in the form specified by the Committee or its delegate at the location, or by
the person, designated by the Committee or its delegate for the receipt
thereof.
20. EMPLOYMENT
No offering under the Plan shall constitute an offer of employment, and no
participation in an offering under this plan shall constitute an employment
agreement. Any offering or participation in the Plan shall have no bearing
whatsoever on the employment relationship between any employee and the Company
or any of its Subsidiaries. No employee shall be induced to participate in the
Plan by the expectation of employment or continued employment.
21. HEADINGS AND CONSTRUCTION
The headings to paragraphs in the Plan have been included for convenience
of reference only. The Plan shall be interpreted and construed in accordance
with the laws of the State of Georgia.
