<PAGE>
Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________________________________________
HPSC, INC.
-------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2560004
- -------------------------- --------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
60 State Street
Boston, MA 02109-1803
--------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
HPSC, INC. 1995 STOCK INCENTIVE PLAN
------------------------------------
(Full Title of the Plan)
Rene Lefebvre, Vice President of Finance
60 State Street
Boston, MA 02109-1803
-------------------------------------------------
(Name and Address of Agent for Service)
(617) 720-3600
----------------------------------------------------------
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
--------
Andrea M. Teichman, Esq.
Hill & Barlow, a Professional Corporation
One International Place
Boston, Massachusetts 02110
(617) 428-3540
<PAGE>
CALCULATION OF REGISTRATION FEE
--------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
Securities to Registered Maximum Maximum Registration
be Registered Offering Price Aggregate Fee
Per Share * Offering
Price*
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 550,000 $4.50 $2,475,000 $853.45
Stock
($.01 par
value)
- ----------------------------------------------------------------------------------------------------------------------------------
<FN>
* Estimated solely for the purpose of computing the registration fee. This
amount was calculated pursuant to Rule 457 upon the basis of the average of
the high and low prices of the registrant's Common Stock as reported in the
consolidated reporting system of the NASDAQ National Market System on
June 1, 1995.
</TABLE>
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference herein: (a) the
Annual Report on Form 10-K of HPSC, Inc. (the "Company") for the year ended
December 31, 1994; (b) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995; and (c) the description of the Company's capital
stock contained in its Registration Statement under Section 12(g) of the
Securities Exchange Act of 1934 on Form S-1, filed on April 27, 1983, including
any amendment or report filed for the purpose of updating such description. All
reports and other documents filed by the Company after the date hereof 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 which indicates that all
securities offered hereby have been sold, or which deregisters all securities
then 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 report or document.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters relating to the shares of Common Stock, $.01 par
value, of the Company to be issued pursuant to the HPSC, Inc. 1995 Stock
Incentive Plan have been passed upon for the Company by Hill & Barlow, a
Professional Corporation, One International Place, Boston, Massachusetts 02110.
Dennis W. Townley, a member of that firm, is the Secretary of the Company.
The financial statements incorporated in this registration statement by
reference to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1994 have been so incorporated in reliance on the report of Coopers
& Lybrand, L.L.P., independent accountants, given on the authority of said firm
as experts in auditing and accounting.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification of officers and directors subject to certain
limitations. The general effect of such law is to empower a corporation to
indemnify any of its officers and directors against certain expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person to be indemnified in connection with certain
actions, suits or
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<PAGE>
proceedings (threatened, pending or completed) if the person to be indemnified
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal actions or proceedings, if he had no reasonable cause to believe his
conduct was unlawful. The Company's By-laws provide that it shall indemnify its
officers, directors, employees and agents to the extent permitted by law.
The Company maintains insurance under which the insurers will reimburse the
Company for amounts which it has paid to its directors, officers and certain
other employees by way of indemnification for claims against such persons in
their official capacities. The insurance also covers such persons as to amounts
paid by them as a result of claims against them in their official capacities
which are not reimbursed by the Company. The insurance is subject to certain
limitations and exclusions.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
See Exhibit Index.
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 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 (1)(i) and (1)(ii) do not apply if
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
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<PAGE>
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 a bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
registration amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that its 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 Boston, Commonwealth of Massachusetts on May 11,
1995.
HPSC, INC.
By: /s/ John W. Everets
-----------------------
John W. Everets
Chairman of the Board,
Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John W.
Everets and Rene Lefebvre and each of them singly as his lawful attorneys with
full power to them and each of them singly to sign for him in his name in the
capacity indicated below this registration statement on Form S-8 (and any and
all amendments thereto), hereby ratifying and confirming his signature as it may
be signed by his said attorneys to this registration statement (and any and all
amendments hereto).
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 date indicated.
SIGNATURE TITLE DATE
--------- ----- -----
/s/ John W. Everets Chairman of the Board May 11, 1995
- ------------------------ of Directors and Chief
John W. Everets Executive Officer (principal
executive officer)
/s/ Raymond R. Doherty President and May 11, 1995
- ------------------------ Director
Raymond R. Doherty
/s/ Rene Lefebvre Vice President of Finance, May 11, 1995
- ------------------------ Chief Financial Officer and
Rene Lefebvre Treasurer (principal financial officer)
/s/ Dennis J. McMahon Vice President of May 11, 1995
- ------------------------ Administration (principal
Dennis J. McMahon accounting officer)
/s/ Joseph A. Biernat Director May 11, 1995
- ------------------------
Joseph A. Biernat
/s/ J. Kermit Birchfield Director May 11, 1995
- ------------------------
J. Kermit Birchfield
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<PAGE>
/s/ Louis J.P. Calisti Senior Vice President and May 11, 1995
- ------------------------ Director
Louis J.P. Calisti
/s/ Dollie A. Cole Director May 11, 1995
- ------------------------
Dollie A. Cole
/s/ Samuel P. Cooley Director May 11, 1995
- ------------------------
Samuel P. Cooley
/s/ Thomas M. McDougal Director May 11, 1995
- ------------------------
Thomas M. McDougal
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<PAGE>
EXHIBIT INDEX
All of the following exhibits are filed herewith. Inapplicable items have
been omitted.
EXHIBIT TITLE
------- -----
4.1 Restated Certificate of Incorporation of the Company, as
amended to date.
4.2 Amended and Restated By-laws of the Company
effective May 11, 1995.
5 Opinion of Hill & Barlow, a Professional Corporation.
24.1 Consent of Hill & Barlow, a Professional Corporation
(included in Exhibit 5).
24.2 Consent of Coopers & Lybrand, L.L.P.
25 Power of Attorney (included above).
99 HPSC, Inc. 1995 Stock Incentive Plan.
0140159.01
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<PAGE>
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
HEALTHCO PROFESSIONAL SERVICES CORPORATION
It is hereby certified that:
1. (a) The present name of the corporation (hereinafter called
the "corporation") is Healthco Professional Services Corporation.
(b) The name under which the corporation was originally
incorporated is Healthco Professional Leasing Corporation, and the date of
filing the original Certificate of Incorporation of the corporation with the
Secretary of State of the State of Delaware is January 20, 1975.
2. The Certificate of Incorporation of the corporation is hereby
amended by striking out Articles 1, 2, 4 and 9 thereof and by substituting in
lieu thereof the new Articles 1, 2, 4 and 8 which are set forth in the Restated
Certificate of Incorporation hereinafter provided for.
3. The provisions of the Certificate of Incorporation of the
corporation as heretofore amended and/or supplemented, and as herein amended,
are hereby restated and integrated into the single instrument which is
hereinafter set forth, and which is entitled Restated Certificate of
Incorporation of HPSC, Inc., without any further amendments other than the
amendments herein certified and without any discrepancy between the provisions
of the Certificate of Incorporation as heretofore amended and supplemented and
the provisions of the said single instrument hereinafter set forth.
4. The amendments and the restatement of the Certificate of
Incorporation herein certified have been duly adopted by the sole stockholder of
the corporation in accordance with the provisions of Section 242 and of Section
245 of the General Corporation Law of the State of Delaware.
5. The Certificate of Incorporation of the corporation, as amended
and restated herein, shall, upon the effective date of this Restated Certificate
of Incorporation, read as follows:
"Restated Certificate of Incorporation
of
HPSC, Inc.
<PAGE>
1. The name of the corporation is HPSC, Inc.
2. The respective names of the County and of the City within the
County in which the registered office of the corporation is to be located in the
State of Delaware are the County of Kent and the City of Dover. The name of the
registered agent of the corporation is The Prentice-Hall Corporation System,
Inc. The street and number of said registered office and the address by street
and number of said registered agent is 229 South State Street, Dover, Delaware.
3. The purposes for which this corporation is organized are:
(a) To manufacture, purchase or otherwise acquire, invest in,
own, mortgage, pledge, lease, 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; and
(b) To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is twenty million (20,000,000) shares, consisting of (i)
five million (5,000,000) shares of Preferred Stock, having a par value of $1.00
per share, and (ii) fifteen million (15,000,000) shares of Common Stock, having
a par value of $.01 per share. Any and all such shares issued, and for which
the full consideration has been paid or delivered, shall be deemed fully paid
stock and the holder of such shares shall not be liable for any further call or
assessment or any other payment thereon.
(a) The shares of Preferred Stock may be divided into and
issued in one or more series, and each series shall be
designated so as to distinguish the shares thereof from
the shares of all other series. All shares of Preferred
Stock shall be identical except in respect of particulars
which may be fixed by the Board of Directors as
hereinafter provided pursuant to authority which is hereby
expressly vested in the Board of Directors. Each share of
a series shall be identical in all respects with all other
shares of such series, except as to the date from which
dividends thereon shall be cumulative on any series as to
which dividends are cumulative.
(b) Before any shares of Preferred Stock of any series shall
be issued, the Board of Directors, pursuant to authority
hereby expressly vested in it, shall fix by resolution or
resolutions the following provisions in respect of the
shares for each such series so far as the same are not
inconsistent with the provisions of this Article 4
applicable to all series of Preferred Stock:
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<PAGE>
(1) The distinctive designations of each such series
and the number of shares which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors in creating
such series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by like
action of the Board of Directors;
(2) the annual rate or amount of dividends payable on
shares of such series, whether such dividends shall be
cumulative or non-cumulative, the condition, upon which
and/or the dates when such dividends shall be payable and
the date from which dividends on cumulative series shall
accrue and be cumulative on all shares of such series
issued prior to the payment date for the first dividend of
such series;
(3) whether such series shall be redeemable or callable
and, if so, the terms and conditions of such redemption or
call, including the time or times when and the price or
prices at which shares of such series shall be redeemed or
called, and including the terms and conditions of any
retirement or sinking fund for the purchase or redemption
of shares of such series;
(4) the amount payable on shares of such series in the
event of liquidation, dissolution, or winding up of the
affairs of the corporation;
(5) whether such series shall be convertible into or
exchangeable for shares of any other class, or any series
of the same or any other class and, if so, the terms and
conditions thereof, including the date or dates when such
shares shall be convertible into or exchangeable for
shares of any other class, or any series of the same or
any other class, the price or prices or the rate or rates
at which shares of such series shall be so convertible or
exchangeable, and any adjustments which shall be made, and
the circumstances in which any such adjustments shall be
made, in such conversion or exchange prices or rates;
(6) whether such series shall have any voting rights in
addition to those prescribed by law and, if so, the terms
and conditions of exercise of such voting rights;
(7) the conditions and restrictions, if any, on the
payment of dividends or on the making of other
distributions on, or the purchase, redemption or other
acquisition by the corporation or any subsidiary of, the
Common Stock or of any other class (or other
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<PAGE>
series of the same class) ranking junior to the shares of
such series as to dividends or upon liquidation,
dissolution or winding up;
(8) the conditions and restrictions, if any, on the
creation of indebtedness of the corporation, or any
subsidiary, or on the issue of any additional stock
ranking on a parity with or prior to the shares of such
series as to dividends or upon liquidation, dissolution or
winding up; and
(9) such other powers, preferences and relative,
participating, optional or other special rights,
qualifications, limitations or restrictions as shall not
be inconsistent with any such resolution or resolutions
previously adopted as to shares then still authorized,
with the provisions of this Restated Certificate of
Incorporation or with the laws of the State of Delaware.
(c) (1) So long as any shares of Preferred Stock of any
series shall be outstanding, the corporation will not
declare or pay any dividends on the Common Stock (other
than dividends payable solely in shares of Common Stock)
or make any distributions of any kind, either directly or
indirectly, in respect of shares of Common Stock, or make
any payment on account of the purchase, redemption or
other acquisition of Common Stock, unless on the payment,
distribution or redemption date, as the case may be, all
dividends on the then outstanding shares of Preferred
Stock of all series for all past dividend periods shall
have been paid to the full extent of the preference, if
any, to which each series of Preferred Stock is entitled.
(2) In case the corporation shall not pay in full all
dividends required to be paid on all shares of all series
of cumulative Preferred Stock at the time outstanding to
the full extent of the preference, if any to which each
such cumulative series is entitled, all cumulative series
which are of equal rank with respect to such dividend
preference shall share ratably in the payment of
dividends, including accumulations thereof, if any, in
proportion to the amounts that would be payable on such
series if all dividends thereof were paid in full.
Accumulations of dividends shall not bear interest.
(3) After the requirements with respect to preferential
dividends (if any) upon all classes of capital stock, and
each series thereof, shall have been met, then and not
otherwise, the holders of Common Stock shall be entitled
to receive such dividends, out of any remaining net
profits or net assets of the corporation available there
for, when, as and if (subject to the foregoing provisions
of this article 4) such dividends may be declared from
time to time by the Board of Directors. After
distribution in full of the preferential
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<PAGE>
amounts to be distributed to the holders of all classes of
stock, and each series thereof, having more than parity
with Common Stock upon liquidation, dissolution or winding
up, then, in the event of the voluntary or involuntary
liquidation, dissolution or winding up of the corporation,
the holders of the Common Stock shall be entitled to
receive all the remaining assets of the corporation
available for distribution to its stockholders ratably in
proportion to the number of shares of Common Stock held by
them respectively.
(4) A liquidation, dissolution or winding up of the
corporation, as such terms are used in this Article 4, or
as may be used in any resolution or resolutions of the
Board of Directors providing for the issue of any series
of this corporation's capital stock, shall not be deemed
to be occasioned by or to include:
(A) any consolidation or merger of the corporation with
or into any other corporation, corporations, entity
or entities, or
(B) any sale, lease, exchange or other transfer of any
or all of the assets of the corporation to another
corporation, corporations, entity or entities
pursuant to a plan which shall provide for the
receipt by the corporation or its stockholders, as
all or the major portion of the consideration for
such sale, lease, exchange or transfer, of
securities of such other corporation, corporations,
entity or entities or of any company or companies
subsidiary to, controlled by, or affiliated with
such other corporation, corporations, entity or
entities.
(d) The authorized but unissued shares of Common Stock and the
authorized but unissued shares of Preferred Stock of the
corporation may be issued for such consideration, having a
value, not less than the par value thereof, as is
determined from time to time by the Board of Directors.
(e) (1) Except as otherwise determined pursuant to authority
of the Board of Directors as hereinbefore provided, or by
the General Corporation Law of the State of Delaware, all
voting rights shall be vested exclusively in the holders
of the outstanding shares of Common Stock and each such
holder shall be entitled to one (1) vote per share for all
purposes for such share of Common Stock held of record by
him.
(2) Except as otherwise determined pursuant to authority
of the Board of Directors as hereinbefore provided, or by
the General
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<PAGE>
Corporation Law of the State of Delaware, the holders of
Preferred Stock shall not be entitled to vote for any
purpose nor shall they be entitled to notice of meetings
of stockholders.
(f) The corporation may create and issue securities
convertible into shares of capital stock of the
corporation, of any class or classes and of any series of
any class, and whether or not in connection with the issue
and sale of any shares of stock or other securities of the
corporation, may create and issue warrants, rights,
privileges or options entitling the holders thereof to
purchase from the corporation any shares of its capital
stock of any class or classes and of any series of any
class, such convertible securities, warrants, rights
privileges or options to be evidenced by or in such
instrument or instruments as shall be approved by the
Board of Directors. The terms upon which, the time or
times (which may be limited or unlimited in duration) at
or within which, and the price or prices at which any such
rights to convert, or other warrants, rights, privileges
or options may be issued and any such shares may be
acquired or purchased from the corporation upon the
exercise of any such rights to convert, or other warrant,
right, privilege or option shall be such as shall be fixed
and stated in a resolution or resolutions adopted by the
Board of Directors providing for the creation and issue of
such convertible securities, warrants, privileges options,
and, in every case, set forth or incorporated by reference
in the instrument or instruments evidencing such
convertible securities, warrants, rights, privileges or
options. In the absence of actual fraud in the
transaction, the judgment of the Directors as to the
consideration for the issuance of any such convertible
security, warrant, right, privilege or option and the
sufficiency thereof shall be conclusive. The conversion
price, or other consideration to be received by the
corporation upon the issuance of shares of capital stock
upon the exercise of any such rights to convert, warrant,
right, privilege or option shall have a value not less
than the par value of the stock so issued, as determined
by the Board of Directors.
5. The corporation is to have perpetual existence.
6. In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
7. Meetings of stockholders may be held within or without the State
of Delaware, 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
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<PAGE>
by-laws of the corporation. Elections of Directors need not be by written
ballot unless the by-laws of the corporation shall so provide.
8. Whenever a compromise or arrangement is proposed between this
corporation and its creditors of 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 a 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 or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a 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.
Signed and attested to on April 21, 1983.
CORPORATE
SEAL
/s/ Richard L. Kenney
---------------------------------
Richard L. Kenney, Vice President
/s/ Irving J. Helman
- ---------------------------
Its Secretary
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<PAGE>
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF SUFFOLK )
BE IT REMEMBERED that, on April 21, 1983, before me, a Notary Public duly
authorized by law to take acknowledgment of deeds, personally came Richard L.
Kenney, Vice President of HPSC, Inc., who duly signed the foregoing instrument
before me and acknowledged that such signing is his act and deed, that such
instrument as executed is the act and deed of said corporation, and that the
facts stated therein are true.
GIVEN under my hand on April 21, 1983.
NOTARIAL
SEAL
/s/ Miriam H. Kanter
---------------------------
Notary Public
My commission expires: Sept. 20, 1985
0148601.01
-8-
<PAGE>
HPSC, INC.
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
HPSC, Inc., a Delaware corporation organized on January 20, 1975 under the
name "Healthco Professional Leasing, Inc.", does hereby certify as follows:
1. The Certificate of Incorporation of HPSC, Inc., as most recently
amended and restated on April 25, 1983, has been further amended to add thereto
the following Article 9:
"No director shall be personally liable to the corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director, except to the, extent required by law (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)
pursuant to Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Article 9 shall not increase
the personal liability or alleged liability of any director for any act
or omission occurring prior to such repeal or modification, or otherwise
adversely affect any right or protection of a director existing at the
time of such repeal or modification. The provisions of this Article 9
shall not affect rights of indemnification under the corporation's by-laws
or otherwise."
2. Such amendment has been duly adopted in accordance with Section 242
of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, said HPSC, Inc. has caused this Certificate to be
signed and its corporate seal to be affixed hereto this 7th day of September,
1987.
HPSC, Inc.
By: /s/ Marvin Myer Cyker
----------------------
Marvin Myer Cyker
Chairman of the Board
CORPORATE
SEAL
Attest:
/s/ Irving J. Helman
- ----------------------
Irving J. Helman
Secretary
Commonwealth of Massachusetts)
County of Suffolk, ) SS
Be it remembered that on September 7, 1987, before me, a Notary Public duly
authorized by law to take acknowledgment of deeds, personally came Marvin Myer
Cyker, Chairman of the Board of HPSC, Inc., who duly signed the foregoing
instrument before me and acknowledged that such instrument is his act and deed
and the act and deed of said corporation, and that the facts stated therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office on the
day and year aforesaid.
/s/ J. Barry Hawthorne
-------------------------
Notary Public
My commission expires: 5/28/93
NOTARIAL SEAL
0148725.01
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<PAGE>
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
HPSC, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
___________________________________
HPSC, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Company"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Company as required by Section 151 of the General Corporation
Law at a meeting duly called and held on August 3, 1993:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of the Company (hereinafter called the "Board of Directors"
or the "Board") in accordance with the provisions of the Restated Certificate of
Incorporation, as amended to date (hereinafter called 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 Company and
hereby states the designation And number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Preferred Stock:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock") and
the number of shares constituting the Series A Preferred Stock shall be 150,000.
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 Company convertible into Series A Preferred
Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any other
series of Preferred Stock, par value $1.00 per share, of the Company ranking
prior and superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A
<PAGE>
Preferred Stock, in preference to the holders of Common Stock, par value $.01
per share (the "Common Stock"), of the Company, 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) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, equal to 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 first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Company 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 Company 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 $1.00 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 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
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<PAGE>
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 Company. In the
event the Company 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 Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(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 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 Company 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
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<PAGE>
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 Company may at
any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock
of the Company ranking junior (as to dividends and upon
dissolution, liquidation and 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 (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (is 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 Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED STOCK. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company 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.
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<PAGE>
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, subject to the prior and
superior rights of holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Preferred Stock with
respect to rights upon liquidation, dissolution or winding up, no distribution
shall be made (A) 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 (B) 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 Company 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 (A) 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 Company 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 Company 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
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<PAGE>
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 8. NO REDEMPTION. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. RANKING. The Series A Preferred Stock shall rank junior to
all other series of the Company's Preferred Stock as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise.
Section 10. AMENDMENT. If any proposed amendment to the Certificate of
Incorporation would alter or change the preferences, special rights or powers
given to the Series A Preferred Stock so as to affect the Series A Preferred
Stock adversely, or would authorize the issuance of a class or classes of stock
having preferences or rights with respect to dividends or dissolutions or the
distribution of assets that would be superior to the preferences or rights of
the Series A Preferred Stock, then the holders of the Series A Preferred Stock
shall be entitled to vote as a series upon such amendment, and the affirmative
vote of two-thirds of the outstanding shares of Series A Preferred Stock shall
be necessary to the adoption thereof, in addition to such other vote as may be
required by the General Company Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Company by its Chairman of the Board of Directors and attested by its
Secretary this 10th day of August, 1993.
/s/ John W. Everets
----------------------------------
Chairman of the Board of Directors
Attest:
/s/ Dennis W. Townley
- -----------------------------
Secretary
0053339.01
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<PAGE>
HPSC, INC.
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
HPSC, Inc., a Delaware corporation organized on January 20, 1975 under the
name "Healthco Professional Leasing Corporation" does hereby certify as follows:
FIRST: That at a meeting of the Board of Directors held on March 8, 1995,
resolutions were duly adopted setting forth proposed amendments to the Restated
Certificate of Incorporation of said corporation, declaring each such amendment
to be advisable and directing consideration thereof by the stockholders at the
next annual meeting of stockholders of the corporation. The resolutions setting
forth the proposed amendments are as follows:
RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended to add thereto the following Article 10:
"(a) The number of Directors that shall constitute the entire Board of
Directors of this corporation shall be not less than three (3) nor more than
twelve (12), subject to the provisions of this Article 10. The exact number of
Directors shall be fixed, within the foregoing limitations, by the vote of a
majority of the entire Board of Directors.
(b) The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number as
possible; provided, however, that the number of Directors in any one class may
not exceed the number of Directors in any other class by more than one. Each
Director shall serve for a term ending on the date of the third annual meeting
of stockholders following the annual meeting at which the Director was elected;
provided, however, that each initial Director in Class I shall hold office until
the annual meeting of stockholders in 1996; each initial Director in Class II
shall hold office until the annual meeting of stockholders in 1997 and each
initial Director in Class III shall hold office until the annual meeting of
stockholders in 1998. Notwithstanding the foregoing provisions of this Article,
each Director shall serve until his successor is duly elected and qualified or
until his death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number
of Directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of Directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
<PAGE>
(d) Newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
exclusively by the affirmative vote of a majority of the remaining Directors
then in office (and not by stockholders), even if such remaining Directors
constitute less than a quorum of the Board of Directors, or by a sole remaining
Director. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of Directors in
which the new directorship was created or the vacancy occurred and until such
Director's successor is duly elected and qualified or until his death,
resignation or removal.
(e) Any Director may be removed from office only for cause, and only
upon the affirmative vote of the holders of at least seventy-five percent (75%)
of the voting power of the corporation's stock.
(f) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of stock issued by this corporation having a preference
over the common stock as to dividends or upon liquidation shall have the right,
voting separately by class or series, to elect Directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies,
terms of removal and other features of such directorships shall be governed by
the terms of Article 4 and the resolution or resolutions establishing such class
or series adopted pursuant thereto and such Directors so elected shall not be
divided into classes pursuant to this Article 10 unless expressly provided by
such terms.
(g) Notwithstanding anything contained in this Certificate of
Incorporation or the corporation's By-Laws to the contrary, this Article 10 and
Sections 2, 3, 5 and 6 of Article II of the corporation's By-Laws shall not be
altered, amended, or repealed, and no provisions inconsistent therewith shall be
adopted, without the affirmative vote of the holders of not less than seventy-
five percent (75%) of the outstanding stock of the corporation entitled to vote
generally in the election of Directors, voting together as a single class (it
being understood that for the purposes of this Article 10, each share shall have
one vote except as otherwise provided in accordance with Article 4)."
FURTHER RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended to add thereto the following Article 11:
"(a) All actions taken by stockholders shall be taken only at an annual
or special meeting of stockholders. No action by stockholders may be taken by
written consent or otherwise without a meeting.
(b) Notwithstanding anything contained in this Certificate of
Incorporation or the corporation's By-Laws to the contrary, this Article 11 and
Section 11 of Article I of the corporation's By-Laws shall not be altered,
amended or repealed, and no provisions inconsistent therewith shall be adopted,
without the affirmative vote of the holders of not less than seventy-five
percent (75%) of the outstanding stock of the corporation entitled to vote
generally in the election of Directors, voting together as a single class."
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<PAGE>
FURTHER RESOLVED, that each such proposed amendment be presented to the
stockholders of the corporation for approval in accordance with law.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the annual 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 each amendment contained in this
Certificate.
THIRD: That each amendment contained in this Certificate has been duly
adopted in accordance with Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said HPSC, Inc. has caused this Certificate to be
signed by John W. Everets, its chairman of the board, and Dennis W. Townley, its
secretary, and its corporate seal to be affixed hereto this 11th day of May,
1995.
/s/ John W. Everets
----------------------------------------
John W. Everets
Chairman of the Board
Attest:
/s/ Dennis W. Townley
- ------------------------------- CORPORATE SEAL
Dennis W. Townley
Secretary
0141574.01
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<PAGE>
Exhibit 4.2
Effective May 11, 1995
AMENDED AND RESTATED BY-LAWS
OF
HPSC, INC.
ARTICLE I
Stockholders
SECTION 1. ANNUAL MEETING. An annual meeting of the
stockholders of the corporation, for the election of the Directors to succeed
those whose terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held on the third Tuesday of March in
each year (or if that be a legal holiday in the place where the meeting is to be
held, on the next succeeding full business day) at the hour stated in the notice
of the meeting. If the annual meeting of the stockholders is not held on such
date, the Directors shall cause the meeting to be held as soon thereafter as
convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
stockholders may be called by the President or by order of the Board of
Directors, and shall be called by the Secretary (or in the case of the death,
absence, incapacity or refusal of the Secretary, by any other officer) upon
written application by one or more stockholders who together hold at least 50
percent in interest of the Capital stock entitled to vote at the meeting.
SECTION 3. PLACE AND HOUR OF MEETINGS. All meetings of
stockholders shall be held at the principal office of the corporation at 10:00
a.m. local time unless a different place or hour is fixed by the person or
persons calling the meeting and stated in the notice of the meeting.
Section 4. NOTICES OF MEETINGS AND ADJOURNED MEETINGS. A written
notice of each annual or special meeting of the stockholders stating the place,
date, and hour thereof, shall be given by the Secretary (or the person or
persons calling the meeting), not less than 10 nor more than 60 days before the
date of the meeting, to each stockholder entitled to vote thereat, by leaving
such notice with him or at his residence or usual place of business, or by
depositing it postage prepaid in the United States mail, directed to each
stockholder at his address as it appears on the records of the corporation. The
notice of a special meeting of the stockholders shall state the purpose or
purposes for which the meeting is called. An affidavit of the Secretary,
Assistant Secretary, or transfer agent of the corporation that the notice has
<PAGE>
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. No notice need be given to any person with whom communication
is unlawful or to any person who has waived such notice (a) in writing (which
writing need not specify the business to be transacted at, or the purpose of,
the meeting) signed by such person before or after the time of the meeting or
(b) by attending the meeting except for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken
except that, if the adjournment is for more than thirty days or if, after the
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given in the manner provided in this Section 4.
SECTION 5. QUORUM. At any meeting of the stockholders, a quorum
for the transaction of business shall consist of one or more individuals
appearing in person or represented by proxy and owning or representing a
majority of the shares of the corporation then outstanding and entitled to vote,
provided that less than such quorum shall have power to adjourn the meeting from
time to time.
SECTION 6. VOTING. Unless otherwise provided in the Certificate
of Incorporation and subject to the provisions of Section 10 of this Article I,
each stockholder shall have one vote for each share of stock entitled to vote
held by him of record according to the records of the corporation. Persons
holding stock in a fiduciary capacity shall be entitled to vote the shares so
held. Persons whose stock is pledged shall be entitled to vote unless in the
transfer by the pledgor on the books of the corporation he has expressly
empowered the pledgee to vote the pledged shares, in which case only the pledgee
or his proxy shall be entitled to vote. If shares stand of record in the names
of two or more persons or if two or more persons have the same fiduciary
relationship respecting the shares then, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided to the
contrary: (a) if only one votes, his act binds all; (b) if more than one vote,
the act of the majority so voting binds all; and (c) if more than one vote and
the vote is evenly split, the effect shall be as provided by law.
SECTION 7. PROXIES. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or any group of not more
than three persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period.
SECTION 8. ACTION AT MEETING. When a quorum is present at any
meeting, action of the stockholders on any matter properly brought before such
meeting shall require, and may be effected by, the affirmative vote of the
holders of a majority in interest of the
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<PAGE>
stock present or represented and entitled to vote and voting on such matter,
except where a different vote is required by law, the Certificate of
Incorporation or these By-Laws. If the Certificate of Incorporation so provides,
no ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
SECTION 9. STOCKHOLDER LISTS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 10. RECORD DATE.
In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date which shall
not precede the date such record date is fixed and shall not be more than 60 nor
less than ten days before the date of such meeting, nor more than 60 days prior
to any such other action. If no record is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given. The record date for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 11. ACTION BY WRITTEN CONSENT. All actions taken by
stockholders shall be taken at an annual or special meeting of stockholders in
accordance with the provisions of this Article I. No action by stockholders may
be taken by written consent or otherwise without a meeting.
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<PAGE>
SECTION 12. NOTIFICATION OF NOMINATIONS. Subject to the
provisions of Section 5 of Article II of these by-laws which permit a vacancy in
the board of directors to be filled by directors, only a stockholder of record
entitled to vote in the election of directors generally may nominate one or more
persons for election as directors at a meeting of stockholders and only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the corporation and has been received
by the Secretary in advance of the meeting of stockholders. In no event may
such notice of intention to nominate be made from the floor of the meeting of
stockholders.
Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person and persons specified
in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; and
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors.
To be effective, each notice of intent to make a nomination given hereunder
shall be accompanied by the written consent of each nominee to serve as a
director of the corporation if elected.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so determine,
he shall declare to the meeting that such nomination was not properly brought
before the meeting and shall not be considered.
SECTION 13. ADVANCE NOTICE OF STOCKHOLDER BUSINESS.
At any special meeting of stockholders only such business shall be
conducted as shall have been set forth in the notice of special meeting. At an
annual meeting of stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in
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<PAGE>
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (ii) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (iii) otherwise (a) properly
requested to be brought before the meeting by a stockholder of record entitled
to vote in the election of directors generally and (b) constitute a proper
subject to be brought before such meeting.
For business (other than the election of directors, which is addressed by
Section 12 of this Article I) to be properly brought before an annual meeting by
a stockholder, the stockholder must give notice in writing which is either
personally delivered to or mailed and received by the Secretary of the
corporation in advance of such meeting. In no event may such notice be given
from the floor of the meeting of stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter (other than the election of
directors, which is addressed by Section 12 of this Article I) the stockholder
proposes to bring before the annual meeting: (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the stockholder intending to propose
such business, (c) the class and number of shares of capital stock of the
corporation which are beneficially owned by the stockholder, (d) a
representation that the stockholder is a holder of record of capital stock of
the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to present such business, and (e) any material
interests of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall
be conducted at any annual meeting except in accordance with the procedures set
forth in Section 12 and this Section 13. The chairman of the annual meeting
shall, if the facts warrant, determine and declare to the meeting that (i) the
business proposed to be brought before the meeting was not a proper subject
therefor and/or (ii) such business was not properly brought before the meeting
in accordance with the provisions of this Section 13, and, if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting or not a proper subject therefor shall not be
transacted.
ARTICLE II
Directors
SECTION 1. POWERS. The business and affairs of the corporation
shall be managed by or under the direction of the Board of Directors.
SECTION 2. NUMBER OF DIRECTORS. The Board of Directors shall
consist of a number within the limits set forth in Article 10 of the
corporation's Certificate of Incorporation. The number of Directors shall be
fixed by the vote of a majority of the entire Board of Directors in each case
within the limits set forth in Article 10 of the corporation's
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Certificate of Incorporation. Any increase or decrease in the authorized number
of Directors shall be governed by the provisions of Section 5 below.
SECTION 3. ELECTION, CLASSES AND TENURE. The Board of Directors
shall be and is divided into three classes: Class I, Class II and Class III,
which shall be as nearly equal in number as possible; provided, however, that
the number of Directors in any one class shall not exceed the number of
Directors in any other class by more than one. Each Director shall serve for a
term ending on the date of the third annual meeting of stockholders following
the annual meeting at which the Director was elected; provided, however, that
each initial Director in Class I shall hold office until the annual meeting of
stockholders in 1996; and each initial Director in Class II shall hold office
until the annual meeting of stockholders in 1997; and each initial Director in
Class III shall hold office until the annual meeting of stockholders in 1998.
Notwithstanding the foregoing provisions of this Section 3, each Director shall
serve until his successor is duly elected and qualified or until his death,
resignation or removal. Notwithstanding the provisions of Sections 2, 3, 5 and
6 of this Article II, whenever the holders of any one or more classes or series
of stock issued by the corporation having a preference over the common stock as
to dividends or upon liquidiation shall have the right, voting separately by
class or series, to elect Directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, terms of
removal and other features of such directorships shall be governed by the terms
of Article 4 of the corporation's Certificate of Incorporation and the
resolution or resolutions establishing such class or series adopted pursuant
thereto and such Directors so elected shall not be divided into classes pursuant
to this Article II unless expressly provided by such terms.
SECTION 4. QUALIFICATION. No Director must be a stockholder.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. In the
event of any increase or decrease in the authorized number of Directors, the
newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of Directors so as to maintain such classes as nearly equal in number as
possible. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director. Newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled exclusively by the
affirmative vote of a majority of the remaining Directors then in office (and
not by stockholders), even if such remaining Directors constitute less than a
quorum of the Board of Directors, or by a sole remaining Director. Any Director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor is duly elected and qualified or until his death, resignation or
removal.
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SECTION 6. REMOVAL. Any Director may be removed from office
only for cause, and only upon the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of the corporation's stock.
SECTION 7. RESIGNATION. Any Director of the corporation may
resign at any time by giving written notice to the Board of Directors, to the
Chairman of the Board, if any, to the President, or to the Secretary, and any
member of a committee may resign therefrom at any time by giving notice as
aforesaid or to the Chairman or Secretary of such committee. Any such
resignation shall take effect at the time specified therein, or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 8. ANNUAL MEETING. Immediately after each annual
meeting of stockholders and at the place thereof, if a quorum of the Directors
is present, there shall be a meeting of the Directors without notice.
SECTION 9. REGULAR MEETINGS. Regular meetings of the Directors
may be held at such times and places as shall from time to time be fixed by
resolution of the Board, and no notice need be given of regular meetings held at
times and places so fixed, PROVIDED, HOWEVER, that any resolution relating to
the holding of regular meetings shall remain in force only until the next annual
meeting of stockholders and that, if at any meeting of Directors at which a
resolution is adopted fixing the times or place or places for any regular
meetings any Director is absent, no meeting shall be held pursuant to such
resolution without notice to or waiver by such absent Director pursuant to
Section 11 of this Article II.
SECTION 10. SPECIAL MEETINGS. Special meetings of the Directors
may be called by the Chairman of the Board (if any), the President, or by any
two Directors, and shall be held at the place and on the date and hour
designated in the call thereof.
SECTION 11. NOTICES. Notices of any special meeting of the
Directors shall be given by the Secretary or an Assistant Secretary to each
Director, by mailing to him, postage prepaid, and addressed to him at his
address as registered on the books of the corporation, or if not so registered
at his last known home or business address, a written notice of such meeting at
least four days before the meeting or by delivering such notice to him at least
48 hours before the meeting or by sending to him at least 48 hours before the
meeting, by prepaid telegram addressed to him at such address, notice of such
meeting. In the absence of all such officers, such notice may be given by the
officer or one of the Directors calling the meeting. Notice need not be given
to any Director who has waived notice (a) in writing executed by him before or
after the meeting and filed with the records of the meeting, or (b) by attending
the meeting except for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or
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convened. A notice or waiver of notice of a meeting of the Directors need not
specify the business to be transacted at or the purpose of the meeting.
SECTION 12. QUORUM. At any meeting of the Directors a majority
of the total number of Directors shall constitute a quorum for the transaction
of business; provided always that any number of Directors (whether one or more
and whether or not constituting a quorum) present at any meeting or at any
adjourned meeting may adjourn such meeting, provided that all absent Directors
receive or waive notice pursuant to Section 11 of Article II of any such
adjournment that exceeds four business days.
SECTION 13. ACTION AT MEETING. At any meeting of the Directors
at which a quorum is present, the action of the Directors on any matter brought
before the meeting shall be decided by vote of a majority of those present and
voting, unless a different vote is required by law, the Certificate of
Incorporation, or these By-Laws.
SECTION 14. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
SECTION 15. TELEPHONE MEETINGS. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of such Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 15 shall
constitute presence in person at such meeting.
SECTION 16. PLACE OF MEETINGS. The Board of Directors may hold
its meetings, and have an office or offices, within or without the State of
Delaware.
SECTION 17. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of Directors.
SECTION 18. COMMITTEES. (a) The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one 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. In the absence or disqualification of a member of a
committee, 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. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority
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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; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property or
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the By-Laws of the corporation. Such a
committee may, to the extent expressly provided in the resolution of the Board
of Directors, have the power or authority to declare a dividend or to authorize
the issuance of stock.
(b) At any meeting of any committee, a majority of the whole
committee shall constitute a quorum and, except as otherwise provided by
statute, by the Certificate of Incorporation, or by these By-Laws, the
affirmative vote of at least a majority of the members present at a meeting at
which there is a quorum shall be the act of the committee.
(c) Each committee, except as otherwise provided by resolution
of the Board of Directors, shall fix the time and place of its meetings within
or without the State of Delaware, shall adopt its own rules and procedures, and
shall keep a record of its acts and proceedings and report the same from time to
time to the Board of Directors.
ARTICLE III
Officers
SECTION 1. OFFICERS AND THEIR ELECTION. The officers of the
corporation shall be a President, a Secretary, a Treasurer and such Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers as
the Board of Directors may from time to time determine and elect or appoint.
The Board of Directors may appoint one of its members to the office of Chairman
of the Board and another of its members to the office of Vice-Chairman of the
Board and from time to time define the powers and duties of these offices
notwithstanding any other provisions of these By-Laws. The President, the
Secretary and the Treasurer shall be elected by the Board of directors at its
annual meeting or at the first meeting of the Board after the date fixed by
these By-Laws therefor and may, but need not, be members of the Board of
Directors. Two or more offices may be held by the same person.
SECTION 2. TERM OF OFFICE. The President, the Treasurer and the
Secretary shall, unless sooner removed under the provisions of these By-Laws,
hold office until the next annual election of officers and thereafter until
their respective successors are elected and qualified or until their earlier
resignation or removal. All other officers shall hold office for such term as
shall be determined from time to time by the Board of Directors.
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<PAGE>
SECTION 3. VACANCIES. Any vacancy at any time existing in any office
may be filled by the Directors.
SECTION 4. PRESIDENT. The President shall be the chief executive
officer of the corporation except as the Board of Directors may otherwise
provide. It shall be his duty and he shall have the power to see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall from time to time report to the Board of Directors all matters within his
knowledge which the interests of the corporation may require to be brought to
its notice. The President, when present, shall preside at all meetings of the
stockholders and of the Board of Directors, unless otherwise provided by the
Board of Directors. The President shall perform such duties and have such
powers additional to the foregoing as the Board of Directors shall designate.
SECTION 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
have the powers and duties expressly designated in these By-Laws and shall
perform such duties and have such powers additional thereto as the Board of
Directors shall designate.
SECTION 6. VICE PRESIDENTS. In the absence or disability of the
President, his powers and duties shall be performed by the Vice President, if
only one, or, if more than one, by the one designated for the purpose by the
Board of Directors. Each Vice President shall perform such duties and have such
powers additional to the foregoing as the Board of Directors shall designate.
SECTION 7. TREASURER. The Treasurer shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all monies and other valuable effects in the name and to the
credit of the corporation in such depositories as shall be designated by the
Board of Directors or in the absence of such designation in such depositories as
he shall from time to time deem proper. He shall disburse the funds of the
corporation as shall be ordered by the Board of Directors, taking proper
vouchers for such disbursements. He shall promptly render to the President and
to the Board of Directors such statements of his transactions and accounts as
the President and Board of Directors respectively may from time to time require.
The Treasurer shall Perform such duties and have such powers additional to the
foregoing as the Board of Directors may designate.
SECTION 8. ASSISTANT TREASURERS. In the absence or disability of the
Treasurer, his powers and duties shall be performed by the Assistant Treasurer,
if only one, or if more than one, by the one designated for the purpose by the
Board of Directors. Each Assistant Treasurer shall perform such duties and have
such powers additional to the foregoing as the Board of Directors shall
designate.
SECTION 9. SECRETARY. The Secretary shall issue notices of all
meetings of stockholders, of the Board of Directors and of committees thereof
where notices of such
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meetings are required by law or these By-Laws. He shall record the proceedings
of the meetings of the stockholders and of the Board of Directors and shall be
responsible for the custody thereof in a book to be kept for that purpose. He
shall also record the Proceedings of the committees of the Board of Directors
unless such committees appoint their own respective secretaries. Unless the
Board of Directors shall appoint a transfer agent and/or registrar, the
Secretary shall be charged with the duty of keeping, or causing to be kept,
accurate records of all stock outstanding, stock certificates issued and stock
transfers. He shall sign such instruments as require his signature. The
Secretary shall have custody of the corporate seal and shall affix and attest
such seal on all documents whose execution under seal is duly authorized. In
his absence at any meeting, an Assistant Secretary or the Secretary pro tempore
shall Perform his duties thereat. He shall perform such duties and have such
powers additional to the foregoing as the Board of Directors shall designate.
SECTION 10. ASSISTANT SECRETARIES. In the absence or disability of
the Secretary, his powers and duties shall be performed by the Assistant
Secretary, if only one, or, if more than one, by the one designated for the
purpose by the Board of Directors. Each Assistant Secretary shall perform such
duties and have such powers additional to the foregoing as the Board of
Directors shall designate.
SECTION 11. SALARIES. The salaries and other compensation of
officers, agents and employees shall be fixed from time to time by or under
authority from the Board of Directors. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
Director of the corporation.
SECTION 12. REMOVAL. The Board of Directors may remove any officer,
either with or without cause, at any time.
SECTION 13. BOND. The corporation may secure the fidelity of any or
all of its officers or agents by bond or otherwise.
SECTION 14. RESIGNATIONS. Any officer, agent or employee of the
corporation may resign at any time by giving written notice to the Board of
Directors, to the Chairman of the Board, if any, to the President or to the
Secretary of the corporation. Any such resignation shall take effect at the
time specified therein, or, if the time be not specified, upon receipt thereof;
and unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
ARTICLE IV
Capital Stock
SECTION 1. STOCK CERTIFICATES. Each stockholder shall be entitled to
have a certificate signed by, or in the name of the corporation by the Chairman
or Vice-Chairman of
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the Board or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary certifying the
number of shares owned by him in the corporation. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before the certificate is issued, such certificate may nevertheless be issued by
the corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
SECTION 2. CLASSES OF STOCK. If the corporation shall be authorized
to issue more than one class of stock or more than one series of any class, the
face or back of each certificate issued by the corporation to represent such
class or series shall either (a) set forth in full or summarize the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions thereof, or (b) contain a statement that the
corporation will furnish a statement of the same without charge to each
stockholder who so requests.
SECTION 3. TRANSFER OF STOCK. Shares of stock shall be transferable
on the books of the corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe. The
Board of Directors may at any time or from time to time appoint a transfer agent
or agents or a registrar or registrars for the transfer or registration of
shares of stock.
SECTION 4. HOLDERS OF RECORD. Prior to due presentment for
registration of transfer the corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice to the contrary.
SECTION 5. LOST, STOLEN, OR DESTROYED STOCK CERTIFICATES. The Board
of Directors may direct a new stock certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen, or destroyed upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates or his legal representative, to give the corporation
a bond sufficient to indemnify it against any claim that may be made against the
corporation on account of the alleged loss, theft, or destruction, of such
certificates or the issuance of such new certificate.
ARTICLE V
Miscellaneous Provisions
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SECTION 1. INTERESTED DIRECTORS AND OFFICERS. (a) No contract or
transaction between the corporation and one or more of its Directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum; or
(2) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the shareholders.
(b) Common or interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
SECTION 2. INDEMNIFICATION. To the maximum extent permitted by the
Delaware General Corporation Law, as the same may be in effect from time to
time, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a Director or officer of the corporation,
or is or was a Director or officer of the corporation serving at the request of
the corporation as a Director or officer of another entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with such action, suit, or proceeding. Nothing herein shall be
deemed to limit the power of the corporation to similarly indemnify employees or
agents of the corporation or persons who are serving at the request of the
corporation as a Director or officer of another entity but who are not Directors
or officers of the corporation.
SECTION 3. STOCK IN OTHER CORPORATIONS. Subject to any limitations
that may be imposed by the Board of Directors, the President or any person or
persons authorized by the Board of Directors may, in the name and on behalf of
the corporation, (a) call meetings of the
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holders of stock or other securities of any corporation or other organization,
stock or other securities of which are held by this corporation, (b) act, or
appoint any other person or persons (with or without powers of substitution) to
act in the name and on behalf of the corporation, or (c) express consent or
dissent, as a holder of such securities, to corporate or other action by such
other corporation or organization.
SECTION 4. CHECKS, NOTES, DRAFTS AND OTHER INSTRUMENTS. Checks,
notes, drafts and other instruments for the payment of money drawn or endorsed
in the name of the corporation may be signed by any officer or officers or
person or persons authorized by the Board of Directors to sign the same. No
officer or person shall sign any such instrument as aforesaid unless authorized
by the Board of Directors to do so.
SECTION 5. CORPORATE SEAL. The seal of the corporation shall be
circular in form, bearing the name of the corporation, the word "Delaware", and
the year of incorporation, and the same may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
SECTION 6. FISCAL YEAR. The fiscal year of the corporation shall be
the year ending with the 31st day of December.
SECTION 7. BOOKS AND RECORDS. The books, accounts and records of the
corporation, except as may be otherwise required by the laws of the State of
Delaware, may be kept outside of the State of Delaware, at such place or places
as the Board of Directors may from time to time appoint. Except as may
otherwise be provided by law, the Board of Directors shall determine whether and
to what extent the books, accounts, records and documents of the corporation, or
any of them, shall be open to the inspection of the stockholders.
SECTION 8. SEPARABILITY. If any term or provision of the By-Laws, or
the application thereof to any person or circumstances or period of time, shall
to any extent be invalid or unenforceable, the remainder of the By-Laws shall be
valid and enforced to the fullest extent permitted by law.
SECTION 9. AMENDMENTS. The By-Laws may be amended or repealed by the
stockholders or, if such power is conferred by the Certificate of Incorporation,
by the Board of Directors, except that any By-law added or amended by the
stockholders may be altered or repealed only by the stockholders if such By-law
expressly so provides.
0053373.01
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Exhibit 5
ANDREA M. TEICHMAN
Direct Line: 617-428-3540
June 2, 1995
HPSC, Inc.
60 State Street
Boston, MA 02109-1803
Gentlemen:
We have acted as counsel for HPSC, Inc., a Delaware corporation (the
"Company") with respect to a proposed offering (the "Offering") of a maximum of
550,000 shares of the Company's Common Stock, $.01 par value per share, to
eligible employees and non-employee directors of the Company pursuant to the
HPSC, Inc. 1995 Stock Incentive Plan (the "1995 Plan") which was adopted by the
Board of Directors of the Company on March 8, 1995 and ratified by the
stockholders of the Company on May 11, 1995. We have assisted you in the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") with respect to the Offering.
We have made such examination of law and have examined originals or copies,
certified or otherwise identified to our satisfaction, of such corporate records
and such other documents, including the 1995 Plan, as we have considered
relevant and necessary for the opinions hereinafter set forth.
Based on the foregoing, we express the following opinions:
1. The Common Stock has been duly authorized by all necessary corporate
action of the Company.
2. The 1995 Plan has been duly adopted by the Company.
3. The Common Stock upon issuance and delivery against payment as provided
in the 1995 Plan, will be validly issued, fully paid and non-assessable.
<PAGE>
HPSC, Inc.
June 2, 1995
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under "Item 5. INTERESTS OF
NAMED EXPERTS AND COUNSEL." in the Registration Statement.
Very truly yours,
HILL & BARLOW,
A PROFESSIONAL CORPORATION
By: /s/ Andrea M. Teichman
-----------------------------
Andrea M. Teichman, a
member of the firm
0140845.01
<PAGE>
Exhibit 24.2
[Logo]COOPERS COOPERS & LYBRAND L.L.P.
&LYBRAND
a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated March 15, 1995, which appears on page 14 of the
1994 Annual Report to Shareholders of HPSC, Inc., which is incorporated by
reference in HPSC, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1994. We also consent to the incorporation by reference of our report on
the Financial Statement Schedule, which appears on page F-1 of such Annual
Report on Form 10-K. We also consent to the reference to our firm under the
caption "Experts".
\s\Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 31, 1995
<PAGE>
Exhibit 99
HPSC, INC.
1995 STOCK INCENTIVE PLAN
AS ADOPTED MARCH 8, 1995
<PAGE>
TABLE OF CONTENTS
-----------------
1. Purpose; Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Stock Covered by the Plan. . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. Eligible Recipients; Automatic Grants to Non-Employee Directors. . . . . . 2
(a) Key Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Non-Employee Directors. . . . . . . . . . . . . . . . . . . . . . . . . 2
(i) Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(ii) Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(iii)Expiration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(iv) Other Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Duration of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. Terms and Conditions of Options and Restricted Stock Awards. . . . . . . . 3
(a) Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Number of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Performance Vesting and Other Terms of Restricted Stock Awards. . . . . 4
(i) Performance Vesting. . . . . . . . . . . . . . . . . . . . . . . . . 4
(ii) Forfeiture of Unvested Shares. . . . . . . . . . . . . . . . . . . . 5
(iii)Escrow of Unvested Shares. . . . . . . . . . . . . . . . . . . . . . 5
(iv) Stockholder Rights . . . . . . . . . . . . . . . . . . . . . . . . . 5
(v) Other Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Exercise of Options . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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<PAGE>
(f) Withholding Taxes; Delivery of Shares . . . . . . . . . . . . . . . . . 6
(g) Non-Transferability . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(h) Termination of Purchase Authorizations and Options. . . . . . . . . . . 7
(i) Rights as Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . 8
(j) Repurchase of Shares by the Company . . . . . . . . . . . . . . . . . . 8
(k) 10% Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(l) Confidentiality Agreements. . . . . . . . . . . . . . . . . . . . . . . 8
(m) Aggregate Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . 8
(n) Right to Terminate. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Restrictions on Incentive Options. . . . . . . . . . . . . . . . . . . . . 9
9. Suspension of Rights Prior to a Dissolution, Reorganization, Etc.. . . . . 9
10. Adjustment in Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. Investment Representations; Transfer Restrictions. . . . . . . . . . . . .10
12. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(a) "Board" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(b) "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . . . .10
(c) "Code". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(d) "Committee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(e) "Common Stock". . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(f) "Company" and "Company Group" . . . . . . . . . . . . . . . . . . . . .10
(g) "Director Option" . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(h) "Disability". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(i) "Effective Date". . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(j) "Employee". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(k) "Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
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<PAGE>
(l) "Exchange Act". . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(m) "Incentive Option". . . . . . . . . . . . . . . . . . . . . . . . . . .11
(n) "Market Price". . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(o) "Non-Employee Director" . . . . . . . . . . . . . . . . . . . . . . . .11
(p) "Non qualified Option". . . . . . . . . . . . . . . . . . . . . . . . .11
(q) "Option". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(r) "Participant" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(s) "Plan". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(t) "Purchase Authorization". . . . . . . . . . . . . . . . . . . . . . . .11
(u) "Service" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
(v) "Service Requirement" . . . . . . . . . . . . . . . . . . . . . . . . .12
(w) "Shares". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
(x) "Subsidiary". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
(y) "Vesting Conditions". . . . . . . . . . . . . . . . . . . . . . . . . .12
(z) "Vesting Period". . . . . . . . . . . . . . . . . . . . . . . . . . . .12
13. Termination or Amendment of Plan . . . . . . . . . . . . . . . . . . . . .12
14. Change in Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
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<PAGE>
As adopted 3/8/95
HPSC, INC.
1995 STOCK INCENTIVE PLAN
1. PURPOSE; RESTRICTIONS. The purpose of this HPSC, Inc. 1995 Stock
Incentive Plan (the "Plan") is to advance the interests of HPSC, Inc., a
Delaware corporation (the "Company"), and of its shareholders by strengthening
the ability of the Company to attract, retain and motivate key employees of the
Company or any present or future Subsidiary (1) of the Company (the Company and
all such Subsidiaries shall be collectively referred to as the "Company Group")
by providing such employees with an opportunity to purchase or receive as
bonuses stock of the Company and to attract, retain and motivate non-employee
directors of the Company by providing such directors with an opportunity to
purchase stock of the Company, thereby permitting such employees and directors
to share in the Company's success while aligning their interests with those of
the Company's shareholders. It is intended that this purpose will be effected
by granting (i) incentive stock options ("Incentive Options"), which are
intended to qualify under the provisions of Section 422 of the Code, and
non-statutory stock options ("Nonqualified Options"), which are not intended to
meet the requirements of Section 422 of the Code and which are intended to be
taxed upon exercise under Section 83 of the Code (both Incentive Options and
Nonqualified Options shall be collectively referred to as "Options") and
(ii) restricted stock awards that are subject to performance-vesting
requirements ("Restricted Stock Awards").
Notwithstanding the foregoing, no Incentive Options shall be granted under
this Plan unless this Plan shall have been approved by the stockholders of the
Company within twelve (12) months after the Effective Date.
2. EFFECTIVE DATE. This Plan was adopted on March 8, 1995, which is also
the Effective Date of the Plan.
3. STOCK COVERED BY THE PLAN. Subject to adjustment as provided in
Sections 9 and 10 below, the shares that may be made subject to Options or
Restricted Stock Awards under this Plan ("Shares") shall not exceed in the
aggregate 550,000 shares of the common stock, $.01 par value, of the Company
("Common Stock"). Any Shares subject to an Option or Restricted Stock Award
which for any reason expires or is terminated unexercised as to such Shares and
any Shares withheld or reacquired by the Company pursuant to withholding,
payment, forfeiture or a repurchase right hereunder may again be the subject of
an Option or Restricted Stock Award under the Plan. The Shares purchased or
issued under the Plan may, in whole or in part, be either authorized but
unissued Shares or issued Shares reacquired by the Company.
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(1) Capitalized terms not otherwise defined herein are defined in Section 12
below.
<PAGE>
4. ADMINISTRATION. This Plan shall be administered by the Compensation
Committee of the Board (the "Committee"); provided that each of the members of
the Committee shall be a person who in the opinion of counsel to the Company is
(i) a "disinterested person" as such term is used in Rule 16b-3 promulgated
under the Exchange Act and (ii) an "outside director" as such term is used in
proposed regulation Section 1.162.27(e)(3) under Section 162(m) of the Code.
The Committee shall have authority, subject to the express provisions of the
Plan, to construe the Plan and the respective Options, Restricted Stock Awards,
and related agreements, to prescribe, amend and rescind rules and regulations
relating to the Plan, to determine, within the limits of the Plan, the amounts,
times, forms, terms, conditions and status (as Incentive or Nonqualified
Options) of the respective Options, Restricted Stock Awards, and related
agreements (other than the terms and conditions of Director Options set forth in
Section 5(b)), and to make all other determinations in the judgment of the
Committee necessary or desirable for the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Option, Restricted Stock Award, or related
agreement in the manner and to the extent it shall deem expedient to carry the
Plan into effect, and it shall be the sole and final judge of such expediency.
Notwithstanding the foregoing, the Committee shall have authority to
establish guidelines for the grant of Options and Restricted Stock Awards to key
employees of the Company Group who are not executive officers of the Company and
to delegate to the Company's chief executive officer authority to grant Options
and Restricted Stock Awards, within such guidelines, to such eligible
non-executive key employees.
No member of the Committee and no delegate of the Committee shall be liable
for any action or determination under the Plan taken or made in good faith.
5. ELIGIBLE RECIPIENTS; AUTOMATIC GRANTS TO NON-EMPLOYEE DIRECTORS.
(a) KEY EMPLOYEES. Subject to the restrictions of this Plan, Options and
Restricted Stock Awards may be granted to such key employees of the Company
Group ("Employees"), including without limitation directors of the Company who
are Employees, as are selected by the Committee or (except as to Employees who
are Company executive officers) by the Committee's delegate pursuant to Section
4 above (an "Employee Participant" or a "Participant").
(b) NON-EMPLOYEE DIRECTORS. Subject to the restrictions of this Plan,
Nonqualified Options will be granted annually pursuant to this Section 5(b) to
each director of the Company who is a director on the date of grant and who is
not an Employee ("Non-Employee Directors"). Each Non-Employee Director who is
such at the conclusion of any regular annual meeting of the Company's
stockholders while this Plan is in effect and who will continue to serve on the
Board thereafter (a "Director Participant" or, unless the context otherwise
requires, a "Participant") shall receive on such date a Nonqualified Option to
purchase 1,000 Shares, subject to adjustment as
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<PAGE>
provided in Section 10 below (a "Director Option"). Each Director Option shall
be subject to the following terms and conditions:
(i) PRICE. The purchase price per Share payable upon the exercise of
a Director Option shall be one hundred percent (100%) of the Market Price per
Share on the date of grant of the Director Option.
(ii) EXERCISE. Each Director Option shall be exercisable for the full
amount or for any part thereof immediately on the date of grant. Any
unexercised portion of a Director Option may be subsequently exercised for the
full amount or for any part thereof at any time and from time to time (until
exhausted) prior to the expiration or other termination of the Option.
(iii) EXPIRATION. Each Director Option shall terminate and may no
longer be exercised upon the earliest of (1) ten years after the date of grant,
(2) six months after termination of the Participant's Service due to death or
Disability, (3) three months after termination of the Participant's Service for
any other reason except termination for cause, and (4) immediately upon
termination of the Participant's Service for cause. The Board's good faith
determination of whether the termination of a Director Participant's Service was
for cause shall be binding for purposes of the Plan.
(iv) OTHER TERMS. Each Director Option shall be subject to all other
terms of the Plan (including without limitation the terms of Sections 7, 9, 10
and 11) except to the extent that such terms are inconsistent with the express
provisions of this Section 5(b).
6. DURATION OF THE PLAN. This Plan shall terminate ten years from the
Effective Date hereof, unless terminated earlier pursuant to Section 13 below,
and no Options or Restricted Stock Awards may be granted or made thereafter.
7. TERMS AND CONDITIONS OF OPTIONS AND RESTRICTED STOCK AWARDS. Options
and Restricted Stock Awards granted or made under this Plan shall be evidenced
by grant forms or agreements in such form and containing such terms and
conditions as the Committee or (except as to grants and awards to Employees who
are Company executive officers) the Committee's delegate shall determine;
provided, however, that such grant forms and agreements shall evidence among
their terms and conditions the following:
(a) PRICE. The purchase price per Share payable upon the exercise of
each Option (other than a Director Option) or the consideration (if any) in
addition to services of the Participant required pursuant to each Restricted
Stock Award granted or made hereunder shall be determined by the Committee at
the time the Option or Restricted Stock Award is granted or made subject to the
following restrictions. Subject to Section 7(k)(i), if applicable, the purchase
price per Share payable upon the exercise of each Incentive Option granted
hereunder shall not be less than one hundred percent (100%) of the Market Price
per Share on the day the Incentive Option is granted. The purchase price per
Share payable upon the exercise of each Nonqualified Option granted
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<PAGE>
hereunder shall be not less than eighty-five percent (85%) of the Market Price
per Share on the date of the grant. Restricted Stock Awards may be issued in
consideration of services to be rendered, which shall be valued for such
purposes by the Committee. No Share shall be issued for less than its par
value, if any, paid in cash, property or services.
(b) NUMBER OF SHARES. Each grant or award form or agreement shall
specify the number of Shares to which it pertains.
(c) PERFORMANCE VESTING AND OTHER TERMS OF RESTRICTED STOCK AWARDS.
All Shares covered by a Restricted Stock Award will be issued promptly after the
date of grant of the award, subject to the following terms and conditions:
(i) PERFORMANCE VESTING. Such Shares shall remain unvested and
subject to the restrictions of this Section 7(c) until such time (if at all) as
one or both of the following vesting conditions (the "Vesting Conditions") are
met within the period of five years beginning on the date of grant of the
Restricted Stock Award (the "Vesting Period").
The Partial Vesting Condition is met when the closing price of a
share of the Common Stock as reported on the NASDAQ National Market System for a
consecutive ten-day period equals or exceeds 134.175% of the Market Price of a
share on the first day of the Vesting Period. If the Partial Vesting Condition
is met for a Restricted Stock Award and the Participant also meets the Service
requirement defined below (the "Service Requirement"), fifty percent (50%) of
the Shares covered by the award shall thereupon vest in the Participant and the
restrictions of this Section 7(c) shall terminate with respect to such vested
Shares (but not with respect to the remaining unvested Shares), subject to
payment by the Participant of any additional consideration required under the
Restricted Stock Award. The Service Requirement is met by continuous Service;
provided that if a Participant's Service is terminated without cause or by
reason of death or Disability, the Participant shall be deemed to meet the
Service Requirement until the first day of the fifth month following such
termination. The Committee's good faith determination of whether the
termination of a Participant's Service (other than a Director Participant's
Service) was without cause or for cause shall be binding for purposes of the
Plan.
The Full Vesting Condition is met when the closing price of a
share of the Common Stock as reported on the NASDAQ National Market System for a
consecutive ten-day period equals or exceeds 168.35% of the Market Price of a
share on the first day of the Vesting Period. If the Full Vesting Condition is
met and the Participant also meets the Service Requirement, the remaining fifty
percent (50%) or, if the Partial Vesting Condition was not previously met, then
one hundred percent (100%) of the Shares covered by the award shall thereupon
vest in the Participant and the restrictions of this Section 7(c) shall
terminate, subject to payment by the Participant of any additional consideration
required under the Restricted Stock Award.
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<PAGE>
Notwithstanding any of the foregoing, if a Change in Control of
the Company occurs during the Vesting Period of a Restricted Stock Award and
before the date of forfeiture pursuant to this Section 7(c) of Shares covered by
the award, all unvested Shares covered by the award shall thereupon vest in the
Participant and the restrictions of this Section 7(c) shall terminate, subject
to payment by the Participant of any additional consideration required (without
regard to the occurrence of a Change in Control) in the Restricted Stock Award.
(ii) FORFEITURE OF UNVESTED SHARES. If any Shares covered by a
Restricted Stock Award to a Participant remain unvested at the end of the
Vesting Period or if any such Shares remain unvested at a time during the
Vesting Period when the Participant fails to meet the Service Requirement, such
Shares shall thereupon be forfeited to the Company without any further action by
the Company or the Participant and for no consideration other than the amount
(if any) of cash or other property paid by the Participant for such Shares. A
Participant shall be deemed to fail to meet the Service Requirement on the first
day of the fifth month following termination of his or her Service without cause
or by reason of death or Disability and on the date of termination of his or her
Service for any other reason (including without limitation, termination for
cause and any voluntary termination by the Participant).
(iii) ESCROW OF UNVESTED SHARES. While Shares covered by a
Restricted Stock Award remain unvested, they shall be held in escrow by the
Company in certificate or book-entry form and they may not be sold,
hypothecated, or otherwise disposed of by the Participant or anyone claiming
through him or her.
(iv) STOCKHOLDER RIGHTS. Subject to the restrictions of this
Section 7(c), each Participant shall enjoy all the benefits of ownership with
respect to all Shares covered by a Restricted Stock Award (including the rights
to vote such Shares and to receive dividends thereon), regardless of whether
such Shares are vested or unvested; provided that all such rights shall
immediately cease with respect to any unvested Shares upon the forfeiture of
such Shares.
(v) OTHER TERMS. Each Restricted Stock Award shall be subject
to all other terms of the Plan (including without limitation the other terms of
this Section 7 and of Sections 9, 10 and 11) and of any form or agreement
embodying the award, except to the extent that such terms are inconsistent with
the express provisions of this Section 7(c).
(d) EXERCISE OF OPTIONS. Each Option (other than a Director Option)
shall be exercisable for the full amount or for any part thereof at such time or
at such intervals and in such installments as the Committee (or its delegate, if
applicable) may determine at the time it grants such Option; provided, however,
that no Option shall be exercisable with respect to any Shares later than ten
years after the date of the grant of such Option (or five years in the case of
Incentive Options to which Section 7(k)(ii) applies) and provided, further, that
each outstanding Option shall become immediately exercisable for the full amount
or any part thereof upon the occurrence of a Change in
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<PAGE>
Control of the Company. An Option shall be exercisable only by delivery of a
written notice to the Company's Treasurer, or any other officer of the Company
designated by the Committee to accept such notices on its behalf, specifying the
number of Shares for which the Option is exercised and accompanied by either
(i) payment or (ii) if permitted by the Committee, irrevocable instructions to a
broker to promptly deliver to the Company full payment in accordance with
Section 7(e)(ii) below of the amount necessary to pay the aggregate exercise
price. With respect to an Incentive Option, the permission of the Committee
referred to in clause (ii) of the preceding sentence must be granted at the time
the Incentive Option is granted.
(e) PAYMENT. Payment shall be made in full (i) at the time the
Option is exercised, (ii) promptly after the Participant forwards the
irrevocable instructions referred to in Section 7(d)(ii) above to the
appropriate broker, if exercise of an Option is made pursuant to Section
7(d)(ii) above, or (iii) at the time specified in the Restricted Stock Award if
any payment is required pursuant to the Award. Payment shall be made either (I)
in cash, (II) by check, (III) if permitted by the Committee (with respect to an
Incentive Option, such permission to have been granted at the time of the
Incentive Option grant), by delivery and assignment to the Company of shares of
Company stock having a fair market value (as determined by the Committee) equal
to the exercise or purchase price, or (IV) by a combination of one or more of
the foregoing methods. If shares of Company stock are to be used to pay the
exercise price of an Incentive Option, the Company prior to such payment must be
furnished with evidence satisfactory to it that the acquisition of such shares
and their transfer in payment of the exercise price satisfy the requirements of
Section 422 of the Code and other applicable laws.
(f) WITHHOLDING TAXES; DELIVERY OF SHARES. The Company's obligation
to deliver Shares upon exercise of an Option or pursuant to a Restricted Stock
Award shall be subject to the Participant's satisfaction of all applicable
federal, state and local income and employment tax withholding obligations.
Without limiting the generality of the foregoing, the Company shall have the
right to deduct from payments of any kind otherwise due to the Participant any
federal, state or local taxes of any kind required by law to be withheld with
respect to any Shares issued upon exercise of Options or pursuant to Restricted
Stock Awards. Furthermore, to the extent possible, each Participant shall
satisfy such obligations by having the Company withhold vested and unrestricted
Shares or by delivering to the Company already owned unrestricted Shares, having
a value equal to the amount required to be withheld, as determined by the
Committee.
(g) NON-TRANSFERABILITY. No Option or Restricted Stock Award shall
be transferable by the Participant otherwise than by will or the laws of descent
or distribution, and each Option shall be exercisable during the Participant's
lifetime only by the Participant.
(h) TERMINATION OF RESTRICTED STOCK AWARDS AND OPTIONS. Each
Restricted Stock Award shall be subject to the termination and forfeiture
provisions of Section 7(c) above. Except to the extent the Committee provides
specifically in a grant
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<PAGE>
form or Option agreement for a lesser period (or a greater period, in the case
of Nonqualified Options only), each Option (other than a Director Option) shall
terminate and may no longer be exercised if the Participant ceases for any
reason to render continuous Service, in accordance with the following
provisions:
(i) if the Participant ceases to render Service for any reason
other than death, Disability or termination for cause, the Participant
may, at any time within a period of three months after the date of
such cessation of Service, exercise the Option to the extent that the
Option was exercisable on the date of such cessation;
(ii) if the Participant ceases to render Service because of
termination for cause, the Option shall terminate immediately and may
no longer be exercised on and after the date of such termination for
cause;
(iii) if the Participant ceases to render Service because of
Disability, the Participant may, at any time within a period of six
months after the date of such cessation of Service, exercise the
Option to the extent that the Option was exercisable on the date of
such cessation; and
(iv) if the Participant ceases to render Service because of
death, the Option, to the extent that the Participant was entitled to
exercise it on the date of death, may be exercised within a period of
six months after the Participant's death by the person or persons to
whom the Participant's rights under the Option pass by will or by the
laws of descent or distribution;
provided, however, that no Option may be exercised to any extent by anyone after
the date of its expiration; and provided, further, that Options may be exercised
at any time only as to Shares which at such time are available for acquisition
pursuant to the terms of the applicable grant form or agreement.
(i) RIGHTS AS STOCKHOLDER. A Participant shall have no rights as a
stockholder with respect to any Shares covered by an Option until the date of
issuance of a stock certificate in the Participant's name for such Shares. A
Participant shall have such rights as a stockholder with respect to any Shares
covered by a Restricted Stock Award as are provided in Section 7(c) above.
(j) REPURCHASE OF SHARES BY THE COMPANY. Any Shares acquired upon
exercise of an Option (other than a Director Option) may in the discretion of
the Committee be subject to repurchase by or forfeiture to the Company if and to
the extent and at the repurchase price, if any, specifically set forth in the
Option grant form or agreement pursuant to which the Shares were acquired.
Certificates representing Shares subject to such repurchase or forfeiture may be
subject to such escrow and stock legending provisions as may be set forth in the
Option grant form or agreement pursuant to which the Shares were acquired. Any
Shares issued pursuant to a Restricted Stock
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<PAGE>
Award shall be subject to such forfeiture to the Company and to such escrow
provisions as are specified in Section 7(c) above and may be subject to such
additional repurchase and forfeiture rights and escrow and stock legending
provisions as the Committee (in its discretion) may set forth in any form or
agreement embodying the award.
(k) 10% STOCKHOLDER. If any Participant to whom an Incentive Option
is granted pursuant to the provisions of the Plan is on the date of grant the
owner of stock (as determined under Section 424(d) of the Code) possessing more
than ten percent (10%) of the total combined voting power or value of all
classes of stock of the Company, its parent, if any, or Subsidiaries, then the
following special provisions shall be applicable:
(i) The exercise price per Share subject to such Option shall
not be less than one hundred and ten percent (110%) of the Market
Price of each Share on the date of grant; and
(ii) The Option shall not have a term in excess of five years
from the date of grant.
(l) CONFIDENTIALITY AGREEMENTS. Each Participant shall execute,
prior to or contemporaneously with the grant of any Option or Restricted Stock
Award hereunder, the Company's then standard form of agreement, if any, relating
to nondisclosure of confidential information, assignment of inventions and
related matters.
(m) AGGREGATE LIMITATION. The maximum number of Shares with respect
to which any Options and Restricted Stock Awards may be granted under the Plan
to any individual during each successive twelve-month period commencing on the
Effective Date of the Plan shall not exceed 200,000 shares.
(n) RIGHT TO TERMINATE. Nothing contained in the Plan or in any
Option or Restricted Stock Award granted hereunder shall restrict the right of
any member of the Company Group to terminate the employment of any Participant
or other Service by the Participant at any time and for any reason, with or
without notice. Nothing contained in the Plan or in any Option granted
hereunder shall give any Non-Employee Director the right to continue in Service
as a director.
8. RESTRICTIONS ON INCENTIVE OPTIONS. Incentive Options granted under
this Plan shall be specifically designated as such and shall be subject to the
additional restriction that the aggregate Market Price, determined as of the
date the Incentive Option is granted, of the Shares with respect to which
Incentive Options are exercisable for the first time by a Participant during any
calendar year shall not exceed $100,000. If an Incentive Option which exceeds
the $100,000 limitation of this Section 8 is granted, the portion of such Option
which is exercisable for Shares in excess of the $100,000 limitation shall be
treated as a Nonqualified Option pursuant to Section 422(d) of the Code. In
the event that such Participant is eligible to participate in any other stock
incentive plans of the Company, its parent, if any, or a Subsidiary which are
also intended to comply with the provisions of Section 422 of the Code, such
annual limitation shall
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<PAGE>
apply to the aggregate number of shares for which options may be granted under
all such plans.
9. SUSPENSION OF RIGHTS PRIOR TO A DISSOLUTION, REORGANIZATION, ETC.
Prior to any dissolution, liquidation, merger, consolidation or reorganization
of the Company as to which the Company will not be the surviving corporation, or
the sale or exchange of substantially all of the Common Stock or the sale of
substantially all of the assets of the Company (the "Event"), unless such Event
would constitute a Change in Control of the Company, the Board or the Committee
may decide to terminate each outstanding Option and Restricted Stock Award. If
the Board or the Committee so decides, each Option (including Director Options)
and Restricted Stock Award shall terminate as of the effective date of the
Event, but the Board or the Committee shall suspend the exercise of all
outstanding Options a reasonable time prior to the Event, giving each person
affected thereby not less than fourteen days written notice of the date of
suspension, prior to which date such person may purchase in whole or in part the
Shares otherwise available to him or her as of the date of purchase. If the
Event is not consummated, the suspension shall be removed and all Options and
Restricted Stock Awards shall continue in full force and effect, subject to
their terms.
10. ADJUSTMENT IN SHARES. Appropriate adjustment shall be made by the
Committee in the maximum number of Shares subject to the Plan and in the number,
kind, and exercise or purchase price of Shares covered by outstanding Options
and Restricted Stock Awards granted hereunder and in the number and kind of
Shares in each Director Option subsequently granted pursuant to Section 5(b) to
give effect to any stock dividends, stock splits, stock combinations,
recapitalizations and other similar changes in the capital structure of the
Company after the Effective Date of the Plan. In the event of a change of the
Common Stock resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, the number and kind of Shares which
thereafter may be purchased pursuant to an Option or issued pursuant to a
Restricted Stock Award under the Plan and the number and kind of Shares then
subject to Options or Restricted Stock Awards granted hereunder and the price
per Share thereof shall be appropriately adjusted in such manner as the
Committee may deem equitable to prevent dilution or enlargement of the rights
available or granted hereunder.
11. INVESTMENT REPRESENTATIONS; TRANSFER RESTRICTIONS. The Company may
require Participants, as a condition of purchasing Shares pursuant to the
exercise of an Option or of receiving Shares pursuant to a Restricted Stock
Award, to give written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring the Shares for the
Participant's 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 (including without limitation
confirmation that the Participant is aware of any applicable restrictions on
transfer of the Shares, as specified in the by-laws of the Company or otherwise)
in order to comply with federal and applicable state securities laws.
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12. DEFINITIONS.
(a) "BOARD" means the Board of Directors of the Company.
(b) "CHANGE IN CONTROL" has the meaning defined in Section 14 below.
(c) "CODE" means the Internal Revenue Code of 1986, as heretofore and
hereafter amended, and the regulations promulgated thereunder.
(d) "COMMITTEE" has the meaning defined in Section 4 above.
(e) "COMMON STOCK" has the meaning defined in Section 3 above.
(f) "COMPANY" AND "COMPANY GROUP" have the meanings defined in
Section 1 above.
(g) "DIRECTOR OPTION" has the meaning defined in Section 5(b) above.
(h) "DISABILITY" has the meaning defined in Section 22(e)(3) of the
Code.
(i) "EFFECTIVE DATE" has the meaning defined in Section 2 above.
(j) "EMPLOYEE" has the meaning defined in Section 5(a) above.
(k) "EVENT" has the meaning defined in Section 9 above.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
heretofore and hereafter amended.
(m) "INCENTIVE OPTION" has the meaning defined in Section 1 above.
(n) "MARKET PRICE" means the closing price of the Common Stock as
reported on the NASDAQ National Market System for the relevant date (or, if such
date is not a trading date or if no trades took place on such date, then such
closing price for the last previous trading date or the last previous date on
which a trade occurred, as the case may be); provided that if the Common Stock
is no longer traded on the NASDAQ National Market System on the relevant date,
then the Market Price as of such date shall be as determined by the Board.
(o) "NON-EMPLOYEE DIRECTOR" has the meaning defined in Section 5(b)
above.
(p) "NONQUALIFIED OPTION" has the meaning defined in Section 1 above.
(q) "OPTION" has the meaning defined in Section 1 above.
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(r) "PARTICIPANT" has the meaning defined in Section 5 above.
(s) "PLAN" has the meaning defined in Section 1 above.
(t) "RESTRICTED STOCK AWARD" has the meaning defined in Section 1
above.
(u) "SERVICE" means the performance of work for one or more members
of the Company Group as an Employee or service as a Non-Employee Director of the
Company.
(v) "SERVICE REQUIREMENT" has the meaning defined in Section 7(c)
above.
(w) "SHARES" has the meaning defined in Section 3 above.
(x) "SUBSIDIARY" has the meaning defined in Section 424(f) of the
Code.
(y) "VESTING CONDITIONS", "Partial Vesting Condition" and "Full
Vesting Condition" have the meanings defined in Section 7(c) above.
(z) "VESTING PERIOD" has the meaning defined in Section 7(c) above.
13. TERMINATION OR AMENDMENT OF PLAN. The Board may by written action at
any time terminate the Plan or make such changes in or additions or deletions to
the Plan as it deems advisable without further action on the part of the
stockholders of the Company, provided:
(a) that no such termination or amendment shall adversely affect or
impair any then outstanding Option or Restricted Stock Award or related
agreement without the consent of the Participant holding such Option or
Restricted Stock Award or related agreement; and
(b) that no such amendment which (i) increases the maximum number of
Shares subject to this Plan (except to the extent provided in Sections 9 and
10), (ii) materially increases the benefits accruing to Participants, (iii)
materially modifies the requirements as to eligibility for participation in the
Plan, (iv) changes any of the terms governing Director Options expressly set
forth in Section 5(b) of this Plan, or (v) makes any other change which,
pursuant to the Code or regulations thereunder or Section 16(b) of the Exchange
Act and the rules and regulations thereunder, requires action by the
stockholders may be made without obtaining, or being conditioned upon,
stockholder approval; and
(c) that no such amendment which would change the amount, timing or
price of the Director Option grants made to Non-Employee Directors hereunder may
be made more often than once every six months except to comport with changes in
the
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Code, the Employee Retirement Income Security Act of 1974, as amended, or the
applicable rules and regulations thereunder.
With the consent of the Participant affected, the Committee may amend
outstanding Options or Restricted Stock Awards or related agreements in a manner
not inconsistent with the Plan. The Committee shall have the right to amend or
modify the terms and provisions of the Plan and of any outstanding Incentive
Options granted under the Plan to the extent necessary to qualify any or all
such Options for such favorable federal income tax treatment (including deferral
of taxation upon exercise) as may be afforded incentive stock options under
Section 422 of the Code.
14. CHANGE IN CONTROL. A change in control of the Company (a "Change in
Control") will occur upon:
(a) The acquisition by any individual, entity or group (within the meaning
of Sections 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20 percent or more of either (i) the then outstanding shares of the Common
Stock or (ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of the
directors (the "Outstanding Company Voting Securities"); provided, however, that
the following acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company (excluding an acquisition by virtue of the
exercise of a conversion privilege); (B) any acquisition by the Company or by
any corporation controlled by the Company; (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or (D) any acquisition by any corporation
pursuant to a consolidation or merger, if, following such consolidation or
merger, the conditions described in clauses (i), (ii), and (iii) of paragraph
(c) of this Section 14 are satisfied; or
(b) Individuals who, as of the Effective Date, constitute the Board (the
"Incumbent Board") ceasing for any reason to constitute at least two-thirds of
the Board over any period of 24 consecutive months or less; provided, however,
that any individual becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Company's shareholders, was approved
by a vote or resolution of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Adoption by the Board of a resolution approving an agreement of
consolidation of the Company with or merger of the Company into another
corporation or business entity in each case, unless, following such
consolidation or merger, (i) more than 60 percent of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
consolidation or merger and/or the combined voting
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power of the then outstanding voting securities of such corporation or business
entity entitled to vote generally in the election of directors (or other persons
having the general power to direct the affairs of such entity) is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Common Stock and Outstanding Company Voting Securities immediately prior to such
consolidation or merger in substantially the same proportions as their
ownership, immediately prior to such consolidation or merger, of the Common
Stock and/or Outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding the Company, any employee benefit plan (or related trust) of
the Company or such corporation or other business entity resulting from such
consolidation or merger and any Person beneficially owning, immediately prior to
such consolidation or merger, directly or indirectly, 35 percent or more of the
Common Stock and/or Outstanding Company Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 35 percent or more of, respectively,
the then outstanding shares of common stock of the corporation resulting from
such consolidation or merger or the combined voting power of the then
outstanding voting securities of such corporation or business entity entitled to
vote generally in the election of its directors (or other persons having the
general power to direct the affairs of such entity) and (iii) at least two-
thirds of the members of the board of directors (or other group of persons
having the general power to direct the affairs of the corporation or other
business entity) resulting from such consolidation or merger were members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such consolidation or merger; provided that any right which shall vest by
reason of the action of the Board pursuant to this paragraph (c) shall be
divested, with respect to any such right not already exercised, upon (A) the
rejection of such agreement of consolidation or merger by the stockholders of
the Company or (B) its abandonment by either party thereto in accordance with
its terms; or
(d) Adoption by the requisite majority of the whole Board, or by the
holders of such majority of stock of the Company as is required by law or by the
Certificate of Incorporation or By-Laws of the Company as then in effect, of a
resolution or consent authorizing (i) the dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the assets of the
Company, other than to a corporation or other business entity with respect to
which, following such sale or other disposition, (A) more than 60 percent of,
respectively, the then outstanding shares of common stock of such corporation
and/or the combined voting power of the outstanding voting securities of such
corporation or other business entity entitled to vote generally in the election
of directors (or other persons having the general power to direct the affairs of
such entity) is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition in substantially
the same proportions as their ownership, immediately prior to such sale or other
disposition, of the Common Stock and/or Outstanding Company Voting securities,
as the case may be, (B) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or such corporation or other
business entity and any Person beneficially owning, immediately prior to such
sale or other disposition, directly or indirectly, 35 percent or more of the
Common Stock and/or
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Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35 percent or more of, respectively, the then
outstanding shares of common stock of such corporation and/or the combined
voting power of the then outstanding voting securities of such corporation or
other business entity entitled to vote generally in the election of directors
(or other persons having the general power to direct the affairs of such entity)
and (C) at least two-thirds of the members of the board of directors (or other
group of persons having the general power to direct the affairs of such
corporation or other entity) were members of the Incumbent Board at the time of
the execution of the initial agreement or action of the Board providing for such
sale or other disposition of assets of the Company; provided that any right
which shall vest by reason of the action of the Board or the stockholders
pursuant to this paragraph (d) shall be divested, with respect to any such right
not already exercised, upon the abandonment by the Company of such dissolution,
or such sale or other disposition of assets, as the case may be.
A Change in Control shall not occur upon the mere reincorporation of the
Company in another state.
0130667.01
