<PAGE> 1
As filed with the Securities and Exchange Commission on June 6, 1996
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
NATIONAL DATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 58-0977458
(State of incorporation) (IRS Employer Identification No.)
NATIONAL DATA PLAZA
ATLANTA, GEORGIA 30329-2010
(Address of Principal Executive Offices) (Zip Code)
NATIONAL DATA CORPORATION
AMENDED AND RESTATED C.I.S. TECHNOLOGIES, INC.
STOCK OPTION PLAN
AMENDED AND RESTATED C.I.S. TECHNOLOGIES, INC.
EMPLOYEE STOCK OPTION PLAN
C.I.S. TECHNOLOGIES, INC. HCC MANAGEMENT
STOCK OPTION PLAN
C.I.S. TECHNOLOGIES, INC.
1995 DIRECTORS' STOCK OPTION PLAN
C.I.S. TECHNOLOGIES, INC.
1995 STOCK INCENTIVE PLAN
(Full title of the plans)
E. Michael Ingram
General Counsel and Secretary
National Data Corporation
National Data Plaza
Atlanta, Georgia 30329-2010
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (404) 728-2000
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.125 par value 4,341 $12.55 $ 54,500 $ 19
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 3,663 15.84 58,016 20
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 3,472 23.04 80,000 28
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 39,398 24.48 964,325 333
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 21,112 25.92 547,139 189
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 26,733 26.64 712,055 246
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 7,553 27.36 206,625 71
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 7,956 28.80 229,122 79
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 42,180 30.23 1,275,312 440
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 17,364 31.67 550,000 190
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 1,562 33.11 51,750 18
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 8,682 35.99 312,500 108
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 18,666 37.43 698,750 241
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 24,309 44.63 1,085,000 374
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 868 47.51 41,250 14
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 1,736 51.83 90,000 31
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 12,049 53.27 641,913 221
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 14,021 56.15 787,322 271
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 7,050 57.59 406,060 140
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 18,839 69.11 1,302,000 449
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 3,472 78.47 272,533 94
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 1,736 74.89 130,000 45
- --------------------------------------------------------------------------------------------------------
Common Stock, $.125 par value 2,604 80.63 210,000 72
- --------------------------------------------------------------------------------------------------------
Total 289,377 $10,706,175 $3,693
========================================================================================================
</TABLE>
(1) This Registration Statement also covers any additional shares that may
hereafter become exercisable as a result of the adjustment and
anti-dilution provisions of the Amended and Restated C.I.S. Technologies,
Inc. Stock Option Plan, the Amended and Restated C.I.S. Technologies, Inc.
Employee Stock Option Plan, the C.I.S. Technologies, Inc. HCC Management
Stock Option Plan, the C.I.S. Technologies, Inc. 1995 Directors' Stock
Option Plan and the C.I.S. Technologies, Inc. 1995 Stock Incentive Plan.
(2) Determined in accordance with Rule 457(h), the registration fee is based
on the option price per share for shares presently subject to options.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by National Data Corporation (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or either: (1) the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 that contains audited financial statements for the
Company's latest fiscal year for which such statements have been filed, or (2)
the Company's effective registration statement on Form 10, Form 10-SB or 20-F
filed under the Exchange Act containing audited financial statements for the
Company's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
incorporated pursuant to (b) above.
(c) The description of any class of securities to be offered which is
contained in a registration statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the securities being registered has been
passed upon for the Company by the law firm of Alston & Bird, counsel for the
Company. Neil Williams, a partner of Alston & Bird, is a director of the
Company.
II-3
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The bylaws of the Company provide for the indemnification of directors,
officers, employees, and agents of the Company, as well as others serving at
their request, in certain specific instances in accordance with the Delaware
General Corporation Law. In an action brought by or in the right of the
Company, the individual is entitled to indemnification of expenses of defense
or settlement if he acted in good faith, and in a manner reasonably believed to
be in or not opposed to the best interests of the Company, except that no
indemnification may be afforded in instances where the individual has been
adjudged liable for negligence or misconduct in the performance of the
individual's duties to the Company, unless the court hearing such action
determines that the individual is entitled to indemnity. In all other actions,
the individual is entitled to indemnification of expenses, judgments, fines,
and amounts paid in settlement if the individual 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, in criminal proceedings, if he had no reasonable cause to
believe his conduct was unlawful. The indemnification for any such action
(other than as ordered by a court) may be made by the Company only upon a
determination that indemnification is proper in the circumstances because the
individual met the applicable standard of conduct. Such determination must be
made by a majority vote of disinterested directors or, in certain specific
instances, by independent legal counsel or by the stockholders.
The bylaws of the Company provide that the Company may purchase and
maintain insurance on behalf of directors, officers, employees, and agents, as
well as others serving at their request, against any liabilities asserted
against such persons whether or not the Company would have the power to
indemnify such directors, officers, employees, or agents against such liability
under the Delaware General Corporation Law. The Company has purchased and
maintains such insurance pursuant to such authorization.
The Company's Certificate of Incorporation, as amended, also provides that
a director of the Company will not be liable for monetary damages to the
Company or its stockholders for breach of fiduciary duty as a director except
in specified instances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.*
4(a). Certificate of Incorporation of the Company, as amended.
4(b). Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3(ii) to the Company's Annual Report on Form 10-K for the year ended
May 31, 1991, File No. 03966).
4(c). Amendment to the Bylaws of the Company, as previously amended
(incorporated by reference to Exhibit 3(iii) of the Company's Annual Report on
Form 10-K for the year ended May 31, 1995 (File No. 03966).
II-4
<PAGE> 5
4(d). Shareholder Rights Agreement, dated as of January 18, 1991, between
the Company and Trust Company Bank, as Rights Agent (incorporated by reference
to Exhibit 4(1) to the Company's Current Report on Form 8-K dated January 18,
1991, File No. 03966).
5. Opinion of Alston & Bird regarding the legality of the securities being
registered.
10(a). Amended and Restated C.I.S. Technologies, Inc. Stock Option Plan.
10(b). Amended and Restated C.I.S. Technologies, Inc. Employee Stock
Option Plan.
10(c). C.I.S. Technologies, Inc. HCC Management Stock Option Plan.
10(d). C.I.S. Technologies, Inc. 1995 Directors' Stock Option Plan.
10(e). C.I.S. Technologies, Inc. 1995 Stock Incentive Plan.
24(a). Consent of Alston & Bird (included in Exhibit 5).
24(b). Consent of Arthur Andersen LLP
25. Power of Attorney (contained on page II-6).
___________________
* Exhibits are numbered in accordance with Item 601 of Regulation S-K.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the
II-5
<PAGE> 6
information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change in such information in the registration statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above 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 Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned issuer hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of l934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and 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.
(h) 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 provisions described in Item 6 of
this Part II, 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
II-6
<PAGE> 7
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.
II-7
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, National Data Corporation, certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the 6th day of June, 1996.
NATIONAL DATA CORPORATION
Registrant
By: /s/ Robert A. Yellowlees
----------------------------------------------
Robert A. Yellowlees, Chairman of the Board
and President, Chief Executive Officer and
Chief Operating Officer
(Principal Executive Officer)
By: /s/ Jerry W. Braxton
----------------------------------------------
Jerry W. Braxton, Chief Financial Officer
(Principal Financial and Accounting Officer)
II-8
<PAGE> 9
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints ROBERT A. YELLOWLEES and E. MICHAEL INGRAM, or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
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 dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert A. Yellowlees Chairman of the Board and President, June 6, 1996
- ------------------------ Chief Executive Officer and Chief
Robert A. Yellowlees Operating Officer
/s/ Edward L. Barlow Director June 6, 1996
- ------------------------
Edward L. Barlow
/s/ J. Veronica Biggins Director June 6, 1996
- ------------------------
J. Veronica Biggins
/s/ James B. Edwards Director June 6, 1996
- ------------------------
James B. Edwards
/s/ Don W. Sands Director June 6, 1996
- ------------------------
Don W. Sands
/s/ Neil Williams Director June 6, 1996
- ------------------------
Neil Williams
</TABLE>
II-9
<PAGE> 10
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------------------
EXHIBITS FILED WITH
REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
--------------------------------------------------
NATIONAL DATA CORPORATION
NATIONAL DATA PLAZA
ATLANTA, GEORGIA 30329-2010
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NUMBER* DESCRIPTION PAGE NUMBER
- -------------- ----------- -----------
<S> <C> <C>
4(a) Certificate of Incorporation of National Data
Corporation, as amended.
5 Opinion of Alston & Bird regarding the legality
of the securities being registered.
10(a). Amended and Restated C.I.S. Technologies, Inc.
Stock Option Plan.
10(b). Amended and Restated C.I.S. Technologies, Inc.
Employee Stock Option Plan.
10(c). C.I.S. Technologies, Inc. HCC Management Stock
Option Plan.
10(d). C.I.S. Technologies, Inc. 1995 Directors' Stock
Option Plan.
10(e). C.I.S. Technologies, Inc. 1995 Stock Incentive
Plan.
24(a) Consent of Alston & Bird (included in Exhibit 5).
24(b) Consent of Arthur Andersen LLP.
25 Power of Attorney (contained on page II-6).
</TABLE>
______________________
*Exhibits are numbered in accordance with Item 601 of Regulation S-K.
<PAGE> 1
EXHIBIT 4(A)
Certificate of Incorporation of National Data Corporation, as amended.
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
NATIONAL DATA CORPORATION
FIRST
The name of the corporation is NATIONAL DATA CORPORATION.
SECOND
The address of its registered office in the State of Delaware is No. 100
W. 10th, in the Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD
The nature of the business or purposes to be conducted or promoted is:
1. To plan, develop, operate, and lease data processing systems on a
nationwide basis; to send and receive data by any means of communication; to
provide data collection, control, and processing services to customers for the
purposes of distribution and inventory control, sales recording, personnel,
equipment, and shipments movements and control, cost control, market sampling,
dictation services, general management statistical information, and other
purposes without limitation; to record, format, program, and retain data of any
type; and to utilize computers, computer programming, formatting, and
communications devices for the purposes of systematic data collection and
disbursement.
2. To manufacture, lease, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description.
<PAGE> 3
3. To enter into, make and perform contracts of every kind (including,
without limitation, contracts of guaranty and suretyship) for any lawful
purpose with any person, firm, association or corporation, municipality, body
politic, country, territory, state, government or dependency thereof.
4. To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
5. To acquire, hold, use, sell, assign, lease, grant licenses or
franchises in respect of, mortgage or otherwise dispose of letters patent of
the United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights, trademarks and
trade names, relating to or useful in connection with any business of this
Corporation.
6. To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital
stock, or any voting trusts certificates in respect of the shares of capital
stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts, and
other securities, obligations, choses in action and evidences of indebtedness
or interest issued or created by any corporation, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by
the Government of the United States of America, or by any foreign government,
or by any state, territory, province, municipality or other political
subdivision or by any governmental agency, and as owner thereof to possess and
exercise all the rights, powers and privileges of ownership, including the
right to execute consents and vote thereon, and to do any and all acts and
things necessary or advisable for the preservation, protection, improvement and
enhancement in value thereof.
<PAGE> 4
7. To borrow or raise monies for any of the purposes of the Corporation
and, from time to time without limit as to amount, to draw, to make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the Corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the Corporation for its corporate
purposes.
8. To purchase, receive, take by grant, give, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the Corporation's property and
assets, or interests therein, wherever situated.
9. In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of Incorporation together with any powers
incidental thereto, all to the same extent as natural persons might or could do
in any part of the world, as principals, agents, contractors, trustees, or
otherwise, and either alone or in company with others; provided such powers and
privileges are necessary or convenient to the conduct, promotion or attainment
of the business or purposes of the Corporation.
10. The businesses and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in no manner limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in each
of the foregoing clauses of this article shall be regarded as independent
businesses and purposes.
<PAGE> 5
FOURTH
The total number of shares of stock which the Corporation shall have
authority to issue is Seventy Thousand (70,000) shares of the par value of
$5.00 each. Fifty Thousand (50,000) of such shares of the par value of $5.00
each, amounting in the aggregate to Two Hundred Fifty Thousand ($250,000.00)
Dollars shall be Common Stock and Twenty Thousand (20,000) of such shares of
the par value of $5.00 each, amounting in the aggregate to One Hundred Thousand
($100,000.00) Dollars shall be Class A Common Stock.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
CLASS A COMMON STOCK
1.1 Upon any liquidations dissolution or winding up (whether voluntary or
involuntary) of the Corporation, the holders of the Common Stock shall be
entitled to receive money or property equivalent to $16.67 per share before any
amount shall be paid to holders of the Class A Common Stock; and after such
$16.67 preference payment, the remaining assets and funds shall be divided and
paid to the holders of both Common Stock and Class A Common Stock pro rata
according to their respective shares.
1.2 Each share of Class A Common Stock may be converted at the option of
the holder thereof, subject to the limitations set forth below, into one share
of Common Stock; provided, however, that no such conversion shall take place
prior to August 1, 1970, and provided further, that such numbers of share to be
converted shall be adjusted proportionately in the event of applicable stock
splits (and similar recapitalizations) and stock dividends. Such conversions
shall be made upon surrender to the Corporation at its stock transfer office or
agency in Atlanta, Georgia, or any place or places where the company shall
maintain a transfer agency, of the certificates for shares of Class A Common
Stock so to be converted. Shares of Class A Common Stock surrendered for
<PAGE> 6
conversion into Common Stock, or otherwise acquired, shall be cancelled and
shall not be reissued. The Corporation shall at all times preserve and keep
available out of its authorized but unissued Common Stock such number of shares
thereof as shall from time to time be sufficient to permit the conversion of
all outstanding shares of Class A Common Stock as provided above.
1.3 Except to the extent otherwise expressly required by the laws of the
State of Delaware, the holders of Class A Common stock shall not by reason of
their holdings thereof be entitled to notice of or to vote at meetings of
stockholders, the voting power being vested in the holders of the Common Stock
of the Corporation.
1.4 No transfer, sale or other disposition of Class A Common stock shall
be valid until thirty (30) days after the Corporation, through its Secretary,
shall have received written notice of the proposed transfer, sale or
disposition, the number of shares proposed to be transferred, sold or disposed
of, the price at which the transfer, sale or disposition is to be made, and the
name of the prospective buyer or transferee; and during said thirty (30) days,
the Corporation shall also have the first option to buy, at a price equal to
the par value of such shares, any or all of the shares of such Class A Common
Stock proposed to be transferred, sold, or disposed of. No valid transfer,
sale, or other disposition of such Class A Common Stock may be made except
pursuant to the exercise of such option by the Corporation, in the event such
option is exercised within the specified time limit.
COMMON STOCK
2.1 Except as otherwise provided by statute or by any express provision of
this Certificate the holders of shares of Common Stock shall at every meeting
of the stockholders be entitled to one vote in person or by proxy for each
share of stock held by such stockholder.
2.2 Upon any liquidation, dissolution or winding up (whether voluntary or
involuntary) of the Corporation, the holders of the Common Stock shall be
entitled to
<PAGE> 7
receive money or property equivalent to $16.67 per share before any amount shall
be paid to holders of the Class A Common Stock; and after such $16.67 preference
payment, the remaining assets and funds shall be divided and paid to the holders
of both Common Stock and Class A Common Stock pro rata according to their
respective shares.
GENERAL
3.1 The Corporation shall be entitled to treat the person in whose name
any share, right or option is registered as the owner thereof, for all
purposes, and shall not be bound to recognize any equitable or other claim to
or interest in such share, right or option on the part of any other person,
whether or not the Corporation shall have notice thereof, save as may be
expressly provided by the laws of the State of Delaware.
3.2 The number of authorized shares of any class or classes of stock of
the Corporation may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote.
FIFTH
The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
------------ -------
<S> <C>
B. J. Consono 100 West Tenth Street
Wilmington, Delaware
F. J. Obara, Jr. 100 West Tenth Street
Wilmington, Delaware
A. D. Grier 100 West Tenth Street
Wilmington, Delaware
</TABLE>
<PAGE> 8
SIXTH
The name and mailing address of each person, who is to serve as a director
of the Corporation until the first annual meeting of the stockholders or until
a successor is elected and qualified is as follows:
<TABLE>
<S> <C>
NAME MAILING ADDRESS
---- ---------------
John B. Elliott 25 Broad Street
New York, New York 1000_
Philip H. Alston, Jr. Citizens and Southern National Bank Bldg.
Atlanta, Georgia 30303
J. Erskine Love, Jr. P.O. Box 3253
Atlanta, Georgia 30302
George W. Thorpe 5 Executive Park Drive
Atlanta, Georgia 30329
George R. Wislar 134 Peachtree Street, N.W.
Atlanta, Georgia 30303
</TABLE>
SEVENTH
The Corporation is to have perpetual existence.
EIGHTH
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
To make, alter or repeal the By-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
<PAGE> 9
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more committees,
each committee to consist of two or more of the directors of the Corporation.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution or
in the By-laws of the Corporation, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; provided, however, the By-laws may provide that in
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholder's meeting duly called upon such notice as is required by statute,
or when authorized by the written consent of the holders of a majority of the
voting stock issued and outstanding, to sell, lease or exchange all or
substantially all of the property and assets of the Corporation, including its
good will and its corporate franchises, upon such terms and conditions and for
such consideration, which may consist in whole or in part of money or property
including shares of stock in, and/or other securities of, any other corporation
or corporations, as its Board of Directors shall deem expedient and for the
best interests of the Corporation.
<PAGE> 10
NINTH
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders of class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
TENTH
Meetings of stockholders may be held within or without the State of
Delaware, in such manner as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-laws of the Corporation.
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
<PAGE> 11
ELEVENTH
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation
Law of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 20th day of July, 1967.
/s/
--------------------------
/s/
--------------------------
/s/
--------------------------
<PAGE> 12
STATE OF DELAWARE )
) ss:
COUNTY OF NEW CASTLE )
BE IT REMEMBERED that on this 20th day of July, 1967, personally came
before me, a Notary Public for the State of Delaware, B.J. Consono, F.J. Obara,
Jr. and A.D. Grier all of the parties to the foregoing certificate of
incorporation, known to me personally to be such, and severally acknowledged
the said certificate to be the act and deed of the signers respectively and
that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/
____________________________
Notary Public
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF
CERTIFICATION INCORPORATION
* * * *
NATIONAL DATA CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of NATIONAL DATA
CORPORATION resolutions were duly adopted setting forth a proposed amendment to
the Certificate of Incorporation of said corporation, declaring said amendment
to be advisable and calling a meeting of the stockholders of said corporation
for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that the Certificate of Incorporation of this
corporation be amended by changing the Article thereof numbered
"FOURTH" so that, as amended said Article shall be and read as
follows:
"The total number of shares of stock which the Corporation
shall have authority to issue is Eight Hundred Ninety-two Thousand
Five Hundred (892,500) shares of the par value of $1.25 each.
Eight Hundred Thousand (800,000) of such shares of the par value
of $1.25 each, amounting in the aggregate to One Million
($1,000,000) Dollars shall be Common Stock and Ninety-Two Thousand
Five Hundred (92,500) of such shares of the par value of $1.25
each, amounting in the aggregate to One Hundred Fifteen Thousand
Six Hundred and Twenty-Five ($115,625.00) Dollars shall be Class A
Common Stock.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof are as
follows:
CLASS A COMMON STOCK
1.1 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $4.17 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $4.17
preference payment, the remaining assets and funds
<PAGE> 14
shall be divided and paid to the holders of both Common Stock and
Class A Common Stock pro rata according to their respective shares.
1.2 Each share of Class A Common Stock may be converted at the
option of the holder thereof, subject to the limitations set forth
below, into one share of Common Stock; provided, however, that no
such conversion shall take place prior to August 1, 1970, and
provided further, that such numbers of shares to be converted
shall be adjusted proportionately in the event of applicable stock
splits (and similar recapitalizations) and stock dividends. Such
conversions shall be made upon surrender to the Corporation at its
stock transfer office or agency in Atlanta, Georgia, or any place
or places where the company shall maintain a transfer agency, of
the certificates for shares of Class A Common Stock so to be
converted. Shares of Class A Common Stock surrendered for
conversion into Common Stock, or otherwise acquired, shall be
cancelled and shall not be reissued. The Corporation shall at all
times preserve and keep available out of its authorized but
unissued Common Stock such number of shares thereof as shall from
time to time be sufficient to permit the conversion of all
outstanding shares of Class A Common Stock as provided above.
1.3 Except to the extent otherwise expressly required by the laws
of the State of Delaware, the holders of Class A Common Stock
shall not by reason of their holdings thereof be entitled to
notice of or to vote at meetings of stockholders, the voting power
being vested in the holders of the Common Stock of the
Corporation.
1.4 No transfer, sale or other disposition of Class A Common Stock
shall be valid until thirty (30) days after the Corporation
through its Secretary, shall have received written notice of the
proposed transfer, sale or disposition, the number of shares
proposed to be transferred, sold or disposed of, the price at
which the transfer, sale or disposition is to be made, and the
name of the prospective buyer or transferee; and during said
thirty (30) days, the Corporation shall also have the first option
to buy, at a price equal to the par value of such shares, any or
all of the shares of such Class A Common Stock proposed to be
transferred, sold, or disposed of. No valid transfer, sale, or
other disposition of such Class A Common Stock may be made except
pursuant to the exercise of such option by the Corporation, in the
event such option is exercised within the specified time limit.
COMMON STOCK
2.1 Except as otherwise provided by statute or by any express
provision of this Certificate the holders of shares of Common
Stock shall
<PAGE> 15
at every meeting of the stockholders be entitled to one vote in
person or by proxy for each share of stock held by such
stockholder.
2.2 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $4.17 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $4.17
preference payment, the remaining assets and funds shall be
divided and paid to the holders of both Common Stock and Class A
Common Stock pro rata according to their respective shares.
GENERAL
3.1 The Corporation shall be entitled to treat the person in whose
name any share, right or option is registered as the owner
thereof, for all purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share, right or
option on the part of any other person, whether or not the
Corporation shall have notice thereof, save as may be expressly
provided by the laws of the State of Delaware.
3.2 The number of authorized shares of any class or classes of
stock of the Corporation may be increased or decreased by the
affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a special meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation will not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, said NATIONAL DATA CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
<PAGE> 16
GEORGE W. THORPE, its President, and attested by FRANCIS HUGHES, its Secretary,
this 15th day of February, 1968.
NATIONAL DATA CORPORATION
By: /s/ George W. Thorpe
---------------------------------
George W. Thorpe, President
[Corporate Seal]
ATTEST:
By: /s/ Francis Huges
-----------------------------
Francis Hughes, Secretary
<PAGE> 17
STATE OF GEORGIA )
) ss:
COUNTY OF FULTON )
BE IT REMEMBERED that on this 15TH DAY OF FEBRUARY, 1968, personally came
before me, a Notary Public in and for the County and State aforesaid, GEORGE W.
THORPE, President of NATIONAL DATA CORPORATION., a corporation of the State of
Delaware, and he duly executed said certificate before me and acknowledged the
said certificate to be his act and deed and the act and deed of said
corporation and the facts stated therein are true; and that the seal affixed to
said certificate and attested by the Secretary of said corporation is the
Common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
/s/
--------------------------
Notary Public
[S E A L]
<PAGE> 18
CERTIFICATE OF CONVERSION
OF
CLASS A COMMON STOCK
INTO
COMMON STOCK
NATIONAL DATA CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY
FIRST: that the total number of shares which said corporation has
authority to issue is 800,000 shares of Common Stock of the par value of $1.25
each and 92,500 shares of Class A Common Stock of the par value of $1.25 each.
SECOND: that pursuant to the provisions of the Certificate of
Incorporation of said corporation 74,692 shares of Class A Common Stock have
been surrendered to the corporation for conversion into 74,692 shares of its
Common Stock.
THIRD: that the Certificate of Incorporation prohibits the reissue of said
shares of Class A Common Stock, when so surrendered for conversion and,
pursuant to the provisions of Section 243 of the General Corporation Law of the
State of Delaware, upon the effective date of the filing of this certificate,
as therein provided, the Certificate of Incorporation of said corporation shall
be amended so as to effect a reduction in the authorized Class A Common Stock
of the corporation to the extent of Ninety-Three, Thousand Three Hundred
Sixty-Five Dollars ($93,365), being the aggregate par value of 74,692 shares of
such Class A Common Stock so surrendered for conversion.
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
Francis Hughes, its Executive Vice President, and attested by L. Neil Williams,
Jr., its Assistant Secretary, this 12th day of May, 1971.
<PAGE> 19
NATIONAL DATA CORPORATION
By: /s/
------------------------
Executive Vice President
[CORPORATE SEAL]
ATTEST:
/s/
- -------------------------
Assistant Secretary
<PAGE> 20
STATE OF GEORGIA )
) ss:
COUNTY OF FULTON )
BE IT REMEMBERED that on this 12th day of May, 1971, personally came
before me, a notary public in and for the County and State aforesaid, Francis
Hughes, Executive Vice President of National Data Corporation, a corporation of
the State of Delaware, and he duly executed said Certificate before me and
acknowledged the said Certificate to be his act and deed and the act and deed
of said corporation and the facts stated therein are true; and that the seal
affixed to said Certificate and attested by the Assistant Secretary of said
corporation is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
/s/
----------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
<PAGE> 21
CERTIFICATE OF PURCHASE
OF
CLASS A COMMON STOCK
NATIONAL DATA CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY
FIRST: that, pursuant to the provisions of Section 243 of the General
Corporation Law of the State of Delaware and subject to the provisions of its
Certificate of Incorporation, Seven Hundred Thirty (730) shares of its issued
and outstanding Class A Common Stock have been purchased by the Corporation for
an amount equal to the aggregate par value of such shares. The Corporation has
applied to such purchase an amount of its capital equal to that part of the
consideration received for such Seven Hundred Thirty (730) shares which is
capital pursuant to the provisions of Section 154 of the General Corporation
Law of the State of Delaware.
SECOND: that the capital of the Corporation is hereby reduced by the
amount of capital represented by the shares purchased by the Corporation, to
wit: Nine Hundred Twelve Dollars and Fifty Cents ($912.50).
THIRD: that the Certificate of Incorporation of the Corporation prohibits
the reissue of the shares of Class A Common Stock when so purchased; and
pursuant to the provisions of Section 243 of the General Corporation Law of the
State of Delaware, upon the effective day of the filing of this Certificate, as
therein provided, the Certificate of Incorporation of said Corporation shall be
amended so as to effect a reduction in the authorized Class A Common Stock of
the Corporation to the extent of Nine Hundred Twelve Dollars and Fifty Cents
($912.50), being the aggregate par value of Seven Hundred Thirty (730) shares
of such stock so purchased and not subject to reissue.
<PAGE> 22
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
Francis Hughes, its Executive Vice President, and attested by L. Neil Williams,
Jr., its Assistant Secretary, this 12th day of May, 1971.
NATIONAL DATA CORPORATION
By: /s/
----------------------------------
Executive Vice President
[CORPORATE SEAL]
ATTEST:
/s/
- -------------------------
Assistant Secretary
<PAGE> 23
STATE OF GEORGIA )
) ss:
COUNTY OF FULTON )
BE IT REMEMBERED that on this 12th day of May, 1971, personally came
before me, a notary public in and for the County and State aforesaid, Francis
Hughes, Executive Vice President of National Data Corporation, a corporation of
the State of Delaware, and he duly executed said certificate before me and
acknowledged the said certificate to be his act and deed and the act and deed
of said corporation and the facts stated therein are true; and that the seal
affixed to said certificate and attested by the Assistant Secretary of said
corporation is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
/s/
--------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
<PAGE> 24
CERTIFICATE OF AMENDMENT
OF
CERTIFICATION INCORPORATION
* * * *
NATIONAL DATA CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of National Data
Corporation, duly call and held on April 22, 1971, resolutions were duly
adopted setting forth a proposed amendment to the Certificate of Incorporation
of said corporation, declaring said amendment to be advisable and calling a
meeting of the stockholders of said corporation for consideration thereof. The
resolution setting forth the proposed amendment is as follows:
FOURTH
RESOLVED, that all of ARTICLE FOURTH of the Corporation's
Certificate of Incorporation, as amended, be deleted and the
following be substituted in its place:
The total number of shares of stock which the Corporation
shall have authority to issue is Three Million Two Hundred
Sixty-Eight Thousand Three Hundred Twelve (3,268,312) shares of
the par value of $.3125 each. Three Million Two Hundred Thousand
(3,200,000) of such shares of the par value of $.3125 each,
amounting in the aggregate to One Million ($1,000,000) Dollars
shall be Common Stock and Sixty-Eight Thousand Three Hundred
Twelve (68,312) of such shares of the par value of $.3125 each,
amounting in the aggregate to Twenty-One Thousand Three Hundred
Forty-Seven Dollars and Fifty Cents ($21,347.50) shall be Class A
Common Stock.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof are as
follows:
<PAGE> 25
CLASS A COMMON STOCK
1.1 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $1.0425 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $1.0425
preference payment, the remaining assets and funds shall be
divided and paid to the holders of both Common Stock and Class A
Common Stock pro rata according to their respective shares.
1.2 Each share of Class A Common Stock may be converted at the
option of the holder thereof, subject to the limitations set forth
below, into one share of Common Stock; provided, however, that no
such conversion shall take place prior to August 1, 1970, and
provided further, that such numbers of shares to be converted
shall be adjusted proportionately in the event of applicable stock
splits (and similar recapitalizations) and stock dividends. Such
conversions shall be made upon surrender to the Corporation at its
stock transfer office or agency in Atlanta, Georgia, or any place
or places where the company shall maintain a transfer agency, of
the certificates for shares of Class A Common Stock so to be
converted. Shares of Class A Common Stock surrendered for
conversion into Common Stock, or otherwise acquired, shall be
cancelled and shall not be reissued. The Corporation shall at all
times preserve and keep available out of its authorized but
unissued Common Stock such number of shares thereof as shall from
time to time be sufficient to permit the conversion of all
outstanding shares of Class A Common Stock as provided above.
1.3 Except to the extent otherwise expressly required by the laws
of the State of Delaware, the holders of Class A Common Stock
shall not by reason of their holdings thereof be entitled to
notice of or to vote at meetings of stockholders, the voting power
being vested in the holders of the Common Stock of the
Corporation.
1.4 No transfer, sale or other disposition of Class A Common Stock
shall be valid until thirty (30) days after the Corporation,
through its Secretary, shall have received written notice of the
proposed transfer, sale or disposition, the number of shares
proposed to be transferred, sold or disposed of, the price at
which the transfer, sale or disposition is to be made, and the
name of the prospective buyer or transferee; and during said
thirty (30) days, the Corporation shall also have the first option
to buy, at a price equal to the par value of such shares, any or
all of the shares of such Class A Common Stock proposed to be
transferred, sold, or disposed of. No valid transfer, sale, or
other disposition of such Class A Common Stock may be made except
pursuant to the exercise of such option by the
<PAGE> 26
Corporation, in the event such option is exercised within the
specified time limit.
COMMON STOCK
2.1 Except as otherwise provided by statute or by any express
provision of this Certificate the holders of shares of Common
Stock shall at every meeting of the stockholders be entitled to
one vote in person or by proxy for each share of stock held by
such stockholder.
2.2 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $1.0425 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $1.0425
preference payment, the remaining assets and funds shall be
divided and paid to the holders of both Common Stock and Class A
Common Stock pro rata according to their respective shares.
GENERAL
3.1 The Corporation shall be entitled to treat the person in whose
name any share, right or option is registered as the owner
thereof, for all purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share, right or
option on the part of any other person, whether or not the
Corporation shall have notice thereof, save as may be expressly
provided by the laws of the State of Delaware.
3.2 The number of authorized shares of any class or classes of
stock of the Corporation may be increased or decreased by the
affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote.
3.3 Upon the effective date of this amendment the presently
outstanding certificates representing shares of the $1.25 par
value Common Stock and Class A Common Stock shall remain valid;
however, each such certificate shall represent an equivalent
number of shares of the $.3125 par value shares of Common Stock
and Class A Common Stock, and certificates representing additional
shares of the $.3125 par value Common Stock and Class A Common
Stock shall be issued and delivered to stockholders of record on
June 18, 1971, pursuant to the four-for-one stock split authorized
by the Board of Directors.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a special meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of
<PAGE> 27
Delaware, at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. The said amendment was adopted by the holders of the Common Stock,
there being no shares of the Class A Common Stock issued and outstanding on
either the record date or the date of the stockholders' meeting.
FOURTH: That the capital of said corporation will not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
George W. Thorpe, its President, and attested by Francis Hughes, its Secretary,
this 17th day of June, 1971.
NATIONAL DATA CORPORATION
By: /s/
-------------------------
President
[CORPORATE SEAL]
ATTEST:
By: /s/
--------------------------------
Secretary
<PAGE> 28
STATE OF GEORGIA )
) ss:
COUNTY OF DEKALB )
BE IT REMEMBERED, that on this 17th day of June, 1971, personally came
before me, a Notary Public in and for the County and State aforesaid, George W.
Thorpe, President of National Data Corporation, corporation of the State of
Delaware, and he duly executed said certificate before me and acknowledged the
said certificate to be his act and deed and the act and deed of said
corporation and the facts stated therein are true; and that the seal affixed to
said certificate and attested by the Secretary of said corporation is the
common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
/s/
------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
<PAGE> 29
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
NATIONAL DATA CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of National Data
Corporation, duly called and held on July 27, 1972, resolutions were duly
adopted setting forth a proposed Amendment to the Certificate of Incorporation
of said corporation, declaring said amendment to be advisable and providing for
consideration of said amendment at the next Annual Meeting of the Stockholders
of said corporation. The resolution setting forth the proposed amendment is as
follows:
Now, Therefore, Be It Resolved, that all of ARTICLE FOURTH of the
corporation's Certificate of Incorporation, as amended, be deleted and
the following be substituted in its place:
F O U R T H
The total number of shares of stock which the corporation
shall have authority to issue is eight million one hundred seventy
thousand seven hundred eighty (8,170,780) shares of the par value
of $.125 each. Eight million (8,000,000) of such shares of the
par value of $.125 each, amounting in the aggregate to One Million
($1,000,000) Dollars shall be Common Stock and one hundred seventy
thousand seven hundred eighty (170,780) of such shares of the par
value of $.125 each, amounting in the aggregate to Twenty-One
Thousand Three Hundred Forty-Seven Dollars and Fifty Cents
($21,347.50) shall be Class A Common Stock.
The designations and the powers, preferences and rights, and
the qualification, limitations or restrictions thereof are as
follows:
<PAGE> 30
CLASS A COMMON STOCK
1.1 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $.417 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $.417
preference payment, the remaining assets and funds shall be
divided and paid to the holders of both Common Stock and Class A
Common Stock pro rata according to their respective shares.
1.2 Each share of Class A Common Stock may be converted at the
option of the holder thereof, subject to the limitations set forth
below, into one share of Common Stock; provided, however that no
such conversion shall take place prior to August 1, 1970, and
provided further, that such numbers of shares to be converted
shall be adjusted proportionately in the event of applicable stock
splits (and similar recapitalizations) and stock dividends. Such
conversions shall be made upon surrender to the Corporation at its
stock transfer office or agency in Atlanta, Georgia, or any place
or places where the Corporation shall maintain a transfer agency,
of the certificates for shares of Class A Common Stock so to be
converted. Shares of Class A Common Stock surrendered for
conversion into Common Stock, or otherwise acquired, shall be
cancelled and shall not be reissued. The Corporation shall at all
times preserve and keep available out of its authorized but
unissued Common Stock such number of shares thereof as shall from
time to time be sufficient to permit the conversion of all
outstanding shares of Class A Common Stock as provided above.
1.3 Except to the extent otherwise expressly required by the laws
of the State of Delaware, the holders of Class A Common Stock
shall not by reason of their holdings thereof be entitled to
notice of or to vote at meetings of stockholders, the voting power
being vested in the holders of the Common Stock of the
Corporation.
1.4 No transfer, sale or other disposition of Class A Common Stock
shall be valid until thirty (30) days after the Corporation,
through its Secretary, shall have received written notice of the
proposed transfer, sale or disposition, the number of shares
proposed to be transferred, sold or disposed of, the price at
which the transfer, sale or disposition is to be made, and the
name of the prospective buyer or transferee; and during said
thirty (30) days, the Corporation shall also have the first option
to buy, at a price, equal to the par value of such shares, any or
all of the shares of such Class A Common Stock proposed to be
transferred, sold or disposed of. No valid transfer, sale or
other disposition of such Class A Common Stock may be made except
pursuant to the exercise of such option by the
<PAGE> 31
Corporation, in the event such option is exercised within the
specified time limit.
COMMON STOCK
2.1 Except as otherwise provided by statute or by any express
provision of this Certificate the holders of shares of Common
Stock shall at every meeting of the stockholders be entitled to
one vote in person or by proxy for each share of stock held by
such stockholder.
2.2 Upon any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, the holders of the
Common Stock shall be entitled to receive money or property
equivalent to $.417 per share before any amount shall be paid to
holders of the Class A Common Stock; and after such $.417
preference payment, the remaining assets and funds shall be
divided and paid to the holders of both Common Stock and Class A
Common Stock pro rata according to their respective shares.
GENERAL
3.1 The Corporation shall be entitled to treat the person in whose
name any share, right or option is registered as the owner
thereof, for all purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share, right or
option on the part of any other person, whether or not the
Corporation shall have notice thereof, save as may be expressly
provided by the laws of the State of Delaware.
3.2 The number of authorized shares of any class or classes of
stock of the Corporation may be increased or decreased by the
affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote.
3.3 Upon the effective date of this amendment the presently
outstanding certificates representing shares of the $.3125 par
value Common Stock and Class A Common Stock shall remain valid;
however, each such certificate shall represent an equivalent
number of shares of the $.125 par value shares of Common Stock and
Class A Common Stock. A five-for-two stock split, authorized by
the Board of Directors shall be effected as of October 2, 1972,
and certificates representing additional shares of the $.125 par
value Common Stock and Class A Common Stock shall be issued and
delivered to stockholders of record as of the close of business on
October 2, 1972.
SECOND: That, thereafter, pursuant to a resolution of its Board of
Directors., an annual meeting of the stockholders of said corporation was duly
called and held, upon
<PAGE> 32
notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware, at which meeting the necessary number of shares as required
by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. The said amendment was adopted by holders of the Common Stock, there
being no shares of the Class A Common Stock issued and outstanding on either
the record date for the annual meeting of stockholders or the date of the
annual meeting of stockholders.
FOURTH: That the capital of said corporation will not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
George W. Thorpe, its President, and attested by Francis Hughes, its Secretary,
this 19th day of September, 1972.
NATIONAL DATA CORPORATION
By: /s/
-------------------------
President
ATTEST:
/s/
- ------------------------------
Secretary
<PAGE> 33
CERTIFICATE OF CONVERSION
OF
CLASS A COMMON STOCK
INTO
COMMON STOCK
NATIONAL DATA CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY
FIRST: that the total number of shares which said corporation has
authority to issue is 8,000,000 shares of Common Stock of the par value of
$.125 each and 170,780 shares of Class A Common Stock of the par value of $.125
each.
SECOND: that pursuant to the provisions of the Certificate of
Incorporation of said corporation 7,645 shares of Class A Common Stock have
been surrendered to the corporation for conversion into 7,645 shares of its
Common Stock.
THIRD: that the Certificate of Incorporation prohibits the reissue of said
shares of Class A Common Stock, when so surrendered for conversion and,
pursuant to the provisions of Section 243 of the General Corporation Law of the
State of Delaware, upon the effective date of the filing of this certificate,
as therein provided, the Certificate of Incorporation of said corporation shall
be amended so as to effect a reduction in the authorized Class A Common Stock
of the corporation to the extent of Nine hundred fifty-five dollars, sixty-two
and one-half cents ($955.625), being the aggregate par value of 7,645 shares of
such Class A Common Stock so surrendered for conversion.
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
George W. Thorpe, its President, and attested by L. Neil Williams, Jr., its
Assistant Secretary, this 17th day of October, 1972.
<PAGE> 34
NATIONAL DATA CORPORATION
By: /s/
------------------------
President
[CORPORATE SEAL]
ATTEST:
/s/
- -------------------------------
Assistant Secretary
<PAGE> 35
CERTIFICATE OF CONVERSION
OF
CLASS A COMMON STOCK
INTO
COMMON STOCK
NATIONAL DATA CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY
FIRST: that the total number of shares which said corporation has
authority to issue is 8,000,000 shares of Common Stock of the par value of
$.125 each and 163,135 shares of Class A Common Stock of the par value of $.125
each. The Certificate of Incorporation authorizes the issuance of 170,780
shares of such Class A Common Stock; however, the number of shares of Class A
Common Stock which the corporation has the authority to issue has been reduced
by the previous filing of a Certificate of Conversion with respect to 7,645
shares of the Class A Common Stock.
SECOND: that pursuant to the provisions of the Certificate of
Incorporation of said corporation 5,920 shares of Class A Common Stock have
been surrendered to the corporation for conversion into 5,920 shares of its
Common Stock.
THIRD: that the Certificate of Incorporation prohibits the reissue of said
shares of Class A Common Stock, when so surrendered for conversion and,
pursuant to the provisions of Section 243 of the General Corporation Law of the
State of Delaware, upon the effective date of the filing of this certificate,
as therein provided, the Certificate of Incorporation of said corporation shall
be amended so as to effect a reduction in the authorized Class A Common Stock
of the corporation to the extent of Seven hundred
<PAGE> 36
forty dollars ($740.00), being the aggregate par value of 5,920 shares of such
Class A Common Stock so surrendered for conversion.
IN WITNESS WHEREOF, said National Data Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
Francis Hughes, its Executive Vice President,, and attested by L. Neil
Williams, Jr., its Assistant Secretary, this 1st day of February, 1973.
NATIONAL DATA CORPORATION
By: /s/
------------------------
Executive Vice President
[CORPORATE SEAL]
ATTEST:
/s/
- ---------------------------
Assistant Secretary
<PAGE> 37
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation") a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on August 7, 1979, unanimously adopted resolutions approving a proposed
amendment to Article Fourth of the Certificate of Incorporation of the
Corporation, declaring such amendment to be advisable, and directing that such
amendment be considered at the Annual Meeting of Stockholders of the
Corporation to be held on October 4, 1979. Such resolutions approved the
deletion of Article Fourth of the Certificate of Incorporation in its entirety
and the substitution in lieu thereof of a new Article Fourth as follows:
"FOURTH
1.1 The Corporation shall have the authority to be exercised by its
Board of Directors to issue 8,000,000 shares of Common Stock of the par
value of $.125 per share (the "Common Stock") and 1,000,000 shares of
Preferred Stock of the par value of $1.00 per share (the "Preferred
Stock").
l.2 Each holder of Common Stock shall at every meeting of the
holders of Common Stock be entitled to one vote in person or by proxy for
each share of Common Stock held by such holder.
1.3 Authority is hereby expressly granted to and vested in the Board
of Directors to issue the Preferred Stock from time to time in one or
more series with such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution
or resolutions adopted by the Board of Directors providing for the issue
of such series or in a resolution or resolutions thereafter from time to
time adopted as permitted by law. In fixing and determining the relative
rights
<PAGE> 38
and preferences of the shares of any series of the Preferred Stock, the
Board of Directors, within the limits from time to time of the authorized
but unissued shares of Common Stock, may provide that shares of any such
series of the Preferred Stock may be convertible into the same or a
different number of shares of Common Stock. In the event the Board of
Directors specifies that the Preferred Stock (or any series thereof)
shall be entitled to voting rights, the voting rights shall be limited to
one vote for each issued and outstanding share of Preferred Stock, and
the Common Stock and the Preferred Stock, unless otherwise required by
law, shall vote together as one class; provided, however, that the Board
of Directors may provide that the holders of the Preferred Stock (or any
series thereof) shall have greater or alternative voting rights in the
event of a default by the Corporation in the observance by the
Corporation of the terms and conditions relating to the Preferred Stock
(or any series thereof).
1.4 Subject to the rights, if any, of the holders of the Preferred
Stock, or any series thereof, the amount of authorized stock of any class
may be increased or decreased by the affirmative vote of the holders of a
majority of the shares of Common Stock of the Corporation entitled to
vote.
1.5 The Corporation shall be entitled to treat the person in whose
name any share, right or option is registered as the owner thereof, for
all purposes, and shall not be bound to recognize any equitable or other
claim to or interest in such share, right or option on the part of any
other person, whether or not the Corporation shall have notice thereof,
except as may be expressly provided by the laws of the State of
Delaware."
2.
The foregoing amendment to delete the present Article Fourth of the
Certificate of Incorporation of the Corporation and to substitute in lieu
thereof a new Article Fourth was submitted to the stockholders of the
Corporation for approval at the Annual Meeting of Stockholders of the
Corporation duly called and held on October 4, 1979. Notice of the Annual
Meeting of Stockholders was duly given in accordance with Sections 222 and 242
of the General Corporation Law of the State of Delaware. The foregoing
amendment was duly adopted at the Annual Meeting of Stockholders held on
October 4, 1979 by the holders of a majority of the issued and outstanding
shares of Common Stock of the Corporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware. No shares of Class A Common
Stock of the Corporation were issued and outstanding and entitled to vote on
the foregoing amendment on either the record date for
- 4 -
<PAGE> 39
or the date of the Annual Meeting of Stockholders held on October 4, 1979. The
aggregate amount of capital of the Corporation represented by all issued and
outstanding shares of Common Stock of the Corporation immediately after the
effectiveness of the foregoing amendment will not be less than the aggregate
amount of capital of the Corporation represented by all issued and outstanding
shares of Common Stock of the Corporation immediately before the effectiveness
of the foregoing amendment.
3.
The Board of Directors of the Corporation, at a meeting duly called and
held on August 7, 1979, unanimously adopted resolutions approving a proposed
new Article Twelfth to be added to the Certificate of Incorporation of the
Corporation, declaring such new Article Twelfth to be advisable, and directing
that such new Article Twelfth be considered at the Annual Meeting of
Stockholders of the Corporation to be held on October 4, 1979. Such
resolutions provided for the amendment of the Certificate of Incorporation of
the Corporation by adding a new Article Twelfth as follows:
"TWELFTH
1.1 The provisions of this Article Twelfth shall apply to any of the
following transactions (hereinafter referred to as "Business
Combinations"):
(a) any merger or consolidation of the Corporation or any of its
affiliates (as hereinafter defined) with or into any other corporation,
person, or other entity which is the beneficial owner, directly or
indirectly, of 10% or more of the outstanding shares of capital stock of
the Corporation entitled to vote in the election of directors; or
(b) any sale, lease, exchange, or other disposition (in one
transaction or in a series of related transactions) of all or
substantially all of the assets of the Corporation or any of its
affiliates to any other corporation, person, or other entity which is the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors; or
(c) any sale, lease, exchange, or other disposition (in one
transaction or in a series of related transactions) to the Corporation or
any of its affiliates of any assets, cash, or securities in exchange for
shares of capital stock of the
- 5 -
<PAGE> 40
Corporation or any of its affiliates entitled to vote in the election of
directors (or securities convertible into or exchangeable for such shares
of capital stock, or options, warrants, or rights to purchase such shares
of capital stock or securities convertible into or exchangeable for such
shares of capital stock) by any corporation, person, or entity which is
the beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors; or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation; or
(e) any reclassification of securities (including any reverse stock
split), recapitalization or other transaction which would result in a
decrease in the number of holders of the outstanding shares of capital
stock of the Corporation entitled to vote in the election of directors
after any other corporation, person or other entity has acquired 25% or
more of the outstanding shares of capital stock of the Corporation
entitled to vote in the election of directors, unless the Board of
Directors of the Corporation shall have authorized such Business
Combination prior to the time that any such corporation, person or other
entity became the beneficial owner, directly or indirectly, of 25% or
more of the outstanding shares of capital stock of the Corporation
entitled to vote in the election of directors.
A corporation, person or other entity which is the beneficial owner,
directly or indirectly, of 10% or more of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors (taken together as a single class) is herein referred to as the
"Acquiring Entity." For the purpose of this Article, the term
"affiliate" shall have the meaning defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934 as in
effect on July 1, 1979.
1.2 No Business Combination shall be effected unless it is approved
at a meeting of the Corporation's stockholders called for that purpose.
The affirmative vote of the holders of at least 66 2/3% of all classes of
capital stock of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article as one class,
shall be required for approval of any such Business Combination,
excluding all shares of such capital stock beneficially owned, directly
or indirectly, by the Acquiring Entity from the number of shares deemed
to be outstanding at the time of such vote and from such vote on the
Business Combination. The affirmative vote required by this Article
shall be in addition to the vote of the holders of any class or series of
capital stock of the Corporation otherwise required by law, or by the
Certificate of Incorporation of the Corporation, or by the resolution
providing for the issuance of a class or series of stock which has been
adopted by the Board of Directors, or by any agreement between the
Corporation and any national securities exchange.
- 6 -
<PAGE> 41
1.3 In addition to the affirmative vote required by law or under any
other provision of this Certificate of Incorporation, no Business
Combination shall be effected unless all of the following conditions, to
the extent applicable, are fulfilled:
(a) The ratio of (i) the aggregate amount of the cash and the fair
market value of the other consideration to be received per share by the
holders of the Common Stock of the Corporation in the Business
Combination to (ii) the market price of the Common Stock of the
Corporation immediately prior to the announcement of the Business
Combination shall be at least as great as the ratio of (i) the highest
price per share previously paid by the Acquiring Entity (whether before
or after it became an Acquiring Entity) for any of the shares of Common
Stock of the Corporation at any time beneficially owned, directly or
indirectly, by the Acquiring Entity to (ii) the market price of the
Common Stock of the Corporation on the trading date immediately prior to
the earliest date on which the Acquiring Entity (whether before or after
it became an Acquiring Entity) purchased any shares of Common Stock of
the Corporation during the two-year period prior to the date on which the
Acquiring Entity acquired the shares of Common Stock of the Corporation
at any time owned by it for which it paid the highest price per share
(or, if the Acquiring Entity did not purchase any shares of Common Stock
of the Corporation during such two-year period, the market price of the
Common Stock of the Corporation on the date two years prior to the date
on which the Acquiring Entity acquired the shares of Common Stock of the
Corporation at any time owned by it for which it paid the highest price
per share). For purposes of this Article, the market price of the Common
Stock of the Corporation shall mean the mean between the high "bid" and
the low "asked" prices of the Common Stock in the over-the-counter market
on the day on which such value is to be determined or, if no shares were
traded on such day, on the next preceding day on which shares were
traded, as reported by the National Association of Securities Dealers
Automatic Quotation System (NASDAQ) or other national quotation service.
If the Common Stock of the Corporation is not regularly traded in the
over-the-counter market but is registered on a national securities
exchange, the market value of the Common Stock shall mean the closing
price of the Common Stock on such national securities exchange on the day
on which such value is to be determined or, if no shares were traded on
such day, on the next preceding day on which shares were traded, as
reported by National Quotation Bureau, Incorporated or other national
quotation service.
(b) The aggregate amount of the cash and the fair market value of
the other consideration to be received per share by the holders of the
Common Stock of the Corporation in the Business Combination shall be not
less than the higher of (i) the highest price per share previously paid
by the Acquiring Entity (whether before or after it became an Acquiring
Entity) for any of the shares of Common Stock of the Corporation at any
time beneficially owned, directly or indirectly, by the Acquiring Entity,
or (ii) the earnings per share of the Common Stock of the
- 7 -
<PAGE> 42
Corporation for the four full consecutive fiscal quarters immediately
preceding the record date for solicitation of votes on the Business
Combination multiplied by the price/earnings multiple on such record date
of the Common Stock of the Acquiring Entity as customarily computed and
reported in the financial community.
(c) The consideration to be received by the holders of the Common
Stock of the Corporation in the Business Combination shall be in the same
form and of the same kind as the consideration paid by the Acquiring
Entity in acquiring the majority of the shares of Common Stock of the
Corporation already beneficially owned, directly or indirectly, by the
Acquiring Entity.
(d) The Acquiring Entity shall not have acquired from the
Corporation, directly or indirectly, any shares of capital stock of the
Corporation entitled to vote in the election of directors except in a
Business Combination to which this Article did not apply or in a Business
Combination to which this Article did apply and which satisfied all of
the requirements of this Article.
(e) After the time when the Acquiring Entity became the beneficial
owner, directly or indirectly, of 25% or more of the outstanding shares
of capital stock of the Corporation entitled to vote in the election of
directors, and prior to consummation of the Business Combination, the
Acquiring Entity (i) shall not have received the benefit, directly or
indirectly, of any loans, advances, extensions of credit, guarantees,
pledges or other financial assistance or tax benefits provided, directly
or indirectly, by the Corporation; (ii) shall not have acquired, directly
or indirectly, any newly issued shares of stock of the Corporation
(except upon conversion of convertible securities acquired by the
Acquiring Entity prior to the time when it became the beneficial owner,
directly or indirectly, of 25% or more of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors or except as a result of a pro rata stock dividend or stock
split); and (iii) shall not have acquired any additional shares of
capital stock of the Corporation entitled to vote in the election of
directors or securities convertible into such capital stock except as
part of the transaction pursuant to which the Acquiring Entity became the
beneficial owner, directly or indirectly, of 25% or more of the
outstanding shares of such capital stock.
(f) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, or any similar or superseding federal
statute, as then in effect (whether or not the provisions of such act or
statute shall be applicable to the Corporation) shall be mailed to
stockholders of the Corporation for the purpose of soliciting approval of
the Business Combination and shall contain therein, in a prominent place,
a detailed statement showing that the Business Combination, if approved
by the stockholders of the Corporation, will comply with the terms and
provisions of this Article.
- 8 -
<PAGE> 43
1.4 For the purpose of this Article, any corporation, person or
entity will be deemed to be a beneficial owner of or to beneficially own
any share or shares of capital stock of the Corporation:
(a) which it owns directly, whether or not of record, or
(b) which it has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement or arrangement or understanding or upon exercise of
conversion rights, exchange rights, warrants or options or otherwise, or
which it has the right to vote pursuant to any agreement, arrangement, or
understanding, or
(c) which are beneficially owned, directly or indirectly (including
shares deemed to be owned through application of clause (b) above), by
any "affiliate" or "associate" as those terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of
1934 as in effect on July 1, 1979, or
(d) which are beneficially owned, directly or indirectly (including
shares deemed to be owned through application of clause (b) above), by
any other corporation, person or entity with which it or any of its
"affiliates" or "associates" have any agreement or arrangement or
understanding for the purpose of acquiring, holding, voting or disposing
of shares of capital stock of the Corporation entitled to vote in the
election of directors.
For the purpose only of determining whether a corporation, person or
other entity beneficially owns, directly or indirectly, any outstanding
shares of capital stock of the Corporation entitled to vote in the
election of directors, the outstanding shares of capital stock of the
Corporation entitled to vote in the election of directors will be deemed
to include any such shares of capital stock that may be issuable pursuant
to any agreement, arrangement or understanding or upon exercise of
conversion rights, exchange rights, warrants, options or otherwise which
are deemed to be beneficially owned by such corporation, person or other
entity pursuant to the foregoing provisions of this Section 1.4, but
shall not include any other shares which may be issuable either
immediately or at some future date pursuant to any agreement, arrangement
or understanding or upon exercise of conversion rights, exchange rights,
warrants, options, or otherwise.
1.5 The provisions of this Article shall not apply to a Business
Combination which was approved by the Board of Directors of the
Corporation prior to the time when the Acquiring Entity became the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors. The provisions of this Article also shall
not apply to a Business Combination which (i) does not change any
stockholder's percentage ownership in the shares of capital stock
entitled to
- 9 -
<PAGE> 44
vote in the election of directors in any successor of the Corporation
from the percentage of the shares of such capital stock beneficially
owned by such stockholder in the Corporation, (ii) provides for the
provisions of this Article, without any amendment, change, alteration or
deletion, to apply to any successor to the Corporation, and (iii) does
not transfer all or substantially all of the Corporation's assets, other
than to a wholly-owned subsidiary of the Corporation; provided, however,
that nothing contained in this Section 1.5 shall permit the Corporation
to issue any of its shares of capital stock entitled to vote in the
election of directors or to transfer any of its assets to a wholly-owned
subsidiary of the Corporation if such issuance of stock or transfer of
assets is part of a plan to transfer such stock or assets to an Acquiring
Entity.
1.6 Nothing contained in this Article shall be construed to relieve
an Acquiring Entity from any fiduciary obligation imposed by law. In
addition, nothing contained in this Article shall prevent any
stockholders of the Corporation from objecting to any Business
Combination and from demanding any appraisal rights which may be
available to such stockholder under Section 262 of the Delaware General
Corporation Law, as such Section may be amended from time to time.
1.7 No amendment, alteration, change or repeal of any provision of
this Article may be effected unless it is approved at a meeting of the
Corporation's stockholders called for that purpose. Notwithstanding any
other provision of the Certificate of Incorporation, the affirmative vote
of the holders of at least 66 2/3% of all classes of capital stock of the
Corporation entitled to vote in the election of directors, considered for
purposes of this Article as one class, shall be required to amend, alter,
change or repeal, directly or indirectly, any provision of this Article,
excluding all shares of such capital stock beneficially owned, directly
or indirectly, by the Acquiring Entity from the number of shares deemed
to be outstanding at the time of such vote and from such vote on such
amendment, alteration, change or repeal of any provision of this
Article."
4.
The foregoing amendment to add a new Article Twelfth to the Certificate of
Incorporation of the Corporation was submitted to the stockholders of the
Corporation for approval at the Annual Meeting of Stockholders of the
Corporation duly called and held on October 4, 1979. Notice of the Annual
Meeting of Stockholders was duly given in accordance with Sections 222 and 242
of the General Corporation Law of the State of Delaware. The foregoing
amendment was duly adopted at the Annual Meeting of Stockholders held on
October 4, 1979 by the holders of a majority of the issued and
- 10 -
<PAGE> 45
outstanding shares of Common Stock of the Corporation in accordance with
Section 242 of the General Corporation Law of the State of Delaware. No shares
of Class A Common Stock of the Corporation were issued and outstanding and
entitled to vote on the foregoing amendment on either the record date for or
the date of the Annual Meeting of Stockholders held on October 4, 1979.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed and its corporate seal to be affixed, all by its
duly authorized officers, this 24th day of October, 1979.
NATIONAL DATA CORPORATION
By: /s/ L. C. Whitney
---------------------------------
L. C. Whitney
President
Attest: /s/ George M. Shea
------------------------
George M. Shea
Secretary
[CORPORATE SEAL]
- 11 -
<PAGE> 46
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on August 7, 1980, unanimously adopted resolutions approving a proposed
amendment to Article Fourth of the Certificate of Incorporation of the
Corporation, declaring such amendment to be advisable, and directing that such
amendment be considered at the Annual Meeting of Stockholders of the
Corporation to be held on October 2, 1980. Such resolutions approved the
deletion of Section 1.1 of Article Fourth of the Certificate of Incorporation
in its entirety and the substitution in lieu thereof of a new Section 1.1 of
Article Fourth as follows:
"1.1 The Corporation shall have the authority to be exercised by its
Board of Directors to issue 12,000,000 shares of Common Stock of the par
value of $.125 per share (the 'Common Stock') and 1,000,000 shares of
Preferred Stock of the par value of $1.00 per share (the 'Preferred
Stock')."
2.
The foregoing amendment to delete the present Section 1.1 of Article
Fourth of the Certificate of Incorporation of the Corporation and to substitute
in lieu thereof a new Section 1.1 of Article Fourth was submitted to the
stockholders of the Corporation for approval at the Annual Meeting of
Stockholders of the Corporation duly called and held on October 2, 1980.
Notice of the Annual Meeting of Stockholders was duly given in accordance with
Sections 222 and 242 of the General Corporation Law of the State of Delaware.
The foregoing amendment was duly adopted at the Annual Meeting of
<PAGE> 47
Stockholders held on October 2, 1980 by the holders of a majority of the issued
and outstanding shares of Common Stock of the Corporation in accordance with
Section 242 of the General Corporation Law of the State of Delaware. No shares
of Preferred Stock of the Corporation were issued and outstanding and entitled
to vote on the foregoing amendment on either the record date for or the date of
the Annual Meeting of Stockholders held on October 2, 1980. The aggregate
amount of capital of the Corporation represented by all issued and outstanding
shares of Common Stock of the Corporation immediately after the effectiveness
of the foregoing amendment will not be less than the aggregate amount of
capital of the Corporation represented by all issued and outstanding shares of
Common Stock of the Corporation immediately before the effectiveness of the
foregoing amendment.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed and its corporate seal to be affixed, all by its
duly authorized officers, this 31st day of October, 1980.
NATIONAL DATA CORPORATION
By: /s/ L. C. Whitney
---------------------------------
L. C. Whitney
President
Attest: /s/ George M. Shea
------------------------
George M. Shea
Secretary
[CORPORATE SEAL]
- 2 -
<PAGE> 48
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on August 6, 1981, duly adopted resolutions approving a proposed amendment
to Article Fourth of the Certificate of Incorporation of the Corporation,
declaring such amendment to be advisable, and directing that such amendment be
considered at the Annual Meeting of Stockholders of the Corporation to be held
on October 7, 1981. Such resolutions approved the deletion of Section 1.1 of
Article Fourth of the Certificate of Incorporation in its entirety and the
substitution in lieu thereof of a new Section 1.1 of Article Fourth as follows:
"1.1 The Corporation shall have the authority to be exercised by its
Board of Directors to issue 30,000,000 shares of Common Stock of the par
value of $.125 per share (the 'Common Stock') and 1,000,000 shares of
Preferred Stock of the par value of $1.00 per share (the 'Preferred
Stock')."
2.
The foregoing amendment to delete the present Section 1.1 of Article
Fourth of the Certificate of Incorporation of the Corporation and to substitute
in lieu thereof a new Section 1.1 of Article Fourth was submitted to the
stockholders of the Corporation for approval at the Annual Meeting of
Stockholders of the Corporation duly called and held on October 7, 1981.
Notice of the Annual Meeting of Stockholders was duly given in accordance with
Sections 222 and 242 of the General Corporation Law of the State of Delaware.
The foregoing amendment was duly adopted at the Annual Meeting of
<PAGE> 49
Stockholders held on October 7, 1981 by the holders of a majority of the issued
and outstanding shares of Common Stock of the Corporation in accordance with
Section 242 of the General Corporation Law of the State of Delaware. No shares
of Preferred Stock of the Corporation were issued and outstanding and entitled
to vote on the foregoing amendment on either the record date for or the date of
the Annual Meeting of Stockholders held on October 7, 1981. The aggregate
amount of capital of the Corporation represented by all issued and outstanding
shares of Common Stock of the Corporation immediately after the effectiveness
of the foregoing amendment will not be less than the aggregate amount of
capital of the Corporation represented by all issued and outstanding shares of
Common Stock of the Corporation immediately before the effectiveness of the
foregoing amendment.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed and its corporate seal to be affixed, all by its
duly authorized officers, this 28th day of October, 1981.
NATIONAL DATA CORPORATION
By: /s/ L. C. Whitney
---------------------------------------
L. C. Whitney
President
Attest: /s/ Katherine F. Stephens
-------------------------
Katherine F. Stephens
Assistant Secretary
[CORPORATE SEAL]
- 2 -
<PAGE> 50
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation") a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on July 9, 1986, unanimously adopted resolutions approving proposed
amendments to the Certificate of Incorporation of the Corporation, declaring
such amendments to be advisable and directing that such amendments be
considered at the Annual Meeting of Stockholders of the Corporation to be held
on November 6, 1986. Such resolutions approved the following amendments to the
Certificate of Incorporation:
(A) To amend and restate in its entirety Article Eighth of the Certificate
of Incorporation, reading as so amended and restated as follows:
"EIGHTH
(a) The Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III, as nearly equal in number as
the then total number of directors constituting the whole Board permits,
with the term of office of one class expiring each year. At the annual
meeting of stockholders in 1986, directors of Class I shall be elected to
hold office for a term expiring at the next succeeding annual meeting,
directors of Class II shall be elected to hold office for a term expiring
at the second succeeding annual meeting, and directors of Class III shall
be elected to hold office for a term expiring at the third succeeding
annual meeting. At each annual meeting of Stockholders, the successors
to the class of directors whose term shall then expire shall be elected
to hold office for a term expiring at the third succeeding annual
meeting.
(b) The number of directors constituting the whole Board shall be as
fixed from time to time by vote of a majority of the whole Board,
provided, however, that the number of directors shall not be less than
three and that the
<PAGE> 51
number shall not be reduced so as to shorten the term of any director in
office. The number of directors constituting the whole Board shall
hereafter be six until otherwise fixed by a majority of the whole Board
in accordance with the preceding sentence. Any vacancies in the Board
for any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board, acting by a
majority of the directors then in office, or by its sole remaining
director. Any director so chosen shall hold office until the next
election of the class for which such director shall have been chosen and
until his successor shall be elected and qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from
office. Any newly created or eliminated directorships resulting from an
increase or decrease in the authorized number of directors shall be
appointed by the Board among the three classes of directors so as to
maintain such classes as nearly equal as possible.
(c) Any director, or the entire Board of Directors, may be removed
from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least 80% of all classes of stock
of the Corporation entitled to vote in the election of directors,
considered for the purposes of this Article as one class.
(d) In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized:
(1) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(2) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
(3) By a majority of the whole Board, to designate one or
more committees, each committee to consist of two or more of the
directors of the Corporation. The Board may designate one or more
directors as alternative members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in a resolution or in
the By-Laws of the Corporation, shall have and may exercise the
powers of the Board in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it; provided,
however, the By-Laws may provide that in the absence or
disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board to act
at a meeting in place of any such absent or disqualified member."
- 2 -
<PAGE> 52
(B) To add a new Article Thirteenth to the Certificate of Incorporation
reading as follows:
"THIRTEENTH
Notwithstanding any other provision of this Certificate of
Incorporation or the By-Laws of the Corporation to the contrary, no
action shall be taken by the stockholders of the Corporation except at an
annual or a special meeting of the stockholders of the Corporation."
(C) To add a new Article Fourteenth to the Certificate of Incorporation
reading as follows:
"FOURTEENTH
(a) The Board shall have the power to alter, amend or repeal the
By-Laws of the Corporation or adopt new By-Laws, but any By-Laws adopted
by the Board may be altered, amended or repealed, and new By-Laws
adopted, by the stockholders of the Corporation. The stockholders may
prescribe that any By-Laws adopted by them shall not be altered, amended
or repealed by the Board.
(b) Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation or the By-Laws of the Corporation to the
contrary, any action taken by the Board with respect to altering,
amending or repealing any provision of the By-Laws of the Corporation, or
adopting new By-Laws, shall be effected only by the affirmative vote of
at least two-thirds (2/3) of the total number of directors then holding
office.
(c) Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation or the By-Laws of the Corporation to the
contrary, any action taken by the stockholders of the Corporation with
respect to altering, amending, or repealing any provision of the By-Laws
of the Corporation, or adopting new By-Laws, or altering, amending or
repealing Article Eighth, Thirteenth, or this Article Fourteenth of the
Corporation's Certificate of Incorporation, shall be effected only by the
affirmative vote of the holders of at least eighty percent (80%) of all
classes of stock of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article as one class."
2.
The foregoing amendments to the Certificate of Incorporation of the
Corporation were submitted to the stockholders of the Corporation for approval
at the Annual Meeting of Stockholders of the Corporation duly called and held
on November 6, 1986. Notice of
- 3 -
<PAGE> 53
the Annual Meeting of Stockholders was duly given in accordance with
Sections 222 and 242 of the General Corporation Law of the State of Delaware.
Each of the foregoing amendments was duly adopted at the Annual Meeting of
Stockholders held on November 6, 1986 by the holders of a majority of the issued
and outstanding shares of Common Stock of the Corporation in accordance with
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed and its corporate seal to be affixed, all by its
duly authorized officers, this 11th day of November, 1986.
NATIONAL DATA CORPORATION
By: /s/ L. C. Whitney
--------------------------------
L. C. Whitney
Chairman of the Board and President
Attest:
/s/ E. Michael Ingram
- ---------------------------------
E. Michael Ingram
Secretary
[CORPORATE SEAL]
- 4 -
<PAGE> 54
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on August 26, 1987, unanimously adopted resolutions approving a proposed
amendment to the Certificate of Incorporation of the Corporation, as previously
amended, declaring such amendment to be advisable and directing that such
amendment be considered at the Annual Meeting of Stockholders of the
Corporation to be held on November 19, 1987. Such resolutions approved the
following amendment to the Certificate of Incorporation:
"The Certificate of Incorporation of National Data Corporation, as
heretofore amended, shall be further amended by the addition of a new Article
Fifteenth as follows:
FIFTEENTH
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that nothing in this Article
Fifteenth shall be construed so as to eliminate or limit the liability of
a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law,
(iv) for any transaction from which the director derived an improper
personal benefit or (v) for any act or omission occurring prior to the
effective date of this Article Fifteenth. No amendment to or repeal of
this Article Fifteenth shall adversely affect any right, benefit or
protection of a director of the Corporation existing at the time of such
amendment or repeal with respect to any acts or omissions occurring prior
to such amendment or repeal."
2.
The foregoing amendment to the Certificate of Incorporation of the
Corporation was submitted to the stockholders of the Corporation for approval
at the Annual Meeting of Stockholders of the Corporation duly called and held
on November 19, 1987. Notice of the Annual Meeting of Stockholders was duly
given in accordance with Sections 222 and 242 of the General Corporation Law of
the State of Delaware. The foregoing
<PAGE> 55
amendment was duly adopted at the Annual Meeting of Stockholders held on
November 19, 1987 by the holders of a majority of the issued and outstanding
shares of Common Stock of the Corporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed and its corporate seal to be affixed, all by its
duly authorized officers, this 24th day of November, 1987.
NATIONAL DATA CORPORATION
By: /s/ L. C. Whitney
-------------------------------
L. C. Whitney
Chairman of the Board
Attest:
/s/ E. Michael Ingram
- -----------------------------------
E. Michael Ingram, Secretary
[CORPORATE SEAL]
- 2 -
<PAGE> 56
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
NATIONAL DATA CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
---------------------------
National Data Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on January 18, 1991:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of the Corporation
and hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 200,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
<PAGE> 57
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock, par value $.125
per share (the "Common Stock'), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the issuance of any share
or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date
- 2 -
<PAGE> 58
of issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until
- 3 -
<PAGE> 59
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on issuance set forth herein,
in the Certificate of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
- 4 -
<PAGE> 60
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under
the proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
- 5 -
<PAGE> 61
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its Chairman of the Board and attested by its Secretary
this 18th day of January, 1991.
/s/ L. C. Whitney
------------------------------------
L. C. Whitney, Chairman of the Board
Attest:
/s/ E. Michael Ingram
- -------------------------------
E. Michael Ingram, Secretary
[Corporate Seal]
- 6 -
<PAGE> 62
CERTIFICATE OF AMENDMENT
OF
NATIONAL DATA CORPORATION
NATIONAL DATA CORPORATION (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1.
The Board of Directors of the Corporation, at a meeting duly called and
held on July 19, 1995, unanimously adopted resolutions approving a proposed
amendment to the Certificate of Incorporation, declaring such amendment to be
advisable and directing that such amendment be considered at the Annual Meeting
of Stockholders of the Corporation to be held on October 26, 1995. Such
resolutions approved the deletion of Section 1.1 of Article Fourth of the
Certificate of Incorporation in its entirety and the substitution in lieu
thereof of a new Section 1.1 of Article Fourth as follows:
"1.1 The Corporation shall have the authority to be exercised by its
Board of Directors to issue 60,000,000 shares of Common Stock of the par
value of $.125 per share (the "Common Stock") and 1,000,000 shares of
Preferred Stock of the par value of $ 1.00 per share (the "Preferred
Stock")."
2.
The foregoing amendment to the Certificate of Incorporation of the
Corporation was submitted to the stockholders of the Corporation for approval
at the Annual Meeting of Stockholders of the Corporation duly called and held
on October 26, 1995. Notice of the Annual Meeting of Stockholders was duly
given in accordance with Sections 222 and 242 of the General Corporation Law of
the State of Delaware. The foregoing amendment was duly adopted at the Annual
Meeting of Stockholders held on October 26, 1995 by the holders of a majority
of the issued and outstanding shares of Common Stock of the
<PAGE> 63
Corporation in accordance with Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, National Data Corporation has caused this Certificate
of Amendment to be executed by its duly authorized officers, this 15th day of
November, 1995.
NATIONAL DATA CORPORATION
By: /s/ E. Michael Ingram
---------------------------------
E. Michael Ingram
General Counsel and Secretary
Attest:
/s/ Katherine F. Stephens
- ------------------------------
Katherine F. Stephens
Assistant Secretary
- 8 -
<PAGE> 1
EXHIBIT 5
Opinion of Alston & Bird regarding the legality of
the securities being registered.
<PAGE> 2
ALSTON&BIRD
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777 Telex: 54-2996
June 6, 1996
National Data Corporation
National Data Plaza
Atlanta, Georgia 30329-2010
Gentlemen:
This opinion is given in connection with the filing by National Data
Corporation ("NDC") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") with respect to up to 289,377 shares (the
"Shares") of the $.125 par value Common Stock of NDC (the "Common Stock") to be
issued to employees and directors of C.I.S. Technologies, Inc., a subsidiary of
NDC, pursuant to the Amended and Restated C.I.S. Technologies, Inc. Stock
Option Plan, the Amended and Restated C.I.S. Technologies, Inc. Employee Stock
Option Plan, the C.I.S. Technologies, Inc. HCC Management Stock Option Plan,
the C.I.S. Technologies, Inc. 1995 Directors' Stock Option Plan and the C.I.S.
Technologies, Inc. 1995 Stock Incentive Plan (the "Plans").
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including (i) the Certificate of Incorporation and Bylaws of each of NDC and
CIS, as amended, (ii) the Agreement and Plan of Merger dated as of April 15,
1996 (the "Merger Agreement") with C.I.S. Technologies, Inc. ("CIS") whereby a
wholly owned subisidiary of NDC merged with and into CIS and NDC agreed to
assume CIS's obligations under the Plans, and (iii) resolutions of the Board of
Directors of NDC authorizing and approving the consummation of the Merger
Agreement. For purposes of this opinion, we assume that (i) all options have
been or will be granted in accordance with the Plans and (ii) the option price
per share under options granted pursuant to the Plans will, in all cases,
exceed the par value of a share of Common Stock.
Based upon the foregoing, we are of the opinion that the Shares to be
issued upon the exercise of options granted under the Plans, upon receipt in
full by NDC of the purchase price prescribed for each Share subject to each
such option, will be duly authorized, legally issued, and fully paid and
non-assessable under the Delaware General Corporation Law as in effect on this
date.
601 Pennsylvania Avenue, N.W.
North Building, Suite 250
Washington, D.C. 20004-2601
<PAGE> 3
National Data Corporation
June 6, 1996
Page 2
Neil Williams, a partner of Alston & Bird, is a director of NDC.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
Sincerely yours,
ALSTON & BIRD
By: /s/ B. Harvey Hill, Jr.
------------------------------
<PAGE> 1
EXHIBIT 10(a)
AMENDED
AND RESTATED
C.I.S. TECHNOLOGIES, INC.
STOCK OPTION PLAN
<PAGE> 2
AMENDED
AND RESTATED
C.I.S. TECHNOLOGIES, INC.
STOCK OPTION PLAN
(FORMERLY INCENTIVE STOCK OPTION PLAN)
PLAN DOCUMENT
<PAGE> 3
AMENDED AND RESTATED
C.I.S. TECHNOLOGIES, INC.
STOCK OPTION PLAN
(FORMERLY INCENTIVE STOCK OPTION PLAN)
C.I.S. TECHNOLOGIES, INC. (the "Company") hereby amends and restates the
C.I.S. Technologies, Inc. Stock Option Plan (formerly Incentive Stock Option
Plan) (the "Plan").
1. PURPOSE. The Plan is intended to promote the interests of the Company
and its subsidiaries by providing certain key employees of the Company and
others an additional incentive and, through stock ownership, increase their
proprietary interest in the success of the Company and promote their continuity
of employment with, or other interest in, the Company.
2. STOCK SUBJECT TO THE PLAN. Subject to adjustment as provided in
paragraph 8 herein, the stock subject to the provisions of this Plan and
reserved for issuance hereunder shall consist of three million 3,000,000 shares
of the Company's common stock (the "Stock"). The Stock to be optioned
hereunder may either be authorized and unissued stock or stock reacquired by
the Company as treasury stock. In the event any option granted hereunder shall
expire, terminate or be forfeited for any reason without having been exercised
in full, the unpurchased shares covered thereby shall be added to the shares
otherwise available for options hereunder.
3. TAX QUALIFICATION OF OPTIONS. Options granted hereunder may be either
(i) granted with the intent that they qualify as "Incentive Stock Options"
under Section 422A of the United States Internal Code of 1986 (the "Code")
(such options being hereinafter referred to as "Incentive Options") or (ii)
granted with the intent that they not be Incentive Options (such options being
hereinafter referred to as "Non-Qualified Options").
4. ELIGIBILITY.
4.1 INCENTIVE OPTIONS. Incentive Options may be granted hereunder
to any individual who is a "Key Employee" on the date of grant, as
determined by the Board of Directors of the Company (the "Board") or the
Stock Option or Compensation Committee of such Board (the "Committee"),
as hereinafter specified. A "Key Employee" for this purpose shall be
deemed to include all officers of the Company or of its parent or
subsidiaries and shall also include such other individuals who are
employees of the Company, its parent or subsidiaries as may be determined
by the Board or by the Committee. In determining which non-officer
employees are Key Employees and in granting Incentive Options hereunder,
the Board or Committee may take into account the duties of the employees,
their present and potential contribution to the success of the Company,
their compensation and such other factors as the Board or Committee shall
deem relevant to accomplish the purposes of the Plan. In no event shall
an Incentive Option be granted to any person who, at the time of grant,
owns Stock possessing more than ten percent (10%) of the total combined
voting power of all classes of Stock of the
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Company or of its parent or subsidiary corporations (hereinafter referred
to as a "ten-percent shareholder"); provided, however, that this
restriction shall not apply if at the time of grant the option price is
not less than 110% of the fair market value of the Stock subject to the
Incentive Option and such Incentive Option is not exercisable after the
expiration of five (5) years from the date of grant.
4.2 NON-QUALIFIED OPTIONS. Non-Qualified Options may be granted
hereunder, as determined by the Board or Committee, to any individual who
is a director, officer or any other employee of the Company or of its
parent or subsidiaries, plus any persons who are consultants or advisors
who render bonafide services to the Company or its parents or
subsidiaries in connection with their business, provided that such
services must not be in connection with the offer or sale of securities
in a capital-raising transaction.
5. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Board provided, however, that the Board shall have authority, at its
discretion, to create the Committee which shall consist of not less than two
(2) Board members designated from time to time by the Board. The Committee, if
created, shall have full authority to administer the Plan, subject to the
requirement of reporting to the Board at least annually as to the number and
extent of any options granted and the recipients thereof. All questions of
interpretation and construction of the Plan and of any options issued under it
shall be determined by a majority of the Board, or by a majority of the
Committee, if created, and the determination of such majority shall be final,
binding and conclusive upon all persons. No member of the Board or Committee
shall be liable for any action or determination made in good faith, and the
members shall be entitled to indemnification and reimbursement to the extent
and as provided in the Company's organizational documents. The Plan shall be
administered in a manner such that all Incentive Options granted under it
qualify as "Incentive Stock Options" under Section 422A of the Code.
6. EFFECTIVE DATE AND AWARD OF OPTIONS. This Plan was initially adopted
by the Company and became effective on the 26th day of October, 1988 (the
"Effective Date"), and has been approved by a majority vote of the stockholders
of the Company as required by Code Section 422A. Options may be granted
hereunder from time to time after the Effective Date and prior to the
expiration of ten (10) years from the Effective Date. No specific option as to
any employee or other optionee shall be effective unless specific Board or
Committee action conferring said option has been taken and nothing in this Plan
shall per se be construed as the grant of an option to an employee or other
eligible person. Any Incentive Option granted shall be formalized by a written
agreement substantially in the form of the option agreement which is attached
hereto as Exhibit "A", and any Non-Qualified Option granted shall be formalized
by a written agreement in a form approved by the Board or Committee; all option
agreements shall be executed by or on behalf of the Company and the optionee to
whom such option is granted.
7. OPTION PRICES.
7.1 INCENTIVE OPTIONS. The purchase price of the shares of Stock
which are covered by Incentive Options granted hereunder shall not be
less than the fair market
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value of the Stock at the time such option is granted. With regard to
any specific option, the Board or Committee shall determine the option
price within these guidelines.
7.2 NON-QUALIFIED OPTIONS. The purchase price of the shares of
Stock which are covered by Non-Qualified Options granted hereunder shall
be any price, which may be less than the fair market value of the Stock
at the time such option is granted, as the Board or Committee shall
determine with respect to each grant of Non-Qualified Options.
8. CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding shares
of the Company are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation, by reason or a reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividend payable in capital stock, appropriate adjustment shall be made by the
Board or Committee in the number and kind of shares for the purchase of which
options may be granted under the Plan, including the maximum number or amount
of Incentive Options that may be granted to any one participant. In addition,
the Board or Committee shall make appropriate adjustment in the number and kind
of shares as to which outstanding options, or portions thereof then
unexercised, shall be exercisable, to the end that the optionee's proportionate
interest shall be maintained as before the occurrence of such event. Such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of the option and with a
corresponding adjustment in the option price per share; provided, however that
each such adjustment in the number and kind of shares subject to outstanding
Incentive Options, including any adjustments in the option price, shall be made
in such manner so that this Plan and the Incentive Options granted and to be
granted hereunder shall continue to qualify under Code Section 422A. Any such
adjustment made by the Board or Committee shall be conclusive.
9. EXERCISABLE RESTRICTIONS.
9.1 INCENTIVE OPTIONS. Incentive Options granted hereunder shall
not be exercisable prior to the expiration of one (1) year from the date
of grant, nor after the expiration of ten (10) years from the date of
grant, except that, in the event a Incentive Option is granted to a
"ten-percent shareholder" (as hereinabove defined), such Incentive
Option, by its terms, may not be exercisable in any event after the
expiration of five (5) years from the date of grant; provided, however,
that within these parameters the Board or Committee may prescribe the
expiration date or term of each Incentive Option granted hereunder. The
aggregate fair market value (determined at the time the option is
granted) of the Stock with respect to which Incentive Options granted
under this Plan are exercisable for the first time by an optionee during
any calendar year (under all such plans of the optionee's employer
corporation and its parent and subsidiary corporations) shall not exceed
$100,000.
9.2 NON-QUALIFIED OPTIONS. Non-Qualified Options granted hereunder
shall not be exercisable after the expiration of ten (10) years from the
date of grant. Subject to such limitation, Non-Qualified Options granted
hereunder shall be exercisable during such
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period(s) of time and in such amount(s) as shall have been determined by
specific Board or Committee actions conferring each Non-Qualified Option
and such specifically approved terms and provisions relative to the
exercisability of Non-Qualified Options shall be set forth in each written
agreement formalizing the grant of Non-Qualified Options.
10. METHOD OF EXERCISE. To the extent that the right to purchase shares
by the exercise of options has accrued hereunder, part of all of an option may
be exercised from time to time by the optionee's delivery of a signed, written
notice to the Company stating the number of shares with respect to which the
option is being exercised. The shares purchased shall be delivered and payment
therefore made thirty (30) days after the giving of such notice unless an
earlier date shall have been mutually agreed upon. At the time of delivery and
payment the Company shall, without transfer or issue tax to the optionee (or
other person entitled to exercise the option), deliver to the optionee (or
other person entitled to exercise the option) at the main office of the Company
or such other place as shall be mutually acceptable, a certificate or
certificates for such shares out of theretofore authorized but unissued shares
or reacquired shares of its common Stock, as the Company may elect, against
payment of the option price in full of the number of shares to be delivered by
certified or bank cashier's check. If the optionee (or other person entitled
to exercise the option) fails to accept delivery of or pay for all or any part
of the number of shares specified in such notice upon tender of delivery
thereof, his right to exercise the option with respect to such undelivered or
non-paid shares may be terminated at the discretion of the Board or Committee.
11. TRANSFERABILITY OF OPTIONS. An option shall not be transferable,
except, in the event of the optionee's death, by will or the laws of descent
and distribution, and an option may be exercised during the lifetime of an
optionee only by him.
12. TERMINATION OF EMPLOYMENT AND DEATH.
12.1 INCENTIVE OPTIONS. In the event the employment with the
Company, its parent and its subsidiaries, of an employee to whom a
Incentive Option has been granted shall terminate for any reason, his
then exercisable Incentive Options may be exercised only within thirty
(30) days after the date of termination, notwithstanding the fact that,
but for such termination, the options would have extended for a longer
period. If an employee to whom a Incentive Option has been granted shall
die during the term of his employment by the Company or any of its
subsidiaries, or within thirty (30) days thereafter, such Incentive
Option may be exercised (but only to the extent that the employee could
have done so on the date of his death) by his personal representative,
legatees or heirs, as appropriate, at any time within one (1) year after
the termination of employment. In any event a Incentive Option shall not
be exercisable by anyone after the date of expiration of the option
period. Notwithstanding the foregoing, however, if the employment of an
optionee with the Company, its parent or subsidiary corporations is
terminated as a result of gross misconduct, fraud or dishonesty, such
employee's outstanding Incentive Options shall be forfeited and
terminated in full as of the date of termination.
12.2 NON-QUALIFIED OPTIONS. In the event the employment with the
Company, its parent and its subsidiaries, of an employee to whom a
Non-Qualified Option has been
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granted shall terminate, the effect of such termination upon the
exercisability of his then exercisable Non-Qualified Options shall be as
determined by specific Board or Committee action conferring such
Non-Qualified Options and the terms and provisions relating to such effect
of a termination of employment shall be set forth in the written agreement
pursuant to which the grant of such Non-Qualified Options is formalized.
Likewise, the effect of the death of an optionee (whether or not an
employee) upon the exercisability of his then exercisable Non-Qualified
Options shall be as determined by specific Board or Committee action
conferring such options and the terms and provisions relating thereto
shall be set forth in the written agreement pursuant to which the grant of
such Non-Qualified Options is formalized.
13. SECURITIES REGISTRATION. Neither the options granted hereunder not
the shares of the Company which may be acquired pursuant to such options are
required hereby to be registered under the securities laws of the United
States, or any state thereof, and upon issuance prior to such a registration
becoming effective, the shares of Stock will be "restricted," as that term is
defined by the Securities Act of 1933, for United States securities law
purposes. If so issued prior to registration thereof becoming effective, the
shares of Stock, upon acquisition, will not, pursuant to such Act, be
transferable without the prior registration thereof under the Securities Act of
1933 and any applicable state securities laws, or an opinion of counsel to the
Company that such registration is not required. If so issued prior to
registration thereof becoming effective, each participant shall agree to hold
the shares acquired by his exercise of the options granted hereunder for
investment purposes only and not with a view to or for resale, transfer or
other distribution thereof to any other person or entity, and he shall deliver
to the Company, upon exercise, a certificate to that effect and an investment
letter in form approved by the Company's counsel. In the event that the
Company does, at its option, determine to register under the Securities Act of
1933 or other applicable statutes, any shares with respect to which an option
shall have been or later is exercised, or qualifies any such shares for
exemption from registration provisions of the Securities Act of 1933, then the
Company shall take such action at its own expense before delivery of such
shares.
14. RIGHTS AS A STOCKHOLDER. An optionee shall have no rights as a
stockholder with respect to any shares covered by his option until the date of
issuance of a stock certificate to him for such shares. No adjustment, other
than as may be required by the terms of numerical paragraph eight (8) above,
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
15. EFFECTIVE DATE AND TERMINATION OF PLAN. This Plan will automatically
terminate on October 26, 1998, and the Board may terminate this Plan at an
earlier time. Termination of the Plan will not affect rights and obligations
theretofore granted and then in effect.
16. AMENDMENT OF PLAN. The Board may at any time amend the Plan, provided
that without approval of stockholders there shall be, except by operation of the
provisions of paragraph 8 above, no increase in the total number of shares
covered by the Plan or which may be sold pursuant to Incentive Options granted
hereunder to any one person, there shall be no change in the class of employees
eligible to receive Incentive Options granted under the Plan, there shall
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be no reduction in the option price for the purchase of shares pursuant to
exercises of Incentive Options, and there shall be no extension of the latest
date upon which options may be exercised, and provided further that no amendment
may affect, without the consent of the optionee, then outstanding options or any
unexercised portions thereof.
17. USE OF PROCEEDS. The proceeds from the sale of stock pursuant to
options granted under the Plan shall constitute general funds of the Company.
18. QUALIFICATION OF PLAN. The portions of this Plan which relate to
Incentive Options, and the Incentive Options granted hereunder, are intended in
all respects to comply with the terms of Section 422A of the United States
Internal Revenue Code of 1986 and the Plan shall be so administered. To the
extent not expressly set forth herein, the necessary applicable provisions of
said Code Section 422A are incorporated herein by this reference.
19. PARENT AND SUBSIDIARY CORPORATIONS. For purposes of this Plan and any
option agreement executed pursuant hereto, the terms "parent" and "subsidiary"
corporations shall be defined as set forth in Code Section Section 425(e) and
425(f), respectively.
20. CHANGE IN CONTROL PROVISIONS.
20.1 DEFINITIONS RELATING TO CHANGE IN CONTROL. For purposes of
this section 20, the following definitions shall apply:
(a) "Acceleration Event" means any event which, in the
opinion of the Board, is likely to lead to a Change in
Control, whether or not such Change in Control actually
occurs.
(b) "Change in Control" means the happening of any of
the following:
(1) Any "person," as such term is used in section
13(d) and 14(d) of the Securities Exchange Act of 1934
(the "Exchange Act") (other than the Company or any
Subsidiary of the Company, or any trustee or other
fiduciary holding securities under an employee benefit
plan of the Company or any Subsidiary) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities
of the Company representing thirty percent (30%) or
more of the combined voting power of the Company's
then outstanding securities;
(2) During any period of two consecutive years,
individuals who, at the beginning of such period, constitute
the Board and any new director (other than a director
designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (1),
(3), or (4) of this section
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<PAGE> 9
20.1(B)) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved
(unless the approval of the election or nomination for
election of such new directors was in connection with an
actual or threatened election or proxy contest), cease for any
reason to constitute at least a majority of the Board;
(3) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (i) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) more than 80% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "person" (as defined above in (1))
acquires more than thirty percent (30%) of the combined voting
power of the Company's then outstanding securities;
(4) The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets or any transaction having a similar
effect, or
(5) If the Company enters into an agreement with a
non-related party for the sale of all or substantially all of
the assets or outstanding stock of a Subsidiary (or a
transaction having a similar effect), a Change in Control
shall be deemed to have occurred with respect to, and only
with respect to, those optionees who are then employed by such
Subsidiary.
(c) "Fair Market Value" means the closing "asked" price of the
shares of Stock in the over-the-counter market on the day on which
such value is to be determined or, if such "asked" price is not
available, the last sales price on such day, or if no shares of
Stock were traded on such day, on the next preceding day on which
such the shares were traded, as reported by the National Association
of Securities Dealers Automated Quotation System (NASDAQ) or other
national quotation service. If the shares of Stock are listed on a
national securities exchange, the "Fair Market Value" means the
closing price of the shares on such national securities exchange on
the day on which such value is to be determined or,
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if no shares of Stock were traded on such day, on the next preceding
day on which such shares were traded, as reported by National
Quotation Bureau, Inc. or other national quotation service. If at
any time shares of Stock are not traded on an exchange or in the
over-the-counter market, "Fair Market Value" shall mean the value
determined by the Board or the Committee, taking into consideration
those factors affecting or reflecting value which they deem
appropriate.
(d) "Subsidiary" means any corporation which qualifies as a
subsidiary of a corporation under the definition of "subsidiary
corporation" contained in Section 425(f) of the Code.
20.2 IMPACT OF EVENT. Notwithstanding anything to the contrary
herein,
(a) In the event of a Change in Control or an Acceleration
Event, (1) Non-Qualified Options granted hereunder shall forthwith
become 100% vested and immediately exercisable and (2) Incentive
Options granted hereunder shall become 100% vested and immediately
exercisable upon the later of (i) the occurrence of the Change in
Control or Acceleration Event or (ii) the first anniversary of the
date of the grant of any particular options;
(b) In the event of a Change in Control, other than a Change in
Control of a Subsidiary of the Company as described at Section
20.1(b)(5) hereof, if, within one year after the occurrence of the
Change in Control (i) no shares of Stock are traded on the NASDAQ
system or other similar national quotation service or are listed on
a national securities exchange or (ii) for a period of 20
consecutive trading days, the Fair Market Value, of a share of Stock
on such a market or exchange shall have declined by 25% or more from
the Fair Market Value of a share of Stock on the date of the Change
in Control, then, for a period of 60 days following such event, the
Company shall offer to the optionees the opportunity to be paid the
value of their outstanding options, determined on the basis of the
Fair Market Value of a share of Stock on the date of the Change in
Control and such amount shall be payable in a cash lump sum within
30 days after the Company received notification of an optionee's
election to accept such offer, and
(c) In the event of a Change in Control of a Subsidiary of the
Company as described at Section 20.1(b)(5) hereof, all options held
by affected optionees, including affected optionees whose employment
with such Subsidiary is, following such Change in Control,
terminated for any reason, shall, notwithstanding Section 11 hereof,
remain exercisable for a period of five years following the date of
such Change in Control or until the expiration of their original
terms, whichever is shorter, and shall
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<PAGE> 11
thereafter terminate. If, during such period of exercisability
following a Change in Control of a Subsidiary, any of the events
described in clause (a) or (b) of this Section 20.2 should occur,
then options held by affected optionees/employees of the Subsidiary
shall be treated the same as all other outstanding options.
(d) In the event of a Change in Control whereby the Company
will not remain in existence or substantially all of its Stock will
be purchased by a single "person," as such term is used in section
13(d) and 14(d) of the Exchange Act, then the Board or the Committee
may declare that all options shall terminate 30 days after the Board
or Committee gives written notice to all optionees of their
immediate right to exercise all options then outstanding (without
regard to limitations on exercise otherwise contained in the
options).
Dated this 23rd day of October, 1992.
C.I.S. TECHNOLOGIES, INC.
By ________________________________
Philip D. Kurtz, President
ATTEST:
_______________________________
Secretary
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<PAGE> 1
EXHIBIT 10(b)
AMENDED
AND RESTATED
C.I.S. TECHNOLOGIES, INC.
EMPLOYEE STOCK OPTION PLAN
<PAGE> 2
AMENDED
AND RESTATED
C.I.S. TECHNOLOGIES, INC.
EMPLOYEE STOCK OPTION PLAN
PLAN DOCUMENT
<PAGE> 3
AMENDED AND RESTATED
C.I.S. TECHNOLOGIES EMPLOYEE STOCK OPTION PLAN
C.I.S. TECHNOLOGIES, INC. (the "Company") hereby adopts the following
Incentive Stock Option Plan, to be known as the C.I.S. Technologies Employee
Stock Option Plan (the "Plan").
1. PURPOSE. The Plan is intended to promote the interests of the Company
and its subsidiaries by providing the employees of the Company an additional
employment incentive and, through stock ownership, increase the employees'
proprietary interest in the success of the Company and promote their continuity
of employment with the Company.
2. STOCK SUBJECT TO THE PLAN. Subject to the adjustment as provided in
paragraph 7 herein, the stock subject to the provisions of this Plan and
reserved for issuance hereunder shall consist of two million (2,000,000)
shares of the Company's common Stock without par value (the "Stock"). The
Stock to be optioned hereunder may either by authorized and unissued stock or
stock reacquired by the Company as treasury stock. In the event any option
granted hereunder shall expire, terminate or be forfeited for any reason
without having been exercised in full, the unpurchased shares covered thereby
shall be added to the shares otherwise available for options hereunder.
3. ELIGIBILITY. Options shall be granted hereunder on or about July 1 of
each year to any individual who is an employee on the date of the grant, and
who has been employed by the Company, its parent or subsidiary corporations,
for a period of at least ninety (90) days. In no event shall an option be
granted to any person who, at the time of grant, owns stock possession more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or of its parent or subsidiary corporations (hereinafter
referred to as a "ten-percent shareholder"); provided, however, that this
restriction shall not apply if at the time of grant the option price is not
less than 110% of the fair market value of the Stock subject to the option and
such option is not exercisable after the expiration of five (5) years from the
date of grant. Subject to the foregoing and the provisions of paragraph 6,
below, the number of shares for which options are issued to any individual
hereunder shall equal in value (as of the date of grant): For employees with
less than none year of service, five percent (5%) of the employee's
compensation for the twelve (12) month period preceding the date of grant of
the option; for employees with one year of service but less than two years of
service, ten percent (10%) of the employee's compensation for the twelve (12)
month period preceding the date of grant of the option; and for employees with
two or more years of service, fifteen (15%) of the employee's compensation for
the twelve (12) month period preceding the date of grant of the option.
Compensation shall be the total cash remuneration paid to an employee by the
Company, its parent or subsidiary corporation, for personal services excluding,
however, any expense allowances, car allowances, compensation paid in the form
of restricted stock or other restricted property under any restricted stock
plan, stock options and stock appreciation rights under any stock option plan,
and any extraordinary payments, such as accrued vacation or sick pay, and
excluding special payments, such as moving expenses, and benefits provided
under any employee
<PAGE> 4
benefit program. An employee's compensation shall be determined as if
any election by such employee to reduce his regular cash remuneration under
Code Section 125 or 401(K) had not been made.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Board of Directors of the Company (the "Board"); provided, however, that the
Board shall have authority, at its discretion, to create a Stock Option or
Compensation Committee (the "Committee") which shall consist of not less than
two (2) Board members designated from time to time by the Board. The
committee, if created, shall have full authority to administer the Plan,
subject to the requirement of reporting to the Board at least annually as to
the number and extent of any options granted and the recipients thereof. All
questions of interpretation and construction of the Plan and of any options
issued under it shall be determined by a majority of the Board, or by a
majority of the Committee, if created, and the determination of such majority
shall be final, binding and conclusive upon all persons. No member of the
Board or Committee shall be liable for any action or determination made in good
faith, and the members shall be entitled to indemnification and reimbursement
to the extent and as provided in the Company's Bylaws and Articles of
Incorporation. The Plan shall be administered so as to qualify options granted
under it as "Incentive Stock Options" under Section 422A of the United States
Internal Revenue Code of 1986 (the "Code").
5. EFFECTIVE DATE AND AWARD OF OPTIONS. This Plan which was adopted by
the Company and became effective on the 1st day of July, 1989 (the "Effective
Date"), shall be subject to approval by a majority vote of the stockholders of
the Company as required by Code Section 422A. Options may be granted hereunder
from time to time after the Effective Date and prior to the expiration of ten
(10) years from the Effective Date. Any option granted shall be formalized by
a written agreement substantially in the form of the Option Agreement which is
attached hereto as "Exhibit "A", and executed by or on behalf of the Company
and the employee to whom such option is granted.
6. OPTION PRICES. The purchase price of the shares of Common Stock which
are covered by all options granted hereunder shall be no less than the fair
market value of the Stock at the time such option is granted.
7. CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding shares
of Common Stock of the Company are increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation, by reason of a reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares, or dividend payable in capital stock, appropriate adjustment shall
be made by the Board or Committee in the number and kind of shares for the
purchase of which options may be granted under the Plan, including the maximum
number or amount that may be granted to any one participant. In addition, the
Board or Committee shall make appropriate adjustment in the number and kind of
shares as to which outstanding options, or portions thereof then unexercised,
shall be exercisable, to the end that the optionee's proportionate interest
shall be maintained as before the occurrence of such event. Such adjustment in
outstanding options shall be made without change in the total price applicable
to the
<PAGE> 5
unexercised portion of the option and with a corresponding adjustment in the
option price per share; provided, however, that each such adjustment in the
number and kind of shares subject to outstanding options, including any
adjustment in the option price, shall be made in such manner so that this Plan
and the options granted and to be granted hereunder shall continue to qualify
under Code Section 422A. Any such adjustment made by the Board or Committee
shall be conclusive.
8. EXERCISE RESTRICTIONS. Subject to the vesting provisions described
below, no option granted hereunder shall be exercisable prior to the expiration
of one (1) year from the date of grant, nor after the expiration of ten (10)
years from the date of grant except that in the event an option is granted to a
"ten-percent shareholder" (as hereinabove defined), in which case such option,
by its terms, may not be exercisable after the expiration of five (5) years
from the date of grant; provided, however that within these parameters the
Board or Committee may prescribe the expiration date or term of each option
granted hereunder. The aggregate fair market value (determined at the time the
option is granted) of the Stock with respect to which options granted under
this Plan are exercisable for the first time by an optionee during any calendar
year (under all such plans of the optionee's employer corporation and its
parent and subsidiary corporation) shall not exceed $100,000. Subject to the
foregoing, each optionee shall acquire the right to exercise the options
granted to him by completing months of service with the Company, its parent and
subsidiaries, such that upon completion of the service specified below, an
optionee may, subject to all other terms hereof, exercise options covering the
vested percentage of the total number of shares set forth below.
<TABLE>
<CAPTION>
Months of Service Vested Percentage
------------------ -----------------
<S> <C>
Less than 36 0%
36 Months and More 100%
</TABLE>
For purposes of computing months of service, all service with the Company, its
parent and subsidiaries, shall be included. The term "month of service" shall
mean a calendar month during which the optionee is on regular, full time
employee status (as defined by Company policy) with the Company, its parent or
subsidiaries. An optionee shall forfeit the non-vested portion of his options
as of the date of his termination of employment with the Company for any
reason, except for death, retirement or disability. Following an optionee's
termination of employment for any reason with the Company, its parent or
subsidiaries, other than by reason of death, retirement or disability, any
outstanding, vested options held by such optionee shall expire and terminate
thirty (30) days after such termination, and no options granted hereunder may
be exercised after the expiration of such 30-day period.
9. METHOD OF EXERCISE. To the extent that the right to purchase shares by
the exercise of options has accrued hereunder, part or all of an option may be
exercised from time to time by the optionee's delivery of a signed, written
notice to the Company stating the number of shares with respect to which the
option is being exercised. The shares purchased shall be delivered and payment
therefore made thirty (30) days after the giving of such notice unless an
earlier date shall have been mutually agreed upon. At the time of delivery and
payment the Company shall, without transfer or issue tax to the optionee (or
other person entitled to exercise
<PAGE> 6
the option), deliver to the optionee (or other person entitled to exercise the
option) at the main office of the Company, or such other place as shall be
mutually acceptable, a certificate or certificates for such shares out of
theretofore authorized but unissued shares or reacquired shares of its common
Stock, as the Company may elect, against payment of the option price in full for
the number of shares to be delivered by certified or bank cashier's check. If
the optionee (or other person entitled to exercise the option) fails to accept
delivery of or pay for all or any part of the number of shares specified in such
notice upon tender of delivery thereof, his right to exercise the option with
respect to such undelivered or non-paid shares may be terminated at the
discretion of the Board or Committee.
10. TRANSFERABILITY OF OPTIONS. An option shall not be transferable,
except, in the event of the optionee's death, by will or the laws of descent
and distribution, and an option may be exercised during the lifetime of an
employee only by him.
11. TERMINATION OF EMPLOYMENT. In the event the employment with the
Company, its parent or any of its subsidiaries, of an employee to whom an
option has been granted shall terminate for any reason, his then exercisable
options may be exercised only within thirty (30) days after the date of
termination, notwithstanding the fact that, but for such termination, the
options would have extended for a longer period. If an employee to whom an
option has been granted shall die during the term of his employment by the
Company or any of its subsidiaries, or within thirty (30) days thereafter, such
option may be exercised (but only to the extent that the employee could have
done so on the date of his death) by his personal representative, legatees or
heirs, as appropriate, at any time within one (1) year after the termination of
employment. In any event an option shall not be exercisable by anyone after
the date of expiration of the option period. Notwithstanding the foregoing,
however, if the employment of an optionee with the Company, its parent or
subsidiaries is terminated as a result of gross misconduct, fraud or
dishonesty, such employee's outstanding options shall be forfeited and
terminated in full as of the date of termination.
12. SECURITIES REGISTRATION. Neither the options granted hereunder nor
the shares of the Company which may be acquired pursuant to such options are
required by the terms hereof to be registered under the securities laws of the
United States, or any state thereof, and if not so registered, upon issuance,
the shares of stock will be "restricted," as that term is defined by the
Securities Act of 1933, for United States securities laws purposes. The shares
of stock, if not so registered, upon acquisition, will not be transferable,
pursuant to such Act, without the registration thereof under the Securities Act
of 1933 and any applicable state securities laws, or an opinion of counsel to
the Company that such registration is not required. Each participant shall
agree to hold the shares acquired by his exercise of the options granted
hereunder for investment purposes only and not with a view to or for resale,
transfer or other distribution thereof to any other person or entity, and he
shall deliver to the Company, upon exercise, a certificate to that effect and
an investment letter in a form approved by the Company's counsel. In the event
that the Company shall nevertheless deem it necessary or appropriate 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.
<PAGE> 7
13. RIGHTS OF STOCKHOLDER. An optionee shall have no rights as a
stockholder with respect to any shares covered by his option until the date of
issuance of a stock certificate to him for such shares. No adjustment, other
than as may be required by the terms of numerical paragraph seven (7) above,
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
14. EFFECTIVE DATE AND TERMINATION OF PLAN. The Board of Directors may
terminate this Plan at any time. Termination of the Plan will not affect
rights and obligations theretofore granted and then in effect.
15. AMENDMENT OF PLAN. The Board of Directors may at any time amend the
Plan, provided that without approval of stockholders, there shall be, except by
operation of the provision of paragraph 7 above, no increase in the total
number of shares covered by the Plan or which may be sold pursuant to options
granted hereunder to any one person, there shall be no change in the class of
employees eligible to receive options granted under the Plan, there shall be no
reduction in the option price, and there shall be no extension of the latest
date upon which options may be exercised, and provided further than no
amendment may affect, without the consent of the optionee, then outstanding
options or any unexercised portions thereof.
16. USE OF PROCEEDS. The proceeds from the sale of stock pursuant to
options granted under the Plan shall constitute general funds of the Company.
17. QUALIFICATIONS OF PLAN. This Plan and the options granted hereunder
are intended in all respects to comply with the terms of Section 422A of the
United States Internal Revenue Code of 1986 and the Plan shall be so
administered. To the extent not expressly set forth herein, the necessary
applicable provision of said Code Section 422A are incorporated herein by this
reference.
18. PARENT AND SUBSIDIARY CORPORATIONS. For purposes of this Plan and any
option agreement executed pursuant hereto, the terms "parent" and "subsidiary"
corporations shall be defined as set forth in Code Section 425(e) and 425(f),
respectively.
19. CHANGE IN CONTROL PROVISIONS.
19.1 DEFINITIONS RELATING TO CHANGE IN CONTROL. For purposes of
this section 19, the following definitions shall apply:
(a) "Acceleration Event" means any event which, in the
opinion of the Board, is likely to lead to a Change in
Control, whether or not such Change in Control actually
occurs.
(b) "Change in Control" means the happening of any of
the following:
<PAGE> 8
(1) Any "person," as such term is used in section
13(d) and 14(d) of the Securities Exchange Act of 1934
(the "Exchange Act") (other than the Company or any
Subsidiary of the Company, or any trustee or other
fiduciary holding securities under an employee benefit
plan of the Company or any Subsidiary) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities
of the Company representing thirty percent (30%) or
more of the combined voting power of the Company's
then outstanding securities;
(2) During any period of two consecutive years,
individuals who, at the beginning of such period,
constitute the Board and any new director (other than
a director designated by a person who has entered into
an agreement with the Company to effect a transaction
described in clause (1), (3), or (4) of this section
19.1(B)) whose election by the Board or nomination for
election by the Company's stockholders was approved by
a vote of at least two-thirds of the directors still
in office who either were directors at the beginning
of the period or whose election or nomination for
election was previously so approved (unless the
approval of the election or nomination for election of
such new directors was in connection with an actual or
threatened election or proxy contest), cease for any
reason to constitute at least a majority of the Board;
(3) The stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than (i) a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity) more than 80% of
the combined voting power of the voting securities of
the Company or such surviving entity outstanding
immediately after such merger or consolidation or (ii)
a merger or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no "person" (as defined above in
(1)) acquires more than thirty percent (30%) of the
combined voting power of the Company's then
outstanding securities;
(4) The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets or any transaction having a similar
effect, or
(5) If the Company enters into an agreement with
a non-related party for the sale of all or substantially all
of the assets or
<PAGE> 9
outstanding stock of a Subsidiary (or a transaction having a
similar effect), a Change in Control shall be deemed to have
occurred with respect to, and only with respect to, those
optionees who are then employed by such Subsidiary.
(c) "Fair Market Value" means the closing "asked"
price of the shares of Stock in the over-the-counter market
on the day on which such value is to be determined or, if
such "asked" price is not available, the last sales price on
such day, or if no shares of Stock were traded on such day,
on the next preceding day on which such the shares were
traded, as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ) or
other national quotation service. If the shares of Stock
are listed on a national securities exchange, the "Fair
Market Value" means the closing price of the shares on such
national securities exchange on the day on which such value
is to be determined or, if no shares of Stock were traded on
such day, on the next preceding day on which such shares
were traded, as reported by National Quotation Bureau, Inc.
or other national quotation service. If at any time shares
of Stock are not traded on an exchange or in the
over-the-counter market, "Fair Market Value" shall mean the
value determined by the Board or the Committee, taking into
consideration those factors affecting or reflecting value
which they deem appropriate.
(d) "Subsidiary" means any corporation which qualifies
as a subsidiary of a corporation under the definition of
"subsidiary corporation" contained in Section 425(f) of the
Code.
19.2 IMPACT OF EVENT. Notwithstanding anything to the contrary
herein,
(a) In the event of a Change in Control or an
Acceleration Event, stock options granted hereunder shall
become 100% vested and immediately exercisable upon the
later of (i) the occurrence of the Change in Control or
Acceleration Event or (ii) the first anniversary of the date
of the grant of any particular options;
(b) In the event of a Change in Control, other than a Change in
Control of a Subsidiary of the Company as described at Section
19.1(b)(5) hereof, if, within one year after the occurrence of the
Change in Control (i) no shares of Stock are traded on the NASDAQ
system or other similar national quotation service or are listed on
a national securities exchange or (ii) for a period of 20
consecutive trading days, the Fair Market Value, of a share of Stock
on such a market or exchange shall have declined by 25% or more from
the Fair Market Value of a share of Stock on the date of the Change
in Control, then, for a period of 60 days following such event, the
Company shall offer to the optionees the opportunity to be paid the
value
<PAGE> 10
of their outstanding options, determined on the basis of the Fair
Market Value of a share of Stock on the date of the Change in
Control and such amount shall be payable in a cash lump sum within
30 days after the Company received notification of an optionee's
election to accept such offer, and
(c) In the event of a Change in Control of a Subsidiary of the
Company as described at Section 19.1(b)(5) hereof, all options held
by affected optionees, including affected optionees whose employment
with such Subsidiary is, following such Change in Control,
terminated for any reason, shall, notwithstanding Section 11 hereof,
remain exercisable for a period of five years following the date of
such Change in Control or until the expiration of their original
terms, whichever is shorter, and shall thereafter terminate. If,
during such period of exercisability following a Change in Control
of a Subsidiary, any of the events described in clause (a) or (b) of
this Section 19.2 should occur, then options held by affected
optionees/employees of the Subsidiary shall be treated the same as
all other outstanding options.
(d) In the event of a Change in Control whereby the Company
will not remain in existence or substantially all of its Stock will
be purchased by a single "person," as such term is used in section
13(d) and 14(d) of the Exchange Act, then the Board or the Committee
may declare that all options shall terminate 30 days after the Board
or Committee gives written notice to all optionees of their
immediate right to exercise all options then outstanding (without
regard to limitations on exercise otherwise contained in the
options).
Dated this 27th day of January, 1994.
C.I.S. TECHNOLOGIES, INC.
By ________________________________
ATTEST:
_____________________________
Secretary
<PAGE> 1
EXHIBIT 10(c)
C.I.S. TECHNOLOGIES, INC.
HCC MANAGEMENT
STOCK OPTION PLAN
<PAGE> 2
C.I.S. TECHNOLOGIES, INC.
HCC MANAGEMENT
STOCK OPTION PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the C.I.S. Technologies, Inc. HCC Management Stock
Option Plan (the "Plan"). The purpose of the Plan is to encourage and enable
the officers and key employees of, and other persons providing services to,
Hospital Cost Consultants, Inc. ("HCC"), a wholly owned subsidiary of C.I.S.
Technologies, Inc. (the "Company"), upon whose judgment, initiative and efforts
HCC and the Company largely depends for their business success, to acquire a
proprietary interest in the Company. It is anticipated that providing such
persons with a direct stake in the Company's welfare will assure a closer
identification of their interests with those of HCC and the Company, thereby
stimulating their efforts on HCC's and the Company's behalf and strengthening
their desire to remain with HCC and the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" shall have the meaning set forth in Section 2.
"Effective Date" means the date on which the Plan is approved by the Board
as set forth in Section 13.
"Eligible Person" shall have the meaning set forth in Section 4.
"Fair Market Value" on any given date means the closing price per share of
the Stock on such date as reported by a nationally recognized stock exchange,
or, if the Stock is not listed on such an exchange, as reported by NASDAQ, or,
if the Stock is not quoted on NASDAQ, the fair market value of the Stock as
determined by the Committee.
"Non-Qualified Stock Option" means any Stock Option that does not qualify
as an "incentive stock option" as defined in Section 422 of the Code.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
<PAGE> 3
"Stock" means the Common Stock, $.O1 par value per share, of the Company,
subject to adjustments pursuant to Section 3.
"Subsidiary" means a subsidiary as set forth in Section 424 of the Code.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE OPTIONS
(a) Committee. The Plan shall be administered by a Committee (the
"Committee") consisting of at least two Directors. Except as specifically
reserved to the Board under the terms of the Plan, the Committee shall have
full and final authority to operate, manage and administer the Plan on behalf
of the Company. Action by the Committee shall require the affirmative vote of
a majority of all members thereof.
(b) Powers of Committee. The Committee shall have the power and authority
to grant Options consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers and other employees of, and persons
providing services to, HCC and its Subsidiaries to whom Options may from
time to time be granted;
(ii) to determine the time or times of grant, and the extent, if
any, of Options granted to any one or more participants;
(iii) to determine the number of shares to be covered by any
Option;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Option,
which terms and conditions may differ among individual Options and
participants, and to approve the form of written instruments evidencing
the Options;
(v) to accelerate the exercisability or vesting of all or any
portion of any Option;
(vi) subject to the provisions of Section 5(a)(ii), to extend the
period in which any outstanding Stock Option may be exercised;
(vii) to reduce the per-share exercise price of any outstanding
Stock Option;
(viii) to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Option (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection
with the Plan; and to otherwise supervise the administration of the Plan.
<PAGE> 4
All decision and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The maximum number of shares of Stock with respect
to which Options may be granted under the Plan shall be 450,000, as such number
may be modified by action of the Board from time to time. The shares of Stock
underlying any Options which are forfeited, cancelled, reacquired by the
Company or otherwise terminated (other than by exercise) shall be added back to
the shares of Stock with respect to which Options may be granted under the Plan
so long as the participants to whom such Options had been previously granted
received no benefits of ownership of the underlying shares of Stock to which
the Option related. Subject to such overall limitation, any type or types of
Option may be granted with respect to shares. Shares issued under the Plan may
be authorized but unissued shares or shares reacquired by the Company.
(b) Stock Dividends, Mergers, etc. In the event that the Company effects
a stock dividend, stock split or similar change in capitalization affecting the
Stock, the Committee shall make appropriate adjustments in (i) the number and
kind of shares of stock or securities with respect to which Options may
thereafter be granted (including without limitation the limitations set forth
in Section 3(a), (ii) the number and kind of shares remaining subject to
outstanding Options, and (iii) the option or purchase price in respect of such
shares. In the event of any merger, consolidation, dissolution or liquidation
of the Company, the Committee in its sole discretion may, as to any outstanding
Options, make such substitution or adjustment in the aggregate number of shares
reserved for issuance under the Plan and in the number and purchase price of
shares subject to such Options as it may determine and as may be permitted by
the terms of such transaction, or accelerate, amend or terminate such Options
upon such terms and conditions as it shall provide (which, in the case of the
termination of the vested portion of any Option, shall require payment or other
consideration which the Committee deems equitable in the circumstances),
subject, however, to the provisions of Section 11.
(c) Substitute Options. The Committee may grant Options under the Plan
to those employees of HCC who have remained as employees of HCC following the
May 31, 1995 acquisition by the Company of 100% of the outstanding stock of
HCC, which Options may be in substitution for such HCC employees' entitlements
to receive certain contingent payments from the Company, the obligation to pay
which has been assumed by the Company in connection with its said acquisition
of the stock of HCC. The Committee may direct that the substitute Options be
granted on such terms and conditions as may be agreed to by such HCC employees
and as the Committee considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY
<PAGE> 5
Options may be granted to officers or other key employees of HCC or its
subsidiaries, and to consultants or other persons who render services to HCC,
regardless of whether they are also employees of HCC ("Eligible Persons").
SECTION 5. ATTRIBUTES OF STOCK OPTIONS
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve. Stock Options granted under the Plan
shall be Non-Qualified Stock Options.
The Committee in its discretion may grant Stock Options to Eligible
Persons. Stock Options granted pursuant to this Section 5 shall be subject to
the following terms and conditions and the terms and conditions of Section 9
and shall contain such additional terms and conditions, not inconsistent with
the terms of the Plan, as the Committee shall deem desirable.
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Committee at the time of grant.
(ii) Option Term. The term of each Stock Option shall be fixed by
the Committee.
(iii) Exercisability; Rights of a Shareholder. Stock Options shall
become exercisable concurrently with the date of their vesting, which
shall be at such time or times concurrently with or after their grant
date, whether or not in installments, as shall be determined by the
Committee, subject to the vesting acceleration and early termination
provisions of Section 6 hereof. The Committee may at any time accelerate
the exercisability of all or any portion of any Stock Option. An
optionee shall have the rights of a shareholder only as to shares
acquired upon the exercise of a Stock Option and not as to unexercised
Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or
in part, by delivering written notice of exercise to the Company,
specifying the number of shares to be purchased accompanied by payment of
the purchase price which may be made by one or more of the following
methods:
(A) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(B) In the form of shares of Stock, if permitted by the Committee,
in its discretion. Such surrendered shares shall be valued at Fair
Market Value on the exercise date; or
<PAGE> 6
(C) By the optionee delivering to the Company irrevocable
instructions to a broker to promptly deliver to the Company cash or
a check payable and acceptable to the Company to pay the purchase
price; provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe as
a condition of such payment procedure. Payment instruments will be
received subject to collection.
The delivery of certificates representing shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon receipt from
the Optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price for
such shares and the fulfillment of any other requirements contained in the
Stock Option or applicable provisions of laws.
(v) Non-transferability of Options. No Stock Option shall be
transferable other than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(vi) Form of Settlement. Shares of Stock issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except as
otherwise provided in this Plan.
SECTION 6. VESTING ACCELERATION AND EARLY TERMINATION OF STOCK OPTIONS
(a) Involuntary Termination of Employment. If any participant's
employment by HCC or the Company or any of its other Subsidiaries is terminated
by HCC or by the Company or any of its other Subsidiaries for any reason,
including for any claimed fault or "cause" on the part of the participant, or
if such employment terminates by reason of the participant's death or
disability or for any other reason completely beyond the control of the
participant, the vesting of all Stock Options then owned by such participant
shall then automatically be accelerated to the date of such occurence and may
thereafter be exercised until the expiration of the stated term of such
Options. In the event of the participant's death, such Options may be so
exercised by the legal representative or legatee of the participant. The
Committee shall have sole authority and discretion to determine whether a
participant's employment or services has terminated by reason of disability.
(b) Voluntary Termination of Employment. Unless otherwise determined by
the Committee, if a participant's employment by or services to HCC or the
Company or any of its other Subsidiaries is voluntartily terminated by the
participant for any reason, including retirement, any Stock Options held by
such participant which are not then vested shall immediately terminate and be
of no further force and effect. Any Stock Options held by such participant
which are then vested may continue to be exercised thereafter until the
expiration of the stated term of such Options.
SECTION 7. TAX WITHHOLDING
<PAGE> 7
(a) Payment by Participant. Each participant shall, no later than the
date as of which the value of an Option or of any Stock or other amounts
received thereunder first becomes includable in the gross income of the
participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Committee regarding payment of any Federal,
state or local taxes of any kind required by law to be withheld with respect to
such income. The Company and its Subsidiaries shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(b) Payment in Shares. Each participant may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing the
Company to withhold from shares of Stock to be issued pursuant to an Option a
number of shares with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the withholding amount due with
respect to such Option, or (ii) transferring to the Company shares of Stock
owned by the participant with an aggregate Fair Market Value (as of the date
the withholding is effected) that would satisfy the withholding amount due.
With respect to any participant who is subject to Section 16 of the Act, the
following additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations relating to
an Option in the manner permitted by this Section 7(b) shall be made
either (1) during the period beginning on the third business day
following the date of release of quarterly or annual summary statements
of sales and earnings of the Company and ending on the twelfth business
day following such date, or (2) at least six months prior to the date as
of which the receipt of such an Option first becomes a taxable event for
Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or approval of the
Committee; and
(D) the Stock withheld to satisfy tax withholding, if granted at the
discretion of the Committee, must pertain to an Option which has been
held by the participant for at least six months from the date of grant of
the Option.
SECTION 8. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from another
Subsidiary or from the Company to any other Subsidiary, or from one
Subsidiary to another;
(b) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed
<PAGE> 8
either by a statute or by contract or under the policy pursuant to which
the leave of absence was granted or if the Committee otherwise so provides
in writing.
SECTION 9. AMENDMENTS AND TERMINATION
The Board may at any time amend or discontinue the Plan and the Committee
may at any time amend or cancel any outstanding Option (or provide substitute
Options at the same or reduced exercise or purchase price or with no exercise
or purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Option if it were then initially
granted under this Plan) for the purpose of satisfying changes in law or for
any other lawful purpose, but no such action shall adversely affect rights
under any outstanding Option without the holder's consent.
SECTION 10. STATUS OF PLAN
With respect to the portion of any Option which has not been exercised, a
participant shall have no rights greater than those of a general creditor of
the Company.
<PAGE> 9
SECTION 11. CHANGE OF CONTROL PROVISIONS
(a) Upon the occurrence of a Change of Control as defined in this Section
(i) subject to the provisions of clause (iii) below, after the
effective date of such Change of Control, each holder of an outstanding
Stock Option shall be entitled, upon exercise of such Option, to receive,
in lieu of shares of Stock, shares of such stock or other securities,
cash or property as the holders of shares of Stock received in connection
with the Change of Control;
(ii) the Committee may accelerate the time for exercise of, and
waive all conditions and restrictions on, each unexercised and unexpired
Stock Option effective upon a date prior or subsequent to the effective
date of such Change of Control, specified by the Committee; or
(iii) each outstanding Stock Option may be cancelled by the
Committee as of the effective date of any such Change of Control provided
that (x) notice of such cancellation shall be given to each holder of
such an Option and (y) each holder of such an Option shall have the right
to exercise such Option to the extent that the same is then exercisable
or, if the Committee shall have accelerated the time for exercise of all
such unexercised and unexpired Options, in full during the 30-day period
preceding the effective date of such Change of Control.
(b) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Act) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Act) (other than the Company,
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company), directly or
indirectly, of securities of the Company representing thirty-five percent
(35%) or more of the combined voting power of the Company's then
outstanding securities; or
(ii) persons who, as of January 1, 1995, constituted the Company's
Board (the "Incumbent Board") cease for any reason, including without
limitation as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent to
January 1, 1995 whose election was approved by, or who was nominated with
the approval of, at least a majority of the directors then comprising the
Incumbent Board shall, for purposes of this Plan, be considered a member
of the Incumbent Board: or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company, with any other corporation or other entity,
other than (a) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
<PAGE> 10
being converted into voting securities of the surviving entity) more than
65% of the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such merger or
consolidation or (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
SECTION 12. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Committee
may require each person acquiring shares pursuant to an Option to represent to
and agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Option until all
applicable securities law and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop orders and
restrictive legends on certificates for Stock and Options as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the participant at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or
additional compensation arrangements, including trusts, subject to stockholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of the
Plan or any Option under the Plan does not confer upon any employee any right
to continued employment with the Company or any Subsidiary.
SECTION 13. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon approval by the Board.
SECTION 14. GOVERNING LAW
This Plan shall be governed by, and construed and enforced in accordance with,
the substantive laws of The State of Delaware without regard to its principles
of conflicts of laws.
<PAGE> 1
EXHIBIT 10(d)
C.I.S. TECHNOLOGIES, INC.
1995 DIRECTORS' STOCK OPTION PLAN
<PAGE> 2
C.I.S. TECHNOLOGIES, INC.
1995 DIRECTORS' STOCK OPTION PLAN
SECTION 1. PURPOSE
This 1995 Directors' Stock Option Plan (the "Plan") of C.I.S.
Technologies, Inc., a Delaware corporation (the "Company"), is designed to
provide additional incentive to directors of the Company ("Directors") who are
not employees of the Company or any parent or subsidiary of the Company
("Outside Directors"). The Company intends that this purpose will be effected
by the granting of nonqualified stock options under the Plan which afford
Outside Directors an opportunity to acquire or increase their proprietary
interest in the Company through the acquisition of shares of its Common Stock.
The terms "parent" and "subsidiary" shall have the respective meanings set
forth in Section 425 of the Internal Revenue Code of 1986, as amended (the
"Code").
SECTION 2. ADMINISTRATION
2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board") or such other
committee as the Board may designate. Except as specifically reserved to the
Board under the terms of the Plan, the Committee shall have full and final
authority to operate, manage and administer the Plan on behalf of the Company.
Action by the Committee shall require the affirmative vote of a majority of all
members thereof.
2.2 Subject to the terms and conditions of the Plan, the Committee shall
have the power:
(a) To construe and interpret the Plan and options granted thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Committee may correct
any defect or supply any omission, or reconcile any inconsistency in the
Plan, or in any option agreement, in the manner and to the extent it shall
deem necessary or expedient to make the Plan fully effective. All
decisions and determinations by the Committee in the exercise of this
power shall be final and binding upon the Company and optionees; and
(b) Generally to exercise such powers and to perform such acts as
are deemed necessary or expedient to promote the best interests of the
Company with respect to the Plan.
<PAGE> 3
SECTION 3. STOCK
3.1 The stock subject to the options granted under the Plan shall be
shares of the Company's authorized but unissued common stock, or shares of the
Company's common stock held in treasury, S.01 par value (in either case,
"Shares"). The total number of Shares that may be issued pursuant to options
granted under the Plan shall not exceed an aggregate of 200,000 Shares;
provided, however, that the class and aggregate number of Shares which may be
subject to options granted under the Plan shall be subject to adjustment as
provided in Section 8 hereof.
3.2 Whenever any outstanding option under the Plan expires, is cancelled
or is otherwise terminated (other than by exercise), the Shares allocable to
the unexercised portion of such option may again be the subject of options
under the Plan.
SECTION 4. OPTION GRANTS
4.1 Only Outside Directors shall be eligible to receive options under the
Plan. Commencing with the date of the Company's 1995 Annual Meeting of
Shareholders (expected to be during April of 1996) each Outside Director then
serving or then reelected to serve on the Board will be automatically granted
an option to purchase (a) 10,000 Shares, multiplied by (b) the number of years
(one, two or three) which will then be remaining in such Director's term as a
Director. Each Outside Director joining the Board after the date of adoption
of this Plan by the Board, whether through election by the shareholders of the
Company or appointment by the Board to fill a vacancy, shall be automatically
granted on the date on which such person first becomes a Director an option to
purchase (a) 10,000 Shares, multiplied by (b) the number of years or portions
of a year constituting such Director's initial term as a Director. In
addition, each Outside Director shall automatically be granted an additional
option to purchase 30,000 Shares upon each such person's reelection to the
Board for a three year term.
4.2 Each option granted to an Outside Director pursuant to the Plan shall
expire on the tenth anniversary of the date of grant and shall become
exercisable in installments cumulatively as to 10,000 of the Shares subject to
such option at the end of each one year period following (i) its date of grant,
provided the optionee is a Director at the end of each such period. The
purchase price per share of Common Stock under each option granted pursuant to
this Section 4.1 shall be equal to the fair market value of the Common Stock on
the date the option is granted, such fair market value to be determined in
accordance with the provisions of Section 6.3.
4.3 Notwithstanding the provisions of Section 4.1, any grant of an option
made before the Company has obtained shareholder approval of the Plan shall be
conditional upon obtaining such approval.
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<PAGE> 4
SECTION 5. TERMINATION OF DIRECTORSHIP OR DEATH OF OPTIONEE
5.1 Except as may be otherwise expressly provided herein, options shall
terminate on the earlier of:
(a) the date of expiration thereof,
(b) the date of termination of the optionee's services as a Director
for cause (as determined by the Board); or
(c) one year after the date of termination of the optionee's
services as a Director without cause or voluntarily by the optionee.
As used herein, "cause", shall mean (x) any material breach by the
optionee of any agreement to which the optionee and the Company are both
parties, (y) any act or omission to act by the optionee which may have adverse
effect on the Company's business or on the optionee's ability to perform
services for the Company, including, without limitation, the commission of any
crime (other than ordinary traffic violations), or (z) any material misconduct
or material neglect of duties by the optionee in connection with the business
or affairs of the Company or any affiliate of the Company.
5.2 In the event of the death or permanent and total disability of the
holder of an option prior to termination of the optionee's services as a
Director and before the date of expiration of such option, such option shall
terminate on the earlier of such date of expiration or two years following the
date of such death or disability. After the death of the optionee, his/her
executors, administrators or any person or persons to whom his/her option may
be transferred by will or by the laws of descent and distribution, shall have
the right, at any time prior to such termination, to exercise the option to the
extent the optionee was entitled to exercise such option immediately prior to
his/her death. An optionee is permanently and totally, disabled if he/she is
unable to engage in any gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months; permanent and total disability
shall be determined in accordance with Section 22(e)(3) of the Code and the
regulations issued thereunder.
SECTION 6. TERMS OF THE OPTION AGREEMENTS
Each option agreement shall be in writing and shall contain such terms,
conditions, restrictions, if any, and provisions as the Committee shall from
time to time deem appropriate. Such provisions or conditions may include
without limitation restrictions on transfer, repurchase rights, or such other
provisions as shall be determined by the Committee; provided that such
additional provisions shall not be inconsistent with any other term or
condition of the Plan.
Option agreements need not be identical, but each option agreement by
appropriate language shall include the substance of all of the following
provisions:
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<PAGE> 5
6.1 Expiration. Notwithstanding any other provision of the Plan or of
any option agreement, each option shall expire on the date specified in the
option agreement.
6.2 Exercise. Each option may be exercised, so long as it is valid and
outstanding, from time to time in part or as a whole, subject to any
limitations with respect to the number of Shares for which the option may be
exercised at a particular time and to such other conditions as the Committee in
its discretion may specify upon granting the option.
6.3 Purchase Price. The purchase price per share under each option shall
be the fair market value of the Common Stock on the date the option is granted.
For the purpose of the Plan the fair market value of the Common Stock shall be
the closing price per share on the date of grant of the option as reported by a
nationally recognized stock exchange, or, if the Common Stock is not listed on
such an exchange, as reported by NASDAQ, or, if the Common Stock is not quoted
on NASDAQ, the fair market value as determined by
the Committee.
6.4 Transferability of Options. Options shall not be transferable by the
optionee otherwise than by will or under the laws of descent and distribution
and shall be exercisable, during his or her lifetime, only by him or her.
6.5 Rights of Optionees. No optionee shall be deemed for any purpose to
be the owner of any Shares subject to any option unless and until the option
shall have been exercised pursuant to the terms thereof, and the Company shall
have issued and delivered the Shares to the optionee.
6.6 Repurchase Right. The Committee may in its discretion provide upon
the grant of any option hereunder that the Company shall have an option to
repurchase upon such terms and conditions as determined by the Committee all or
any number of Shares purchased upon exercise of such option. The repurchase
price paid by the Company shall be such amount or be determined by such formula
as is fixed by the Committee at the time the option for the Shares subject to
repurchase is granted. In the event the Committee shall grant options subject
to such repurchase option, the certificates representing the Shares purchased
pursuant to such option shall carry a legend satisfactory to counsel for the
Company referring to the Company's repurchase option.
SECTION 7. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
7.1 Any option granted under the Plan may be exercised by the optionee by
delivering to the Company on any business day a written notice specifying the
number of Shares the optionee then desires to purchase and specifying the
address to which the certificates for such Shares are to be mailed (the
"Notice"), accompanied by payment for such Shares.
7.2 Payment for the Shares purchased pursuant to the exercise of an
option shall be made either by (i) cash, certified check, bank draft or postal
or express money order equal to the option price for the number of Shares
specified in the Notice, or (ii) with the consent of the Committee, Shares of
the Company having a fair market value equal to the option price of such
Shares, or (iii) with the consent of the Committee, such other consideration
which is acceptable to the
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<PAGE> 6
Committee and which has a fair market value equal to the option price of such
Shares, or (iv) with the consent of the Committee, a combination of (i), (ii)
and/or (iii). For the purpose of the preceding sentence, the fair market value
per share of Common Stock so delivered to the Company shall be determined in the
manner specified in Section 6.3. As promptly as practicable after receipt of
the Notice and accompanying payment, the Company shall deliver to the optionee
certificates for the number of Shares with respect to which such option has been
exercised, issued in the optionee's name; provided, however, that such delivery
shall be deemed effected for all purposes when the Company or a stock transfer
agent of the Company shall have deposited such certificates in the United States
mail, addressed to the optionee, at the address specified in the Notice.
SECTION 8. CHANGES IN COMPANY'S CAPITAL STRUCTURE
8.1 Rights of Company. The existence of outstanding options shall not
affect in any way the right or power of the Company or its stockholders to make
or authorize, without limitation, any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock
or other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
8.2 Recapitalization, Stock Splits and Dividends. If the Company shall
effect a subdivision or consolidation of Shares or other capital readjustment,
the payment of a stock dividend, or other increase or reduction of the number
of Shares of the Common Stock outstanding, in any such case without receiving
compensation therefor in money, services or property, then (i) the number,
class, and price per share of Shares of stock subject to outstanding options
hereunder shall be appropriately adjusted in such a manner as to entitle an
optionee to receive upon exercise of an option, for the same aggregate cash
consideration, the same total number and class of Shares as he or she would
have received as a result of the event requiring the adjustment had he or she
exercised his or her option in full immediately prior to such event; and (ii)
the number and class of Shares with respect to which options may be granted
under the Plan shall be adjusted by substituting for the total number of Shares
then reserved for issuance under the Plan that number and class of Shares of
stock that the owner of an equal number of outstanding Shares would own as the
result of the event requiring the adjustment.
8.3 Merger without Change of Control. After a merger of one or more
corporations into the Company or after a consolidation of the Company and one
or more corporations in which (i) the Company shall be the surviving
corporation and (ii) the stockholders of the Company immediately prior to such
merger or consolidation own after such merger or consolidation Shares
representing at least fifty percent (50%) of the voting power of the Company,
each holder of an outstanding option shall, at no additional cost, be entitled
upon exercise of such option to receive in lieu of the number of Shares as to
which such option shall then be so exercisable, the number and class of shares
of stock or other securities to which such holder would have been entitled
- 5 -
<PAGE> 7
pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, such holder had been the
holder of record of a number of Shares equal to the number of Shares for which
such option was exercisable.
8.4 Sale or Merger with Change of Control. If the Company is merged into
or consolidated with another corporation under circumstances where the Company
is not the surviving corporation, or if there is a merger or consolidation where
the Company is the surviving corporation but the stockholders of the Company
immediately prior to such merger or consolidation do not own after such merger
or consolidation Shares representing at least fifty percent (50%) of the voting
power of the Company, or if the Company is liquidated or sells or otherwise
disposes of substantially all of its assets to another corporation while
unexercised options remain outstanding under the Plan, (i) subject to the
provisions of clause (iii) below, after the effective date of such merger,
consolidation, liquidation, sale or disposition, as the case may be, each holder
of an outstanding option shall be entitled, upon exercise of such option, to
receive, in lieu of Shares, shares of such stock or other securities, cash or
property as the holders of Shares received pursuant to the terms of the merger,
consolidation, liquidation, sale or disposition; (ii) the Committee may
accelerate the time for exercise of all unexercised and unexpired options to and
after a date prior to the effective date of such merger, consolidation,
liquidation, sale or disposition, as the case may be, specified by the
Committee; or (iii) all outstanding options may be cancelled by the Committee as
of the effective date of any such merger, consolidation, liquidation, sale or
disposition provided that (x) notice of such cancellation shall be given to each
holder of an option and (y) each holder of an option shall have the right to
exercise such option to the extent that the same is then exercisable or, if the
Committee shall have accelerated the time for exercise of all unexercised and
unexpired options, in full during the 30-day period preceding the effective date
of such merger, consolidation, liquidation, sale or disposition.
8.5 Adjustments to Common Stock Subject to Options. Except as
hereinbefore expressly provided, the issue by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, for
cash or property, or for labor or services, either upon direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
Shares or obligations of the Company convertible into such Shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of Shares then subject to outstanding
options.
8.6 Miscellaneous. Adjustments under this Section 8 shall be determined
by the Committee, and such determinations shall be conclusive. No fractional
Shares shall be issued under the Plan on account of any adjustment specified
above.
SECTION 9. GENERAL RESTRICTIONS
9.1 Investment Representations. The Company may require any person to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such person is acquiring the Common
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<PAGE> 8
Stock subject to the option for his or her own account for investment and not
with any present intention of selling or otherwise distributing the same, and to
such other effects as the Company deems necessary or appropriate in order to
comply with federal and applicable state securities laws.
9.2 Compliance with Securities Laws. The Company shall not be required to
sell or issue any Shares under any option if the issuance of such Shares shall
constitute a violation by the optionee or by the Company of any provisions of
any law or regulation of any governmental authority. In addition, in connection
with the Securities Act of 1933, as now in effect or hereafter amended (the
"Act"), upon exercise of any option, the Company shall not be required to issue
such Shares unless the Committee has received evidence satisfactory to it to the
effect that the holder of such option will not transfer such Shares except
pursuant to a registration statement in effect under such Act or unless an
opinion of counsel satisfactory to the Company has beenreceived by the Company
to the effect that such registration is not required. Any determination in this
connection by the Committee shall be final, binding and conclusive. In the
event the Shares issuable on exercise of an option are nonregistered under the
Act, the Company may imprint upon any certificate representing Shares so issued
the following legend or any other legend which counsel for the Company considers
necessary or advisable to comply with the Act and with applicable state
securities laws:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 or under the
securities laws of any State and may not be sold or transferred
except upon such registration or upon receipt by the Corporation
of an opinion of counsel satisfactory to the Corporation, in form
and substance satisfactory to the Corporation, that registration
is not required for such sale or transfer.
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Act; and in the event any Shares are
so registered the Company may remove any legend on certificates representing
such Shares. The Company shall not be obligated to take any other affirmative
action in order to cause the exercise of an option or the issuance of Shares
pursuant thereto to comply with any law or regulation of any governmental
authority.
SECTION 10. AMENDMENT OR TERMINATION OF THE PLAN
The Board may modify, revise or terminate this Plan at any time and from
time to time, except that (i) the class of persons eligible to receive options
and the aggregate number of Shares issuable pursuant to this Plan shall not be
changed or increased, other than by operation of Section 8 hereof, without the
consent of the stockholders of the Company and (ii) the provisions of Section 4
shall not be amended more than once in any six (6) month period, other than to
comport with changes in the Code, the Employee Retirement Income Security Act
or the rules thereunder.
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<PAGE> 9
SECTION 11. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
SECTION 12. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective upon its adoption by the Board provided
that the stockholders of the Company shall have approved the Plan within twelve
(12) months prior to or following the adoption of the Plan by the Board. The
Plan shall terminate (i) when the total amount of the Stock with respect to
which options may be granted shall have been issued upon the exercise of options
or (ii) by action of the Board pursuant to Section 10 hereof, whichever shall
first occur.
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<PAGE> 1
EXHIBIT 10(e)
C.I.S. TECHNOLOGIES, INC.
1995
STOCK INCENTIVE PLAN
<PAGE> 2
C.I.S. TECHNOLOGIES, INC.
1995
STOCK INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the C.I.S. Technologies, Inc. 1995 Stock Incentive
Plan (the "Plan"). The purpose of the Plan is to encourage and enable the
officers, employees and directors of, and other persons providing services to,
C.I.S. Technologies, Inc. (the "Company") and its Subsidiaries upon whose
judgment, initiative and efforts the Company largely depends for the successful
conduct of its business to acquire a proprietary interest in the Company. It
is anticipated that providing such persons with a direct stake in the Company's
welfare will assure a closer identification of their interests with those of
the Company, thereby stimulating their efforts on the Company's behalf and
strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards", except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified
Stock Options, Conditioned Stock Awards, Unrestricted Stock Awards, and
Performance Share Awards.
"Board" means the Board of Directors of the Company.
"Cause" means (i) any material breach by the participant of any agreement
to which the participant and the Company are both parties, (ii) any act or
omission to act by the participant which may have a material and adverse effect
on the Company's business or on the participant's ability to perform services
for the Company, including, without limitation, the commission of any crime
(other than ordinary traffic violations), or (iii) any material misconduct or
material neglect of duties by the participant in connection with the business
or affairs of the Company or any affiliate of the Company.
"Change of Control" shall have the meaning set forth in Section 14.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Conditioned Stock Award" means an Award granted pursuant to Section 6.
"Committee" shall have the meaning set forth in Section 2.
"Disability" means disability as set forth in Section 22 (e) (3) of the
Code.
<PAGE> 3
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 16. "Eligible Person" shall have the
meaning set forth in Section 4.
"Fair Market Value" on any given date means the closing price per share of
the Stock on such date as reported by a nationally recognized stock exchange,
or, if the Stock is not listed on such an exchange, as reported by NASDAQ, or,
if the Stock is not quoted on NASDAQ, the fair market value of the Stock as
determined by the Committee.
"Incentive Stock Option" means any Stock Option designated and qualified
as an "incentive stock option" as defined in Section 422 of the Code.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Normal Retirement" means retirement from active employment with the
Company and its Subsidiaries in accordance with the retirement policies of the
Company and its Subsidiaries then in effect.
"Outside Director" means any director who (i) is not an employee of the
Company or of any "affiliated group," as such term is defined in Section
1504(a) of the Code, which includes the Company (an "Affiliate"), (ii) is not a
former employee of the Company or any Affiliate who is receiving compensation
for prior services (other than benefits under a tax-qualified retirement plan)
during the Company's or any Affiliate's taxable year, (iii) has not been an
officer of the Company or any Affiliate and (iv) does not receive remuneration
from the Company or any Affiliate, either directly or indirectly, in any
capacity other than as a director.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Performance Share Award" means an Award granted pursuant to Section 8.
"Stock" means the Common Stock, $.O1 par value per share, of the Company,
subject to adjustments pursuant to Section 3.
"Subsidiary" means a subsidiary as set forth in Section 424 of the Code.
"Unrestricted Stock Award" means Awards ranted pursuant to Section 7.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT
PARTICIPANTS AND DETERMINE AWARDS
(a) Committee. The Plan shall be administered by a Committee (the
"Committee") consisting of at least two Outside Directors. To the extent
possible, none of the members of the Committee shall have been granted any
Award under this Plan (other than pursuant
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<PAGE> 4
to Section 7 (c) ) or any other stock option plan of the Company within one year
prior to service on the Committee. It is the intention of the Company that the
Plan shall be administered by "disinterested persons" within the meaning of Rule
16b-3 under the Act, but the authority and validity of any act taken or not
taken by the Committee shall not be affected if any person administering the
Plan is not a disinterested person. Except as specifically reserved to the
Board under the terms of the Plan, the Committee shall have full and final
authority to operate, manage and administer the Plan on behalf of the Company.
Action by the Committee shall require the affirmative vote of a majority of all
members thereof.
(b) Powers of Committee. The Committee shall have the power and authority
to grant Awards consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers and other employees of, and persons
providing services to, the Company and its Subsidiaries to whom Awards
may from time to time be granted;
(ii) to determine the time or times of grant, and the extent, if
any, of Incentive Stock Options, Non-Qualified Stock Options, Conditioned
Stock, Unrestricted Stock, and Performance Shares, or any combination of
the foregoing, granted to any one or more participants;
(iii) to determine the number of shares to be covered by any Award;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award,
which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing
the Awards;
(v) to accelerate the exercisability or vesting of all or any
portion of any Award;
(vi) subject to the provisions of Section 5(a)(ii), to extend the
period in which any outstanding Stock Option may be exercised;
(vii) to reduce the per-share exercise price of any outstanding
Stock Option (but not to less than Fair Market Value on the date the
reduction is made);
(viii) to determine whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the
participant and whether and to what extent the Company shall pay or
credit amounts equal to interest (at rates determined by the Company) or
dividends or deemed dividends on such deferrals; and
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(ix) to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection
with the Plan; and to otherwise supervise the administration of the Plan.
All decision and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The maximum number of shares of Stock with respect
to which Awards may be granted under the Plan shall be that aggregate number of
shares of Stock remaining available as of the Effective Date for the granting
of options pursuant to the Company's then terminated Employees Stock Option
Plan and Stock Option Plan (formerly, Incentive Stock Option), minus 200,000,
plus that number of shares which would have become available in the future for
the granting of options pursuant to such plans (had such plans not been
terminated) due to future terminations, forfeitures or cancellations of
unexercised options granted thereunder. For purposes of this limitation, the
shares of Stock underlying any Awards which are forfeited, canceled, reacquired
by the Company or otherwise terminated (other than by exercise) shall be added
back to the shares of Stock with respect to which Awards may be granted under
the Plan so long as the participants to whom such Awards had been previously
granted received no benefits of ownership of the underlying shares of Stock to
which the Award related. Subject to such overall limitation, any type or types
of Award may be granted with respect to shares, including Incentive Stock
Options. Shares issued under the Plan may be authorized but unissued shares or
shares reacquired by the Company.
(b) Limitation on Awards. In no event may any Plan participant be
granted Awards with respect to more than 300,000 shares of Stock in any
calendar year, except that participants who are hired as executive employees of
the Company or are promoted to an executive position within the Company may, in
connection with their hiring or promotion, be granted awards with respect to up
to 500,000 shares. The number of shares of Stock relating to an Award granted
to a Plan participant in a calendar year that is subsequently forfeited,
canceled or otherwise terminated shall continue to count toward the foregoing
limitation in such calendar year. In addition, if the exercise price of an
Award is subsequently reduced, the transaction shall be deemed a cancellation
of the original Award and the grant of a new one so that both transactions
shall count toward the maximum shares issuable in the calendar year of each
respective transaction.
(c) Stock Dividends, Mergers, etc. In the event that after approval of
the Plan by the stockholders of the Company in accordance with Section 16, the
Company effects a stock dividend, stock split or similar change in
capitalization affecting the Stock, the
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Committee shall make appropriate adjustments in (i) the number and kind of
shares of stock or securities with respect to which Awards may thereafter be
granted (including without limitation the limitations set forth in Sections
3(a) and (b) above), (ii) the number and kind of shares remaining subject to
outstanding Awards, and (iii) the option or purchase price in respect of such
shares. In the event of any merger, consolidation, dissolution or liquidation
of the Company, the Committee in its sole discretion may, as to any outstanding
Awards, make such substitution or adjustment in the aggregate number of shares
reserved for issuance under the Plan and in the number and purchase price (if
any) of shares subject to such Awards as it may determine and as may be
permitted by the terms of such transaction, or accelerate, amend or terminate
such Awards upon such terms and conditions as it shall provide (which, in the
case of the termination of the vested portion of any Award, shall require
payment or other consideration which the Committee deems equitable in the
circumstances), subject, however, to the provisions of Section 14.
(d) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become employees of the Company or a Subsidiary as
the result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation. The Committee may direct that
the substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances. The shares which may be delivered
under such substitute awards shall be in addition to the maximum number of
shares provided for in Section 3(a) only to the extent that the substitute
Awards are both (i) granted to persons whose relationship to the Company does
not make (and is not expected to make) them subject to Section 16(b) of the
Act; and (ii) granted in substitution for awards issued under a plan approved,
to the extent then required under Rule 16b-3 (or any successor rule under the
Act), by the stockholders of the entity which issued such predecessor awards.
SECTION 4. ELIGIBILITY
Awards may be granted to officers or other key employees of the Company or
its subsidiaries, and to members of the Board and consultants or other persons
who render services to the Company, regardless of whether they are also
employees ("Eligible Persons"), provided, however, that members of the
Committee at the time of grant, except for the purposes of Section 7(c), shall
not constitute Eligible Persons.
SECTION 5. STOCK OPTIONS
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. To the extent
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that any option does not qualify as an Incentive Stock Option, it shall
constitute a Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after December
31, 2004.
(a) Grant of Stock Options. The Committee in its discretion may grant
Incentive Stock Options only to employees of the Company or any Subsidiary.
The Committee in its discretion may grant Non-Qualified Stock Options to
Eligible Persons. Stock Options granted pursuant to this Section 5(a) shall be
subject to the following terms and conditions and the terms and conditions of
Section 12 and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Committee at the time of grant but shall be, in the
case of Incentive Stock Options, not less than 100% of Fair Market Value
on the date of grant. If an employee owns or is deemed to own (by reason
of the attribution rules applicable under Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of stock of the
Company or any Subsidiary or parent corporation and an Incentive Stock
Option is granted to such employee, the option price shall be not less
than 110% of Fair Market Value on the grant date.
(ii) Option Term. The term of each Stock Option shall be fixed by
the Committee, but no Incentive Stock Option shall be exercisable more
than ten years after the date the option is granted. If an employee owns
or is deemed to own (by reason of the attribution rules of Section 424(d)
of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Subsidiary or parent corporation and an
Incentive Stock Option is granted to such employee, the term of such
option shall be no more than five years from the date of grant.
(iii) Exercisability; Rights of a Shareholder. Stock Options shall
become vested and exercisable at such time or times, whether or not in
installments, as shall be determined by the Committee at or after the
grant date. The Committee may at any time accelerate the exercisability
of all or any portion of any Stock Option. An optionee shall have the
rights of a shareholder only as to shares acquired upon the exercise of a
Stock Option and not as to unexercised Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or
in part, by delivering written notice of exercise to the Company,
specifying the number of shares to be purchased accompanied by payment of
the purchase price which may be made by one or more of the following
methods:
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<PAGE> 8
(A) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(B) In the form of shares of Stock that are not then subject to
restrictions under any Company plan, if permitted by the
Committee, in its discretion. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(C) By the optionee delivering to the Company irrevocable
instructions to a broker to promptly deliver to the Company cash
or a check payable and acceptable to the Company to pay the
purchase price; provided that in the event the optionee chooses to
pay the purchase price as so provided, the optionee and the broker
shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Committee shall prescribe
as a condition of such payment procedure. Payment instruments
will be received subject to collection.
The delivery of certificates representing shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon receipt from
the Optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price for
such shares and the fulfillment of any other requirements contained in the
Stock Option or applicable provisions of laws.
(v) Non-transferability of Options. No Stock Option shall be
transferable other than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(vi) Annual Limit on Incentive Stock Options. To the extent
required for "incentive stock option" treatment under Section 422 of the
Code, the aggregate Fair Market Value (determined as of the time of
grant) of the Stock with respect to which incentive stock options granted
under this Plan and any other plan of the Company or its Subsidiaries
become exercisable for the first time by an optionee during any calendar
year shall not exceed $100,000.
(vii) Repurchase Right. The Committee may in its discretion,
provide upon the grant of any Stock Option hereunder that the Company
shall have an option to repurchase upon such terms and conditions as
determined by the Committee all or any number of shares purchased upon
exercise of such Stock Option. The repurchase price per share payable by
the Company shall be such amount or be determined by such formula as is
fixed by the Committee at the time the Option for the shares subject to
repurchase is granted. In the event the Committee shall grant Stock.
Options subject to the Company's repurchase option, the certificates
representing the shares purchased pursuant to such Options
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<PAGE> 9
shall carry a legend satisfactory to counsel for the Company referring to
the Company's repurchase option.
(viii) Form of Settlement. Shares of Stock issued upon exercise of
a Stock Option shall be free of all restrictions under the Plan, except
as otherwise provided in this Plan.
(b) Reload Options. At the discretion of the Committee, Options granted
under Section 5(a) may include a so-called "reload" feature pursuant to which
an optionee exercising an option by the delivery of a number of shares of Stock
in accordance with Section 5 (a) (iv) (B) hereof would automatically be granted
an additional Option (with an exercise price equal to the Fair Market Value of
the Stock on the date the additional Option is granted and with the same
expiration date as the original Option being exercised, and with such other
terms as the Committee may provide) to purchase that number of shares of Stock
equal to the number delivered to exercise the original Option.
SECTION 6. CONDITIONED STOCK AWARDS
(a) Nature of Conditioned Stock Award. The Committee in its discretion
may grant Conditioned Stock Awards to any Eligible Person. A Conditioned Stock
Award is an Award entitling the recipient to acquire, at no cost or for a
purchase price determined by the Committee, shares of Stock subject to such
restrictions and conditions as the Committee may determine at the time of grant
("Conditioned Stock"). Conditions may be based on continuing employment and/or
achievement of preestablished performance goals and objectives. In addition, a
Conditioned Stock Award may be granted to an employee by the Committee in lieu
of a cash bonus due to such employee pursuant to any other-Plan of the Company.
(b) Acceptance of Award. A participant who is granted a Conditioned Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within 60 days (or such shorter date as the
Committee may specify) following the award date by making payment to the
Company, if required, by certified or bank check or other instrument or form of
payment acceptable to the Committee in an amount equal to the specified
purchase price, if any, of the shares covered by the Award and by executing and
delivering to the Company a written instrument that sets forth the terms and
conditions of the Conditioned Stock in such form as the Committee shall
determine.
(c) Rights as a Shareholder. Upon complying with Section 6 (b) above, a
participant shall have all the rights of a shareholder with respect to the
Conditioned Stock, including voting and dividend rights, subject to
non-transferability restrictions and Company repurchase or forfeiture rights
described in this Section 6 and subject to such other conditions contained in
the written instrument evidencing the Conditioned Award. Unless the Committee
shall otherwise determine, certificates evidencing shares of
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<PAGE> 10
Conditioned Stock shall remain in the possession of the Company until such
shares are vested as provided in Section 6(e) below.
(d) Restrictions. Shares of Conditioned Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein. In the event of termination of employment by the
Company and its Subsidiaries for any reason (including death, Disability,
Normal Retirement and for Cause), the Company shall have the right, at the
discretion of the Committee, to repurchase shares of Conditioned Stock with
respect to which conditions have not lapsed at their purchase price, or to
require forfeiture of such shares to the Company if acquired at no cost, from
the participant or the participant's legal representative. The Company must
exercise such right of repurchase or forfeiture not later than the ninetieth
day following such termination of employment (unless otherwise specified, in
the written instrument evidencing the Conditioned Award).
(e) Vesting of Conditioned Stock. The Committee at the time of grant
shall specify the date or dates of and/or the attainment of preestablished
performance goals, objectives and other conditions on which the
non-transferability of the Conditioned Stock and the Company s right of
repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or
the attainment of such preestablished performance goals, objectives and other
conditions, the shares on which all restrictions have lapsed shall no longer be
Conditioned Stock and shall be deemed "vested." The Committee at any time may
accelerate such date or dates and otherwise waive or, subject to Section 12,
amend any conditions of the Award.
(f) Waiver, Deferral and Reinvestment of Dividends. The written
instrument evidencing the Conditioned Stock Award may require or permit the
immediate payment, waiver, deferral or investment of dividends paid on the
Restricted Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS
(a) Grant or Sale of Unrestricted Stock. The Committee in its discretion
may grant or sell at a purchase price determined by the Committee to any
Eligible Person shares of Stock free of any restrictions under the Plan
("Unrestricted Stock"). Shares of Unrestricted Stock may be granted or sold as
described in the preceding sentence in respect of past services or other valid
consideration.
(b) Elections to Receive Unrestricted Stock In Lieu of Compensation. Upon
the request of an Eligible Person and with the consent of the Committee, each
Eligible Person may, pursuant to an irrevocable written election delivered to
the Company no later than the date or dates specified by the Committee, receive
a portion of the cash compensation otherwise due to him in Unrestricted Stock
(valued at Fair Market Value on the date or
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dates the cash compensation would otherwise be paid). Such Unrestricted Stock
may be paid to the Eligible Person at the same time as the cash compensation
would otherwise be paid, or at a later time, as specified by the Eligible
Person in the written election.
(c) Elections to Receive Unrestricted Stock in Lieu of Directors' Fees.
Each Outside Director may, pursuant to an irrevocable written election
delivered to the Company no later than June 30 of any calendar year, receive
all or a portion of the directors' fees otherwise due to him in the subsequent
calendar year in Unrestricted Stock (valued at Fair Market Value on the date or
dates the directors' fees would otherwise be paid). Such Unrestricted Stock
may be paid to the Non-Employee Director at the same time the directors' fees
would otherwise have been paid, or at a later time, as specified by the
Non-Employee Director in the written election.
(d) Restrictions on Transfers. The right to receive unrestricted Stock
may not be sold, assigned, transferred, pledged or otherwise encumbered, other
than by will or the laws of descent and distribution.
SECTION 8. PERFORMANCE SHARE AWARDS
(a) Nature of Performance Shares. A Performance Share Award is an award
entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Committee may make Performance Share Awards
independent of or in connection with the granting of any other Award under the
Plan. Performance Share Awards may be granted under the Plan to any Eligible
Person including those who qualify for awards under other performance plans of
the Company. The Committee in its discretion shall determine whether and to
whom Performance Share Awards shall be made, the performance goals applicable
under each such Award, the periods during which performance is to be measured,
and all other limitations and conditions applicable to the awarded Performance
Shares; provided, however, that the Committee may rely on the performance goals
and other standards applicable to other performance-based plans of the Company
in setting the standards for Performance Share Awards under the Plan.
(b) Restrictions on Transfer. Performance Share Awards and all rights
with respect to such Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered.
(c) Rights as a Shareholder. A participant receiving a Performance Share
Award shall have the rights of a shareholder only as to shares actually
received by the participant under the Plan and not with respect to shares
subject to the Award but not actually received by the participant. A
participant shall be entitled to receive a stock certificate evidencing the
acquisition of shares of Stock under a Performance Share Award only upon
satisfaction of all conditions specified in the written instrument evidencing
the Performance Share Award (or in a performance plan adopted by the
Committee).
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<PAGE> 12
(d) Termination. Except as may otherwise be provided by the Committee at
any time prior to termination of employment, a participant's rights in all
Performance Share Awards shall automatically terminate upon the participant's
termination of employment by the Company and its Subsidiaries for any reason
(including death, Disability, Normal Retirement and for Cause).
(e) Acceleration, Waiver, Etc. At any time prior to the participant's
termination of employment by the Company and its Subsidiaries, the Committee
may in its sole discretion accelerate, waive or, subject to Section 13, amend
any or all of the goals, restrictions or conditions imposed under any
Performance Share Award.
SECTION 9. TERMINATION OF STOCK OPTIONS
(a) Termination by Death. If any participant's employment by or services
to the Company and its Subsidiaries terminates by reason of death, any Stock
Option owned by such participant may thereafter be exercised to the extent
exercisable at the date of death, by the legal representative or legatee of the
participant, for a period of two years (or such longer period as the Committee
shall specify at any time) from the date of death, or until the expiration of
the stated term of the Option, if earlier.
(b) Termination by Reason of Disability, or Normal Retirement.
(i) Any Stock Option held by a participant whose employment by or
services to the Company and its Subsidiaries has terminated by reason of
Disability may thereafter be exercised, to the extent it was exercisable
at the time of such termination, for a period of one year (or such longer
period as the Committee shall specify at any time) from the date of such
termination of employment or services, or until the expiration of the
stated term of the Option, if earlier.
(ii) Any Stock Option held by a participant whose employment by or
services to the Company and its Subsidiaries has terminated by reason of
Normal Retirement may thereafter be exercised, to the extent it was
exercisable at the time of such termination, for a period of 90 days (or
such longer period as the Committee shall specify at any time) from the
date of such termination of employment or services, or until the
expiration of the stated term of the Option, if earlier.
(iii) The Committee shall have sole authority and discretion to
determine whether a participant's employment or services has been
terminated by reason of Disability or Normal Retirement.
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<PAGE> 13
(iv) Except as otherwise provided by the Committee at the time of
grant, the death of a participant during a period provided in this
Section 10(b) for the exercise of a Stock Option , shall extend such
period for two years from the date of death, subject to termination on
the expiration of the stated term of the Option, if earlier.
(c) Termination for Cause. If any participant's employment by or services
to the Company and its Subsidiaries has been terminated for Cause, any Stock
Option held by such participant shall immediately terminate and be of no
further force and effect; provided, however, that the Committee may, in its
sole discretion, provide that such Option can be exercised for a period of up
to 30 days from the date of termination of employment or services or until the
expiration of the stated term of the Option, if earlier.
(d) Other Termination. Unless otherwise determined by the Committee, if a
participant's employment by or services to the Company and its Subsidiaries
terminates for any reason other than death, Disability. Normal Retirement or
for Cause, any Stock Option held by such participant may thereafter be
exercised, to the extent it was exercisable on the date of termination of
employment, for 90 days (or such longer period as the Committee shall specify
at any time) from the date of termination of employment or services or until
the expiration of the stated term of the Option, if earlier.
SECTION 10. TAX WITHHOLDING
(a) Payment by Participant. Each participant shall, no later than the
date as of which the value of an Award or of any Stock or other amounts
received thereunder first becomes includable in the gross income of the
participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Committee regarding payment of any Federal,
state or local taxes of any kind required by law to be withheld with respect to
such income. The Company and its Subsidiaries shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(b) Payment in Shares. Each participant may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing the
Company to withhold from shares of Stock to be issued pursuant to an Award a
number of shares with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the withholding amount due with
respect to such Award, or (ii) transferring to the Company shares of Stock
owned by the participant with an aggregate Fair Market Value (as of the date
the withholding is effected) that would satisfy the withholding amount due.
With respect to any participant who is subject to Section 16 of the Act, the
following additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations relating to
an Award in the manner permitted by this Section 11 (b) shall be made
either (1) during the period beginning on the third business day
following the date of release of
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<PAGE> 14
quarterly or annual summary statements of sales and earnings of the
Company and ending on the twelfth business day following such date, or
(2) at least six months prior to the date as of which the receipt of such
an Award first becomes a taxable event for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or approval of the
Committee; and
(D) the Stock withheld to satisfy tax withholding, if granted at the
discretion of the Committee, must pertain to an Award which has been held
by the participant for at least six months from the date of grant of the
Award.
SECTION 11. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or
from the Company to a Subsidiary, or from one Subsidiary to another;
(b) an approved leave of absence for military service or sickness,
or for any other purpose approved by the Company, if the employee's right
to re-employment is guaranteed either by a statute or by contract or
under the policy pursuant to which the leave of absence was granted or if
the Committee otherwise so provides in writing.
SECTION 12. AMENDMENTS AND TERMINATION
The Board may at any time amend or discontinue the Plan and the Committee
may at any time amend or cancel any outstanding Award (or provide substitute
Awards at the same or reduced exercise or purchase price or with no exercise or
purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Award if it were then initially
granted under this Plan) for the purpose of satisfying changes in law or for
any other lawful purpose, but no such action shall adversely affect rights
under any outstanding Award without the holder's consent. However, no such
amendment, unless approved by the stockholders of the Company, shall be
effective if it would cause the Plan to fail to satisfy the incentive stock
option requirements of the Code, or cause transactions under the Plan to fail
to satisfy the requirements of Rule 16b-3 or any successor rule under the Act
as in effect on the date of such amendment, or to cause any member of the
Committee to cease to be a disinterested person (within the meaning of Rule
16b-3 under the Act) with respect to this Plan or any other plan of the
Company.
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SECTION 13. STATUS OF PLAN
With respect to the portion of any Award which has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet
the Company's obligations to deliver Stock or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the provision of the foregoing sentence.
SECTION 14. CHANGE OF CONTROL PROVISIONS
(a) Upon the occurrence of a Change of Control as defined in this Section
14:
(i) subject to the provisions of clause (iii) below, after the
effective date of such Change of Control, each holder of an outstanding
Stock Option, Conditional Stock Award, or Performance Share Award shall
be entitled, upon exercise of such Award, to receive, in lieu of shares
of Stock, shares of such stock or other securities, cash or property as
the holders of shares of Stock received in connection with the Change of
Control;
(ii) the Committee may accelerate the time for exercise of, and
waive all conditions and restrictions on, each unexercised and unexpired
Stock Option, Conditional Stock Award and Performance Share Award,
effective upon a date prior or subsequent to the effective date of such
Change of Control, specified by the Committee; or
(iii) each outstanding Stock Option, Conditional Stock Award and
Performance Share Award may be canceled by the Committee as of the
effective date of any such Change of Control provided that (x) notice of
such cancellation shall be given to each holder of such an Award and (y)
each holder of such an Award shall have the right to exercise such Award
to the extent that the same is then exercisable or, if the Committee
shall have accelerated the time for exercise of all such unexercised and
unexpired Awards, in full during the 30-day period preceding the
effective date of such Change of Control.
(b) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Act) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Act) (other than the Company,
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any corporation owned, directly or
indirectly, by the stockholders of the Company in
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substantially the same proportions as their ownership of stock of the
Company), directly or indirectly, of securities of the Company
representing thirty-five percent (35%) or more of the combined voting
power of the Company's then outstanding securities; or
(ii) persons who, as of January 1, 1995, constituted the Company's
Board (the "Incumbent Board") cease for any reason, including without
limitation as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent to
January 1, 1995 whose election was approved by, or who was nominated with
the approval of, at least a majority of the directors then comprising the
Incumbent Board shall, for purposes of this Plan, be considered a member
of the Incumbent Board: or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company, with any other corporation or other entity,
other than (a) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 65%
of the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation or (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
SECTION 15. GENERAL PROVISIONS
(a) No Distribution;- Compliance with Legal Requirements. The Committee
may require each person acquiring shares pursuant to an Award to represent to
and agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have deposited such
certificates in the United States
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mail, addressed to the participant at the participant's last known address on
file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or
additional compensation arrangements, including trusts, subject to stockholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of the
Plan or any Award under the Plan does not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
SECTION 16. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon approval by the holders of a majority
of the shares of capital stock of the Company present or represented and
entitled to vote at a meeting of stockholders.
SECTION 17. GOVERNING LAW
This Plan shall be governed by, and construed and enforced in accordance with,
the substantive laws of The State of Delaware without regard to its principles
of conflicts of laws.
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<PAGE> 1
EXHIBIT 24 (a)
Consent of Alston & Bird.
(Included in Exhibit 5)
<PAGE> 1
EXHIBIT 24(b)
Consent of Arthur Andersen LLP.
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 3, 1996
