(As filed with the Securities and Exchange Commission on June 30, 1995)
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
(Exact Name of registrant specified in its charter)
Delaware 23-1701520
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Four Country View Road
Malvern, Pennsylvania 19355
(Address, including zip code, of Principal Executive Offices)
Systems & Computer Technology Corporation
1994 Long-Term Incentive Plan
-and-
Systems & Computer Technology Corporation
1994 Non-Employee Director Stock Option Plan
(Full titles of the Plans)
Richard A. Blumenthal
General Counsel
Systems & Computer Technology Corporation
Four Country View Road
Malvern, Pennsylvania 19355
(610) 640-5263
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(3) price(3) fee(3)
Common Stock(1) 1,750,000 $20.0625 $35,109,375 $12,106.68
Common Stock(2) 250,000 $20.0625 $ 5,015,625 $ 1,729.53
----------
$13,836.21
(1) These securities relate to the 1994 Long-Term Incentive Plan.
(2) These securities relate to the 1994 Non-Employee Director Stock
Option Plan.
(3) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) based on the average of the high and low prices
for the Common Stock of Registrant as reported on the NASDAQ NMS on
June 29, 1995.
(PAGE)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in the
Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994.
(b) Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1994.
(c) Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1995.
(d) Registrant's Current Report on Form 8-K dated May 12, 1995.
(e) Registrant's Current Report on Form 8-K dated June 1, 1995.
(f) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A, filed under the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act of
1934") on January 30, 1984 and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment to the
Registration Statement that indicates that all of the shares of common
stock offered have been sold or that deregisters all of such shares
then remaining unsold, shall be deemed to be incorporated by reference
in the Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any
other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware ("GCL") permits each Delaware business corporation to
indemnify its directors, officers, employees and agents against
liability for each such person's acts taken in his or her capacity as a
director, officer, employee or agent of the corporation if such actions
were taken in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action, if he or she had
no reasonable cause to believe his or her conduct was unlawful.
ARTICLE VII, Section 6 of the Registrant's Restated By-laws
provides that the Registrant, to the extent permitted by Section 145 of
the GCL, shall indemnify the officers, directors, employees, trustees
and agents of the Registrant.
As permitted by Section 102(b)(7) of the GCL, Article ELEVENTH of
the Registrant's Restated Certificate of Incorporation provides that no
director of the Registrant shall have any personal liability to the
Registrant or its shareholders for any monetary damages for breach of
fiduciary duty as a director, except for liability (i) for breach of
the director's duty of loyalty to the Registrant 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 GCL, or (iv) for any transaction from which the
director derived an improper personal benefit. Article ELEVENTH does
not eliminate or limit the liability of the director for any act or
omission occurring prior to the date when the Article became effective.
The Registrant also has a policy insuring it and its directors and
officers against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4.1 Restated Certificate of Incorporation(1)
4.2 Restated Bylaws(2)
4.3 1994 Long-Term Incentive Plan(3)
4.4 1994 Non-Employee Director Stock Option Plan(3)
5 Opinion of Pepper, Hamilton & Scheetz re: Legality of
the Registrant Stock(3)
23.1 Consent of Ernst & Young LLP(3)
23.2 Consent of Pepper, Hamilton & Scheetz (included in
Exhibit 5)(3)
24 Power of attorney (included on the signature page)
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the year ended September 30, 1987.
(2) Incorporated by reference to Exhibit 3 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended December 31, 1985/
(3) Filed with this Form s-8 Registration Statement.
(PAGE)
Item 9. Undertakings.
(a) The 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 information set
forth in the registration statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and where applicable,
each filing of an employee benefit plan's Annual Report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent,
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Malvern, Pennsylvania, on
June 30, 1995.
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
/s/ Michael J. Emmi
By: ___________________________________
Michael J. Emmi, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Eric Haskell and
Richard A. Blumenthal, and each or any of them, his true and lawful
attorney-in-fact and agent, 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 and
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, his or her substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
(PAGE)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
/s/ Michael J. Emmi
Date: June 30, 1995 ________________________________
Michael J. Emmi
Chairman of the Board, President and
Chief Executive Officer; Director
/s/ Michael D. Chamberlain
Date: June 30, 1995 ________________________________
Michael D. Chamberlain, Director
/s/ Allen R. Freedman
Date: June 30, 1995 ________________________________
Allen R. Freedman, Director
/s/ Thomas I. Unterberg
Date: June 30, 1995 ________________________________
Thomas I. Unterberg, Director
/s/ Terrel H. Bell
Date: June 30, 1995 ________________________________
Terrel H. Bell, Director
/s/ Eric Haskell
Date: June 30, 1995 ________________________________
Eric Haskell, Senior Vice President - Finance
and Administration, Treasurer and Chief
Financial Officer (principal financial
officer and principal accounting officer)
(PAGE)
EXHIBIT INDEX
Sequential Page
Exhibit No. Description of Exhibit Number
4.3 1994 Long-Term Incentive Plan
4.4 1994 Non-Employee Director Stock
Option Plan
5 Opinion of Pepper, Hamilton & Scheetz
23.1 Consent of Ernst & Young LLP
23.2 Consent of Pepper, Hamilton & Scheetz
(included in Exhibit 5)
24 Power of Attorney
(See Signature Page in Part II)
Exhibit 4.3
Systems & Computer Technology Corporation
1994 Long-Term Incentive Plan
Purpose; Definitions. The name of this plan is the Systems &
Computer Technology Corporation 1994 Long-Term Incentive Plan (the
"Plan"). The purpose of the Plan is (i) to provide employees of
Systems & Computer Technology Corporation, a Delaware corporation (the
"Corporation"), selected by the Board of Directors of the Corporation,
including employees of the Corporation who are also directors of the
Corporation, with financial incentives to enhance shareholder value and
(ii) to enable the Corporation to attract, retain and motivate
employees.
For purposes of the Plan, the following terms shall be
defined as set forth below:
"Affiliate" means, with respect to a person or entity, a person
that directly or indirectly controls, or is controlled by, or is under
common control with such person or entity.
"Board" means the Board of Directors of the Corporation.
"Cause" means a felony conviction of a Participant or the failure
of a Participant to contest prosecution for a felony, or a
Participant's willful misconduct or dishonesty.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
"Committee" means the Committee referred to in Section 2 hereof.
"Disability" means permanent and total disability, as determined
under the Corporation's long-term disability program, except that
Disability of an optionee with respect to an Incentive Stock Option
shall occur if the optionee is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than twelve (12) months.
"Disinterested Person" shall have the meaning set forth in Rule
16b-3(c)(2)(i) promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934 (the "Exchange Act"), or any
successor definition adopted by the Securities and Exchange Commission.
"Fair Market Value" means, as of any given date, the closing price
for a share of Stock, as reported on the National Association of
Securities Dealers Automated Quotation System (or, if the Stock is
subsequently listed on a national securities exchange, the closing
price for a share of Stock on the exchange on the relevant date).
"Incentive Stock Option" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section
422 of the Code.
"Insider" means a Participant who is subject to the requirements
of the Rules (as defined below).
"Long-Term Performance Award" or "Long-Term Award" means an award
made pursuant to Section 8 hereof that is payable in cash and/or Stock
(including Restricted Stock) in accordance with the terms of the grant,
based on Corporation, business unit and/or individual performance
over a period of at least two years, in each case as determined by the
Committee and as set forth in the grant letter.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Participant" means an employee of the Corporation or a Subsidiary
to whom an award is granted pursuant to the Plan.
"Restricted Stock" means an award of shares of Stock that is
subject to restrictions pursuant to Section 7 hereof.
"Retirement" means termination of the employment of a Participant
with the Corporation or a Subsidiary other than a termination effected
at the direction of the Corporation (whether or not the Corporation
effects such termination for Cause).
"Rules" means Section 16 of the Exchange Act and the regulations
promulgated thereunder.
"Securities Broker" means a registered securities broker
acceptable to the Corporation who agrees to effect the cashless
exercise of an Option pursuant to Section 5(l) hereof.
"Stock" means the Common Stock, $.01 par value per share, of the
Corporation.
"Stock Appreciation Right" means the right, pursuant to an award
granted under Section 6 hereof, to surrender to the Corporation all (or
a portion) of a Stock Option in exchange for an amount equal to the
difference between (i) the Fair Market Value, as of the date such Stock
Option (or such portion thereof) is surrendered, of the shares of Stock
covered by such Stock Option (or such portion thereof) and (ii) the
aggregate exercise price of such Stock Option (or such portion
thereof).
"Stock Option" or "Option" means any option to purchase shares of
Stock (including Restricted Stock, if the Committee so determines)
granted pursuant to Section 5 hereof.
"Subsidiary" means, in respect of the Corporation, a subsidiary
corporation, whether now or hereafter existing, as defined in Sections
424(f) and (g) of the Code.
Administration. The Plan shall be administered by a Committee of not
less than two members of the Board who are each Disinterested Persons
and who shall be appointed by, and serve at the pleasure of, the
Board. No member of the Committee may be an employee, officer or
consultant of the Corporation and no member of the Committee may be a
former employee or officer of the Corporation.
The Committee shall have the authority to grant to eligible
employees (including director-employees), pursuant to the terms of the
Plan: (i) Stock Options, (ii) Stock Appreciation Rights, (iii)
Restricted Stock and/or (iv) Long-Term Performance Awards. In
particular, the Committee shall have the authority:
to select the officers and other employees of the Corporation or a
Subsidiary to whom Stock Options, Stock Appreciation Rights, Restricted
Stock and Long-Term Performance Awards may from time to time be granted
hereunder;
to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted
Stock and Long-Term Performance Awards, or any combination thereof, are
to be granted hereunder;
to determine the number of shares of Stock to be covered by each
such award granted hereunder;
to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder, including, but not
limited to, the share price and any restriction or limitation, or any
vesting acceleration or forfeiture waiver regarding any Stock Option or
other award and/or the shares of Stock relating thereto, based on such
factors as the Committee shall determine, in its sole discretion;
to determine whether and under what circumstances a Stock Option
may be settled in cash or stock, including Restricted Stock under
Section 5(k);
to determine whether and under what circumstances a Stock Option
may be exercised without a payment of cash under Section 5(l); and
to determine whether, to what extent and under what circumstances
Stock and other amounts payable with respect to an award under the Plan
may be deferred either automatically or at the election of the
Participant.
The Committee shall have the authority to adopt, alter and
repeal such administrative rules, guidelines and practices governing
the Plan as it shall, from time to time, deem advisable; to interpret
the terms and provisions of the Plan and any award issued under the
Plan (and any agreements relating thereto); and to otherwise supervise
the administration of the Plan.
All decisions made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons,
including the Corporation and Participants. No member of the Committee
shall be liable for any good faith determination, act or failure to act
in connection with the Plan or any award made under the Plan.
Stock Subject to the Plan.
Stock Subject to the Plan. The stock to be subject or related to
awards under the Plan shall be shares of Stock and may be either
authorized and unissued shares of Stock or shares of Stock held in the
treasury of the Corporation. The maximum number of shares of Stock
that may be the subject of an award under the Plan is 1,750,000 and the
Corporation shall reserve for the purposes of the Plan, out of its
authorized and unissued shares of Stock or out of shares of Stock held
in its treasury, or partly out of each, such number of shares.
Notwithstanding the foregoing, no individual shall
receive, over the term of the Plan, awards for more than an aggregate
of 30% of the shares of Stock authorized for grant under the Plan.
Computation of Stock Available for the Plan. For the purpose of
computing the total number of shares of Stock available under the Plan
at any time during which the Plan is in effect, there shall be debited
against the total number of shares of Stock determined to be available
pursuant to paragraphs (a) and (c) of this Section 3 the maximum number
of shares of Stock subject to issuance upon exercise of Options or
other stock based awards made under the Plan.
Effect of the Expiration or Termination of Awards. If and to the
extent that an award made under the Plan expires, terminates or is
cancelled or forfeited for any reason without having been exercised in
full, the shares of Stock associated with the expired, terminated,
cancelled or forfeited portion of the award shall again become
available for award under the Plan. Notwithstanding anything contained
herein, the number of shares of Stock available for awards at any time
under the Plan shall be reduced to such lesser number as may be
required pursuant to the methods of calculation necessary so that the
exemptions provided pursuant to Rule 16b-3 under the Exchange Act will
continue to be available for transactions involving all current and
future awards. In addition, during the period that any award remains
outstanding under the Plan, the Committee may make good faith
adjustments with respect to the number of shares of Stock attributable
to such awards for purposes of calculating the maximum number of shares
available for the granting of future awards under the Plan, provided
that following such adjustments the exemptions provided pursuant to
Rule 16b-3 under the Exchange Act will continue to be available for
transactions involving all current and future awards.
Other Adjustment. In the event of any merger, reorganization,
consolidation, recapitalization, Stock dividend, or other change in
corporate structure affecting the Stock, such substitution or
adjustment shall be made in the aggregate number of shares of Stock
reserved for issuance under the Plan, in the number and option price of
shares of Stock subject to outstanding Options granted under the Plan
and in the number and price of shares of Stock subject to other awards
made under the Plan, as may be determined to be appropriate by the
Committee in its sole discretion, provided that the number of shares of
Stock subject to any award shall always be a whole number. Such
adjusted option price shall also be used to determine the amount
payable by the Corporation upon the exercise of any Stock Appreciation
Right associated with any Stock Option.
Eligibility. Only officers and other employees of the Corporation
(including director-employees, but excluding members of the Committee
and any other person who serves the Corporation only as a director)
and/or its Subsidiaries are eligible to be granted awards under the
Plan.
Stock Options. Stock Options granted under the Plan may be of two
types: (i) Incentive Stock Options or (ii) Non-Qualified Stock
Options. Stock Options may be granted alone, in addition to or in
tandem with other awards granted under the Plan. Any Stock Option
granted under the Plan shall be in such form as the Committee may from
time to time approve.
The Committee shall have the authority to grant any optionee
Incentive Stock Options, Non-Qualified Stock Options, or both types of
Stock Options (in each case with or without Stock Appreciation Rights).
To the extent that any Stock Option does not qualify as an Incentive
Stock Option, it shall constitute a separate Non-Qualified Stock
Option.
Anything in the Plan to the contrary notwithstanding, no term of
the Plan relating to Incentive Stock Options shall be interpreted,
amended or altered, nor shall any discretion or authority granted under
the Plan be so exercised, so as to disqualify the Plan under Section 422
of the Code, or, without the consent of the optionee(s) affected, to
disqualify any Incentive Stock Option under such Section 422.
Options granted under the Plan shall be subject to the
following terms and conditions and shall contain such additional terms
and conditions, not inconsistent with the terms of the Plan, as the
Committee shall deem appropriate:
Option Price. The exercise price per share of Stock purchasable
under a Stock Option shall be determined by the Committee at the time of
grant but shall be not less than 100% of the Fair Market Value of the
Stock on the date of the grant. However, any Incentive Stock Option
granted to any optionee who, at the time the Option is granted, owns
more than 10% of the voting power of all classes of stock of the
Corporation or of a Subsidiary, shall have an exercise price per share
of not less than 110% of Fair Market Value per share on the date of the
grant.
Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than ten years
after the date the Option is granted. However, any Option granted to
any optionee who, at the time the Option is granted, owns more than 10%
of the voting power of all classes of stock of the Corporation or of a
Subsidiary may not have a term of more than five years. No Option may
be exercised by any person after expiration of the term of the Option.
Exercisability. Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as shall be
determined by the Committee at grant; provided, however, that, except
as provided in Section 5(f), unless otherwise determined by the
Committee at grant, no Stock Option shall be exercisable during the
six-month period following the date of the grant of the Option. If the
Committee provides, in its discretion, that any Stock Option is
exercisable only in installments, the Committee may waive such
installment exercise provisions at any time at or after grant, in whole
or in part, based on such factors as the Committee shall determine, in
its sole discretion.
Method of Exercise. Subject to the exercise provisions under
Section 5(c), Stock Options may be exercised in whole or in part at any
time and from time to time during the term of the Option, by giving
written notice of exercise to the Corporation specifying the number of
shares to be purchased. Such notice shall be accompanied by payment in
full of the purchase price, either by certified or bank check, or such
other instrument as the Committee may accept. As determined by the
Committee, in its sole discretion, at or after grant, payment in full
or in part of the exercise price of a Stock Option may be made in the
form of unrestricted Stock based on the Fair Market Value of the Stock
on the date the Option is exercised; provided, however, that, in the
case of an Incentive Stock Option, the right to make a payment in the
form of already owned shares of Stock may be authorized only at the
time the Option is granted.
The Committee, in its sole discretion, may at the time
of grant or such later time as it determines, permit payment of a Stock
Option exercise price of a Non-Qualified Stock Option to be made in
whole or in part in the form of Restricted Stock based on the Fair
Market Value of the Stock on the date the Option is exercised (computed
without regard to the restrictions applicable to the Restricted Stock);
provided, however, that in the case of an Incentive Stock Option, the
right to make a payment in the form of Restricted Stock may be
authorized only at the time the Option is granted. If such payment is
permitted, then Stock received upon the exercise of the Option may be
subject to the same forfeiture restrictions as the Restricted Stock
used to make the payment, unless otherwise determined by the Committee,
in its sole discretion, at or after grant.
If payment of the Option exercise price of a Non-Qualified
Stock Option is made in whole or in part in the form of unrestricted
Stock already owned by the Participant, the Corporation may require that
the Stock have been owned by the Participant for a period of six months
or longer from the date of payment.
No shares of Stock shall be issued upon exercise of an
Option until full payment therefor has been made. An optionee shall
generally have the rights to dividends and other rights of a
shareholder with respect to shares of Stock subject to the Option when
the optionee has given written notice of exercise, has paid in full for
such shares, and, if requested, has given the representation described
in Section 11(a) hereof.
Non-transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution or pursuant to a qualified domestic relations
order, as defined in the Code or Title I of the Employee Retirement
Income Security Act, and all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee or, in the event of his
Disability, by his personal representative.
Termination by Reason of Death. Subject to Section 5(j), if an
optionee's employment by the Corporation or any Subsidiary terminates
by reason of death, any Stock Option held by such optionee may
thereafter be exercised, to the extent then exercisable or on such
accelerated basis as the Committee may determine at or after grant, by
the legal representative of the estate or by the legatee of the
optionee under the will of the optionee, for a period of one year (or
such shorter period as the Committee may specify at grant) from the
date of such death or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
Termination by Reason of Disability. Subject to Section 5(j), if
an optionee's employment by the Corporation or any Subsidiary
terminates by reason of Disability, any Stock Option held by such
optionee may thereafter be exercised by the optionee or his personal
representative, to the extent it was exercisable at the time of
termination, or on such accelerated basis as the Committee may
determine at or after grant, for a period of six months (or such
shorter period as the Committee may specify at grant) from the date of
such termination of employment or until the expiration of the stated
term of such Stock Option, whichever period is shorter; provided,
however, that if the optionee dies within such six-month period (or
such shorter period as the Committee shall specify at grant), any
unexercised Stock Option held by such optionee shall, at the sole
discretion of the Committee, thereafter be exercisable to the extent to
which it was exercisable at the time of death for a period of twelve
months from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
Termination by Reason of Retirement. Subject to Section 5(j), if
an optionee's employment by the Corporation terminates by reason of
Retirement, any Stock Option held by such optionee may thereafter be
exercised by the optionee, to the extent it was exercisable at the time
of such Retirement or on such accelerated basis as the Committee may
determine at or after grant, for a period of thirty (30) days from the
date of such termination of employment, or the stated term of such
Stock Option, whichever period is the shorter.
Other Termination. Unless otherwise determined by the Committee
at or after grant, if an optionee's employment by the Corporation
terminates for any reason other than death, Disability or Retirement,
the Stock Option shall thereupon terminate, except that such Stock
Option may thereafter be exercised by the optionee, to the extent it
was exercisable at the time of such termination, if the optionee is
involuntarily terminated by the Corporation without Cause, but only for
a period of thirty (30) days from the date of such termination or
employment or the stated term of such Stock Option, whichever period is
shorter.
Incentive Stock Option Limitations. To the extent required for
"incentive stock option" status 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 are exercisable for
the first time by the optionee during any calendar year under the Plan
and/or any other plan of the Corporation or any Subsidiary shall not
exceed $100,000. For purposes of applying the foregoing limitation,
Incentive Stock Options shall be taken into account in the order
granted.
To the extent (if any) permitted under Section 422 of
the Code without causing an Incentive Stock Option to lose its status
as such or to be deemed to be a new Incentive Stock Option under the
modification rules of Section 424(h) of the Code, and subject to any
restrictions imposed by the Committee, if (i) a participant's
employment with the Corporation is terminated by reason of death,
Disability or Retirement and (ii) the portion of any Incentive Stock
Option that is otherwise exercisable during the post-termination period
specified under Section 5(f), (g) or (h), applied without regard to
this Section 5(j), is greater than the portion of such Option that is
exercisable as an "incentive stock option" during such post-termination
period under Section 422 after taking the $100,000 limitation into
account, such post-termination period of exercisability shall
automatically be extended (but not beyond the original Option term) to
the extent necessary to permit the optionee to exercise such Incentive
Stock Option without violating the $100,000 limitation. The Committee
is also authorized to provide at grant for a similar extension of the
post-termination exercise period in the event of a Change-in-Control.
Cash-out of Option; Settlement of Restricted Stock. On receipt of
written notice to exercise, the Committee may, in its sole discretion,
elect to terminate all or part of the portion of the Option(s) proposed
to be exercised provided that the Corporation pays the optionee an
amount in cash equal to the excess of the Fair Market Value of the
Stock otherwise issuable over the Option price (the "Spread Value") on
the effective date of such cash-out.
In addition, if the option agreement so provides at
grant or is amended after grant and prior to exercise to so provide
(with the optionee's consent), the Committee may require that all or
part of the shares to be issued upon exercise of an Option take the
form of Restricted Stock. For this purpose, such Restricted Stock
shall be valued on the date of exercise on the basis of the Fair Market
Value of such Restricted Stock determined without regard to the
forfeiture restrictions involved.
Cashless Exercise. To the extent permitted under the Rules, and
with the consent of the Committee, the Corporation agrees to cooperate
in a "cashless exercise" of an Option. The cashless exercise shall be
affected by the Participant delivering to the Securities Broker
instructions to sell a sufficient number of shares of Stock to cover
the costs and expenses associated therewith.
Stock Appreciation Rights.
Grant and Exercise. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted under the Plan
and, subject to Section 5(e) hereof, shall be transferable only upon
transfer of the related Stock Option. In the case of a Non-Qualified
Stock Option, such rights may be granted either at or after the time of
the grant of such Stock Option. In the case of an Incentive Stock
Option, such rights may be granted only at the time of the grant of
such Stock Option.
A Stock Appreciation Right or applicable portion thereof
granted with respect to a given Stock Option shall terminate and no
longer be exercisable upon the termination or exercise of the related
Stock Option, except that, unless otherwise determined by the
Committee, in its sole discretion at the time of grant, a Stock
Appreciation Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be reduced until the
number of shares covered by an exercise or termination of the related
Stock Option exceeds the number of shares not covered by the Stock
Appreciation Right.
A Stock Appreciation Right may be exercised by an
optionee, in accordance with Section 6(b) of the Plan, by surrendering
the applicable portion of the related Stock Option. Upon such exercise
and surrender, the optionee shall be entitled to receive an amount
determined in the manner prescribed in Section 6(b) of the Plan. Stock
Options which have been so surrendered, in whole or in part, shall no
longer be exercisable to the extent the related Stock Appreciation
Rights have been exercised.
Terms and Conditions. Stock Appreciation Rights shall be subject
to such terms and conditions, not inconsistent with the provisions of
the Plan, as shall be determined from time to time by the Committee, in
its sole discretion, including the following:
Stock Appreciation Rights shall be exercisable only at such time
or times and to the extent that the Stock Options to which they relate
shall be exercisable in accordance with the provisions of Section 5 and
this Section 6 of the Plan; provided, however, that any Stock
Appreciation Right granted subsequent to the grant of the related Stock
Option shall not be exercisable during the first six months of its
term, except that this special limitation shall not apply in the event
of death or Disability of the optionee prior to the expiration of the
six-month period.
Upon the exercise of a Stock Appreciation Right, an optionee shall
be entitled to receive up to, but not more than, an amount in cash
and/or shares of Stock equal in value to the excess of the Fair Market
Value of one share of Stock over the Option price per share specified
in the related Stock Option, multiplied by the number of shares in
respect of which the Stock Appreciation Right shall have been
exercised, with the Committee having the right to determine the form of
payment.
Upon the exercise of a Stock Appreciation Right, the Stock
Option or part thereof to which such Stock Appreciation Right is
related, shall be deemed to have been exercised for the purpose of
the limitation set forth in Section 3 of the Plan on the number of
shares of Stock to be issued under the Plan, but only to the extent of
the number of shares issued under the Stock Appreciation Right at the
time of exercise based on the value of the Stock Appreciation Right
at such time.
A Stock Appreciation Right granted in connection with a Stock
Option may be exercised only if and when the market price of the Stock
subject to the Stock Option exceeds the exercise price of such Stock
Option.
Restricted Stock.
Administration. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The
Committee shall determine the officers and key employees of the
Corporation and its Subsidiaries to whom, and the time or times at
which, grants of Restricted Stock will be made, the number of shares to
be awarded, the price (if any) to be paid by the recipient of
Restricted Stock, the time or times within which such awards may be
subject to forfeiture, and all other conditions of the awards.
The Committee may condition the vesting of Restricted
Stock upon the attainment of specified performance goals or such other
factors as the Committee may determine, in its sole discretion, at the
time of the award.
The provisions of Restricted Stock awards need not be the same with
respect to each recipient.
Awards and Certificates. The prospective recipient of a
Restricted Stock award shall not have any rights with respect to such
award, unless and until such recipient has executed an agreement
evidencing the award and has delivered a fully executed copy thereof to
the Corporation, and has otherwise complied with the applicable terms
and conditions of such award. The purchase price for shares of
Restricted Stock may be zero.
Each Participant receiving a Restricted Stock award
shall be issued a stock certificate in respect of such shares of
Restricted Stock. Such certificate shall be registered in the name of
such Participant, and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award,
substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Systems & Computer Technology Corporation 1994
Long-Term Incentive Plan and an Agreement entered into between the
registered owner and Systems & Computer Technology Corporation. Copies
of such Plan and Agreement are on file in the offices of Systems &
Computer Technology Corporation."
The Committee shall require that the stock certificates
evidencing shares of Restricted Stock be held in custody by the
Corporation until the restrictions thereon shall have lapsed, and that,
as a condition of any Restricted Stock award, the Participant shall
have delivered to the Corporation a stock power, endorsed in blank,
relating to the Stock covered by such award.
Restrictions and Conditions. The shares of Restricted Stock
awarded pursuant to this Section 7 shall be subject to the following
restrictions and conditions:
During a period set by the Committee commencing with the date of
such award (the "Restriction Period"), the Participant shall not be
permitted to sell, transfer, pledge, assign or otherwise encumber
shares of Restricted Stock awarded under the Plan. The Committee, in
its sole discretion, may provide for the lapse of such restrictions in
installments and may accelerate or waive such restrictions in whole or
in part, based on service, performance and/or such other factors or
criteria as the Committee may determine, in its sole discretion.
Except as provided in this paragraph (ii) and Section 7(c)(i), the
Participant shall have, with respect to the shares of Restricted Stock,
all of the rights of a shareholder of the Corporation, including the
right to vote the shares, and the right to receive any cash dividends.
The Committee, in its sole discretion, as determined at the time of
award, may permit or require the payment of cash dividends to be
deferred and, if the Committee so determines, reinvested in additional
Restricted Stock to the extent shares are available under Section 3 of
the Plan.
Subject to the applicable provisions of the award agreement and
this Section 7, upon termination of a Participant's employment with the
Corporation for any reason during the Restriction Period, all shares of
Restricted Stock still subject to restriction shall be forfeited by the
Participant.
In the event of hardship or other special circumstances of a
Participant whose employment with the Corporation is involuntarily
terminated (other than for Cause), the Committee may, in its sole
discretion, waive in whole or in part any or all remaining restrictions
with respect to such Participant's shares of Restricted Stock, based on
such factors as the Committee may deem appropriate.
If and when the Restriction Period expires without a prior forfeiture
of the Restricted Stock subject to such Restriction Period, the
certificates for such shares shall be delivered by the Corporation to
the Participant.
Long Term Performance Awards.
Awards and Administration. Long Term Performance Awards may be
awarded either alone or in addition to other awards granted under the
Plan. Prior to award of a Long Term Performance Award, the Committee
shall determine the nature, length and starting date of the performance
period (the "Performance Period") for each Long Term Performance Award,
which shall be at least two years (subject to Section 9 below), and
shall determine the performance objectives to be used in valuing Long
Term Performance Awards and determining the extent to which such Long
Term Performance Awards have been earned. Performance objectives may
vary from Participant to Participant and between groups of Participants
and shall be based upon such Corporation, business unit and/or
individual performance factors and criteria as the Committee may deem
appropriate, including, but not limited to, earnings per share or
return on equity. Performance Periods may overlap and Participants may
participate simultaneously with respect to Long Term Performance Awards
that are subject to different Performance Periods and/or different
performance factors and criteria.
At the beginning of each Performance Period, the
Committee shall determine for each Long Term Performance Award subject
to such Performance Period the range of dollar values or number of
shares of Stock to be awarded to the Participant at the end of the
Performance Period if and to the extent that the relevant measure(s) of
performance for such Long Term Performance Award is (are) met. Such
dollar values or number of shares of Stock may be fixed or may vary in
accordance with such performance and/or other criteria as may be
specified by the Committee, in its sole discretion.
Adjustment of Awards. In the event of special or unusual events
or circumstances affecting the application of one or more performance
objectives to a Long Term Performance Award, the Committee may revise
the performance objectives and/or underlying factors and criteria
applicable to the Long Term Performance Awards affected, to the extent
deemed appropriate by the Committee, in its sole discretion, to avoid
unintended windfalls or hardship.
Termination of Employment. Unless otherwise provided in the
applicable award agreement(s), if a Participant terminates employment
with the Corporation during a Performance Period because of death,
Disability or Retirement, such Participant (or his estate) shall be
entitled to a payment with respect to each outstanding Long Term
Performance Award at the end of the applicable Performance Period:
based, to the extent relevant under the terms of the award, upon
the Participant's performance for the portion of such Performance
Period ending on the date of termination and the performance of the
applicable business unit(s) for the entire Performance Period, and
pro-rated, where deemed appropriate by the Committee, for the
portion of the Performance Period during which the Participant was
employed by the Corporation, all as determined by the Committee, in its
sole discretion.
However, the Committee may provide for an earlier
payment in settlement of such award in such amount and under such terms
and conditions as the Committee deems appropriate, in its sole
discretion.
Subject to Section 9 below, if a Participant terminates
employment with the Corporation during a Performance Period for any
other reason, then such Participant shall not be entitled to any
payment with respect to the Long Term Performance Awards subject to
such Performance Period, unless the Committee shall otherwise
determine, in its sole discretion.
Form of Payment. The earned portion of a Long Term Performance
Award may be paid currently or on a deferred basis such interest or
earnings equivalent as may be determined by the Committee, in its sole
discretion. Payment shall be made in the form of cash or whole shares
of Stock, including Restricted Stock, either in a lump sum payment or
in annual installments commencing as soon as practicable after the end
of the relevant Performance Period, all as the Committee shall
determine at or after grant. If and to the extent a Long Term
Performance Award is payable in Stock and the full amount of such value
is not paid in Stock, then the shares of Stock representing the portion
of the value of the Long Term Performance Award not paid in Stock shall
again become available for award under the Plan. Prior to any payment,
the Committee shall certify that all of the performance goals or other
material terms of the award have been met.
Amendments and Termination. The Committee may amend, alter or
discontinue the Plan at any time and from time to time, but no
amendment, alteration or discontinuation shall be made which would
impair the rights of a Participant with respect to a Stock Option,
Stock Appreciation Right, Restricted Stock or Long Term Performance
Award which has been granted under the Plan, without the Participant's
consent, or which, without the approval of the Corporation's
stockholders, would:
except as expressly provided in the Plan, increase the total
number of shares reserved for the purposes of the Plan;
decrease the option price of any Stock Option to less than 100% of
the Fair Market Value on the date of grant;
change the employees or class of employees eligible to participate
in the Plan; or
extend the maximum Option term under SectionE5(b) of the Plan.
The Committee may substitute new Stock Options for previously
granted Stock Options, including previously granted Stock Options
having higher exercise prices.
Subject to the above provisions, the Committee shall have
broad authority to amend the Plan to take into account changes in
applicable tax laws and accounting rules, as well as other
developments. Notwithstanding the foregoing, no amendment to the Plan
may be made by the Committee without the approval of the Corporation's
stockholders if such approval would be required under the Rules in
order to ensure that transactions effected under the Plan are eligible
for the benefit of Rule 16b-3.
Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect
to any payments not yet made to a Participant or optionee by the
Corporation, nothing contained herein shall give any such Participant
or optionee any rights that are greater than those of a general
creditor of the Corporation. In its sole discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Stock or payments in lieu
or with respect to awards hereunder, provided, however, that, unless
the Committee otherwise determines, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of the
Plan.
General Provisions.
The Committee may require each person acquiring Stock or a Stock
based award under the Plan to represent to and agree with the
Corporation in writing that the Participant is acquiring the Stock or
Stock based award for investment purposes and without a view to
distribution thereof and as to such other matters as the Committee
believes are appropriate to ensure compliance with applicable Federal
and state securities laws. The certificate evidencing such award and
any securities issued pursuant thereto may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer and
compliance with securities laws.
All certificates for shares of Stock or other securities
delivered under the Plan shall be subject to such stock-transfer orders
and other restrictions as the Committee may deem advisable under the
rules, regulations, and other requirements of the Securities Act of
1933, as amended, the Exchange Act, any stock exchange upon which the
Stock is then listed, and any other applicable Federal or state
securities laws, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such
restrictions.
Nothing contained in the Plan shall prevent the Board of Directors
from adopting other or additional compensation arrangements, 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 shall not confer upon any employee of the
Corporation or a Subsidiary any right to continued employment with the
Corporation or such Subsidiary, nor shall it interfere in any way with
the right of the Corporation or such Subsidiary to terminate the
employment of any of its employees at any time.
No later than the date as of which an amount first becomes
includible in the gross income of the Participant for Federal income
tax purposes with respect to any award under the Plan, the Participant
shall pay to the Corporation, or make arrangements satisfactory to the
Committee regarding the payment, of any Federal, state or local taxes
of any kind required by law to be withheld with respect to such amount.
Unless otherwise determined by the Committee, the minimum required
withholding obligations may be settled with Stock, including Stock that
is part of the award that gives rise to the withholding requirement.
The obligations of the Corporation under the Plan shall be conditional
on such payment or arrangements and the Corporation 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.
At the time of grant of an award under the Plan, the Committee may
provide that the shares of Stock received as a result of such grant
shall be subject to a right of first refusal, pursuant to which the
Participant shall be required to offer to the Corporation any shares
that the Participant wishes to sell, with the price being the then Fair
Market Value of the Stock, subject to such other terms and conditions
as the Committee may specify at the time of grant.
The reinvestment of dividends in additional Restricted Stock (or
in other types of Plan awards) at the time of any dividend payment
shall only be permissible if sufficient shares of Stock are available
under Section 3 of the Plan for such reinvestment (taking into account
then outstanding Stock Options and other Plan awards).
The Committee shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to whom any
amounts payable in the event of the Participant's death are to be paid.
The Plan and all awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Delaware.
Effective Date of Plan. The Plan shall be effective on the date it
is approved by the affirmative vote of the holders of a majority of the
shares of Stock present, or represented, and entitled to vote on the
Plan at a meeting of stockholders.
Term of Plan. No Stock Option, Stock Appreciation Right, Restricted
Stock or Long Term Performance Award shall be granted pursuant to the
Plan on or after the tenth (10th) anniversary of the date of
stockholder approval of the Plan, but awards granted prior to such
tenth (10th) anniversary may extend beyond that date.
(PAGE)
Exhibit 4.4
Systems & Computer Technology Corporation
1994 Non-Employee Director Stock Option Plan
1. Purposes.
The purposes of the Plan are (a) to maintain the competitive position
of the Company by attracting and retaining Outside Directors and (b) to
provide incentive compensation to Outside Directors based upon the
Company's performance, as measured by the appreciation in the Common
Stock. The Plan is intended to constitute a "formula" plan satisfying
the conditions of Rule 16b-3(c)(2)(ii) promulgated under Section 16 of
the Exchange Act. The options Awarded pursuant to the Plan are
intended to constitute non-qualified stock options.
2. Definitions.
(a) "Adjusted Fair Market Value" shall mean, in the event of a
Change in Control, the highest price per share of Common Stock paid or
payable to holders of the Common Stock in any transaction (or series of
transactions) constituting or resulting (or as to which approval by
stockholders of the Company constitutes or results) in the Change in
Control.
(b) "Award" shall mean a grant of an Option to an Outside
Director pursuant to the provisions of the Plan.
(c) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(d) "Change of Control" shall mean the happening of any of the
following:
(i) the acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Sections 13(d)
or 14(d) of the Exchange Act) of "Beneficial Ownership" (as the term
beneficial ownership is used for purposes of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of the combined
voting power of the Company's then outstanding voting securities (the
"Voting Securities"), provided that for purposes of this paragraph,
Voting Securities acquired directly from the Company by any Person
shall be excluded from the determination of such Person's Beneficial
Ownership of Voting Securities (but such Voting Securities shall be
included in the calculation of the total number of Voting Securities
then outstanding); or
(ii) Approval by stockholders of the Company of (A) a merger,
reorganization or consolidation involving the Company if the
stockholders of the Company immediately before such merger,
reorganization or consolidation do not or will not own directly or
indirectly immediately following such merger, reorganization or
consolidation, more than fifty percent (50%) of the combined voting
power of the outstanding Voting Securities of the corporation resulting
from or surviving such merger, reorganization or consolidation in
substantially the same proportion as their ownership of the Voting
Securities immediately before such merger, reorganization or
consolidation or (B) (1) a complete liquidation or dissolution of the
Company or (2) an agreement for the sale or other disposition of all or
substantially all of the assets of the Company; or
(iii) Acceptance by stockholders of the Company of shares in
a share exchange if the stockholders of the Company immediately before
such share exchange do not or will not own directly or indirectly
immediately following such share exchange more than fifty percent (50%)
of the combined voting power of the outstanding Voting Securities of
the corporation resulting from or surviving such share exchange in
substantially the same proportion as the ownership of the Voting
Securities outstanding immediately before such share exchange.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Company" shall mean Systems & Computer Technology
Corporation, a Delaware corporation.
(g) "Common Stock" shall mean common stock of the Company, $.01
par value per share.
(h) "Disinterested Person" shall have the meaning set forth in
Rule 16b-3(c)(2)(i) promulgated under Section 16 of the Exchange Act.
(i) "Disability" or "Disabled" shall mean the inability of an
Optionee to serve as a director of the Company resulting from a mental
or physical illness, impairment or any other similar occurrence which
can be expected to result in death or which has lasted or can be
expected to last for a period of twelve (12) consecutive months, as
determined by the Board.
(j) "Employee" shall mean any person, including officers and
directors, employed by the Company, any of its Subsidiaries or its
successors. The payment of directors' fees by the Company, any of its
Subsidiaries or its successors, as the case may be, shall not be
sufficient to constitute employment.
(k) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(l) "Fair Market Value" shall mean the fair market value of a
share of Common Stock, as determined pursuant to Section 10 hereof.
(m) "Initial Award Date" shall mean the date the Plan is approved
by the affirmative vote of the holders of a majority of the shares of
Common Stock present, or represented, and entitled to vote on the Plan
at a meeting of stockholders.
(n) "Mandatory Option Cancellation Date" shall mean, as to each
Option, the later of: (i) the first business day after the expiration
of a period of six (6) months from the date of grant of the Option;
(ii) in the event of a Change in Control as defined in Section
2(d)(ii)(A) or Section 2(d)(ii)(B)(2), the date on which the
transaction approved by stockholders of the Company (as provided in
Section 2(d)(ii)) is consummated; and (iii) in the event of a Change in
Control as defined in Section 2(d)(i) or Section 2(d)(iii), the first
business day after the expiration of a period of sixty (60) days after
the occurrence of such event.
(o) "Option" shall mean a non-qualified stock option to purchase
Shares that is Awarded pursuant to the Plan.
(p) "Option Agreement" shall mean a written agreement
substantially in the form of Exhibit A, or such other form or forms as
the Board (subject to the terms and conditions of this Plan) may from
time to time approve evidencing and reflecting the terms of an Option.
(q) "Optionee" shall mean an Outside Director to whom an Option
is Awarded.
(r) "Outside Director" shall mean a director of the Company who
is not an Employee.
(s) "Plan" shall mean this Systems & Computer Technology
Corporation 1994 Non-Employee Director Stock Option Plan, as amended
from time to time.
(t) "Pool" shall mean the pool of shares of Common Stock subject
to the Plan, as described and set forth in Section 4 hereof
(u) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(v) "Shares" shall mean shares of Common Stock contained in the
Pool, as adjusted in accordance with Section 11 of the Plan.
(w) "Stock Purchase Agreement" shall mean an agreement
substantially in the form attached hereto as Exhibit B, or such other
form as the Board (subject to the terms and conditions of this Plan)
may from time to time approve, which an Optionee shall be required to
execute as a condition of purchasing Shares upon the exercise of an
Option.
(x) "Subsidiary" shall mean, in respect of the Company, a
subsidiary corporation, whether now or hereafter existing, as defined
in Sections 424(f) and (g) of the Code.
3. Administration.
(a) General. The Plan shall be administered by the Board. Subject to
the provisions of the Plan, the Board shall have the authority, in its
discretion: (i) to prescribe, amend and rescind rules and regulations
relating to the Plan: (ii) to interpret the Plan or any agreement
entered into with respect to the Award or exercise of Options; (iii) to
authorize any person to execute on behalf of the Company any instrument
required to effectuate the Award of an Option previously Awarded or to
take such other actions as may be necessary or appropriate with respect
to the Company's rights pursuant to Options or agreements relating to
the Award or exercise thereof, and (iv) to make such other
determinations and establish such other procedures as it deems
necessary or advisable for the administration of the Plan.
(b) Effect of Board Decisions. All decisions, determinations and
interpretations of the Board shall be final and binding with respect to
all Options and Optionees.
(c) Limitation of Liability. Notwithstanding anything herein to the
contrary, no member of the Board shall be liable for any good faith
determination, act or failure to act in connection with the Plan or any
Option Awarded hereunder.
4. Stock Subject to the Plan.
Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of Shares which may be Awarded and sold under the Plan
is Two Hundred Fifty Thousand (250,000) Shares (collectively, the
"Pool"). If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares
which were subject thereto shall, unless the Plan shall have been
terminated, return to the Plan and become available for future Award
under the Plan.
5. Participation; Awards.
Only Outside Directors may be awarded Options under the Plan. On the
Initial Award Date, each person then serving as an Outside Director
shall be Awarded an Option to purchase 30,000 Shares. The per Share
exercise price of each such Option will be equal to the Fair Market
Value on the Initial Award Date. Any person who becomes an Outside
Director after the Initial Award Date shall be Awarded an Option to
purchase 30,000 Shares. The per share exercise price of each such
Option will be equal to the Fair Market Value on such date of
appointment or election. Notwithstanding the foregoing, in the event
that the Fair Market Value is less than $12.00 or greater than $22.00
on any date on which an Option would be awarded pursuant to the
foregoing provisions, the number of Shares to be covered by the Option
shall be equal to the quotient which results from dividing $600,000 by
the Fair Market Value on such award date; provided, however, that the
number of Shares to be covered by such Option when granted may in no
event exceed 40,000. Once an Outside Director has been Awarded an
Option, he shall not thereafter be entitled to receive any additional
Award under the Plan. No Option may be Awarded under the Plan at any
time after the fifth (5th) anniversary of the Initial Award Date.
6. Terms and Conditions Of Options.
Each Option Awarded pursuant to the Plan shall be evidenced by an
Option Agreement in such form as the Board may from time to time
determine. Each Option Agreement shall incorporate by reference all
terms and conditions of the Plan.
7. Exercise of Options.
(a) Exercisability. Each Option may be exercised, on a
cumulative basis, for one-fifth of the number of Shares underlying the
Option on each of the first five anniversaries of the date the Option
is Awarded. No Option may be exercised at any time after the earlier
of (i) the date it has terminated pursuant to Section 9 of the Plan and
(ii) the sixth (6th) anniversary of the date of its Award.
(b) Manner of Exercise. An Option shall be deemed to be exercised
when written notice of such exercise has been given to the Company at
its principal executive office in accordance with the terms of the
Option Agreement by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised
has been received by the Company, accompanied by an executed Stock
Purchase Agreement and any other agreements required by the terms of
the Plan and/or Option Agreement. Full payment may consist of any
consideration and method of payment allowable under Section 8 of the
Plan.
(c) Delivery of Shares. As soon as practicable after any proper
exercise of an Option in accordance with the provisions of the Plan,
the Company shall, without transfer or issue tax to the Optionee,
deliver to the Optionee at the principal executive office of the
Company or such other place as shall be mutually agreed upon between
the Company and the Optionee, a certificate or certificates
representing the Shares for which the Option shall have been exercised.
The time of issuance and delivery of the certificate(s) representing
the Shares for which the Option shall have been exercised may be
postponed by the Company for such period as may be required by the
Company, with reasonable diligence, to comply with any applicable
listing requirements of any national or regional securities exchange or
any law or regulation applicable to the issuance or delivery of such
Shares.
(d) Effect on Plan. Exercise of an Option in any manner shall
result in a decrease in the number of Shares which thereafter may be
available, both for Award under the Plan and for sale under the Option,
by the number of Shares as to which the Option is exercised.
8. Form of Payment.
The consideration to be paid for the Shares to be issued upon the
exercise of the Option may consist entirely of cash or check or such
other consideration and method of payment permitted under any laws to
which the Company is subject and which is approved by the Board.
9. Termination of Options.
(a) Subject to paragraph (b) below, in the event that an Optionee
resigns or is removed from the Board or ceases to serve on the Board as
a result of a failure to be reelected at the end of his term, he shall
have thirty (30) days from the date of his resignation or removal or
the date his service on the Board ceases to exercise the Option then
held by him to the extent, but only to the extent, the Option was
exercisable, in accordance with Section 7(a) of the Plan, on the date
of such resignation, removal or cessation from service.
(b) In the event that an Optionee dies or becomes Disabled, he
(or, as applicable, his legal guardian or personal representative)
shall have twelve (12) months from the date of his death or cessation
of service on the Board on account of the Disability to exercise the
Option then held by him to the extent, but only to the extent, the
Option was exercisable, in accordance with Section 7(a) of the Plan, on
the date of his death or cessation from service.
10. Determination of Fair Market Value of Common Stock.
The Fair Market Value of a share of Common Stock shall be the
closing price for a share of Common Stock, as reported on the National
Association of Securities Dealers Automated Quotation System on the
relevant valuation date (or, if the Common Stock is subsequently listed
on a national securities exchange, the closing price for a share of
Common Stock on the exchange on the relevant valuation date).
11. Adjustments.
(a) Stock Splits, Etc. Subject to required action by the
stockholders, if any, the number of Shares as to which options may be
Awarded under the Plan and the number of Shares subject to outstanding
Options and the option prices thereof shall be adjusted proportionately
for any increase or decrease in the number of outstanding shares of
Common Stock of the Company resulting from stock splits, reverse stock
splits, stock dividends, reclassifications and recapitalizations.
(b) Fractional Shares. No fractional Shares shall be issuable on
account of any action aforesaid, and the aggregate number of Shares
into which Shares then covered by the Option, when changed as the
result of such action, shall be reduced to the number of whole Shares
resulting from such action, unless the Board, in its sole discretion,
shall determine to issue scrip certificates in respect of any
fractional Shares, which scrip certificates, in such event, shall be in
a form and have such terms and conditions as the Board in its
discretion shall prescribe.
12. Rights as a Stockholder.
The Optionee shall have no rights as a stockholder of the Company
and shall not have the right to vote or receive dividends with respect
to any Shares subject to an Option until such Option has been exercised
and a certificate with respect to the Shares purchased upon such
exercise has been issued to him.
13. Purchase for Investment and Other Restrictions.
The issuance of Shares on the exercise of an Option shall be
conditioned on receipt by the Company of such appropriate
representations and warranties of the Optionee as are set forth in the
applicable Stock Purchase Agreement, including a representation and
warranty that the purchase of Shares or the exercise of an Option shall
be for investment, and not with a view to the public resale or
distribution thereof, unless the Shares subject to the Option are
registered under the Securities Act and the transfer or sale of such
Shares complies with all other laws, rules and regulations applicable
thereto. Unless the Shares are registered under the Securities Act,
the Optionee shall acknowledge that the Shares purchased on exercise of
the Option are not registered under the Securities Act and may not be
sold or otherwise transferred unless the Shares have been registered
under the Securities Act in connection with the sale or other transfer
thereof, or that counsel satisfactory to the Company has issued an
opinion satisfactory to the Company that the sale or other transfer of
such Shares is exempt from registration under the Securities Act, and
unless said sale or transfer is in compliance with all other applicable
laws, rules and regulations, including all applicable federal and state
securities laws, rules and regulations. Unless the Shares are
registered under the Securities Act, the certificates representing the
Shares shall contain the following legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS. THESE SHARES HAVE NOT BEEN ACQUIRED WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, EXCHANGED,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED
OF, BY GIFT OR OTHERWISE, OR IN ANY WAY ENCUMBERED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR A
SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS.
14. Transferability.
No Option shall be assignable or transferable otherwise than by
will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of
the Employee Retirement Income Security Act, as amended. During the
lifetime of the Optionee, his Options shall be exercisable only by him,
or, in the event of his legal incapacity or Disability, by his legal
guardian or representative.
15. Change of Control.
Upon a Change in Control all Options outstanding on the date of
such Change in Control shall become immediately and fully exercisable,
notwithstanding the restriction in Section 7(a). In the event of a
Change in Control as defined in Section 2(d)(i), Section 2(d)(ii)(A),
Section 2(d)(ii)(B)(2) or Section 2(d)(iii), all Options outstanding on
the Mandatory Option Cancellation Date which are not exercised on or
before the Mandatory Option Cancellation Date shall be canceled on such
date by the Company, and the Company shall on such date pay to each
Optionee of a canceled Option a cash amount equal to the excess, if
any, in respect of each Option canceled, of (i) the Adjusted Fair
Market Value of the shares of Common Stock subject to the Option, over
(ii) the aggregate exercise price for such shares of Common Stock.
16. Amendment of the Plan.
Insofar as permitted by law and the Plan and as consistent with
the treatment of the Plan as a "formula" plan within the scope of Rule
16b-3(c)(2)(ii), the Board may from time to time suspend, terminate or
discontinue the Plan or revise or amend it; provided, however, that the
Plan shall not be amended more than once every six months, other than
to comport with changes in the Code, the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder.
17. Application of Funds.
The proceeds received by the Company from the sale of Shares
pursuant to the exercise of Options shall be used for general corporate
purposes.
18. Approval of Stockholders.
The Plan shall become effective on the date that it has been
adopted by the Board and approved by the affirmative vote of the
holders of a majority of the shares of Common Stock present, or
represented, and entitled to vote on the Plan at a meeting of
stockholders.
19. Conditions Upon Issuance of Shares.
Shares shall not be issued pursuant to the exercise of an Option
unless the exercise of such Option and the issuance and delivery of
such Shares pursuant thereto shall comply with all relevant provisions
of law, including, without limitation, the Securities Act, the Exchange
Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Shares may then be
listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
20. Reservation of Shares.
The Company, during the term of this Plan, shall at all times
reserve and keep available such number of Shares as shall be sufficient
to satisfy the requirements of the Plan.
21. Taxes, Fees, Expenses and Withholding of Taxes.
(a) Transfer Taxes. The Company shall pay all original issue and
transfer taxes (but not income taxes, if any) with respect to the Award
of Options and/or the issue and transfer of Shares pursuant to the
exercise thereof, and all other fees and expenses necessarily incurred
by the Company in connection therewith, and will from time to time use
its best efforts to comply with all laws and regulations which, in the
opinion of counsel for the Company, shall be applicable thereto.
(b) Withholding Right. The Award of Options hereunder and the
issuance of Shares pursuant to the exercise thereof is conditioned upon
the Company's reservation of the right to withhold in accordance with
any applicable law, from any compensation or other amounts payable to
the Optionee, any taxes required to be withheld under federal, state or
local law as a result of the Award or exercise of such Option or the
sale of the Shares issued upon exercise thereof. To the extent that
compensation or other amounts, if any, payable to the Optionee is
insufficient to pay any taxes required to be so withheld, the Company
may, in its sole discretion, require the Optionee (or such other person
entitled herein to exercise the Option), as a condition of the exercise
of an Option, to pay in cash to the Company an amount sufficient to
cover such tax liability or otherwise to make adequate provision for
the Company's satisfaction of its withholding obligations under
federal, state and local law.
22. Notices.
Any notice to be given to the Company pursuant to the provisions
of the Plan shall be addressed to the Company in care of its Secretary
(or such other person as the Company may designate from time to time)
at its principal executive office, and any notice to be given to an
Optionee shall be delivered personally or addressed to him at the
address given beneath his signature on his Option Agreement, or at such
other address as such Optionee or his permitted transferee (upon the
transfer of the Shares) may hereafter designate in writing to the
Company. Any such notice shall be deemed duly given when enclosed in a
properly sealed envelope or wrapper addressed as aforesaid, registered
or certified, and deposited, postage and registry or certification fee
prepaid, in a post office or branch post office regularly maintained by
the United States Postal Service. It shall be the obligation of each
Optionee and each permitted transferee holding Shares purchased upon
exercise of an Option to provide the Secretary of the Company, by
letter mailed as provided herein, with written notice of his direct
mailing address.
23. No Enlargement of Rights.
The Plan is purely voluntary on the part of the Company, and the
continuance of the Plan shall not be deemed to constitute a contract
between the Company and any Outside Director for the continuation of
his service as an Outside Director. Nothing contained in the Plan
shall be deemed to give any Outside Director the right to be retained
in the service of the Company. Upon the Award of an Option to an
Outside Director, he shall have only such rights and interests as are
expressly provided herein, subject, however, to all applicable
provisions of the Company's Certificate of Incorporation, as the same
may be amended from time to time.
24. Invalid Provisions.
In the event that any provision of the Plan is found to be invalid
or otherwise unenforceable under any applicable law, such invalidity or
unenforceability shall not be construed as rendering any other
provisions contained herein as invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same
extent as though the invalid or unenforceable provision was not
contained herein.
25. Termination.
As provided in Section 5 of the Plan, no Option may be awarded
under the Plan at any time after the fifth (5th) anniversary of the
Initial Award Date; however, the Plan shall not be deemed to have
terminated until all Options have either expired, been exercised or
have otherwise terminated.
26. Applicable Law.
The Plan shall be governed by and construed in accordance with the
laws of the State of Delaware.
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Systems & Computer Technology
Corporation 1994 Long-Term Incentive Plan and Systems & Computer
Technology Corporation 1994 Non-Employee Director Stock Option Plan of
our reports dated October 21, 1994, with respect to the consolidated
financial statements of Systems & Computer Technology Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year
ended September 30, 1994 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
June 26, 1995
Exhibit 5
June 29, 1995
Systems & Computer Technology Corporation
Four Country View Road
Malvern, Pennsylvania 19355
Re: Registration Statement on Form S-8
Gentlemen:
Reference is made to the Registration Statement on Form S-8
(the "Registration Statement") of Systems & Computer Technology Corp.
a Delaware corporation (the "Company"), to be filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to the
offering and sale by the Company of (i) up to an aggregate of 250,000
shares of common stock, par value $.01 per share ("Shares"), of the
Company pursuant to the Company's 1994 Non-Employee Director Stock
Option Plan and (ii) up to 1,750,000 Shares pursuant to the Company's
1994 Long-Term Incentive Plan (the two plans referenced in the foregoing
clauses (i) and (ii) are hereafter collectively referred to as the
"Plans").
In this connection, we have examined the Registration
Statement, including the exhibits thereto, the originals or copies,
certified or otherwise identified to our satisfaction, of the
Certificate of Incorporation and the By-Laws of the Company as amended
to date, and such other documents and corporate records relating to the
Company as we have deemed appropriate for the purpose of rendering the
opinion expressed herein. The opinion expressed herein is based
exclusively on the applicable provisions of the Delaware General
Corporation Law and federal securities laws as in effect on the date
hereof.
On the basis of the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the Plans, will be
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. Such consent does not constitute a
consent under Section 7 of the Act, since we have not certified any
part of the Registration Statement and do not otherwise come within the
categories of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
PEPPER, HAMILTON & SCHEETZ
/s/ Michael Friedman
By: _________________________
A Partner
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Systems & Computer Technology
Corporation 1994 Long-Term Incentive Plan and Systems & Computer
Technology Corporation 1994 Non-Employee Director Stock Option Plan of
our reports dated October 21, 1994, with respect to the consolidated
financial statements of Systems & Computer Technology Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year
ended September 30, 1994 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
June 26, 1995
